EXHIBIT 3.2
AMENDMENTS TO LINEO, INC. BYLAWS
SEPTEMBER 24, 1999 BOARD OF DIRECTORS MEETING:
Number of Directors was increased to seven (7) members
FEBRUARY 14, 2000 CONSENT OF DIRECTORS IN LIEU OF SPECIAL MEETING:
Number of Directors was decreased to five (5) members
MAY 17, 2000 BOARD OF DIRECTORS MEETING:
Section 2.2 Special Meetings.
Special meetings of the stockholders, for any purpose or
purposes, may only be called by the Chairman of the Board or a majority of the
Board.
RESOLVED FURTHER, that Article II of the Bylaws shall also be amended
to add the following three sections:
Section 2.16. Action by Consent - Post IPO.
Effective upon the Effective upon the closing of the
corporation's initial public offering of securities pursuant to a registration
statement filed under the Securities Act of 1933, as amended, the stockholders
of the Corporation may not take action by written consent without a meeting but
must take any such actions at a duly called annual or special meeting in
accordance with these Bylaws and the Certificate of Incorporation.
Section 2.17. Notice of Stockholder Nominees.
Nominations of persons for election to the Board of
Directors shall be made only at a meeting of stockholders and only (i) by the
Board of Directors or a committee appointed by the Board of Directors or (ii) by
any stockholder entitled to vote in the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.17. 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. 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 an annual meeting of stockholders,
ninety days prior to the date one year from the date of the immediately
preceding annual meeting of stockholders, and (ii) with respect to an election
to be held at a special meeting of stockholders for the election of directors,
the close of business on the tenth day following the date on which notice of
such meeting is first given to stockholders. For purposes of this Section 2.17,
any adjournment(s) or postponement(s) of the original meeting whereby the
meeting will reconvene within thirty days from the original date shall be deemed
for purposes of notice to be a continuation of the original meeting, and no
nominations by a stockholder of persons to be elected directors of the
corporation may be made at any such reconvened meeting unless pursuant to a
notice which was
timely for the meeting on the date originally scheduled. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to the
Securities Exchange Act of 1934, as amended; and (e) the consent of each nominee
to serve as a director of the corporation if so elected.
Notwithstanding the foregoing, nothing in this Section 2.17
shall be interpreted or construed to require the inclusion of information about
any such nominee in any proxy statement distributed by, at the direction of, or
on behalf of the Board of Directors. The Chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedures, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 2.18 Stockholder Proposals at Annual Meeting.
Business may be properly brought before an annual meeting by a
stockholder only upon the stockholder's timely 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 ninety days prior to the date one year from the date
of the immediately preceding annual meeting of stockholders. For purposes of
this Section 2.18, any adjournment(s) or postponement(s) of the original meeting
whereby the meeting will reconvene within thirty days from the original date
shall be deemed for purposes of notice to be a continuation of the original
meeting, and no business may be brought before any reconvened meeting unless
pursuant to a notice which was timely for the meeting on the date as originally
scheduled. Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the proposal; (b) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
vote for the proposal; (c) any material interest of such stockholder in such
proposal; and (d) such other information regarding such proposal as would be
required to be disclosed in solicitations of proxies pursuant to the Securities
Exchange Act of 1934, as amended.
Notwithstanding the foregoing, nothing in this Section 2.18
shall be interpreted or construed to require the inclusion of information about
any such proposal in any proxy statement distributed by, at the discretion of,
or on behalf of the Board of Directors. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a proposal was not
made in accordance with the foregoing procedures, and if he should so determine,
he shall so declare to the meeting, and any such business not properly brought
before the meeting shall be disregarded.
RESOLVED FURTHER, that Article X of the Bylaws shall be amended to read in
its entirety as follows:
These bylaws may be altered, amended or repealed or new bylaws may be
adopted by the affirmative vote of holders of at least 66-2/3% vote of the
outstanding voting stock of the corporation. These bylaws may also be altered,
amended or repealed or new bylaws may be adopted by the Board of Directors, when
such power is conferred upon the Board of Directors by the certificate of
incorporation. The foregoing may occur at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new bylaws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal bylaws is conferred upon
the Board of Directors by the certificate of incorporation it shall not divest
or limit the power of the stockholders to adopt, amend or repeal bylaws.
BYLAWS
OF
LINEO, INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 OFFICES......................................................................1
1.1 Business Offices.....................................................1
1.2 Registered Office....................................................1
ARTICLE 2 STOCKHOLDERS.................................................................1
2.1 Annual Stockholder Meeting...........................................1
2.2 Special Stockholder Meetings.........................................1
2.3 Place of Stockholder Meeting.........................................2
2.4 Notice of Stockholder Meeting........................................2
2.5 Fixing of Record Date................................................3
2.6 Stockholder List.....................................................4
2.7 Stockholder Quorum and Voting Requirements...........................4
2.8 Proxies..............................................................5
2.9 Voting of Shares.....................................................5
2.10 Corporation's Acceptance of Votes....................................5
2.11 Informal Action by Stockholders......................................7
2.12 Voting for Directors.................................................8
2.13 Stockholder's Rights to Inspect Corprorate Records...................8
2.14 Furnishing Financial Statements to a Stockholder....................10
2.15 Information Respecting Shares.......................................10
ARTICLE 3 BOARD OF DIRECTORS..........................................................10
3.1 General Powers......................................................10
3.2 Number, Tenure, and Qualifications of Directors.....................10
3.3 Regular Meetings of the Board of Directors..........................11
3.4 Special Meetings of the Board of Directors..........................11
3.5 Notice and Waiver of Notice of Special Director Meetings............11
3.6 Director Quorum.....................................................12
3.7 Manner of Acting....................................................12
3.8 Director Action Without a Meeting...................................12
3.9 Removal of Directors................................................13
3.10 Board of Director Vacancies.........................................13
3.11 Director Compensation...............................................14
3.12 Director Committees.................................................14
3.13 Director's Rights to Inspect Corporate Records......................14
3.14 General Standard of Conduct for Directors...........................16
ARTICLE 4 OFFICERS....................................................................17
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4.1 Number of Officers..................................................17
4.2 Appointment and Term of Office......................................17
4.3 Removal of Officers.................................................17
4.4 Chairman of the Board...............................................17
4.5 Chief Executive Officer.............................................17
4.6 President...........................................................18
4.7 Vice Presidents.....................................................18
4.8 Secretary...........................................................18
4.9 Treasurer...........................................................19
4.10 Assistant Secretaries and Assistant Treasurers......................19
4.11 Salaries............................................................19
4.12 General Standards of Conduct for Officers...........................19
ARTICLE 5 LIMITATION OF LIABILITY AND INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, FIDUCIARIES, AND AGENTS .........................................20
5.1 Limitation of Liability of Directors and Officers...................20
5.2 Indemnification of Directors and Officers...........................20
5.3 Effect of Repeal or Modification of Article V.......................21
5.4 Insurance...........................................................21
ARTICLE 6 CERTIFICATES FOR SHARES AND THEIR TRANSFER..................................21
6.1 Certificates for Shares.............................................21
6.2 Shares Without Certificates.........................................22
6.3 Registration of Transfer of Shares..................................22
6.4 Restrictions on Transfer of Shares Permitted........................22
6.5 Acquisition of Shares...............................................23
ARTICLE 7 DISTRIBUTIONS...............................................................24
7.1 Distributions.......................................................24
ARTICLE 8 CORPORATE SEAL..............................................................24
8.1 Corporate Seal......................................................24
ARTICLE 9 FISCAL YEAR.................................................................24
9.1 Fiscal Year.........................................................24
ARTICLE 10 AMENDMENTS.................................................................25
10.1 Amendments..........................................................25
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BYLAWS
OF
LINEO, INC.
ARTICLE 1
OFFICES
1.1 BUSINESS OFFICES.
The principal office of Lineo, Inc., a Delaware corporation (the
"Corporation"), shall be located at any place either within or outside the State
of Delaware, as designated in the Corporation's Certificate of Incorporation or
the Corporation's most recent annual report on file with the Office of the
Secretary of State of Delaware providing such information. The Corporation may
have such other offices, either within or outside the State of Delaware as the
Board of Directors may designate or as the business of the Corporation may
require from time to time. The Corporation shall maintain at its principal
office a copy of those records specified in Section 2.13 of Article II of these
Bylaws.
1.2 REGISTERED OFFICE.
The registered office of the Corporation required by the Delaware
General Corporation Code shall be located within the State of Delaware. The
address of the registered office may be changed from time to time.
ARTICLE 2
STOCKHOLDERS
2.1 ANNUAL STOCKHOLDER MEETING.
An annual meeting of the stockholders shall be held each year on the
date, at the time, and at the place, fixed by the Board of Directors, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting.
2.2 SPECIAL STOCKHOLDER MEETINGS.
Special meetings of the stockholders may be called, for any purposes
described in the notice of the meeting, by the president, or by the Board of
Directors, and shall be called by the president at the request of the holders of
not less than one-tenth of all outstanding votes of the Corporation entitled to
be cast on any issue at the meeting.
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2.3 PLACE OF STOCKHOLDER MEETING.
The Board of Directors may designate any place, either within or
outside the State of Delaware, as the place for any annual meeting of the
stockholders and for any special meeting of the stockholders called by the Board
of Directors. The president of the Corporation or any stockholder or any group,
of stockholders of the Corporation holding at least ten percent (10%) of ad of
the voting shares of the Corporation may designate any place, within or outside
the State of Delaware, as the place for any special meeting of the stockholders
called by the president or the group of stockholders. If no designation is made
by the Board of Directors, the president, or the stockholders, as the case may
be, the place of the meeting shall be the principal ounce of the Corporation.
2.4 NOTICE OF STOCKHOLDER MEETING.
(a) REQUIRED NOTICE. Written notice stating the place,
day, and hour of any annual or special stockholder meeting shall be delivered
not less than ten nor more than sixty days before the date of the meeting,
either personally or by mail, by or at the direction of the Board of Directors,
the president, or other persons calling the meeting, to each stockholder of
record entitled to vote at such meeting, and to any other stockholder entitled
by the Delaware General Corporation Code or the Corporation's Certificate of
Incorporation to receive notice of the meeting. Notice shall be deemed to be
effective when mailed.
Notice shall not be required to be given to any stockholder to whom:
(i) A notice of two consecutive annual meetings,
and all notices of meetings or of the taking of action by written consent
without a meeting during the period between the two consecutive annual meetings,
have been mailed, addressed to the stockholder at the stockholder's address as
shown on the records of the Corporation, and have been returned undeliverable;
or
(ii) At least two payments, if sent by first
class mail, of dividends or interest on securities during a twelve month period,
have been mailed, addressed to the stockholder at the stockholder's address as
shown on the records of the Corporation, and have been resumed undeliverable.
If a stockholder to whom notice is not required delivers to the
Corporation a written notice setting forth the stockholder's current address, or
if another address for the stockholder is otherwise made known to the
Corporation, the requirement that notice be given to the stockholder is
reinstated.
(b) ADJOURNED MEETING. If any stockholder meeting is
adjourned to a different date, time, or place, notice need not be given of the
new date, time, or place, if the new date, time, or place is announced at the
meeting before adjournment. However, if the adjournment is for more than 30
days, or if after the adjournment a new record date for the adjourned meeting is
or must be fixed (SEE Section 2.5 of these Bylaws), then notice must be given
pursuant to the requirements of paragraph (a) of this Section 2.4 to
stockholders of record who are entitled to vote at the meeting.
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(c) WAIVER OF NOTICE. Any stockholder may waive notice of
a meeting (or any notice required by the Delaware General Corporation Code, the
Corporation's Certificate of Incorporation, or these Bylaws), by a writing
signed by the stockholder, which is delivered to the Corporation (either before
or after the date and time stated in the notice as the date or time when any
action will occur or has occurred) for inclusion in the minutes or filing with
the Corporation's records.
A stockholder's attendance at a meeting:
(i) Waives objection to lack of notice or
defective notice of the meeting, unless the stockholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting;
and
(ii) Waives objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter when it is presented.
(d) CONTENTS OF NOTICE. Notice of any special meeting of
the stockholders shall include a description of the purpose or purposes for
which the meeting is called. Except as provided in this Section 2.4(d), in the
Certificate of Incorporation, or in the Delaware General Corporation Code,
notice of an annual meeting of the stockholders need not include a description
of the purpose or purposes for which the meeting is called.
2.5 FIXING OF RECORD DATE.
For the purpose of determining stockholders of any voting group
entitled to notice of or to vote at any meeting of stockholders, or stockholders
entitled to take action without a meeting or to demand a special meeting, or
stockholders entitled to receive payment of any distribution or 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. Such record
date shall not be more than seventy days prior to the date on which the
particular action, requiring such determination of stockholders, is to be taken.
If no record date is so fixed by the Board of Directors, the record date shall
be at the close of business:
(a) with respect to an annual meeting of the stockholders
or any special meeting of the stockholders called by the Board of Directors or
any person or group specifically authorized by these Bylaws to call a meeting of
the stockholders, as of the close of business on the day before the first notice
is delivered to stockholders;
(b) with respect to a special stockholder meeting
demanded by the stockholders, on the earliest date of any of the demands
pursuant to which the meeting is called, or 60 days prior to the date the first
of the written demands is received by the Corporation, whichever is later;
(c) with respect to actions taken in writing without a
meeting (pursuant to Section 2.11 of these Bylaws), on the date the first
stockholder delivers to the Corporation a signed written consent upon which the
action is taken;
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(d) with respect to a distribution to stockholders (other
than one involving a repurchase or reacquisition of shares), on the date the
Board of Directors authorizes the distribution; and
(e) with respect to the payment of a share dividend, on
the date the Board of Directors authorizes the share dividend.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof unless the Board of Directors fixes a new
record date, which it must do if the meeting is adjourned to a date more than
120 days after the date fixed for the original meeting.
2.6 STOCKHOLDER LIST.
The secretary shall make a complete record of the stockholders entitled
to vote at each meeting of stockholders, arranged in alphabetical order within
each class or series, with the address of and the number of shares held by each.
The list must be arranged by voting group (if such exists; SEE Section 2.7 of
these Bylaws) and within each voting group by class or series of shares. The
stockholder list must be available for inspection by any stockholder, beginning
on the earlier of ten days before the meeting for which the list was prepared or
two business days after notice of the meeting is given and continuing through
the meeting and any adjournments. The list shall be available at the
Corporation's principal office or at a place identified in the notice of the
meeting in the city where the meeting is to be held. A stockholder, his agent,
or attorney is entitled on written demand to inspect and, subject to the
requirements of Section 2.13 of these Bylaws, to inspect and copy the list
during regular business hours and during the period it is available for
inspection. The Corporation shall maintain the stockholder list in written form
or in another form capable of conversion into written form within a reasonable
time.
2.7 STOCKHOLDER QUORUM AND VOTING REQUIREMENTS.
If the Certificate of Incorporation or the Delaware General Corporation
Code provide for voting by a single voting group on a matter, action on that
matter is taken when voted upon by that voting group.
Shares entitled to vote as a separate voting group may take action on a
maker at a meeting only if a quorum of those shares exists with respect to that
matter. Unless the Certificate of Incorporation, a Bylaw adopted by the
stockholders pursuant to the Delaware General Corporation Code provide
otherwise, at least two-thirds (2/3) of the votes entitled to be cast on the
matter by the voting group constitutes a quorum of that voting group for action
on that matter.
If the Certificate of Incorporation or the Delaware General Corporation
Code provide for voting by two or more voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting groups counted
separately. One voting group may vote on a matter even though another voting
group entitled to vote on the matter has not voted.
Once a share is represented for any purpose at a meeting, including the
purpose of determining that a quorum exists, it is deemed present for quorum
purposes for the remainder of
4
the meeting and for any adjournment of that meeting, unless a new record date
is or must be set for that adjourned meeting.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if at least two-thirds (2/3) of the
votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Certificate of Incorporation, a Bylaw adopted by
the stockholders pursuant to the Delaware General Corporation Code, require a
greater number of affirmative votes.
2.8 PROXIES.
At all meetings of stockholders, a stockholder may vote in person or by
a proxy executed in any lawful manner. Such proxy shall be filed with the
Corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution unless otherwise provided in the
proxy.
2.9 VOTING OF SHARES.
Unless otherwise provided in the Certificate of Incorporation, each
outstanding share entitled to vote shall be entitled to one vote, and each
fractional share shall be entitled to a corresponding fractional vote, upon each
matter submitted to a vote at a meeting of stockholders.
Except as provided by specific court order, no shares of the
Corporation held by another corporation, if a majority of the shares entitled to
vote for the election of directors of such other corporation are held by the
Corporation, shall be voted at any meeting of the Corporation or counted in
determining the total number of outstanding shares at any given time for
purposes of any meeting. However, the power of the Corporation to vote any
shares, including its own shares, held by it in a fiduciary capacity is not
hereby limited.
Redeemable shares are not entitled to be voted after notice of
redemption is mailed to the holders thereof and a sum sufficient to redeem the
shares has been deposited with a bank,- trust company, or other financial
institution under an irrevocable obligation to pay the holders the redemption
price on surrender of the shares.
2.10 CORPORATION'S ACCEPTANCE OF VOTES.
(a) If the name signed on a vote, consent, waiver, proxy
appointment, or proxy appointment revocation corresponds to the name of a
stockholder, the Corporation, if acting in good faith, is entitled to accept the
vote, consent, waiver, proxy appointment, or proxy appointment revocation and
give it effect as the act of the stockholder.
(b) If the name signed on a vote, consent, waiver, proxy
appointment, or proxy appointment revocation does not correspond to the name of
a stockholder, the Corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver, proxy appointment, or proxy
appointment revocation and give it effect as the act of the stockholder if:
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(i) The stockholder is an entity as defined in
the Delaware General Corporation Code and the name signed purports to be that of
an officer or agent of the entity;
(ii) the name signed purports to be that of an
administrator, executor, guardian, or conservator representing the stockholder
and, if the Corporation requests, evidence of fiduciary status acceptable to the
Corporation has been presented with respect to the vote, consent, waiver, proxy
appointment, or proxy appointment revocation;
(iii) the name signed purports to be that of a
receiver or trustee in bankruptcy of the stockholder and, if the Corporation
requests, evidence of this status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, proxy appointment, or proxy
appointment revocation;
(iv) the name signed purports to be that of a
pledges, beneficial owner, or attorney-in-fact of the stockholder and, if the
Corporation requests, evidence acceptable to the Corporation of the signatory's
authority to sign for the stockholder has been presented with respect to the
vote, consent, waiver, proxy appointment, or proxy appointment revocation;
(v) two or more persons are the stockholder as
cotenants or fiduciaries and the name signed purports to be the name of at least
one of the cotenants or fiduciaries and the person signing appears to be acting
on behalf of all the cotenants or fiduciaries; or
(vi) the acceptance of the vote, consent, waiver,
proxy appointment, or proxy appointment revocation is otherwise proper under
rules established by the Corporation that are not inconsistent with the
provisions of this Section 2.10.
(c) If shares of the Corporation are registered in the
names of two or more persons, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the secretary is given written
notice to the contrary and furnished with a copy of the instrument creating the
relationship, their acts with respect to voting shall have the following effect:
(i) if only one votes, the act binds all;
(ii) if more than one vote, the act of the
majority so voting binds all;
(iii) if more than one vote, but the vote is
evenly split on any particular matter, each faction may vote the securities in
question proportionately; and
(iv) if the instrument so filed or the
registration of the shares shows that any tenancy is held in unequal interests,
a majority or even split for the purpose of this Section 2.10 shall be a
majority or even split in interest.
(d) The Corporation is entitled to reject a vote,
consent, waiver, proxy appointment, or proxy appointment revocation if the
secretary or other officer or agent authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the validity of the signature on it
or about the signatory's authority to sign for the stockholder.
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(e) The Corporation and its officer or agent who accepts
or rejects a vote, consent, waiver, proxy appointment, or proxy appointment
revocation in good faith and in accordance with the standards of this Section
2.10 are not liable in damages to the stockholder for the consequences of the
acceptance or rejection.
(f) Corporate action based on the acceptance or rejection
of a vote, consent, waiver, proxy appointment, or proxy appointment revocation
under this Section 2.10 is valid unless a court of competent jurisdiction
determines otherwise.
2.11 INFORMAL ACTION BY STOCKHOLDERS.
(a) Unless otherwise provided in the Certificate of
Incorporation, any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice if one or
more consents in writing, setting forth the action so taken, are signed by the
holders of outstanding shares having not less than the minimum number of votes
necessary to authorize or take the action at a meeting at which all shares
entitled to vote thereon were present and voted.
(b) Unless written consents of all stockholders entitled
to vote have been obtained, the Corporation shall give notice of any stockholder
approval without a meeting at least ten days before the consummation of the
action authorized by the approval to:
(i) those stockholders entitled to vote who have
not consented in writing; and
(ii) those stockholders not entitled to vote and
to whom the Delaware General Corporation Code requires notice be given.
Such notice shall contain or be accompanied by the same material that
would have been required if a formal meeting had been called to consider the
action.
(c) Any stockholder giving a written consent, or the
stockholders' proxyholder, or a transferee of the shares or a personal
representative of the stockholder or their respective proxyholder, may revoke
the consent by a signed writing describing the action and stating-that the
stockholder's prior consent is revoked, if the writing is received by the
Corporation prior to the effectiveness of the action.
(d) Action taken pursuant to this Section 2.11 is not
effective unless all written consents on which the Corporation relies for the
taking of action are received by the Corporation within a sixty day period and
are not revoked. Action thus taken is effective as of the date the last written
consent necessary to effect the action is received by the Corporation, unless
all the written consents necessary to effect the action specify a later date as
the effective date of action. If the Corporation has received written consents
signed by all stockholders entitled to vote with respect to the action, the
effective date of the action may be any date that is specified in all the
written consents as the effective date of the action. The writing may be
received by the Corporation by electronically transmitted facsimile or other
form of communication providing the Corporation with a complete copy thereof,
including a copy of the signature.
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(e) Notwithstanding Subsection (a) of this Section 2.11,
directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of directors.
(f) Action taken under this Section 2.11 has the same
effect as action taken at a meeting of stockholders and may be so described in
any document.
2.12 VOTING FOR DIRECTORS.
At each election of directors, unless otherwise provided in the
Certificate of Incorporation or the Delaware General Corporation Code, every
stockholder entitled to vote at the election has the right to vote, in person or
by proxy, all of the votes to which the stockholder's shares are entitled for as
many persons as there are directors to be elected and for whose election the
stockholder has the right to vote.
Unless otherwise provided in the Certificate of Incorporation or the
Delaware General Corporation Code, directors are elected by at least two-thirds
(2/3) of the votes cast by the shares entitled to be voted in the election, at a
meeting at which a quorum is present.
2.13 STOCKHOLDER'S RIGHTS TO INSPECT CORPRORATE RECORDS.
(a) MINUTES AND ACCOUNTING RECORDS. The Corporation shall
keep as permanent records minutes of all meetings of its stockholders and Board
of Directors, a record of all actions taken by its stockholders or Board of
Directors without a meeting, a record of all actions taken on behalf of the
Corporation by a committee of the Board of Directors in place of the Board of
Directors, and a record of all waivers of notices of meetings of its
stockholders, meetings of the Board of Directors, or any meetings of committees
of the Board of Directors. The Corporation shall maintain appropriate accounting
records.
(b) ABSOLUTE INSPECTION RIGHTS OF RECORDS REQUIRED AT
PRINCIPAL OFFICE. If a stockholder gives the Corporation written notice of the
stockholder's demand at least five business days before the date on which the
stockholder wishes to inspect and copy, a stockholder (or the stockholder's
agent or attorney) has the right to inspect and copy, during regular business
hours, any of the following records, all of which the Corporation is required to
keep at its principal office:
(i) The Corporation's Certificate of
Incorporation currently in effect;
(ii) the Corporation's Bylaws currently in
effect;
(iii) the minutes of all stockholders' meetings,
and records of all action taken by stockholders without a meeting, for the past
three years;
(iv) all written communications within the past
three years to stockholders as a group or to the holders of any class or series
of shares as a group;
(v) a list of the names and business addresses
of the Corporation's current officers and directors;
8
(vi) the Corporation's most recent annual report
delivered to the Office of the Secretary of State of Delaware; and
(vii) all financial statements prepared for
periods ending during the last three years that a stockholder could request
pursuant to the Delaware General Corporation Code.
(c) CONDITIONAL INSPECTION RIGHT. If a stockholder gives
the Corporation a written demand made in good faith and for a proper purpose at
least five business days before the date on which the stockholder wishes to
inspect and copy, the stockholder describes with reasonable particularity the
stockholder's purpose and the records the stockholder desires to inspect, and
the records are directly connected with the stockholder's purpose, the
stockholder (or the stockholder's agent or attorney) is entitled to inspect and
copy, during regular business hours at a reasonable location specified by the
Corporation, any of the following records of the Corporation:
(i) Excerpts from:
(A) Minutes of any meeting of the Board
of Directors, records of any action of a committee of the Board of Directors
while acting on behalf of the Corporation in place of the Board of Directors;
(B) minutes of any meeting of the
stockholders;
(C) records of action taken by the
stockholders without a meeting; and
(D) waivers of notices of any meeting
of the stockholders, of any meeting of the Board of Directors, or of any meeting
of a committee of the Board of Directors;
(ii) accounting records of the Corporation; and
(iii) the record of the Corporation's
stockholders.
(d) COPY COSTS. The right to copy records includes, if
reasonable, the right to receive copies made by photographic, xerographic, or
other means. The Corporation may impose a reasonable charge, payable in advance,
covering the costs of labor and material, for copies of any documents provided
to a stockholder. The charge may not exceed the estimated cost of production or
reproduction of the records.
(e) STOCKHOLDER INCLUDES BENEFICIAL OWNER. For purposes
of this Section 2.14, the term "stockholder" shall include a beneficial owner
whose shares are held in a voting trust and any other beneficial owner who
establishes beneficial ownership.
9
2.14 FURNISHING FINANCIAL STATEMENTS TO A STOCKHOLDER.
Upon the written request of any stockholder, the Corporation shall mail
to the stockholder its most recent annual or quarterly financial statements
showing in reasonable detail its assets and liabilities and the results of its
operations.
2.15 INFORMATION RESPECTING SHARES.
Upon the written request of any stockholder, the Corporation, at its
own expense, shall mail to the stockholder information respecting the
designations, preferences, limitations, and relative rights applicable to each
class of shares, the variations determined for each series, and the authority of
the Board of Directors to determine variations for any existing or future class
or series. The Corporation may comply by mailing the stockholder a copy of its
Certificate of Incorporation containing such information.
ARTICLE 3
BOARD OF DIRECTORS
3.1 GENERAL POWERS.
All corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation managed under, the direction of
the Board of Directors, subject to any limitation set forth in the Certificate
of Incorporation or in any agreement authorized the Delaware General Corporation
Code.
3.2 NUMBER, TENURE, AND QUALIFICATIONS OF DIRECTORS.
(a) NUMBER. The number of directors of the Corporation
shall be not less than three (3) nor more than fifteen (15) except in the event
that there are less than three (3) stockholders of the Corporation entitled to
vote for the election of directors in which case the number of directors may
equal the number of such voting stockholders of the Corporation. Within this
range, the stockholders or the Board of Directors initially shall fix the number
of directors of the Corporation. Thereafter, again within this range, the number
of directors of the Corporation may be changed and re-established, from time to
time, by the stockholders or the Board of Directors of the Corporation.
Alternatively, if the stockholders of the Corporation elect a new Board of
Directors of the Corporation and the total number of directors elected are
within the range set by this Section 3.2 but are more or less than the number of
directors of the Corporation previously fixed by the stockholders or the Board
of Directors of the Corporation, then such number of directors shall be deemed
to be the fixed number of directors of the Corporation (until such time as the
stockholders or the Board of Directors of the Corporation change said number of
directors by the methods described herein) even though such number has not been
expressly fixed by resolution of the stockholders or the Board of Directors of
the Corporation. Notwithstanding a change in the number of directors of the
Corporation implemented by any of the methods described in this Section 3.2, no
decrease in the number of directors of the Corporation may shorten the term of
any incumbent director.
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(b) TENURE. Each director shall hold office until the
next annual meeting of stockholders or until removed. However, if a director's
term expires, the director shall continue to serve until the directors successor
shall have been elected and qualified, or until there is a decrease in the
number of directors.
(c) QUALIFICATIONS. Directors need not be residents of
the State of Delaware or stockholders of the Corporation unless the Certificate
of Incorporation so prescribes.
3.3 REGULAR MEETINGS OF THE BOARD OF DIRECTORS.
The Board of Directors may provide, by resolution, the time and place,
either within or outside the State of Delaware, for the holding of regular
meetings, which shall be held without other notice than such resolution.
3.4 SPECIAL MEETINGS OF THE BOARD OF DIRECTORS.
Special meetings of the Board of Directors may be called by or at the
request of one (1) of the directors, who may fix any place, either within or
outside the State of Delaware, as the place for holding the meeting.
3.5 NOTICE AND WAIVER OF NOTICE OF SPECIAL DIRECTOR MEETINGS.
Unless the Certificate of Incorporation provides for a longer or
shorter period, special meetings of the Board of Directors must be preceded by
at least two days notice, either orally or in writing, of the date, time, and
place of the meeting.
Notice of any meeting of the Board of Directors shall be deemed to be
effective at the earliest of: (1) when received; (2) five days after it is
mailed; or (3) the date shown on the return receipt if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the director.
A director may waive notice of any meeting. Except as in this Section
3.5 provided, the waiver must be in writing and signed by the director entitled
to the notice. The waiver shall be delivered to the Corporation for filing with
the corporate records, but delivery and filing are not conditions to its
effectiveness.
The attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except when a director attends a meeting for the express
purpose of objecting to the transaction of any business and at the beginning of
the meeting, or promptly upon arrival the director objects to holding the
meeting or transacting business at the meeting because of lack of notice or
defective notice, and does not thereafter vote for or assent to action taken at
the meeting.
A director who attends a special meeting to object to lack of notice
shall not be deemed to be present for quorum purposes.
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3.6 DIRECTOR QUORUM.
A majority of the number of directors shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, unless the
Certificate of Incorporation require a greater number.
A majority of the number of directors prescribed by resolution (or if
no number is prescribed, the number in office immediately before the meeting
begins) shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors, unless the Certificate of Incorporation require a
greater number.
3.7 MANNER OF ACTING.
The act of the majority of the directors present at a meeting at which
a quorum is present when the vote is taken shall be the act of the Board of
Directors, unless the Certificate of Incorporation require a greater percentage.
Unless the Certificate of Incorporation provides otherwise, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
A director who is present at a meeting of the Board of Directors when
corporate action is taken is considered to have assented to the action taken,
unless:
(a) the director objects at the beginning of the meeting,
or promptly upon arrival, to holding it or transacting business at the meeting;
(b) the director contemporaneously requests his dissent
or abstention as to any specific action to be entered into the minutes of the
meeting; or
(c) the director causes written notice of a dissent or
abstention as to any specific action to be received by the presiding officer of
the meeting before its adjournment or by the Corporation promptly after
adjournment of the meeting.
The right of dissent or abstention as to a specific action is not
available to a director who votes in favor of the action taken.
3.8 DIRECTOR ACTION WITHOUT A MEETING.
Unless the Certificate of Incorporation or the Delaware General
Corporation Code provide otherwise, any action required or permitted to be taken
by the Board of Directors at a meeting may be taken without a meeting if all the
directors consent to the action in writing. Action is taken by consents at the
time the last director signs a writing describing the action taken, unless,
prior to that time, any director has revoked a consent by a writing signed by
the director and received by the secretary. Action taken by consents is
effective when the last director signs the consent, unless the Board of
Directors establishes a different effective date.
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Action taken by consents has the same effect as action taken at a meeting of
directors and may be described as such in any document.
3.9 REMOVAL OF DIRECTORS.
The stockholders may remove one or more directors at a meeting called
for that purpose if notice has been given that a purpose of the meeting is such
removal. The removal may be with or without cause, unless the Certificate of
Incorporation provides that directors may only be removed with cause. If a
director is elected by a voting group of stockholders, only the stockholders of
that voting group may participate in the vote to remove the director. If
cumulative voting is in effect, a director may not be removed if the number of
votes sufficient to elect the director under cumulative voting is voted against
the director's removal. If cumulative voting is not in effect, a director may be
removed only if the number of votes cast to remove the director exceeds the
number of votes cast not to remove the director.
3.10 BOARD OF DIRECTOR VACANCIES.
(a) Unless the Certificate of Incorporation provides
otherwise, if a vacancy occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of directors:
(i) the stockholders may fill the vacancy;
(ii) the Board of Directors may fill the vacancy;
or
(iii) if the directors remaining in office
constitute fewer than a quorum of the board, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office.
(b) Unless the Certificate of Incorporation provides
otherwise, if the vacant office was held by a director elected by a voting group
of stockholders:
(i) If one or more directors were elected by the
same voting group, only they are entitled to vote to fill the vacancy if it is
filled by the directors; and
(ii) only the holders of shares of that voting
group are entitled to vote to fill the vacancy if it is filled by the
stockholders.
A vacancy that will occur at a specific later date, because of a
resignation effective at a later date, may be filled before the vacancy occurs,
but the new director may not take office until the vacancy occurs.
If a director's term expires, the director shall continue to serve
until the director's successor is elected and qualified or until there is a
decrease in the number of directors. The term of a director elected to fill a
vacancy expires at the next stockholders' meeting at which directors are
elected.
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3.11 DIRECTOR COMPENSATION.
Unless otherwise provided in the Certificate of Incorporation, by
resolution of the Board of Directors, each director may be paid his expenses, if
any, of attendance at each meeting of the Board of Directors, and may be paid a
stated salary as a director or a fixed sum for attendance at each meeting of the
Board of Directors or both. No such payment shall preclude any director from
serving the Corporation in any capacity and receiving compensation therefor.
3.12 DIRECTOR COMMITTEES.
(a) CREATION OF COMMITTEES. Unless the Certificate of
Incorporation provides otherwise, the Board of Directors may create an Executive
Committee and such other committees as the Board of Directors deems appropriate
and appoint members of the Board of Directors to serve on them. Mach committee
must have two or more members, who serve at the pleasure of the Board of
Directors.
(b) SELECTION OF MEMBERS. The creation of a committee and
appointment of members to it must be approved by the greater of:
(i) a majority of all the directors in office
when the action is taken; or
(ii) the number of directors required by the
Certificate of Incorporation take such action, or if not specified in the
Certificate of Incorporation the number required by Section 3.7 of these Bylaws
to take action.
(c) REQUIRED PROCEDURES. Sections 3.4 through 3.9 of
these Bylaws, which govern meetings, action without a meeting, notice, waiver of
notice, and quorum and voting requirements of the Board of Directors, apply to
committees and their members as well.
(d) AUTHORITY. Unless limited by the Certificate of
Incorporation, each committee may exercise those aspects of the authority of the
Board of Directors which the Board of Directors confers upon such committee in
the resolution creating the committee.
(e) AUTHORITY OF EXECUTIVE COMMITTEE. The Executive
Committee shall have, and may exercise all powers of the Board of Directors with
respect to the management of the business and affairs of the Corporation during
the intervals between the meetings of the Board of Directors, unless otherwise
limited by the Board of Directors. Provided, however, the Executive Committee
shall not have the power to fill vacancies on the Board of Directors or to amend
these Bylaws.
3.13 DIRECTOR'S RIGHTS TO INSPECT CORPORATE RECORDS.
(a) ABSOLUTE INSPECTION RIGHTS OF RECORDS REQUIRED AT
PRINCIPAL OFFICE. If a director gives the Corporation written notice of the
director's demand at least five business days before the date on which the
director wishes to inspect and copy, the director (or the directors agent or
attorney) has the right to inspect and copy, during regular business hours, any
of the following records, all of which the Corporation Is required to keep at
its principal office:
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(i) the Corporation's Certificate of
Incorporation currently in effect;
(ii) the Corporation's Bylaws currently in
effect;
(iii) the minutes of all stockholders' meetings,
and records of all action taken by stockholders without a meeting, for the past
three years;
(iv) all written communications within the past
three years to stockholders as a group or to the holders of any class or series
of shares as a group;
(v) a list of the names and loudness addresses
of the Corporation's current officers and directors;
(vi) the Corporation's most recent annual report
delivered to the Office of the Secretary of State of Delaware; and
(vii) all financial statements prepared for
periods ending during the last three years that a stockholder could request.
(b) CONDITIONAL INSPECTION RIGHT. In addition, if a
director gives the Corporation a written demand made in good faith and for a
proper purpose at least five business days before the date on which the director
wishes to inspect and copy, the director describes with reasonable particularity
the director's purpose and the records the director desires to inspect, and the
records the director desires to inspect, and the records are directly connected
with the director's purpose, the director (or the director's agent or attorney)
is entitled to inspect and copy, during regular business hours at a reasonable
location specified by the Corporation, any of the following records of the
Corporation:
(i) Excerpts from:
(A) Minutes of any meeting of the Board
of Directors, records of any action of a committee of Board of Directors whim
acting on behalf of the Corporation in place of the Board of Directors;
(B) minutes of any meeting of the
stockholders;
(C) records of action taken by the
stockholders without a meeting; and
(D) waivers of notices of any meeting
of the stockholders, of any meeting of the Board of Directors, or of any meeting
of a committee of the Board of Directors;
(ii) accounting records of the Corporation; and
(iii) the record of the Corporation's
stockholders.
15
(c) COPY COSTS. The right to copy records includes, if
reasonable, the right to receive copes made by photographic, xerographic, or
other means. The Corporation may impose a reasonable charge, payable in advance,
covering the costs of labor and material, for copies of any documents provided
to the director. The charge may not exceed the estimated cost of production or
reproduction of the records.
3.14 GENERAL STANDARD OF CONDUCT FOR DIRECTORS.
The standards of conduct for the Directors of the Corporation shall be
as follows:
(a) Each director shall discharge his or her duties as a
director, including duties as a member of a committee, (i) in good faith, (ii)
with the care an ordinarily prudent person in a like position would exercise
under similar circumstances, and (iii) in a manner if - director reasonably
believes to be in the best interests of the Corporation. The Board of Directors
and stockholders of the Corporation understand that the members of the Board of
Directors may have other business interests, activities and responsibilities
that take a substantial portion of their time and attention. Accordingly, the
members of the Board of Directors are required to devote to the business of the
Corporation in fulfillment of their respective responsibilities as a director of
the Corporation only the time and attention that they shall unilaterally deem
necessary in order to fill their responsibilities as a director.
(b) In discharging his or her duties, a director is
entitled to rely on information' opinions, reports, or statements including
financial statements and other financial data, if prepared or predator by;
(i) one or more officers or employees of the
Corporation whom the director reasonably believes to reliable and competent in
the matters presented;
(ii) legal counsel, public accountants, or other
persons as to matters the director reasonably believes are within the person's
professional or expert competence; or
(iii) a committee of the board of directors of
which the director is not a member, if the director reasonably believes the
committee merits confidence.
(c) A director is not acting in good faith if he or she
has knowledge concerning the matter in question that makes reliance otherwise
permitted by paragraph (b) of this Section 3.15 unwarranted.
(d) A director is not liable for any action taken, or any
failure to take any action as a director, if the duties of the director have
been performed in compliance with this Section 3.15.
(e) The standards of conduct set forth In this Section
3.14, or any breach of such standards, shall not affect the right or power of
the Corporation to indemnify any Individual pursuant to Article 5 of these
Bylaws.
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ARTICLE 4
OFFICERS
4.1 NUMBER OF OFFICERS.
The officers of the Corporation shall be a president, a secretary, and
a treasurer, each of whom shall be appointed by the Board of Directors. Such
other officers and assistant officers as may be deemed necessary, including any
chairman of the board, chief executive officer and any vice presidents, may be
appointed by the Board of Directors. If specifically authorized by the Board of
Directors, an officer may appoint one or more officers or assistant officers.
The same individual may simultaneously hold more than one office in the
Corporation.
4.2 APPOINTMENT AND TERM OF OFFICE.
The officers of the Corporation shall be appointed by the Board of
Directors for such term as is determined by the Board of Directors. The
designation of a specified term does not grant to the officer any contract
rights, and the Board of Directors can remove the officer at any time prior to
the end of such term. If no term is specified, the officer shall hold office
until the officer resigns, dies, or until removed in the manner provided in
Section 4.3 of these Bylaws.
4.3 REMOVAL OF OFFICERS.
Any officer or agent may be removed by the Board of Directors at any
time, with or without cause. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Appointment of an officer or
agent shall not of itself create contract rights.
4.4 CHAIRMAN OF THE BOARD.
The chairman of the board, if any, shall have the following powers and
duties:
(a) To be the senior officer of the Corporation and, in
addition to the duties specified in this Section 4.4, to perform such duties as
may be assigned to him by the Board of Directors;
(b) to preside at all meetings of the stockholders of the
Corporation:
(c) to preside at all meetings of the Board of Directors;
(d) to be a member of the Executive Committee, if any.
4.5 CHIEF EXECUTIVE OFFICER.
The chief executive officer, if there is such an officer, shall possess
all of the powers that the Board of Directors may see fit to delegate to the
chief executive officer and he or she shall perform all of the duties that may
be prescribed by the Board of Directors from time to time.
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4.6 PRESIDENT.
The president shall be the principal executive officer of the
Corporation and, subject to the control of the Board of Directors, shall, in
general, supervise and control all of the business and affairs of the
Corporation. The president shall when present and in the absence of the chairman
of the board of the Corporation preside at all meetings of the stockholders and
of the Board of Directors. The president may sign, with, the secretary or any
other proper officer of the Corporation authorized by the Board of Directors,
certificates for shares of the Corporation, the issuance of which shall have
been authorized by a resolution of the Board of Directors, and deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of president and such other duties as may be
prescribed by the Board of Directors from time to time. The president shall be a
member of the Executive Committee, if any, of the Corporation.
4.7 VICE PRESIDENTS.
If appointed, in the absence of the president or in the event of his
death, inability, or refusal to act, the vice president (or in the event there
be more than one vice president, the vice presidents in the order designated at
the time of their election, or in to absence of any designation, then in the
order of their appointment) shall perform the duties of the president, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the president. If there is no vice president, then the treasurer shall
perform such duties of the president. Any vice president may sign, with the
secretary or an assistant secretary, certificates for shares of the Corporation
the issuance of which have been authorized by resolution of the Board of
Directors; and shall perform such other duties as from time to time may be
assigned to him or her by the president or by the Board of Directors.
4.8 SECRETARY.
The secretary shall:
(a) keep the minutes of the proceedings of the
stockholders and of the Board of Directors and the other records and information
of the Corporation required to be kept, in one or more books provided for that
purpose;
(b) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law;
(c) be custodian of the corporate records and of any seal
of the Corporation;
(d) when requested or required, authenticate any records
of the Corporation;
(e) keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder,
18
(f) sign with the chairman of the board, president, or a
vice president, certificates for shares of the Corporation, the issuance of
which shall have been authorized by resolution of the Board of Directors:
(g) have general charge of the stock transfer books of
the Corporation; and
(h) In general perform all duties incident to the office
of secretary and such other duties as from time to time may be assigned to him
or her by the president or by the Board of Directors.
4.9 TREASURER.
The Treasurer shall:
(a) have charge and custody of and be responsible for all
funds and securities of the Corporation;
(b) receive and give receipts for moneys due and payable
to the Corporation from any source whatsoever, and deposit all such moneys in
the name of the Corporation in such banks, trust companies, or other
depositories as shall be selected by the Board of Directors; and
(c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him or her by the president or by the Board of Directors.
If required by the Board of Directors, the treasurer shall give a bond
for the faithful discharge of his or her duties in such sum and with such surety
or sureties as the Board of Directors shall determine.
4.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The assistant secretaries, when authorized by the Board of Directors,
may sign, with the chairman of the board, president or a vice president,
certificates for shares of the Corporation, the issuance of which shall have
been authorized by a resolution of the Board of Directors. The assistant
treasurers shall, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine. The assistant secretaries and assistant
treasurers, in general, shall perform such duties as shall be assigned to them
by the secretary or the treasurer, respectively, or by the president or the
Board of Directors.
4.11 SALARIES.
The salaries of the offsets shall be fixed from tinge to time by the
Board of Directors.
4.12 GENERAL STANDARDS OF CONDUCT FOR OFFICERS.
The standards of conduct for the officers of the Corporation shall be
as follows:
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(a) Each officer with discretionary authority shall
discharge his or her duties under that authority (i) in good faith, (ii) with
the care an ordinarily prudent person in a like position would exercise under
similar circumstances, and (iii) in a manner the officer reasonably believes to
be In the best interests of the Corporation.
(b) In discharging his or her duties, an officer Is
entitled to rely on information, opinions, reports, or statements Including
financial statements and other financial data, if prepared or presented by:
(i) one or more officers or employees of the
Corporation whom the officer reasonably believes to be reliable and competent in
the matters presented; or
(ii) legal counsel, public accountants, or other
persons as to matters the officer reasonably believes are within the person's
professional or expert competence.
(c) An officer is not acting in good faith if he or she
has knowledge concerning the matter in question that makes reliance otherwise
permitted by paragraph (b) of this Section 5.12 unwarranted.
(d) An officer is not liable for any action taken, or any
failure to take any action as an officer if the duties of the office have been
performed in compliance with this Section 5.12.
(e) The standards of conduct set forth in this Section
5.12, or any breach of such standards, shall not affect the right or power of
the Corporation to indemnify any individual pursuant to Article 6 of these
Bylaws.
ARTICLE 5
LIMITATION OF LIABILITY AND INDEMNIFICATION OF
DIRECTORS, OFFICERS, EMPLOYEES, FIDUCIARIES, AND AGENTS
5.1 LIMITATION OF LIABILITY OF DIRECTORS AND OFFICERS.
The personal liability of the directors and officers of the Corporation
to the Corporation or its stockholders, or to any third person; shall be
eliminated or limited to the fullest extent as from time to time permitted by
Delaware law.
5.2 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Unless otherwise provided in the Certificate of Incorporation, the
Corporation shall indemnify any individual made a party to a proceeding because
the individual is or was a director or officer of the Corporation against
liability incurred in such proceeding to the fullest extent as from time to time
permitted by Delaware law.
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5.3 EFFECT OF REPEAL OR MODIFICATION OF ARTICLE V.
Any repeal or modification of this Article V by the stockholders of the
Corporation shall not adversely affect any right or protection of any person
existing at the time of such repeal or modification.
5.4 INSURANCE.
The Corporation may purchase and maintain liability insurance on behalf
of a person who is or was a director, officer, employee, fiduciary, or agent of
the Corporation, or who, while serving as a director, officer, employee,
fiduciary, or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee, fiduciary, or
agent of another foreign or domestic corporation or other person, or of an
employee benefit plan, against liability asserted against or incurred by him or
her in that capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the Corporation would have power
to indemnify him or her against the same liability under the Delaware General
Corporation Code. Insurance may be procured from any insurance company
designated by the Board of Directors, whether the insurance company is formed
under the laws of the State of Delaware or any other jurisdiction of the United
States or elsewhere, including any insurance company in which the Corporation
has an equity or any other interest through stock ownership or otherwise.
ARTICLE 6
CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 CERTIFICATES FOR SHARES.
(a) CONTENT. Certificates representing shares of the
Corporation shall, at a minimum, state on their face the name of the Corporation
and that the Corporation is organized under the lauds of the State of Delaware;
the name of the person to whom issued; and the number and class of shares and
the designation of the series, if any, the certificate represents; and be in
such form as is determined by the Board of Directors. Such certificates shall be
signed by the chairman of board, president or a vice president and by the
secretary or an assistant secretary and may be sealed with the corporate seal or
a facsimile thereof. The signatures of the officers may be facsimiles if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the Corporation itself or an employee of the Corporation. Each
certificate for shares shall be consecutively numbered or otherwise identified.
The certificates may contain any other information the Corporation considers
necessary or appropriate.
(b) LEGEND AS TO CLASS OR SERIES. If the Corporation is
authorized to issue different classes of shares or different series within a
class, the designations, preferences, limitations, and relative rights
applicable to each class, the variations in preferences, limitations, and
relative rights determined for each series, and the authority of the Board of
Directors to determine variations for any existing or future class or series
must be summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or
21
back that the Corporation will furnish the stockholder this information on
request in writing and without charge.
(c) STOCKHOLDER LIST. The name and address of the person
to whom the shares represented are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation.
(d) TRANSFERRING SHARES. All certificates surrendered to
the Corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and canceled, except that in case of a lost, destroyed, or mutilated
certificate a new one may be issued therefor upon such terms and indemnity to
the Corporation as the Board of Directors may prescribe.
6.2 SHARES WITHOUT CERTIFICATES.
(a) ISSUING SHARES WITHOUT CERTIFICATES. Unless the
Certificate of Incorporation provides otherwise, the Board of Directors may
authorize the issuance of some or all of the shares of any or all classes or
series without certificates. The authorization does not affect shares already
represented by certificates until they are surrendered to the Corporation.
(b) INFORMATION STATEMENT REQUIRED. Within a reasonable
time after the issuance or transfer of shares without certificates, the
Corporation shall send the stockholder a written statement containing, at a
minimum, the name of the Corporation and that it is organized under the laws of
the State of Delaware; the name of the person to whorls issued; and the number
and class of shares and the designation of the series, if any, of the issued
shares. If the Corporation is authorized to issue different classes of shares or
different series within a class, the written statement shall describe the
designations, preferences, limitations, and relative rights applicable to each
class, the variations in preferences, limitations, and relative rights
determined for each series, and the authority of the Board of Directors to
determine variations for any existing or future class or series.
6.3 REGISTRATION OF TRANSFER OF SHARES.
Registration of the transfer of shares of the Corporation shall be made
only on the stock transfer books of the Corporation. In order to register a
transfer, the record owner shall surrender the shares to the Corporation for
cancellation, properly endorsed by the appropriate person or persons with
reasonable assurances that the endorsements are genuine and effective. Unless
the Corporation has established a procedure by which a beneficial owner of
shares held by a nominee is to be recognized by the Corporation as the owner,
the person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes.
6.4 RESTRICTIONS ON TRANSFER OF SHARES PERMITTED.
The Board of Directors or the stockholders may impose restrictions on
the transfer or registration of transfer of shares (including any security
convertible into, or carrying a right to subscribe for or acquire shares). A
restriction does not affect shares issued before the restriction
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was adopted unless the holders of the shares are parties to the restriction
agreement or voted in favor of the registration or otherwise consented to the
restriction.
(a) A restriction on the transfer or registration of
transfer of shares may be authorized:
(i) To maintain the Corporation's status when it
is dependent on the number or identity of its stockholders;
(ii) to preserve entitlements, benefits, or
exemptions under federal, state, or local laws; and
(iii) for any other reasonable purpose.
(b) A restriction on the transfer or registration of
transfer of shares may:
(i) Obligate the stockholder first to offer the
Corporation or other persons, separately, consecutively, or simultaneously, an
opportunity to acquire the restricted shares;
(ii) obligate the Corporation or other persons,
separately, consecutively, or simultaneously, to acquire the restricted shares;
(iii) require, as a condition to a transfer or
registration, that any one or more persons, including the Corporation or any of
its stockholders, approve the transfer or registration, if the requirement is
not manifestly unreasonable; or
(iv) prohibit the transfer or the registration of
a transfer of the restricted shares to designated persons or classes of persons,
if the prohibition is not manifestly unreasonable.
A restriction on the transfer or registration of transfer of shares is
valid and enforceable against the holder or a transferee of the holder if the
restriction is authorized by this Section 6.4 and its existence is noted
conspicuously on the front or back of the certificate, or if the restriction is
contained in the information statement required by Section 6.2 of these Bylaws
with regard to shares issued without certificates. Unless so noted, a
restriction is not enforceable against a person without knowledge of the
restriction.
6.5 ACQUISITION OF SHARES.
The Corporation may acquire its own shares, and, unless otherwise
provided in the Certificate of Incorporation, the shares so acquired constitute
authorized but unissued shares.
If the Certificate of Incorporation prohibits the reissuance of
acquired shares, the number of authorized shares shall be reduced by the number
of shares acquired, effective upon amendment of the Certificate of
Incorporation, which amendment shall be adopted by the stockholders or the Board
of Directors without stockholder action. Appropriate Certificate of
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Amendment must be delivered to the Office of the Secretary of State of Delaware
and must set forth:
(a) the name of the Corporation;
(b) the reduction in the number of authorized shares,
itemized by class and series;
(c) the total number of authorized shares, itemized by
class and series, remaining after reduction of the shares; and
(d) a statement that the amendment was adopted by the
Board of Directors without stockholder action and that stockholder action was
not required if such be the case.
ARTICLE 7
DISTRIBUTIONS
7.1 DISTRIBUTIONS.
The Board of Directors may authorize, and the Corporation may make,
distributions (including dividends on its outstanding shares) in the manner and
upon the terms and conditions provided by law and in the Certificate of
Incorporation.
ARTICLE 8
CORPORATE SEAL
8.1 CORPORATE SEAL.
The Board of Directors may provide a corporate seal which may be
circular in form and have inscribed thereon any designation including the name
of the Corporation, Delaware as the state of incorporation, and the words
"Corporate Seal."
ARTICLE 9
FISCAL YEAR
9.1 FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
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ARTICLE 10
AMENDMENTS
10.1 AMENDMENTS.
The Corporation's Board of Directors may amend these Bylaws, except to
the extent that the Certificate of Incorporation, these Bylaws, or the Delaware
General Corporation Code reserve this power exclusively to the stockholders in
whole or in part. However, the Board of Directors may not adopt, amend, or
repeal a Bylaw that fixes a stockholder quorum or voting requirement that is
greater than required by the Delaware General Corporation Code.
If authorized by the Certificate of Incorporation, the stockholders may
adopt, amend, or repeal a Bylaw that fixes a greater quorum or voting
requirement for stockholders, or voting groups of stockholders, than is required
by the Delaware General Corporation Code. Any such action shall comply with the
provisions of the Delaware General Corporation Code.
The Corporation's stockholders may amend or repeal the Corporation's
Bylaws even though the Bylaws may also be amended or repealed by the
Corporation's Board of Directors.
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