Exhibit 3.3
BYLAWS
OF
DRIL-QUIP, INC.
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of Dril-Quip, Inc. (the
"Corporation") required by the General Corporation Law of the State of
Delaware or any successor statute (the "DGCL"), to be maintained in the
State of Delaware, shall be the registered office named in the Certificate
of Incorporation of the Corporation, as it may be amended or restated in
accordance with the DGCL from time to time (the "Certificate of
Incorporation"), or such other office as may be designated from time to
time by the Board of Directors of the Corporation (the "Board of
Directors") in the manner provided by law. Should the Corporation maintain
a principal office within the State of Delaware such registered office
need not be identical to such principal office of the Corporation.
1.2 Other Offices. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors
may determine from time to time or as the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at such place
within or without the State of Delaware as may be designated by the Board
of Directors or the officer calling the meeting.
2.2 Annual Meeting. An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire and for the transaction of
such other business as may properly come before the meeting, shall be held
at such place, within or without the State of Delaware, on such date, and
at such time as the Board of Directors shall fix and set forth in the
notice of the meeting, which date shall be within thirteen months
subsequent to the last annual meeting of stockholders. At the annual
meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the annual meeting as set forth in
Section 2.8 hereof. Failure to hold the annual meeting at the designated
time shall not work a dissolution of the Corporation.
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2.3 Special Meetings. Special meetings of the stockholders may be called at
any time by the Chairman of the Board, the President (if any) or the Board
of Directors pursuant to a resolution approved by the affirmative vote of
a majority of the entire Board of Directors. Upon written request of any
person or persons who have duly called a special meeting, it shall be the
duty of the Secretary of the Corporation to fix the date of the meeting to
be held not less than ten nor more than 60 days after the receipt of the
request and to give due notice thereof. If the Secretary shall neglect or
refuse to fix the date of the meeting and give notice thereof, the person
or persons calling the meeting may do so. Every special meeting of the
stockholders shall be held at such place within or without the State of
Delaware as the Board of Directors may designate, or, in the absence of
such designation, at the registered office of the Corporation in the State
of Delaware.
2.4 Notice of Meeting. Written or printed notice of all meetings stating the
place, day and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, President (if any) or Secretary of the Corporation,
to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered to a stockholder when deposited in
the United States mail addressed to such stockholder at such stockholder's
address as it appears on the stock transfer records of the Corporation,
with postage thereon prepaid.
2.5 Registered Holders of Shares; Closing of Share Transfer Records; and
Record Date.
(a) Registered Holders as Owners. Unless otherwise provided under
Delaware law, the Corporation may regard the person in whose name any
shares issued by the Corporation are registered in the stock transfer
records of the Corporation at any particular time (including, without
limitation, as of a record date fixed pursuant to paragraph (b) of
this Section 2.5) as the owner of those shares at that time for
purposes of voting those shares, receiving distributions thereon or
notices in respect thereof, transferring those shares, exercising
rights of dissent with respect to those shares, entering into
agreements with respect to those shares, or giving proxies with
respect to those shares; and neither the Corporation nor any of its
officers, directors, employees or agents shall be liable for
regarding that person as the owner of those shares at that time for
those purposes, regardless of whether that person possesses a
certificate for those shares.
(b) Record Date. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a share
dividend, or in order to make a determination of stockholders for any
other proper purpose, the Board of Directors may fix in advance a
date as the record date for
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any such determination of stockholders, such date in any case to be
not more than 60 days and, in the case of a meeting of stockholders,
not less than ten days, prior to the date on which the particular
action requiring such determination of stockholders is to be taken.
The Board of Directors shall not close the books of the Corporation
against transfers of shares during the whole or any part of such
period.
If the Board of Directors does not fix a record date for any meeting of
the stockholders, the record date for determining stockholders entitled to
notice of or to vote at such meeting shall be at the close of business on
the day next preceding the day on which notice is given, or, if in
accordance with Section 7.3 of these Bylaws notice is waived, at the close
of business on the day next preceding the day on which the meeting is
held.
2.6 Quorum of Stockholders; Adjournment. Unless otherwise provided in the
Certificate of Incorporation, a majority of the outstanding shares of
capital stock of the Corporation entitled to vote, present in person or
represented by proxy, shall constitute a quorum at any meeting of the
stockholders, and the stockholders present at any duly convened meeting
may continue to do business until adjournment notwithstanding any
withdrawal from the meeting of holders of shares counted in determining
the existence of a quorum. Unless otherwise provided in the Certificate of
Incorporation or these Bylaws, any meeting of the stockholders may be
adjourned from time to time by the chairman of the meeting or the holders
of a majority of the issued and outstanding stock, present in person or
represented by proxy, whether or not a quorum is present, without notice
other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be
present any action may be taken that could have been taken at the meeting
originally called; provided that if the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the adjourned meeting.
2.7 Voting by Stockholders.
(a) Voting on Matters Other than the Election of Directors. With respect
to any matters as to which no other voting requirement is specified
by the DGCL, the Certificate of Incorporation or these Bylaws, the
affirmative vote required for stockholder action shall be that of a
majority of the shares present in person or represented by proxy at
the meeting (as counted for purposes of determining the existence of
a quorum at the meeting). In the case of a matter submitted for a
vote of the stockholders as to which a stockholder approval
requirement is applicable under the stockholder approval policy of
any stock exchange or quotation system on which the capital stock of
the Corporation is traded or quoted, the requirements of Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any provision of the Internal Revenue Code, in each case
for
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which no higher voting requirement is specified by the DGCL, the
Certificate of Incorporation or these Bylaws, the vote required for
approval shall be the requisite vote specified in such stockholder
approval policy, Rule 16b-3 or Internal Revenue Code provision, as
the case may be (or the highest such requirement if more than one is
applicable). For the approval of the appointment of independent
public accountants (if submitted for a vote of the stockholders), the
vote required for approval shall be a majority of the votes cast on
the matter.
(b) Voting in the Election of Directors. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws in accordance with the
DGCL, directors shall be elected by a plurality of the votes cast by
the holders of outstanding shares of capital stock of the Corporation
entitled to vote in the election of directors at a meeting of
stockholders at which a quorum is present.
2.8 Business to be Conducted.
(a) At an annual meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have
been brought before the annual meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the Corporation
who is a stockholder of record at the time of the giving of such
stockholder's notice provided for in this Section 2.8, who shall be
entitled to vote at such meeting and who complies with the
requirements of this Section 2.8 and as shall otherwise be proper
subjects for stockholder action and shall be properly introduced at
the meeting. For a proposal to be properly brought before an annual
meeting by a stockholder, in addition to any other applicable
requirements, the stockholder must have given timely advance notice
thereof in writing to the Secretary of the Corporation. To be timely,
a stockholder's notice must be delivered to, or mailed and received
at, the principal executive offices of the Corporation not later than
the close of business on the 90th day prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not later than the
close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the
Corporation. Any such stockholder's notice to the Secretary of the
Corporation shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a description of the
proposal desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting, (ii) the
name and address, as they appear on the Corporation's books, of the
stockholder proposing such business and any other stockholders known
by such stockholder to be supporting such proposal, (iii) the class
and number of shares of the Corporation's stock that are beneficially
owned by the stockholder on the date of such notice,
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(iv) any financial interest of the stockholder in such proposal and
(v) a representation that the stockholder intends to appear in person
or by proxy at the meeting to bring the proposed business before the
annual meeting. The presiding officer of the annual meeting shall
determine whether the requirements of this paragraph (a) have been
met with respect to any stockholder proposal. If the presiding
officer determines that a stockholder proposal was not made in
accordance with the terms of this paragraph (a), he shall so declare
at the meeting and any such proposal shall not be acted upon at the
meeting. At a special meeting of stockholders, only such business
shall be acted upon as shall have been set forth in the notice
relating to the meeting required by Section 2.4 hereof or as shall
constitute matters incident to the conduct of the meeting as the
presiding officer of the meeting shall determine to be appropriate.
(b) Notwithstanding the foregoing provisions of this Section 2.8, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.8.
2.9 Proxies. Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for him by proxy. Proxies
for use at any meeting of stockholders shall be filed with the Secretary,
or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be received
and canvassed by the secretary of the meeting who shall decide all
questions relating to the qualification of voters, the validity of the
proxies, and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in
which event such inspector or inspectors shall decide all such questions.
2.10 Approval or Ratification of Acts or Contracts by Stockholders. The Board
of Directors in its discretion may submit any act or contract for approval
or ratification at any annual meeting of the stockholders, or at any
special meeting of the stockholders called for the purpose of considering
any such act or contract, and any act or contract that shall be approved
or be ratified by the vote of the stockholders holding a majority of the
issued and outstanding shares of stock of the Corporation entitled to vote
and present in person or by proxy at such meeting (provided that a quorum
is present), shall be as valid and as binding upon the Corporation and
upon all the stockholders as if it has been approved or ratified by every
stockholder of the Corporation.
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ARTICLE III
DIRECTORS
3.1 Number, Classification and Tenure and Composition.
(a) The powers of the Corporation shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall
be managed under the direction of, the Board of Directors. From and
after the first date of the closing of the initial public offering of
the Common Stock to the public for cash that has been registered on a
registration statement that has been filed with and declared
effective by the Securities and Exchange Commission (the "Initial
Public Offering Date"), the Board of Directors shall be divided into
three classes as provided in the Certificate of Incorporation. Each
director shall hold office for the full term for which such director
is elected and until such director's successor shall have been duly
elected and qualified or until his earlier death or resignation or
removal in accordance with the Certificate of Incorporation or these
Bylaws.
(b) Within the limits specified in the Certificate of Incorporation, the
number of directors that shall constitute the whole Board of
Directors shall be fixed by, and may be increased or decreased from
time to time by, the affirmative vote of a majority of the members at
any time constituting the Board of Directors. Except as provided in
the Certificate of Incorporation, newly created directorships
resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled
by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum of the Board of Directors.
Any director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy
occurred and until such director's successor shall have been elected
and qualified or until his earlier death, resignation or removal. No
decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3.2 Qualifications. Directors need not be residents of the State of Delaware
or stockholders of the Corporation.
3.3 Nomination of Directors. Subject to such rights of the holders of one or
more outstanding series of Preferred Stock of the Corporation to elect one
or more directors in case of arrearages in the payment of dividends or
other defaults as shall be prescribed in the Certificate of Incorporation
or in the resolutions of the Board of Directors providing for the
establishment of any such series, only persons who are nominated in
accordance with the procedures set forth in this Section 3.3 shall be
eligible for election as, and to serve
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as, directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of the stockholders at which Directors
are to be elected (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who is a stockholder of record
at the time of the giving of such stockholder's notice provided for in
this Section 3.3, who shall be entitled to vote at such meeting in the
election of directors and who complies with the requirements of this
Section 3.3. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be preceded by timely advance
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation (i) with respect to an
election to be held at the annual meeting of the stockholders of the
Corporation, not later than the close of business on the 90th day prior to
the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not later than
the close of business on the later of the 90th day prior to such annual
meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made by the Corporation; and (ii) with
respect to an election to be held at a special meeting of stockholders of
the Corporation for the election of directors not later than the close of
business on the tenth day following the day on which notice of the date of
the special meeting was mailed to stockholders of the Corporation as
provided in Section 2.4 hereof or public disclosure of the date of the
special meeting was made, whichever first occurs. Any such stockholder's
notice to the Secretary of the Corporation shall set forth (x) as to each
person whom the stockholder proposes to nominate for election or re-
election as a director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of
such person, (iii) the number of shares of each class of capital stock of
the Corporation beneficially owned by such person, (iv) the written
consent of such person to having such person's name placed in nomination
at the meeting and to serve as a director if elected and (v) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise
required, pursuant to Regulation 14A under the Exchange Act, and (y) as to
the stockholder giving the notice, (i) the name and address, as they
appear on the Corporation's books, of such stockholder and (ii) the number
of shares of each class of voting stock of the Corporation that are then
beneficially owned by such stockholder. The presiding officer of the
meeting of stockholders shall determine whether the requirements of this
Section 3.3 have been met with respect to any nomination or intended
nomination. If the presiding officer determines that any nomination was
not made in accordance with the requirements of this Section 3.3, he shall
so declare at the meeting and the defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section 3.3,
a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 3.3.
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3.4 Place of Meeting; Order of Business. Except as otherwise provided by law,
meetings of the Board of Directors, regular or special, may be held either
within or without the State of Delaware, at whatever place is specified by
the person or persons calling the meeting. In the absence of specific
designation, the meetings shall be held at the principal office of the
Corporation. At all meetings of the Board of Directors, business shall be
transacted in such order as shall from time to time be determined by the
Chairman of the Board, or in his absence by the President (if any), or by
resolution of the Board of Directors.
3.5 Regular Meetings. Regular meetings of the Board of Directors shall be held
at such place or places within or without the State of Delaware, at such
hour and on such day as may be fixed by resolution of the Board of
Directors, without further notice of such meetings. The time or place of
holding regular meetings of the Board of Directors may be changed by the
Chairman of the Board, or the President (if any), by giving written notice
thereof as provided in Section 3.7 hereof.
3.6 Special Meetings. Special meetings of the Board of Directors shall be
held, whenever called by the Chairman of the Board, the President (if any)
or by a written notice signed by a majority of the members of the Board of
Directors, at such place or places within or without the State of Delaware
as may be stated in the notice of the meeting.
3.7 Attendance at and Notice of Meetings. Written notice of the time and place
of, and general nature of the business to be transacted at, all special
meetings of the Board of Directors, and written notice of any change in
the time or place of holding the regular meetings of the Board of
Directors, shall be given to each director and may be given by any of the
following methods: (a) by mail or telegram sent to the last known business
address of such director at least four days before the meeting, (b) by
facsimile to the business facsimile number of such director transmitted at
least one day before the meeting or (c) orally at least one day before the
meeting. For purposes of the foregoing sentence, notice shall be deemed
given (i) by mail, when deposited in the U.S. mail, postage prepaid, or by
telegram, when the telegram is delivered to the telegraph company for
transmittal, (ii) by facsimile, when transmittal is confirmed by the
sending facsimile machine and (iii) orally, when communicated in person or
by telephone to the director or to a person at the business telephone
number of the director who may reasonably be expected to communicate it to
the director. In calculating the number of days notice received by a
director, the date the notice is given by any of the foregoing methods
shall be counted, but the date of the meeting to which the notice relates
shall not be counted. Notice of the time, place and purpose of a meeting
may be waived in writing before or after such meeting, and shall be
equivalent to the giving of notice. Participation in a meeting of the
Board of Directors shall constitute presence in person at such meeting,
except when a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened. Except as otherwise herein
provided, neither the business to be transacted at, nor the purpose of,
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any regular or special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting.
3.8 Quorum of and Action by Directors. A majority of the directors in office
shall constitute a quorum of the Board of Directors for the transaction of
business; but a lesser number may adjourn from day to day until a quorum
is present. Except as otherwise provided by law or in these Bylaws, all
questions shall be decided by the vote of a majority of the directors
present.
3.9 Board and Committee Action Without a Meeting. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required
or permitted to be taken at a meeting of the Board of Directors or any
committee thereof may be taken without a meeting if a consent in writing,
setting forth the action so taken, is signed by all the members of the
Board of Directors or such committee, as the case may be, and shall be
filed with the Secretary of the Corporation.
3.10 Board and Committee Telephone Meetings. Subject to the provisions required
or permitted by the DGCL for notice of meetings, unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of
the Board of Directors, or members of any committee designated by the
Board of Directors, may participate in and hold a meeting of such Board of
Directors or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant
to this Section 3.10 shall constitute presence in person at such meeting,
except when a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
3.11 Compensation. Directors shall receive such compensation for their services
as shall be determined by the Board of Directors. 3.12 Removal. No
director of the Corporation shall be removed from office as a director by
vote or other action of the stockholders or otherwise except for cause,
and then only by the affirmative vote of the holders of at least a
majority of the voting power of all outstanding shares of capital stock of
the Corporation generally entitled to vote in the election of directors,
voting together as a single class. Cause for removal of a director shall
be as provided by law or in the Certificate of Incorporation. Any proposal
by a stockholder to remove a director of the Corporation, in order to be
validly acted upon at any meeting, shall comply with paragraph (a) of
Section 2.8 hereof.
Notwithstanding the first paragraph of this Section 3.12, whenever
holders of outstanding shares of one or more series of Preferred Stock are
entitled to elect members of the Board of Directors pursuant to the
provisions applicable in the case of arrearages in the payment of
dividends or other defaults contained in the resolution or resolutions of
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the Board of Directors providing for the establishment of any such series,
any such director of the Corporation so elected may be removed in
accordance with the provision of such resolution or resolutions.
3.13 Committees of the Board of Directors.
(a) The Board of Directors, by resolution adopted by the Board of
Directors, may designate from among its members one or more
committees, each of which shall be comprised of one or more of its
members, and may designate one or more of its members as alternate
members of any committee, who may, subject to any limitations by the
Board of Directors, replace absent or disqualified members at any
meeting of that committee. Any such committee, to the extent provided
in such resolution, the Certificate of Incorporation or these Bylaws,
shall have and may exercise all of the authority of the Board of
Directors to the extent permitted by the DGCL. Any such committee may
authorize the seal of the Corporation to be affixed to all papers
that may require it. In addition to the above, such committee or
committees shall have such other powers and limitations of authority
as may be determined from time to time by resolution adopted by the
Board of Directors.
(b) The Board of Directors shall have the power at any time to change the
membership of any such committee and to fill vacancies in it. A
majority of the number of members of any such committee shall
constitute a quorum for the transaction of business unless a greater
number is required by a resolution adopted by the Board of Directors.
The act of the majority of the members of a committee present at any
meeting at which a quorum is present shall be the act of such
committee, unless the act of a greater number is required by a
resolution adopted by the Board of Directors. Each such committee may
elect a chairman and appoint such subcommittees and assistants as it
may deem necessary. Except as otherwise provided by the Board of
Directors, meetings of any committee shall be conducted in accordance
with Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10 and 7.3 hereof. In the
absence or disqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may
unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified
member. Any member of any such committee elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever
in its judgment the best interests of the Corporation will be served
thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of
a member of a committee shall not of itself create contract rights.
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(c) Any action taken by any committee of the Board of Directors shall
promptly be recorded in the minutes and filed with the Secretary of
the Corporation.
ARTICLE IV
OFFICERS
4.1 Designation. The officers of the Corporation shall consist of one or more
Chairmen of the Board and a Secretary, and may include a President,
Treasurer and such Executive, Senior or other Vice Presidents, Assistant
Secretaries and other officers as may be elected or appointed by the Board
of Directors. The corporation shall initially have three Co-Chairmen of
the Board and Co-Chief Executive Officers, and references herein to the
"Chairman of the Board" and the "chief executive officer" shall mean any
of such persons. Any number of offices may be held by the same person.
4.2 Powers and Duties. The officers of the Corporation shall have such powers
and duties as generally pertain to their offices, except as modified
herein or by the Board of Directors, as well as such powers and duties as
from time to time may be conferred by the Board of Directors. The Chairman
of the Board shall be the chief executive officer of the Corporation,
shall have general supervision over the business, affairs and property of
the Corporation, shall have such duties as may be assigned to him by the
Board of Directors and shall preside at meetings of the Board of Directors
and at meetings of the stockholders.
4.3 Vacancies. Whenever any vacancies shall occur in any office by death,
resignation, increase in the number of offices of the Corporation, or
otherwise, the same shall be filled by the Board of Directors, and the
officer so elected shall hold office until such officer's successor is
elected or appointed or until his earlier death, resignation or removal.
4.4 Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
4.5 Action with Respect to Securities of Other Corporations. Unless otherwise
directed by the Board of Directors, the Chairman of the Board, or any
President, Vice President or Treasurer of the Corporation shall each have
power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of security holders of or with respect to any
action of security holders of any other corporation in which this
Corporation may hold securities and otherwise to exercise any and all
rights and powers that this
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Corporation may possess by reason of its ownership of securities in such
other corporation.
ARTICLE V
CAPITAL STOCK
5.1 Certificates for Shares. The certificates for shares of the capital stock
of the Corporation shall be in such form as may be approved by the Board
of Directors or any duly authorized committee thereof or may be
uncertificated shares. In the case of certificated shares, the Corporation
shall deliver certificates representing shares to which stockholders are
entitled. Certificates representing such certificated shares shall be
signed by one of the Chairmen of the Board, or a President or a Vice
President (if any) and either the Secretary or an Assistant Secretary of
the Corporation, and may bear the seal of the Corporation or a facsimile
thereof. The signatures of such officers upon a certificate may be
facsimiles. The stock record books and the blank stock certificate books
shall be kept by the Secretary of the Corporation, or at the office of
such transfer agent or transfer agents as the Board of Directors may from
time to time by resolution determine. In case any officer who has signed
or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were
such officer at the date of its issuance.
5.2 Transfer of Shares. The shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof
in person or by their duly authorized attorneys or legal representatives
upon surrender and cancellation of certificates for a like number of
shares.
5.3 Ownership of Shares. The Corporation shall be entitled to treat the holder
of record of any share or shares of capital stock of the Corporation as
the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
5.4 Regulations Regarding Certificates. The Board of Directors shall have the
power and authority to make all such rules and regulations as they may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the
Corporation.
5.5 Lost or Destroyed Certificates. The Board of Directors may determine the
conditions upon which a new certificate of stock may be issued in place of
a certificate that is alleged to have been lost, stolen or destroyed; and
may, in its discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnify the
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Corporation and each transfer agent and registrar against any and all
losses or claims that may arise by reason of the issue of a new
certificate in the place of the one so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
6.1 General. The Corporation shall, to the fullest extent permitted by
applicable law in effect on the date of effectiveness of these Bylaws, and
to such greater extent as applicable law may thereafter permit, within 30
days after written demand is presented to the Corporation, indemnify and
hold Indemnitee (as this and all other capitalized words used in this
Article VI not previously defined in these Bylaws are defined in Section
6.16 hereof) harmless from and against any and all losses, liabilities,
claims, damages and, subject to Section 6.2, Expenses, whatsoever arising
out of any event or occurrence related to the fact that Indemnitee is or
was a director or officer of the Corporation or is or was serving in
another Corporate Status.
6.2 Expenses. If Indemnitee is, by reason of his Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, he shall
be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Corporation shall
indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf relating to such Matter. The termination of any
Matter in such a Proceeding by dismissal, with or without prejudice, shall
be deemed to be a successful result as to such Matter. To the extent that
the Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith.
6.3 Advances. In the event of any threatened or pending action, suit or
proceeding in which Indemnitee is a party or is involved and that may give
rise to a right of indemnification under this Article VI, following
written request to the Corporation by Indemnitee, the Corporation shall
promptly pay to Indemnitee amounts to cover expenses reasonably incurred
by Indemnitee in such proceeding in advance of its final disposition upon
the receipt by the Corporation of (i) a written undertaking executed by or
on behalf of Indemnitee providing that Indemnitee will repay the advance
if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Corporation as provided in this Agreement and (ii)
satisfactory evidence as to the amount of such expenses.
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6.4 Repayment of Advances or Other Expenses. Indemnitee agrees that Indemnitee
shall reimburse the Corporation for all expenses paid by the Corporation
in defending any civil, criminal, administrative or investigative action,
suit or proceeding against Indemnitee in the event and only to the extent
that it shall be determined pursuant to the provisions of this Article VI
or by final judgment or other final adjudication under the provisions of
any applicable law that Indemnitee is not entitled to be indemnified by
the Corporation for such expenses.
6.5 Request for Indemnification. To obtain indemnification, Indemnitee shall
submit to the Secretary of the Corporation a written claim or request.
Such written claim or request shall contain sufficient information to
reasonably inform the Corporation about the nature and extent of the
indemnification or advance sought by Indemnitee. The Secretary of the
Corporation shall promptly advise the Board of Directors of such request.
6.6 Determination of Entitlement; No Change of Control. If there has been no
Change of Control at the time the request for indemnification is
submitted, Indemnitee's entitlement to indemnification shall be determined
in accordance with Section 145(d) of the DGCL. If entitlement to
indemnification is to be determined by Independent Counsel, the
Corporation shall furnish written notice to Indemnitee within 10 days
after receipt of the request for indemnification, specifying the identity
and address of Independent Counsel. The Indemnitee may, within ten days
after such written notice of selection shall have been given, deliver to
the Corporation a written objection to such selection; provided, however,
that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of
"Independent Counsel" as defined in Section 6.16 hereof, and the objection
shall set forth with particularity the factual basis of such assertion. If
such written objection is so made and substantiated, the Independent
Counsel so selected may not serve as Independent Counsel unless and until
such objection is withdrawn or a court has determined that such objection
is without merit. If (i) the determination of entitled to indemnification
is to be made by Independent Counsel pursuant to this Section and (ii)
within 20 days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6.5, no Independent Counsel shall have
been selected and not objected to, the Corporation or the Indemnitee may
petition the Court of Chancery or other court of competent jurisdiction
for resolution of any objection which shall have been made by the
Indemnitee to the Corporation's selection of Independent Counsel and/or
for the appointment as Independent Counsel of a person selected by the
petitioned court or by such other person as the petitioned court shall
designate, and the person with respect to whom all objections are so
resolved or the person so appointed shall act as Independent Counsel under
this Section. If (i) Independent Counsel does not make any determination
respecting Indemnitee's entitlement to indemnification hereunder within 90
days after receipt by the Corporation of a written request therefor and
(ii) any judicial proceeding or arbitration pursuant to Section 6.10 is
then commenced, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
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6.7 Determination of Entitlement; Change of Control. If there has been a
Change of Control at the time the request for indemnification is
submitted, Indemnitee's entitlement to indemnification shall be determined
in a written opinion by Independent Counsel selected by Indemnitee.
Indemnitee shall give the Corporation written notice advising of the
identity and address of the Independent Counsel so selected. The
Corporation may, within ten days after such written notice of selection
shall have been given, deliver to the Indemnitee a written objection to
such selection; provided, however, that such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet
the requirements of "Independent Counsel" as defined in Section 6.16
hereof, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a
court has determined that such objection is without merit. If (i) the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to this Section and (ii) within 20 days after
submission by Indemnitee of a written request for indemnification pursuant
to Section 6.5, no Independent Counsel shall have been selected and not
objected to, the Corporation or the Indemnitee may petition the Court of
Chancery or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Corporation to the
Indemnitee's selection of Independent Counsel and/or for the appointment
as Independent Counsel of a person selected by the petitioned court or by
such other person as the petitioned court shall designate, and the person
with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under this Section, if (i)
Independent Counsel does not make any determination respecting
Indemnitee's entitlement to indemnification hereunder within 90 days after
receipt by the Corporation of a written request therefor and (ii) any
judicial proceeding or arbitration pursuant to Section 6.10 is then
commenced, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).
6.8 Procedures of Independent Counsel. If a Change of Control shall have
occurred before the request for indemnification is sent by Indemnitee,
Indemnitee shall be presumed (except as otherwise expressly provided in
this Article VI) to be entitled to indemnification upon submission of a
request for indemnification in accordance with Section 6.5 hereof, and
thereafter the Corporation shall have the burden of proof to overcome the
presumption in reaching a determination contrary to the presumption. The
presumption shall be used by Independent Counsel as a basis for a
determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of
Independent Counsel convinces him by clear and convincing evidence that
the presumption should not apply.
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Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or
persons empowered under Section 6.6 or 6.7 hereof to determine entitlement
to indemnification shall not have made and furnished to Indemnitee in
writing a determination within 60 days after receipt by the Corporation of
the request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee shall be
entitled to such indemnification unless Indemnitee knowingly
misrepresented a material fact in connection with the request for
indemnification or such indemnification is prohibited by applicable law.
The termination of any Proceeding or of any Matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this
Article VI) of itself adversely affect the right of Indemnitee to
indemnification or create a presumption that Indemnitee did not act in
good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the Corporation, or with respect to any
criminal Proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful. A person who acted in good faith and in a manner
he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan of the Corporation shall be
deemed to have acted in a manner not opposed to the best interests of the
Corporation.
For purposes of any determination hereunder, a person shall be deemed
to have acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or Proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is based on the
records or books of account of the Corporation or another enterprise or on
information supplied to him by the officers of the Corporation or another
enterprise in the course of their duties or on the advice of legal counsel
for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise.
The term "another enterprise" as used in this Section shall mean any other
corporation or any partnership, limited liability company, association,
joint venture, trust, employee benefit plan or other enterprise of which
such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this paragraph
shall not be deemed to be exclusive or to limit in any way the
circumstances in which an Indemnitee may be deemed to have met the
applicable standards of conduct for determining entitlement to rights
under this Article.
6.9 Independent Counsel Expenses. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting
pursuant to this Article VI and in any proceeding to which it is a party
or witness in respect of its investigation and written report and shall
pay all reasonable fees and expenses incident to the procedures in which
such Independent Counsel was selected or appointed. No Independent Counsel
may serve
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if a timely objection has been made to his selection until a
court has determined that such objection is without a reasonable basis.
6.10 Adjudication. In the event that (i) a determination is made pursuant to
Section 6.6 or 6.7 hereof that Indemnitee is not entitled to
indemnification under this Article VI; (ii) advancement of Expenses is not
timely made pursuant to Section 6.3 hereof; (iii) Independent Counsel is
to determine Indemnitee's entitlement to indemnification hereunder, but
does not make that determination within 90 days after receipt by the
Corporation of the request for that indemnification; or (iv) payment of
indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made
pursuant to Section 6.6, 6.7 or 6.8 hereof, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in
any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. In the event that a
determination shall have been made that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant
to this Section 6.10 shall be conducted in all respects as a de novo trial
on the merits and Indemnitee shall not be prejudiced by reason of that
adverse determination. If a Change of Control shall have occurred, in any
judicial proceeding commenced pursuant to this Section 6.10, the
Corporation shall have the burden of proving that Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may
be. If a determination shall have been made or deemed to have been made
that Indemnitee is entitled to indemnification, the Corporation shall be
bound by such determination in any judicial proceeding commenced pursuant
to this Section 6.10, or otherwise, unless Indemnitee knowingly
misrepresented a material fact in connection with the request for
indemnification, or such indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 6.10 that the procedures and
presumptions of this Article VI are not valid, binding and enforceable and
shall stipulate in any such proceeding that the Corporation is bound by
all provisions of this Article VI. In the event that Indemnitee, pursuant
to this Section 6.10, seeks a judicial adjudication to enforce his rights
under, or to recover damages for breach of, this Article VI, Indemnitee
shall be entitled to recover from the Corporation, and shall be
indemnified by the Corporation against, any and all Expenses actually and
reasonably incurred by him in such judicial adjudication, but only if he
prevails therein. If it shall be determined in such judicial adjudication
that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration
shall be appropriately prorated.
6.11 Participation by the Corporation. With respect to any such claim, action,
suit, proceeding or investigation as to which Indemnitee notifies the
Corporation of the commencement thereof: (a) the Corporation will be
entitled to participate therein at its own expense; (b) except as
otherwise provided below, to the extent that it may wish, the Corporation
17
(jointly with any other indemnifying party similarly notified) will be
entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee. After receipt of notice from the Corporation
to Indemnitee of the Corporation's election so to assume the defense
thereof, the Corporation will not be liable to Indemnitee under this
Article VI for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Indemnitee shall
have the right to employ his own counsel in such action, suit, proceeding
or investigation but the fees and expenses of such counsel incurred after
notice from the Corporation of its assumption of the defense thereof shall
be at the expense of Indemnitee unless (i) the employment of counsel by
Indemnitee has been authorized by the Corporation, (ii) Indemnitee shall
have reasonably concluded that there is a conflict of interest between the
Corporation and Indemnitee in the conduct of the defense of such action or
(iii) the Corporation shall not in fact have employed counsel to assume
the defense of such action, in each of which cases the fees and expenses
of counsel employed by Indemnitee shall be subject to indemnification
pursuant to the terms of this Article VI. The Corporation shall not be
entitled to assume the defense of any action, suit, proceeding or
investigation brought in the name of or on behalf of the Corporation or as
to which Indemnitee shall have made the conclusion provided for in (ii)
above; and (c) the Corporation shall not be liable to indemnify Indemnitee
under this Article VI for any amounts paid in settlement of any action or
claim effected without its written consent, which consent shall not be
unreasonably withheld. The Corporation shall not settle any action or
claim in any manner that would impose any limitation or unindemnified
penalty on Indemnitee without Indemnitee's written consent, which consent
shall not be unreasonably withheld.
6.12 Nonexclusivity of Rights. The rights of indemnification and advancement of
Expenses as provided by this Article VI shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled to under
applicable law, the Certificate of Incorporation, the Bylaws, any
agreement, a vote of stockholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Article VI or any
provision hereof shall be effective as to any Indemnitee for acts, events
and circumstances that occurred, in whole or in part, before such
amendment, alteration or repeal. The provisions of this Article VI shall
continue as to an Indemnitee whose Corporate Status has ceased for any
reason and shall inure to the benefit of his heirs, executors and
administrators. Neither the provisions of this Article VI or those of any
agreement to which the Corporation is a party shall be deemed to preclude
the indemnification of any person who is not specified in this Article VI
as having the right to receive indemnification or is not a party to any
such agreement, but whom the Corporation has the power or obligation to
indemnify under the provisions of the DGCL.
6.13 Insurance and Subrogation. The Corporation shall not be liable under this
Article VI to make any payment of amounts otherwise indemnifiable
hereunder if, but only to the extent
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that, Indemnitee has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
In the event of any payment hereunder, the Corporation shall be
subrogated to the extent of such payment to all the rights of recovery of
Indemnitee, who shall execute all papers required and take all action
reasonably requested by the Corporation to secure such rights, including
execution of such documents as are necessary to enable the Corporation to
bring suit to enforce such rights.
6.14 Severability. If any provision or provisions of this Article VI shall be
held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby; and, to the fullest
extent possible, the provisions of this Article VI shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
6.15 Certain Actions For Which Indemnification Is Not Provided. Notwithstanding
any other provision of this Article VI, no person shall be entitled to
indemnification or advancement of Expenses under this Article VI with
respect to any Proceeding, or any Matter therein, brought or made by such
person against the Corporation.
6.16 Definitions. For purposes of this Article VI:
"Change of Control" means a change in control of the Corporation after
both the Initial Public Offering Date and after the date Indemnitee
acquired his Corporate Status, which shall be deemed to have occurred in
any one of the following circumstances occurring after such date: (i)
there shall have occurred an event required to be reported with respect to
the Corporation in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or form)
promulgated under the Exchange Act, whether or not the Corporation is then
subject to such reporting requirement; (ii) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) shall have become
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing 30%
or more of the combined voting power of the Corporation's then outstanding
voting securities; (iii) the Corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest,
as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iv) during any period
of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (including, for this purpose, any new
director whose election or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the
Board of Directors.
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"Corporate Status" describes the status of Indemnitee as a director,
officer, employee, agent or fiduciary of the Corporation or of any other
corporation, partnership, limited liability company, association, joint
venture, trust, employee benefit plan or other enterprise that Indemnitee
is or was serving at the request of the Corporation.
"Court" means the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction.
"Expenses" shall include all reasonable attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, or being or preparing to
be a witness in a Proceeding.
"Indemnitee" includes any officer or director of the Corporation who is,
or is threatened to be made, a witness in or a party to any Proceeding as
described in Section 6.1 or 6.2 hereof by reason of his Corporate Status.
"Independent Counsel" means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in
the five years previous to his selection or appointment has been, retained
to represent: (i) the Corporation or Indemnitee in any matter material to
either such party or (ii) any other party to the Proceeding giving rise to
a claim for indemnification hereunder.
"Matter" is a claim, a material issue or a substantial request for relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative,
except one initiated by an Indemnitee pursuant to Section 6.10 hereof to
enforce his rights under this Article VI.
6.17 Notices. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall, if he
anticipates or contemplates making a claim for expenses or an advance
pursuant to the terms of this Article VI, notify the Corporation of the
commencement of such action, suit or proceeding; provided, however, that
any delay in so notifying the Corporation shall not constitute a waiver or
release by Indemnitee of rights hereunder and that any omission by
Indemnitee to so notify the Corporation shall not relieve the Corporation
from any liability that it may have to Indemnitee otherwise than under
this Article VI. Any communication required or permitted to the
Corporation shall be addressed to the Secretary of the Corporation and any
such communication to Indemnitee shall be addressed to Indemnitee's
address as shown on the Corporation's records unless he specifies
otherwise and shall be personally
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delivered or delivered by overnight mail delivery. Any such notice shall
be effective upon receipt.
6.18 Contractual Rights. The right to be indemnified or to the advancement or
reimbursement of Expenses (i) is a contract right based upon good and
valuable consideration, pursuant to which Indemnitee may sue as if these
provisions were set forth in a separate written contract between
Indemnitee and the Corporation, (ii) is and is intended to be retroactive
and shall be available as to events occurring prior to the adoption of
these provisions and (iii) shall continue after any rescission or
restrictive modification of such provisions as to events occurring prior
thereto.
6.19 Indemnification of Employees, Agents and Fiduciaries. The Corporation, by
adoption of a resolution of the Board of Directors, may indemnify and
advance expenses to a person who is an employee, agent or fiduciary of the
Corporation including any such person who is or was serving at the request
of the Corporation as a director, officer, employee, agent or fiduciary of
any other corporation, partnership, joint venture, limited liability
company, trust, employee benefit plan or other enterprise to the same
extent and subject to the same conditions (or to such greater or lesser
extent and/or subject to lesser or greater conditions as the Board of
Directors may determine) under which it may indemnify and advance expenses
to an Indemnitee under this Article VI.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Bylaw Amendments. The Board of Directors shall have the power to adopt,
amend and repeal from time to time the Bylaws of the Corporation, subject
to the right of stockholders entitled to vote with respect thereto to
amend or repeal such Bylaws as adopted or amended by the Board of
Directors. Bylaws of the Corporation may be adopted, amended or repealed
by the affirmative vote of the holders of at least two-thirds of the
combined voting power of the outstanding shares of all classes of stock of
the Corporation entitled to vote generally in the election of directors,
voting together as a single class, at any annual meeting, or at any
special meeting if notice of the proposed amendment be contained in the
notice of said special meeting, or by the Board of Directors as specified
in the preceding sentence.
7.2 Books and Records. The Corporation shall keep books and records of account
and shall keep minutes of the proceedings of its stockholders, its Board
of Directors and each committee of its Board of Directors.
7.3 Waiver of Notice. Whenever any notice is required to be given to any
stockholder, director or committee member under the provisions of the DGCL
or under the Certificate
21
of Incorporation, as amended, or these Bylaws, said notice shall be deemed
to be sufficient if given (i) by telegraphic, facsimile, cable or wireless
transmission or (ii) by deposit of the same in a post office box in a
sealed prepaid wrapper addressed to the person entitled thereto at his
post office address, as it appears on the records of the Corporation, and
such notice shall be deemed to have been given on the day of such
transmission or mailing, as the case may be.
Whenever any notice is required to be given to any stockholder,
director or committee member under the provisions of the DGCL or under the
Certificate of Incorporation, as amended, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the
Certificate of Incorporation or these Bylaws.
7.4 Resignations. Any director or officer may resign at any time. Such
resignations shall be made in writing and shall take effect at the time
specified therein, or, if no time be specified, at the time of its receipt
by the Chairman of the Board, the President (if any) or the Secretary of
the Corporation. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
7.5 Seal. The seal of the Corporation shall be in such form as the Board of
Directors may adopt.
7.6 Fiscal Year. The fiscal year of the Corporation shall end on the 31st day
of December of each year or as otherwise provided by a resolution adopted
by the Board of Directors.
7.7 Facsimile Signatures. In addition to the provisions for the use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be
used whenever and as authorized by the Board of Directors.
7.8 Reliance upon Books, Reports and Records. Each director and each member of
any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith
upon the books of account or reports made to the Corporation by any of its
officers, or by an independent certified public accountant, or by an
appraiser selected with reasonable care by the Board of Directors or by
any such committee, or in relying in good faith upon other records of the
Corporation.
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