FOURTH AMENDED AND RESTATED
B Y L A W S
OF
MEVC DRAPER FISHER JURVETSON
FUND I, INC.
(A DELAWARE CORPORATION)
TABLE OF CONTENTS
PAGE
Article 1 Offices ............................................................1
1.1 Principal Office............................................1
1.2 Additional Offices..........................................1
Article 2 Meeting of Stockholders.............................................1
2.1 Place of Meeting............................................1
2.2 Annual Meeting..............................................1
2.3 Special Meetings............................................2
2.4 Action Without a Meeting....................................3
2.5 Notice of Meetings..........................................3
2.6 Business Matter of a Special Meeting........................3
2.7 List of Stockholders........................................3
2.8 Organization and Conduct of Business........................4
2.9 Quorum and Adjournments.....................................4
2.10 Voting Rights...............................................4
2.11 Majority Vote...............................................4
2.12 Record Date for Stockholder Notice and Voting...............4
2.13 Proxies.....................................................5
2.14 Inspectors of Election......................................5
Article 3 Directors ..........................................................6
3.1 Number; Election; Tenure and Qualifications.................6
3.2 Vacancies...................................................7
3.3 Resignation and Removal.....................................7
3.4 Powers......................................................7
3.5 Place of Meetings...........................................7
3.6 Annual Meetings.............................................7
3.7 Regular Meetings............................................7
3.8 Special Meetings............................................8
3.9 Quorum and Adjournments.....................................8
3.10 Action Without Meeting......................................8
3.11 Telephone Meetings..........................................8
3.12 Waiver of Notice............................................8
3.13 Fees and Compensation of Directors..........................8
3.14 Rights of Inspection........................................9
3.15 Committees of Directors.....................................9
Article 4 Officers ..........................................................10
4.1 Officers Designated........................................10
4.2 Appointment of Officers....................................10
4.3 Subordinate Officers.......................................10
4.4 Removal and Resignation of Officers........................10
4.5 Vacancies in Offices.......................................10
4.6 Compensation...............................................10
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4.7 The Chairman of the Board..................................10
4.8 The Vice Chairman..........................................11
4.9 The Chief Executive Officer................................11
4.10 The President..............................................11
4.11 The Vice President.........................................11
4.12 The Secretary..............................................11
4.13 The Assistant Secretary....................................12
4.14 The Chief Financial Officer................................12
4.15 Bond ......................................................12
4.16 Delegation of Authority....................................12
Article 5 Indemnification....................................................12
5.1 Right to Indemnification...................................12
5.2 Right to Advancement of Expenses...........................14
5.3 Right of Indemnitee to Bring Suit..........................14
5.4 Non-Exclusivity of Rights..................................15
5.5 Insurance..................................................15
5.6 Indemnification of Employees and Agents of the Corporation.15
5.7 Nature of Rights...........................................15
Article 6 Capital Stock......................................................15
6.1 Certificates for Shares....................................15
6.2 Signatures on Certificates.................................16
6.3 Transfer of Stock..........................................16
6.4 Registered Stockholders....................................16
6.5 Lost, Stolen or Destroyed Certificates.....................16
Article 7 Certain Transactions...............................................17
7.1 Transactions with Interested Parties.......................17
7.2 Quorum.....................................................17
Article 8 General Provisions.................................................17
8.1 Dividends..................................................17
8.2 Dividend Reserve...........................................17
8.3 Checks.....................................................18
8.4 Corporate Seal.............................................18
8.5 Fiscal Year................................................18
8.6 Execution of Corporate Contracts and Instruments...........18
8.7 Representation of Shares of Other Corporations.............18
Article 9 Amendments.........................................................18
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FOURTH AMENDED AND RESTATED
B Y L A W S
OF
MEVC DRAPER FISHER JURVETSON FUND I, INC.
(A DELAWARE CORPORATION)
ARTICLE 1
Offices
1.1 PRINCIPAL OFFICE. The initial registered office of the corporation
shall be 1209 Orange Street, Wilmington, Delaware, and the name of the initial
registered agent in charge thereof is The Corporation Trust Company.
1.2 ADDITIONAL OFFICES. The corporation may also have offices at such other
places, either within or without the State of Delaware, as the board of
directors may from time to time designate or the business of the corporation may
require.
ARTICLE 2
Meeting of Stockholders
2.1 PLACE OF MEETING. Meetings of stockholders may be held at such place,
either within or without of the State of Delaware, as may be designated by or in
the manner provided in these Bylaws, or, if not so designated, at the registered
office of the corporation or the principal executive offices of the corporation.
2.2 ANNUAL MEETING. Annual meetings of stockholders shall be held each year
at such date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting. At such annual meeting, the
stockholders shall elect by a plurality vote the number of directors properly
nominated and qualified for election to hold office until the next annual
meeting of stockholders after their election. The stockholders shall also
transact such other business as may properly be brought before the meetings.
To be properly brought before the annual meeting, business must be either
(a) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the board of directors or the Chairman, Vice Chairman, Chief
Executive Officer or President, (b) otherwise properly brought before the
meeting by or at the direction of the board of directors or the Chairman, Vice
Chairman, Chief Executive Officer or President, or (c) otherwise properly
brought before the meeting by a stockholder of record. In addition to any other
applicable requirements, for business to be properly brought before the annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice must be delivered personally or deposited in the United States mail, or
delivered to a common carrier for transmission to the recipient or actually
transmitted by the person giving the notice by electronic means to the recipient
or sent by other means of written communication, postage or delivery charges
prepaid in all such cases, and received at the principal executive offices of
the corporation, addressed to the attention of the Secretary of the corporation,
not less than 60 days nor more than 90 days prior to the scheduled date of the
meeting (regardless of any postponements, deferrals or adjournments of that
meeting to a later date); PROVIDED, HOWEVER, that in the event that less than 70
days' notice or prior public disclosure of the date of the scheduled meeting is
given or made to stockholders, notice by the stockholder to be timely must be so
received not later than the earlier of (a) the close of business on the 10th day
following the day on which such notice of the date of the scheduled annual
meeting was mailed or such public disclosure was made, whichever first occurs,
and (b) two days prior to the date of the scheduled meeting. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record address
of the stockholder proposing such business, (iii) the class, series and number
of shares of the corporation that are owned beneficially by the stockholder, and
(iv) any material interest of the stockholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this
Section 2.2; provided, however, that nothing in this Section 2.2 shall be deemed
to preclude discussion by any stockholder of any business properly brought
before the annual meeting.
The Chairman (or such other person presiding at the meeting in accordance
with these Bylaws) shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance
with the provisions of this Section 2.2, and if he should so determine, he shall
so declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
2.3 SPECIAL MEETINGS. Special meetings of the stockholders may be called
for any purpose or purposes, unless otherwise prescribed by the statute or by
the Certificate of Incorporation, only at the request of the Chairman, Vice
Chairman, Chief Executive Officer or President or by a resolution duly adopted
by a majority of the board of directors. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting
shall be limited to matters relating to the purpose or purposes stated in the
notice of meeting.
Any Stockholder owning at least fifteen percent (15%) of the outstanding
common stock of the corporation may request that the board of directors call a
special meeting of stockholders.
The request shall be in writing and shall state the purpose(s) of the
special meeting. The board of directors shall consider the stockholder's request
at the next meeting of the board of directors following its receipt of the
stockholder's request. If the board of directors determines to call a special
meeting, within five (5) business days of the determination of the board of
directors, the board of directors shall call such a meeting to be held at the
corporation's principal office in the United States, on a date that shall be not
more than sixty (60) nor less than ten (10) days after the record date of such
meeting. Written notice of such meeting shall be sent not more than sixty (60)
nor less than ten (10) days, or such greater time period required by applicable
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law, before the date of such meeting to each stockholder entitled to vote at
such meeting. The record date for such meeting shall be fixed by resolution of
the board of directors on a date not preceding the date of such resolution.
2.4 ACTION WITHOUT A MEETING. Any action which may be taken at any annual
or special meeting of the stockholders of this corporation may be taken without
a meeting, without prior notice, and without a vote, if a consent or consents in
writing, setting forth the action or actions so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Such consent or
consents shall be delivered to the corporation by hand or certified mail, return
receipt requested, to its principal executive office, or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded.
2.5 NOTICE OF MEETINGS. Written notice of stockholders' meetings, stating
the place, date and time of the meeting and, in the case of a special meeting,
the purpose or purposes for which such special meeting is called, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days prior to the meeting.
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; PROVIDED,
HOWEVER, that if the date of any adjourned meeting is more than thirty (30) days
after the date for which the meeting was originally noticed, or if a new record
date is fixed for the adjourned meeting, written notice of the place, date and
time of the adjourned meeting shall be given in conformity herewith. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Whenever, under the provisions of Delaware law or of the Certificate of
Incorporation or of these Bylaws, notice is required to be given to any
stockholder it shall not be construed to mean personal notice, but such notice
may be given in writing, by mail, addressed to such director or stockholder, at
his or her address as it appears on the records of the corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail.
Whenever any notice is required to be given under the provisions of
Delaware law or of the Certificate of Incorporation or of these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
2.6 BUSINESS MATTER OF A SPECIAL MEETING. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice, except to the extent such notice is waived or is not required.
2.7 LIST OF STOCKHOLDERS. The officer in charge of the stock ledger of the
corporation or the transfer agent shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
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for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, at a place within the
city where the meeting is to be held, which place, if other than the place of
the meeting, shall be specified in the notice of the meeting. The list shall
also be produced and kept at the place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present in person
thereat.
2.8 ORGANIZATION AND CONDUCT OF BUSINESS. The Chairman or, in his or her
absence, Chief Executive Officer or, in their absence, such person as the board
of directors may have designated or, in the absence of such a person, such
person as may be chosen by the holders of a majority of the shares entitled to
vote who are present, in person or by proxy, shall call to order any meeting of
the stockholders and act as chairman of the meeting. In the absence of the
Secretary of the corporation, the Secretary of the meeting shall be such person
as the chairman appoints.
The chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seems to him or her in order.
2.9 QUORUM AND ADJOURNMENTS. Except where otherwise provided by law or the
Certificate of Incorporation or these Bylaws, the holders of at least a majority
of the stock issued and outstanding and entitled to vote, present in person or
represented in proxy, shall constitute a quorum at all meetings of the
stockholders. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to have less than a quorum
if any action taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. If, however, a
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat who are present in person or
represented by proxy shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented.
2.10 VOTING RIGHTS. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder.
2.11 MAJORITY VOTE. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Certificate of Incorporation or of these Bylaws, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE AND VOTING.
(i) For purposes of determining the stockholders entitled to notice of
any meeting or to vote, or entitled to receive payment of any dividend or
other distribution, or entitled to exercise any right in respect of any
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change, conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days
before the date of any such meeting nor more than sixty (60) days before
any other action. If the board of directors does not so fix a record date,
the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice
is waived, at the close of business on the business day next preceding the
day on which the meeting is held.
(ii) For purposes of determining the stockholders entitled to consent
to corporate action in writing without a meeting, the board of directors
may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten (10) days after the
date upon which the resolution fixing such record date is adopted by the
board of directors. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by
the board of directors is required under Delaware law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by hand or certified
mail, return receipt requested, to its principal executive office, or to an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. If no record date has
been fixed by the board of directors and prior action by the board of
directors is required under Delaware law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be the close of business on the day on which the board of
directors adopts the resolution taking such prior action.
2.13 PROXIES. Every person entitled to vote for directors or on any other
matter shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the Secretary
of the corporation. A proxy shall be deemed signed if the stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the stockholder or the stockholder's
attorney-in-fact. A validly executed proxy which does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy; or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of three years from the date of the proxy, unless
otherwise provided in the proxy.
2.14 INSPECTORS OF ELECTION. The corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. The corporation may designate one
or more persons to act as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a meeting of
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stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability.
ARTICLE 3
Directors
3.1 NUMBER; ELECTION; TENURE AND QUALIFICATIONS. The board of directors of
the corporation shall consist of not less than three (3) members nor more than
seven (7) members. The Board shall be comprised of one class of directors. Each
director shall hold office until the next annual meeting of stockholders after
his/her election.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors. Nominations of persons for election
to the board of directors at the annual meeting, by or at the direction of the
board of directors, may be made by any nominating committee or person appointed
by the board of directors; nominations may also be made by any stockholder of
record of the corporation entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this Section 3.1.
Such nominations, other than those made by or at the direction of the board of
directors, shall be made pursuant to timely notice in writing to the Secretary
of the corporation. The Board or a Nominating Committee thereof shall determine
the eligibility of any nominated candidate based on criteria determined by the
Board or the Nominating Committee. To be timely, a stockholder's notice shall be
delivered personally or deposited in the United States mail, or delivered to a
common carrier for transmission to the recipient or actually transmitted by the
person giving the notice by electronic means to the recipient or sent by other
means of written communication, postage or delivery charges prepaid in all such
cases, and received at the principal executive offices of the corporation
addressed to the attention of the Secretary of the corporation not less than 60
days nor more than 90 days prior to the scheduled date of the meeting
(regardless of any postponements, deferrals or adjournments of that meeting to a
later date); provided, however, that, in the case of an annual meeting and in
the event that less than 70 days' notice or prior public disclosure of the date
of the scheduled meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the earlier of (a)
the close of business on the 10th day following the day on which such notice of
the date of the scheduled meeting was mailed or such public disclosure was made,
whichever first occurs, or (b) two days prior to the date of the scheduled
meeting. Such stockholder's notice to the Secretary shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class, series and number of shares of capital stock of the corporation that are
owned beneficially by the person, (iv) a statement as to the person's
citizenship, and (v) any other information relating to the person that is
required to be disclosed in solicitations for proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder and (ii)
the class, series and number of shares of capital stock of the corporation that
are owned beneficially by the stockholder. The corporation or the Nominating
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Committee may require any proposed nominee to furnish such other information as
may reasonably be required by the corporation to determine the eligibility of
such proposed nominee to serve as director of the corporation. No person shall
be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
In connection with any annual meeting, the Chairman (or such other person
presiding at such meeting in accordance with these Bylaws) shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
Directors need not be stockholders.
3.2 VACANCIES. Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election at which the term of the class to which they have been elected expires
and until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. In the event of a vacancy in the
board of directors, the remaining directors, except as otherwise provided by law
or these Bylaws, may exercise the powers of the full board of directors until
the vacancy is filled.
3.3 RESIGNATION AND REMOVAL. Any director may resign at any time by
delivering written notice to the corporation at its principal place of business
or to the Chairman, Vice Chairman, Chief Executive Officer, President or
Secretary. Such resignation shall be effective upon receipt of such notice
unless the notice specifies such resignation to be effective at some other time
or upon the happening of some other event. Any director or the entire board of
directors may be removed, but only for cause, and only upon the affirmative vote
of the holders of at least seventy-five percent (75%) of shares then entitled to
vote at an election of directors, unless otherwise specified by law or the
Certificate of Incorporation.
3.4 POWERS. The business of the corporation shall be managed by or under
the direction of the board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things which are not by statute
or by the Certificate of Incorporation or by these Bylaws directed or required
to be exercised or done by the stockholders.
3.5 PLACE OF MEETINGS. The board of directors may hold meetings, both
regular and special, either within or without the State of Delaware.
3.6 ANNUAL MEETINGS. The annual meetings of the board of directors shall be
held immediately following the annual meeting of stockholders, and no notice of
such meeting shall be necessary to the board of directors, provided a quorum
shall be present. The annual meetings shall be for the purposes of organization,
and an election of officers and the transaction of other business.
3.7 REGULAR MEETINGS. Regular meetings of the board of directors may be
held without notice at such time and place as may be determined from time to
time by the board of directors.
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3.8 SPECIAL MEETINGS. Special meetings of the board of directors may be
called by the Chairman, Vice Chairman, Chief Executive Officer, President,
Secretary, any Vice President or by a majority of the board of directors upon
one (1) day's notice to each director and can be delivered either personally, or
by telephone, express delivery service (so that the scheduled delivery date of
the notice is at least one (1) day in advance of the meeting), telegram or
facsimile or electronic mail transmission, and on five (5) day's notice, by
mail. The notice need not describe the purpose of the special meeting.
3.9 QUORUM AND ADJOURNMENTS. At all meetings of the board of directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may otherwise be specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any meeting of the
board of directors, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting at which the
adjournment is taken, until a quorum shall be present. A meeting at which a
quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved of by at least a
majority of the required quorum for that meeting.
3.10 ACTION WITHOUT MEETING. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the board of directors or of any committee thereof may be
taken without a meeting, if all members of the board of directors or committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board of directors or committee.
3.11 TELEPHONE MEETINGS. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any member of the board of directors or any
committee may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.12 WAIVER OF NOTICE. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
3.13 FEES AND COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the board of directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, for service performed as directors, including the
expenses incurred in connection with their attendance at meetings of the board
of directors, and may be paid a fixed sum for attendance at each meeting of the
board of directors and/or a fixed or variable salary for their service as a
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
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3.14 RIGHTS OF INSPECTION. Any director shall have the right to examine the
corporation's stock ledger, a list of its stockholders and its other books and
records for a purpose reasonably related to his or her position as a director.
3.15 COMMITTEES OF DIRECTORS.
(i) The board of directors may, by resolution passed by a majority of
the entire board of directors, designate one or more committees, each
committee to consist of one or more of the directors of the corporation.
The board of directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or she or they 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.
(iii) Any such committee, to the extent provided in the resolution of
the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to amending the Certificate
of Incorporation (except that a committee may, to the extent authorized in
the resolution or resolutions providing for the issuance of shares of stock
adopted by the board of directors as provided in Section 151(a) of the
General Corporation Law of Delaware, fix any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any
other series of the same or any other class or classes of stock of the
corporation), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of
dissolution, removing or indemnifying directors or amending the Bylaws of
the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provides, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock or
to adopt a certificate of ownership and merger. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the board of directors.
(iv) Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
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ARTICLE 4
Officers
4.1 OFFICERS DESIGNATED. The officers of the corporation shall be chosen by
the board of directors and shall be a Chief Executive Officer, a Secretary and a
Chief Financial Officer or Treasurer. The board of directors may also appoint a
Chairman, a Vice Chairman, a President, a Chief Operating Officer, a Chief
Technical Officer, one or more Vice Presidents, and one or more assistant
Secretaries. Any number of offices may be held by the same person, except as
otherwise provided in the Certificate of Incorporation or these Bylaws.
4.2 APPOINTMENT OF OFFICERS. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 4.3 or
4.5 of this Article 4, shall be chosen in such manner and shall hold their
offices for such terms as are prescribed by these Bylaws or determined by the
board of directors. Each officer shall hold his or her office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. This Section does not create any rights of employment or continued
employment. The corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
4.3 SUBORDINATE OFFICERS. The board of directors may appoint, and may
empower the Chairman, Vice Chairman, Chief Executive Officer and/or President to
appoint, such other officers and agents as the business of the corporation may
require, each of whom shall hold office for such period, have such authority and
perform such duties as are provided in the Bylaws or as the board of directors
may from time to time determine.
4.4 REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of
an officer under any contract of employment, any officer may be removed, either
with or without cause, by an affirmative vote of the majority of the board of
directors, at any regular or special meeting of the board of directors, or,
except in case of an officer chosen by the board of directors, by any officer
upon whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
4.5 VACANCIES IN OFFICES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for regular appointment to that office.
4.6 COMPENSATION. The salaries of all officers of the corporation shall be
fixed from time to time by the board of directors and no officer shall be
prevented from receiving a salary because such officer is also a director of the
corporation.
4.7 THE CHAIRMAN OF THE BOARD. The Chairman, if such an officer be elected,
shall, if present, perform such other powers and duties as may be assigned to
such officer from time to time by the board of directors. In the absence of an
appointed Chief Executive Officer, the Chairman shall be deemed to function in
the capacity of the Chief Executive Officer.
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4.8 THE VICE CHAIRMAN. The Vice Chairman, if such an officer be elected,
shall, if present, perform such other powers and duties as may be assigned to
such officer from time to time by the Chairman, if such an officer be elected,
or by the board of directors. If there is no Chairman, the Vice Chairman shall
also fulfill the duties of that position. If there is neither a Chairman nor a
Chief Executive Officer, the Vice Chairman shall also be the Chief Executive
Officer of the corporation and shall have the powers and duties prescribed in
Section 4.9 of this Article 4.
4.9 THE CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the board of directors to the Chairman and/or the Vice
Chairman, if there be such either such officer, the Chief Executive Officer
shall preside at all meetings of the stockholders and in the absence of the
Chairman, or, if there be none, at all meetings of the board of directors, shall
have general and active management of the business of the corporation and shall
see that all orders and resolutions of the board of directors are carried into
effect. He or she shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the board of directors to some
other officer or agent of the corporation.
4.10 THE PRESIDENT. The President shall, in the event there be no Chief
Executive Officer or Chairman or in the absence of the Chief Executive Officer
or in the event of his or her disability or refusal to act, perform the duties
of the Chief Executive Officer, and when so acting, shall have the powers of and
subject to all the restrictions upon the Chief Executive Officer. The President
shall perform such other duties and have such other powers as may from time to
time be prescribed for him or her by the board of directors, the Chairman, the
Vice Chairman, the Chief Executive Officer or these Bylaws.
4.11 THE VICE PRESIDENT. The Vice President (or in the event there be more
than one, the Vice Presidents in the order designated by the directors, or in
the absence of any designation, in the order of their election), shall, in the
absence of the President or in the event of his or her disability or refusal to
act, perform the duties of the President, and when so acting, shall have the
powers of and subject to all the restrictions upon the President. The Vice
President(s) shall perform such other duties and have such other powers as may
from time to time be prescribed for them by the board of directors, the
President, the Vice Chairman, the Chairman or these Bylaws.
4.12 THE SECRETARY. The Secretary shall attend all meetings of the board of
directors and the stockholders and record all votes and the proceedings of the
meetings in a book to be kept for that purpose and shall perform like duties for
the standing committees, when required. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and special meetings of the board
of directors, and shall perform such other duties as may from time to time be
prescribed by the board of directors, the Chairman, the Vice Chairman or the
Chief Executive Officer, under whose supervision he or she shall act. The
Secretary shall have custody of the seal of the corporation, and the Secretary,
or an Assistant Secretary, shall have authority to affix the same to any
instrument requiring it, and, when so affixed, the seal may be attested by his
or her signature or by the signature of such Assistant Secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing thereof by his or her signature. The
Secretary shall keep, or cause to be kept, at the principal executive office or
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at the office of the corporation's transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a duplicate share
register, showing the names of all stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for the same and the number and date of cancellation of every certificate
surrendered for cancellation.
4.13 THE ASSISTANT SECRETARY. The Assistant Secretary, or if there be more
than one, the Assistant Secretaries in the order designated by the board of
directors (or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as may
from time to time be prescribed by the board of directors.
4.14 THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer (or Treasurer
if the chief financial and accounting officer has such title) shall have the
custody of the Corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by the board
of directors. The Chief Financial Officer shall disburse the funds of the
corporation as may be ordered by the board of directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and the
board of directors, at its regular meetings, or when the board of directors so
requires, an account of all his or her transactions as Chief Financial Officer
and of the financial condition of the corporation.
4.15 BOND. If required by the board of directors, any officer shall give
the corporation a bond in such sum and with such surety or sureties and upon
such terms and conditions as shall be satisfactory to the board of directors,
including without limitation a bond for the faithful performance of the duties
of such officer's office and for the restoration to the corporation of all
books, papers, vouchers, money and other property of whatever kind in such
officer's possession or under such officer's control and belonging to the
corporation.
4.16 DELEGATION OF AUTHORITY. The board of directors may from time to time
delegate the powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
ARTICLE 5
Indemnification
5.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the corporation or is or was serving at the request of
the corporation as a director, officer or trustee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving as a
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director, officer or trustee, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the General Corporation Law of
Delaware, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than such law permitted
the corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 5.3 hereof with respect to proceedings to enforce
rights to indemnification, the corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the board of
directors of the corporation.
Notwithstanding the foregoing, no indemnification shall be provided hereunder to
an officer or director:
(a) who shall have been adjudicated, by the court or other body
before which the proceeding was brought, to be liable to the
corporation or its stockholders by reason of such officer's
or director's willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in
the conduct of his or her office (collectively, "disabling
conduct"); or
(b) with respect to any proceeding disposed of (whether by
settlement, pursuant to a consent decree or otherwise)
without an adjudication by the court or other body before
which the proceeding was brought that such officer or
director was liable to corporation or its stockholders by
reason of disabling conduct, unless there has been a
determination that such officer or director did not engage
in disabling conduct by:
(i) at least a majority of those directors who are neither
"interested persons" of the corporation (as such term
is defined in Section 2(a)(19) of the Investment
Company Act of 1940, as amended ("1940 Act") nor are
parties to the proceeding based upon a review of
readily available facts (as opposed to a full
trial-type inquiry); or
(ii) written advice of independent legal counsel based upon
a review of readily available facts (as opposed to a
full trial-type inquiry);
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provided, however, that indemnification shall be provided hereunder to a
director or officer with respect to any proceeding in the event of (1) a final
decision on the merits by the court or other body before which the proceeding
was brought that the director or officer was not liable by reason of disabling
conduct, or (2) the dismissal of the proceeding by the court or other body
before which it was brought for insufficiency of evidence of any disabling
conduct with which such director or officer has been charged. For purposes of
this Section 5.1, a "director" or "officer" of the corporation includes any
person (i) who is or was a director or officer of the corporation, (ii) who is
or was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a predecessor
corporation of the corporation or of another enterprise at the request of such
predecessor corporation.
5.2 RIGHT TO ADVANCEMENT OF EXPENSES. In addition to the right to
indemnification conferred in Section 5.1 hereof, an indemnitee shall also have
the right to be paid by the corporation the expenses (including attorney's fees)
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
General Corporation Law of Delaware requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 5.2 or otherwise; and provided, further, that (a)
such director or officer shall have provided appropriate security for such
undertaking, (b) the corporation is insured against losses arising out of any
such advance payments, or (c) either a majority of the directors who are neither
"interested persons" of the corporation (as such term is defined in Section
2(a)(19) of the 1940 Act) nor parties to the proceeding, or independent legal
counsel by means of written advice, shall have determined, based upon a review
of the readily available facts (as opposed to a trial-type inquiry or full
investigation), that there is reason to believe that such director or officer
will be found entitled to indemnification under this Article 5.
5.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 5.1 or 5.2
hereof is not paid in full by the corporation within sixty (60) days after a
written claim has been received by the corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the indemnitee may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the General
Corporation Law of Delaware. Neither the failure of the corporation (including
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its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the General Corporation Law of Delaware, nor an
actual determination by the corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article 5 or otherwise shall be on the corporation.
5.4 NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article 5 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Certificate of Incorporation, these Bylaws, any agreement, vote of
stockholders or directors or otherwise.
5.5 INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of Delaware.
5.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the corporation to the fullest extent of the provisions
of this Article 5 with respect to the indemnification and advancement of
expenses of directors and officers of the corporation.
5.7 NATURE OF RIGHTS. The rights conferred upon indemnitees in this Article
5 shall be contract rights and such rights shall continue as to an indemnitee
who has ceased to be a director, officer or trustee and shall inure to the
benefit of the indemnitee's heirs, executors and administrators. Any amendment,
alteration or repeal of this Article 5 that adversely affects any right of an
indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence
or alleged occurrence of any action or omission to act that took place prior to
such amendment or repeal.
ARTICLE 6
Capital Stock
6.1 CERTIFICATES FOR SHARES. The shares of the corporation shall be
represented by certificates or shall be uncertificated. Certificates shall be
signed by, or in the name of the corporation by, the Chairman, the Vice
Chairman, the Chief Executive Officer, the President or a Vice President and by
the Chief Financial Officer, the Treasurer, the Secretary or an Assistant
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Secretary of the corporation. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue. Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required by the General Corporation Law of the
State of Delaware or a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6.3 TRANSFER OF STOCK. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate of shares duly endorsed or accompanied
by proper evidence of succession, assignation or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated share, such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
6.4 REGISTERED STOCKHOLDERS. The corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a percent registered on its books as the owner of shares, and
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 Delaware.
6.5 LOST, STOLEN OR DESTROYED CERTIFICATES. The board of directors may
direct that a new certificate or certificates be issued to replace any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing the issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of the lost, stolen or destroyed certificate
or certificates, or his or her legal representative, to advertise the same in
such manner as it shall require, and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
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ARTICLE 7
Certain Transactions
7.1 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction
between the corporation and one or more of its directors or officers, or between
the corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board of directors or committee thereof which authorizes the
contract or transaction or solely because the vote or votes of such director or
officer are counted for such purpose, if:
(a) the material facts as to such person's relationship or interest
and as to the contract or transaction are disclosed or are known to the
board of directors or the committee, and the board of directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or
(b) the material facts as to such person's relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(c) the contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of directors,
a committee thereof, or the stockholders.
7.2 QUORUM. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the board of directors or of a
committee which authorizes the contract or transaction.
ARTICLE 8
General Provisions
8.1 DIVIDENDS. Dividends upon the capital stock of the corporation, subject
to any restrictions contained in the General Corporation Law of the State of
Delaware or the provisions of the Certificate of Incorporation, if any, may be
declared by the board of directors at any regular or special meeting. Dividends
may be paid in cash, in property or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation.
8.2 DIVIDEND RESERVE. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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8.3 CHECKS. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
8.4 CORPORATE SEAL. The board of directors may, by resolution, adopt a
corporate seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced. The seal may be altered from time to time by the board of
directors.
8.5 FISCAL YEAR. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
8.6 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. The board of
directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.7 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chief Executive
Officer, the President or any Vice President or the Secretary or any Assistant
Secretary of this corporation is authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of any
corporation or corporations standing in the name of this corporation. The
authority herein granted to said officers to vote or represent on behalf of this
corporation any and all shares held by this corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officers.
ARTICLE 9
Amendments
The board of directors is expressly empowered to adopt, amend or repeal
these Bylaws, provided, however, that any adoption, amendment or repeal of these
Bylaws by the board of directors shall require the approval of at least
sixty-six and two-thirds percent (66-2/3%) of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any resolution providing for adoption, amendment or
repeal is presented to the board). The stockholders shall also have power to
adopt, amend or repeal these Bylaws, provided, however, that in addition to any
vote of the holders of any class or series of stock of this corporation required
by law or by the Certificate of Incorporation of this corporation, the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then outstanding shares of the stock
of the corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required for such adoption,
amendment or repeal by the stockholders of any provisions of these Bylaws.