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EXHIBIT 3.2
UNIONBANCORP, INC.
BYLAWS
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UNIONBANCORP, INC.
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TABLE OF CONTENTS
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ARTICLE I
NAME
Section 1.1 Name 1
ARTICLE II
OFFICES
Section 2.1 Registered Office 1
Section 2.2 Principal Office 1
Section 2.3 Other Offices 1
ARTICLE III
MEETINGS OF STOCKHOLDERS
Section 3.1 Place of Meetings 1
Section 3.2 Annual Meetings 1
Section 3.3 Notice 2
Section 3.4 Nominations For Director 2
Section 3.5 Special Meetings 4
Section 3.6 Voting Lists 4
Section 3.7 Quorum 4
Section 3.8 Adjourned Meeting and Notice Thereof 4
Section 3.9 Voting 4
Section 3.10 Conduct of Meeting 5
Section 3.11 Proxies 5
Section 3.12 Inspectors of Election 6
ARTICLE IV
DIRECTORS
Section 4.1 Powers 6
Section 4.2 Number and Qualifications 6
Section 4.3 Election and Vacancies 7
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Section 4.4 Regular Meetings 7
Section 4.5 Organization Meeting 7
Section 4.6 Special Meetings 7
Section 4.7 Quorum; Majority Action 7
Section 4.8 Action Without Meeting 8
Section 4.9 Telephonic Meetings 8
Section 4.10 Fees and Compensation 8
Section 4.11 Removal 8
Section 4.12 Directors Emeritus/Advisory Directors 8
ARTICLE V
OFFICERS
Section 5.1 Executive Officers 9
Section 5.2 Election 9
Section 5.3 Subordinate Officers 9
Section 5.4 Removal and Resignation 9
Section 5.5 Vacancies 9
Section 5.6 Compensation 9
Section 5.7 Chairman of the Board 10
Section 5.8 Chief Executive Officer 10
Section 5.9 President 10
Section 5.10 Chief Financial Officer 10
Section 5.11 Secretary 10
ARTICLE VI
COMMITTEES
Section 6.1 Executive Committee 10
Section 6.2 Audit Committee 12
Section 6.3 Compensation Committee 13
Section 6.4 Other Committees 13
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification 14
Section 7.2 Subsequent Amendment 16
Section 7.3 Other Rights; Continuation of Right to Indemnification 17
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Section 7.4 Insurance 17
Section 7.5 Certain Definitions 17
Section 7.6 Savings Clause 18
Section 7.7 Subsequent Legislation 18
ARTICLE VIII
RECORDS AND REPORTS
Section 8.1 Records 18
Section 8.2 Checks and Drafts 18
Section 8.3 Execution of Instruments 18
Section 8.4 Fiscal Year 18
Section 8.5 Annual Audit 19
ARTICLE IX
DIVIDENDS ON STOCK
Section 9.1 Dividends on Stock 19
ARTICLE X
CERTIFICATES
Section 10.1 Issuance 19
Section 10.2 Certificates for Shares 19
Section 10.3 Statements on Certificates 19
Section 10.4 Lost or Destroyed Certificates 19
Section 10.5 Transfer 19
ARTICLE XI
MISCELLANEOUS
Section 11.1 Record Date 20
Section 11.2 Inspection of Corporate Records 20
Section 11.3 Corporate Seal 21
ARTICLE XII
AMENDMENT OF BYLAWS
Section 12.1 Amendment of Bylaws 21
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UNIONBANCORP, INC.
BYLAWS
ARTICLE I
NAME
SECTION 1.1 NAME. The name of this corporation is "UnionBancorp, Inc."
ARTICLE II
OFFICES
SECTION 2.1 REGISTERED OFFICE. The corporation shall at all times
maintain a registered office in the State of Delaware, which, except as
otherwise determined by the Board of Directors of the corporation (the
"Board"), shall be in the City of Wilmington, County of New Castle.
SECTION 2.2 PRINCIPAL OFFICE. The principal office of the corporation
shall be maintained at such place within or without the State of Delaware as
the Board shall designate.
SECTION 2.3 OTHER OFFICES. The corporation may also have offices at such
other places within or without the State of Delaware as the Board shall from
time to time designate or the business of the corporation shall require.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 3.1 PLACE OF MEETINGS. All annual and special meetings of
stockholders shall be held at such places within or without the State of
Delaware as the Board may determine.
SECTION 3.2 ANNUAL MEETINGS.
3.2.1 TIME AND PLACE. The regular annual meeting of stockholders
for the election of directors and for the transaction of any other
business of the corporation shall be held each year on the fourth Tuesday
of April, if not a legal holiday, or, if a legal holiday, then on the
next succeeding day not a Saturday, Sunday or legal holiday, or at such
other time, date or place as the Board may determine.
3.2.2 NEW BUSINESS. At the annual meetings, directors shall be
elected and any other business properly proposed and filed with the
Secretary of the corporation as in these Bylaws provided may be
transacted which is within the powers of the stockholders.
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Any new business to be conducted at the annual meeting of the
stockholders shall be stated in writing and filed with the Secretary of
the corporation on or before thirty (30) days in advance of the first
anniversary date (month and day) of the previous year's annual meeting,
and all business so stated, proposed and filed shall, unless prior action
thereon is required by the Board, be considered at the annual meeting.
Any stockholder may make any other proposal at the annual meeting and the
same may be discussed and considered, but unless stated in writing and
filed with the Secretary of the corporation on or before thirty (30) days
in advance of the first anniversary date (month or day) of the previous
year's annual meeting, such proposal may only be voted upon at a meeting
held at least thirty (30) days after the annual meeting at which it is
presented. No other proposal may be acted upon at the annual meeting.
This provision shall not prevent the consideration, approval or
disapproval at the annual meeting of the reports of officers and
committees, but in connection with such reports no business shall be
acted upon at such annual meeting unless stated and filed as herein
provided.
SECTION 3.3 NOTICE. Written notice stating the place, day and hour of the
meeting and the purpose or purposes for which the meeting of the stockholders
is called shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the U.S. mail, postage prepaid,
and addressed to the stockholder at his or her address as it appears on the
records of the corporation as of the record date prescribed in Section 3.9.1
and Section 11.1.1 of these Bylaws.
SECTION 3.4 NOMINATIONS FOR DIRECTOR. Nominations of candidates for
election as directors at any meeting of stockholders may be made: (a) by, or
at the direction of, a majority of the Executive Committee of the Board (the
"Executive Committee"), or, if there is no Executive Committee of the Board at
such time, by a majority of the Board; or (b) by any stockholder of record
entitled to vote at such meeting; provided that only persons nominated in
accordance with procedures set forth in this Section shall be eligible for
election as directors.
Nominations, other than those made by, or at the direction of, the
Executive Committee or the Board, may only be made pursuant to timely notice in
writing to the Secretary of the corporation as set forth in this Section 3.4. To
be timely, a stockholder's notice shall be delivered to, or mailed and received
by the Secretary of the corporation, for an annual meeting, not less than sixty
(60) days nor more than ninety (90) days in advance of the first anniversary
date (month and day) of the previous year's annual meeting, and for a special
meeting, not less than sixty (60) days nor more than ninety (90) days in
advance of the date (month and day) of the special meeting, regardless of any
postponement or adjournments of that meeting to a later date. Such stockholder
notice shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election as a director: (i) the name, age, business address and
residential address of such person; (ii) the principal occupation or employment
of such person; (iii) the class and number of shares of the corporation's stock
which are beneficially owned by such person on the date of such stockholder
notice; and (iv) any other information relating to such person that would be
required to be disclosed on Schedule 13D pursuant to Regulation 13D-
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G under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
connection with the acquisition of stock, and pursuant to Regulation 14A under
the Exchange Act, in connection with the solicitation of proxies with respect to
nominees for election as directors, regardless of whether such person is subject
to the provisions of such regulations, including, but not limited to,
information required to be disclosed by Items 4(b) and 6 of Schedule 14A of
Regulation 14A with the Securities and Exchange Commission; and (b) as to the
stockholder giving the notice: (a) the name and address, as they appear on the
corporation's books, of such stockholder and the name and principal business or
residential address of any other beneficial stockholders known by such
stockholder to support such nominees; and (b) the class and number of shares of
the corporation's stock which are beneficially owned by such stockholder on the
date of such stockholder notice and the number of shares owned beneficially by
any other record or beneficial stockholders known by such stockholder to be
supporting such nominees on the date of such stockholder notice. At the request
of the Executive Committee or the Board, any person nominated by, or at the
request of, the Executive Committee or the Board for election as a director
shall furnish to the Secretary of the corporation that information required to
be set forth in a stockholder's notice of nomination which pertains to the
nominee.
The Executive Committee or the Board may reject any nomination by a
stockholder not timely made in accordance with the requirements of this Section
3.4. If the Executive Committee or the Board determines that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 3.4 in any material respect, the Secretary of the
corporation shall promptly notify such stockholder of the deficiency in the
notice. The stockholder may cure the deficiency by providing additional
information to the Secretary within such period of time, not less than five days
from the date such deficiency notice is given to the stockholder, as the
Executive Committee or the Board shall determine. If the deficiency is not
cured within such period, or if the Executive Committee or the Board determines
that the additional information provided by the stockholder, together with
information previously provided, does not satisfy the requirements of this
Section 3.4 in any material respect, then the Executive Committee or the Board
may reject such stockholder's notice and the proposed nominations shall not be
accepted if presented at the stockholder meeting to which the notice relates.
The Secretary of the corporation shall notify a stockholder in writing whether
his or her nomination has been made in accordance with the time and
informational requirements of this Section 3.4. Notwithstanding the procedure
set forth in this Section 3.4, if neither the Executive Committee nor the Board
makes a determination as to the validity of any nominations by a stockholder,
the presiding officer of the stockholder's meeting shall determine and declare
at the meeting whether a nomination was not made in accordance with the terms of
this Section 3.4. If the presiding officer determines that a nomination was not
made in accordance with the terms of this Section 3.4, he or she shall so
declare at the meeting and the defective nomination shall not be accepted.
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SECTION 3.5 SPECIAL MEETINGS. Special meetings of stockholders for the
purpose of taking any action permitted the stockholders by law and the
Certificate of Incorporation of this corporation may be called at any time by at
least 66 2/3% of directors then in office. Except in special cases where other
express provision is made by statute, notice of such special meetings shall be
given in the same manner as for annual meetings of stockholders.
SECTION 3.6 VOTING LISTS. The officer having charge of the stock transfer
books for shares of the capital stock of the corporation shall make at least
ten (10) days before each meeting of the stockholders a complete list of the
stockholders entitled to vote at such meeting, with the address of and the
number of shares registered in the name of, each stockholder. Such list shall
be subject to inspection by any stockholder, for any purpose germane to the
meeting, at any time during the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified in the notice of the meeting, at the
place where the meeting is to be held. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any stockholder during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at any
meeting of stockholders.
SECTION 3.7 QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the
transaction of business at a meeting of the stockholders. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave 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.
SECTION 3.8 ADJOURNED MEETING AND NOTICE THEREOF. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares present,
whether in person or represented by proxy, but in the absence of a quorum no
other business may be transacted at such meeting, except as provided in Section
3.7 above. When any stockholders' meeting, either annual or special, is
adjourned for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Except as provided above, it shall not be necessary to give any notice of the
adjourned meeting if the time and place thereof are announced at the meeting at
which such adjournment is taken.
SECTION 3.9 VOTING.
3.9.1 RECORD DATE. Unless a record date for voting purposes is
fixed as provided in Section 11.1.1 of these Bylaws then, subject to the
provisions of Section 217 of the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law") (relating to voting of
shares held by fiduciaries, pledgors and joint owners), only persons in
whose names shares entitled to vote stand on the stock records
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of the corporation at the close of business on the business day next
preceding the day on which notice of the meeting is given or, if such
notice is waived, at the close of business on the business day next
preceding the day on which the meeting of stockholders is held, shall be
entitled to vote at such meeting, and such day shall be the record date
for such meeting.
3.9.2 METHOD; VOTE REQUIRED. Unless otherwise required by law,
voting may be oral or by written ballot; provided, however, that all
elections for directors must be by ballot if demanded by a stockholder
before such voting begins. Except as provided in Section 3.7 and except
with respect to election of directors, the affirmative vote of the
majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also
constitute at least a majority of the required quorum) shall be the act
of the stockholders, unless the vote of a greater number or voting by
classes is required by the Delaware General Corporation Law or the
Certificate of Incorporation or these Bylaws. Directors shall be elected
by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election
of directors.
3.9.3 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by any officer, agent or proxy
as the bylaws of such corporation may prescribe, or, in the absence of
such provision, as the board of directors of such corporation may
determine. Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by proxy,
without a transfer of such shares into his or her name. Shares standing
in the name of a trustee may be voted by the trustee, either in person or
by proxy, but no trustee shall be entitled to vote shares held by him or
her without a transfer of such shares into the trustee's name.
Neither treasury shares of its own stock held by the corporation,
nor shares held by another corporation, if a majority of the shares
entitled to vote for the election of directors of such other corporation
are held directly or indirectly by the corporation, shall be voted at any
meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting.
SECTION 3.10 CONDUCT OF MEETING. The presiding officer at any meeting of
stockholders, either annual or special, shall be the Chairman of the Board or,
in his or her absence, the President or, in the absence of both the Chairman of
the Board and the President, anyone selected by a majority of the Board. The
secretary at such meetings shall be the Secretary of the corporation or, in his
or her absence, anyone appointed by the presiding officer.
SECTION 3.11 PROXIES. At all meetings of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person or by
proxy appointed by an instrument in writing and complying with the requirements
of the Delaware General Corporation Law. No proxy shall be valid after the
expiration of three (3) years from the date thereof unless otherwise provided
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in the proxy. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only so long as, it is coupled with an interest in
the stock of the corporation or in the corporation generally which is sufficient
in law to support an irrevocable power.
SECTION 3.12 INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at such meeting or any adjournment thereof.
If inspectors of election are not so appointed, or if any persons so appointed
fail to appear or refuse to act, the presiding officer of any such meeting may,
and on the request of any stockholder or a stockholder's proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more stockholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed. The duties of
such inspectors shall include: (a) determining the number of shares of stock
and the voting power of each share, the shares of stock represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect
of the proxies; (b) receiving votes, ballots or consents; (c) hearing and
determining all challenges and questions in any way arising in connection with
the right to vote; (d) counting and tabulating all votes or consents; (e)
determining the result; and (f) such acts as may be proper to conduct the
election or vote with fairness to all stockholders.
ARTICLE IV
DIRECTORS
SECTION 4.1 POWERS. Subject to any limitations imposed by law, the
Certificate of Incorporation and these Bylaws as to actions which shall be
authorized or approved by the stockholders, and subject to the duties of
directors as prescribed thereby, the business and affairs of the corporation
shall be managed and all corporate powers shall be exercised by or under the
direction of the Board.
SECTION 4.2 NUMBER AND QUALIFICATIONS. (a) The exact number of directors
shall be fixed from time to time by the Board pursuant to a resolution adopted
of not less than 66 2/3% of the number of directors which immediately prior to
such change had been fixed, in the manner prescribed herein, by the Board,
subject to the provisions of the Certificate of Incorporation of the
corporation.
(b) Notwithstanding any other provisions of the certificate of
incorporation of the corporation or these bylaws (and notwithstanding the fact
that some lesser percentage may be specified by law, the certificate of
incorporation or these bylaws of the corporation), any director or the entire
board of directors of the corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of not less than 66 2/3%
of the outstanding shares of stock of the corporation entitled to vote generally
in the election of directors (considered for this purpose as one class) cast at
an annual meeting of stockholders or at a meeting of the stockholders called for
that purpose.
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SECTION 4.3 ELECTION AND VACANCIES. Each class of directors to be elected
shall be elected at the annual meeting of the stockholders of the corporation
and shall hold office until their successors are elected and qualified or until
their earlier death, resignation or removal. Any director may resign at any
time upon written notice to the corporation. Thereafter, directors who are
elected at an annual meeting of stockholders, and directors who are elected in
the interim to fill vacancies and newly created directorships, shall hold
office until the next annual meeting of stockholders at which directors of such
class are to be elected and until their successors are elected and qualified or
until their earlier death, resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the board of directors, including vacancies
resulting from the removal of directors, may be filled by the vote of a
majority of the remaining directors then in office, although less than a
quorum, or by the sole remaining director.
SECTION 4.4 REGULAR MEETINGS. The Board shall meet regularly at the time
and place designated in a resolution of the Board or by written consent of all
members of the Board, whether within or without the State of Delaware, and no
notice of such regular meetings need be given to the directors.
SECTION 4.5 ORGANIZATION MEETING. Following each annual meeting of
stockholders, the Board shall hold a regular meeting at the place of said
annual meeting or at such other place as shall be fixed by the Board, for the
purpose of organization, election of officers, and the transaction of other
business. Call and notice of such meetings are hereby dispensed with.
SECTION 4.6 SPECIAL MEETINGS. Special meetings of the Board may be called
by the Chairman of the Board, the President, the Chief Executive Officer, the
Secretary, or any two directors. Notice of each such meeting shall be given to
each director by the Secretary or by the person or persons calling the meeting.
Such notice shall specify the time and place of the meeting, which may be
within or without the State of Delaware, and the general nature of the business
to be transacted, and no other business may be transacted at the meeting. Such
notice shall be deposited in the mail, postage prepaid, at least four (4) days
prior to the meeting, directed to the address of the director on the records of
the corporation, or delivered in person or by telephone or telegram, telecopy
or other means of electronic transmission to the director at least 48 hours
before the meeting. 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 such 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.
SECTION 4.7 QUORUM; MAJORITY ACTION. A majority of the authorized number
of directors shall constitute a quorum for the transaction of business at any
meeting of the Board, but if less than such majority is present at a meeting, a
majority of the directors present may
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adjourn the meeting from time to time. Notice of any adjourned meeting shall be
given in the same manner as prescribed in Section 4.6 of these Bylaws. Every
act or decision of a majority of the directors present at a meeting at which a
quorum is present, made or done at a meeting duly held, shall be valid as the
act of the Board, unless a greater number is required by law or the Certificate
of Incorporation or these Bylaws.
SECTION 4.8 ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting if all members of the
Board shall individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board and shall have the same force and effect as a
unanimous vote of the Board.
SECTION 4.9 TELEPHONIC MEETINGS. Members of the Board may participate in
any regular or special meeting, including meetings of committees of the Board,
through use of conference telephone or similar communications equipment, so
long as all members participating in such meeting can hear one another.
Participation in a meeting pursuant to this section constitutes presence in
person at such meeting.
SECTION 4.10 FEES AND COMPENSATION. Fees and compensation of directors
and members of committees for their services, and reimbursement for expenses,
shall be fixed or determined by a resolution of the Board. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, employee, agent or otherwise,
and receiving compensation therefor.
SECTION 4.11 REMOVAL. A director may be removed only for cause as
determined by the affirmative vote of the holders of at least 66 2/3% of the
shares then entitled to vote in an election of directors, which vote may only
be taken at an annual meeting or a special meeting. Cause for removal shall be
deemed to exist only if the director whose removal is proposed has been
convicted of a felony by a court of competent jurisdiction or has been adjudged
by a court of competent jurisdiction to be liable for gross negligence or
misconduct in the performance of such director's duty to the corporation and
such adjudication is no longer subject to direct appeal.
SECTION 4.12 DIRECTORS EMERITUS/ADVISORY DIRECTORS. The Board of
Directors may by resolution appoint directors emeritus or advisory directors
who shall have such authority and receive such compensation and reimbursement
as the Board of Directors shall provide. Directors emeritus or advisory
directors shall not have the authority to participate by vote in the
transaction of business.
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ARTICLE V
OFFICERS
SECTION 5.1 EXECUTIVE OFFICERS. The executive officers of the corporation
shall be the Chairman of the Board, the Chief Executive Officer, the President,
each Senior Vice President, each Vice President, the Secretary, the Treasurer,
the Chief Financial Officer and any other individual performing functions
similar to those performed by the foregoing persons, including any Senior Vice
President or Vice President designated by the Board as performing such
functions.
SECTION 5.2 ELECTION. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 5.3
or Section 5.5 of this article shall be chosen annually by the Board. Each
officer shall hold his or her office until he or she shall resign or shall be
removed or otherwise disqualified to serve, or his or her successor shall be
elected and qualified, and shall perform such duties as are prescribed in the
Bylaws or as the Board may from time to time determine.
SECTION 5.3 SUBORDINATE OFFICERS. The corporation may have, at the
discretion of the Board, one or more Senior Vice Presidents, Vice Presidents
and Assistant Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Financial Officers and such other officers as may be appointed by the
Board, or by a committee of the Board to which the authority to appoint
subordinate officers has been delegated, each of whom shall hold office for
such period, have such authority and perform such duties as the Board or such
committee may from time to time determine. Any person may hold more than one
office, executive or subordinate.
SECTION 5.4 REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by the Board, at any regular or special meeting thereof,
or by any officer upon whom such power of removal may be conferred by the Board
(without prejudice, however, to the rights, if any, of an officer under any
contract of employment with the corporation).
Any officer may resign at any time by giving written notice to the Board
or to the President or to the Secretary of the corporation, without prejudice,
however, to the rights, if any, of the corporation under any contract to which
such officer is a party. Any such resignation shall take effect at the date of
the receipt or at any later time specified therein.
SECTION 5.5 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled by
the Board for the unexpired portion of the term.
SECTION 5.6 COMPENSATION. The Board shall fix the compensation of the
chief executive officer of the corporation. The compensation of all of the
other officers of the corporation shall be fixed by the Board or by an officer
of the corporation to whom the authority to fix compensation has been delegated
by the Board.
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SECTION 5.7 CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if
present, preside at all meetings of the Board and exercise and perform such
other powers and duties as may be from time to time assigned to him or her by
the Board or prescribed by these Bylaws.
SECTION 5.8 CHIEF EXECUTIVE OFFICER. Subject to any powers that may be
given by the Board to the Chairman of the Board, the Chief Executive Officer
shall be the chief executive officer of the corporation and shall, subject to
the control of the Board, have general supervision, direction and control of
the business and affairs of the corporation.
SECTION 5.9 PRESIDENT. Subject to any powers that may be given by the
Board to the Chairman of the Board and to the Chief Executive Officer, the
President shall be the chief operating officer of the corporation and shall,
subject to the control of the Board, have the general powers and duties of
management usually vested in the office of the president of a corporation, and
shall have such other powers and duties as the Board shall from time to time
prescribe.
SECTION 5.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation, shall
receive and keep all the funds of the corporation and shall pay out corporate
funds on the check of the corporation, signed in such manner as shall be
authorized by the Board. The Chief Financial Officer shall have such other
powers and duties as the Board shall from time to time prescribe.
SECTION 5.11 SECRETARY. The Secretary shall keep, or cause to be kept,
minutes of all meetings of the stockholders and Board in a book to be provided
for that purpose, and shall attend to the giving and serving of all notices of
meetings of stockholders and directors, and any other notices required by law
to be given. The Secretary shall be custodian of the corporate seal, if any,
and shall affix the seal to all documents and papers requiring such seal. The
Secretary shall have such other powers and duties as the Board from time to
time shall prescribe.
ARTICLE VI
COMMITTEES
SECTION 6.1 EXECUTIVE COMMITTEE. The Board may, by a resolution adopted
by a majority of the authorized number of directors, but shall not be required
to, designate an executive committee consisting of three or more directors, one
of which shall be the Chairman of the Board or the Chief Executive Officer, to
serve at the pleasure of the Board. If an executive committee is designated,
it shall have, to the extent provided in the resolution of the Board or in
these Bylaws, all the authority of the Board, except with respect to:
(a) 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 as
provided in Section 151(a) of the Delaware
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General Corporation Law, fix the designations and 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 or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series);
(b) Adopting an agreement of merger or consolidation under Sections
251 or 252 of the Delaware General Corporation Law;
(c) Recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets;
(d) Recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) Amending the Bylaws of the corporation;
(f) Nominating directors to the Board pursuant to Section 3.4 of
these Bylaws; and
(g) Unless the resolution, Bylaws, or Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority
to declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the
Delaware General Corporation Law.
The Board may by resolution fix the regular meeting date of the executive
committee, and notice of any such regular meeting date shall be dispensed with.
Special meetings of the executive committee may be held at the principal
office of the corporation, or at any place which has been designated from time
to time by resolution of the executive committee or by written consent of all
members thereof and may be called by the Chairman of the Board, the President,
any Vice President who is a member of the executive committee or any two
members thereof, upon written notice to the members of the executive committee
of the time and place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of the time and place of
special meetings of the Board. Vacancies in the membership of the executive
committee may be filled by the Board. A majority of the authorized number of
members of the executive committee shall constitute a quorum for the
transaction of business; and transactions of any meeting of the executive
committee, however called and noticed, or wherever held, shall be as valid as
though at a meeting duly held after regular call and notice, if a quorum is
present and if, either before or after the meeting, each of the members not
present signs a written waiver of notice or a consent to holding such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be filed with the corporation's records or made a part of the
minutes of the meeting.
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Any action required or permitted to be taken by the executive committee
may be taken without a meeting, if all members of the executive committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
executive committee. Such action by written consent shall have the same force
and effect as a unanimous vote of such members of the executive committee. Any
certificate or other document filed under any provision of the Delaware General
Corporation Law which relates to action so taken shall state that the action
was taken by unanimous written consent of the executive committee without
meeting, and that these Bylaws authorize the members of the executive committee
to so act.
SECTION 6.2 AUDIT COMMITTEE. The Board may, by a resolution adopted by a
majority of the authorized number of directors, but shall not be required to,
designate an audit committee consisting of two or more outside directors to
serve at the pleasure of the Board. If an audit committee is designated, it
shall have, to the extent provided in the resolution of the Board or in these
Bylaws, the authority to retain the independent auditor for the corporation,
and to conduct discussions with such auditor concerning the financial
statements, operations, internal controls and other related matters and such
other authority as may be provided to the audit committee by the Board.
The Board may, by resolution, fix the regular meeting date of the audit
committee, and notice of any such regular meeting date shall be dispensed with.
Special meetings of the audit committee may be held at the principal office of
the corporation, or at any place which has been designated from time to time by
resolution of the audit committee or by written consent of all members thereof
and may be called by the chairman of the audit committee, or any members
thereof, upon written notice to the members of the audit committee of the time
and place of such special meeting given in the manner provided for the giving
of written notice to members of the Board of the time and place of special
meetings of the Board. Vacancies in the membership of the audit committee may
be filled by the Board. A majority of the authorized number of members of the
audit committee shall constitute a quorum for the transaction of business; and
transactions of any meeting of the audit committee, however called and noticed,
or wherever held, shall be as valid as though at a meeting duly held after
regular call and notice, if a quorum is present and if, either before or after
the meeting, each of the members not present signs a written waiver of notice
or a consent to holding such meeting or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed with the corporation's
records or made a part of the minutes of the meeting.
Any action required or permitted to be taken by the audit committee may be
taken without a meeting, if all members of the audit committee shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
audit committee. Such action by written consent shall have the same force and
effect as a unanimous vote of such members of the audit committee. Any
certificate or other document filed under any provision of the Delaware General
Corporation Law which relates to action so taken shall state that the action
was taken by unanimous written
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consent of the audit committee without meeting, and that these Bylaws authorize
the members of the audit committee to so act.
SECTION 6.3 COMPENSATION COMMITTEE. The Board may, by a resolution
adopted by a majority of the authorized number of directors, but shall not be
required to, designate a compensation committee consisting of three or more
directors to serve at the pleasure of the Board. If an compensation committee
is designated, it shall have, to the extent provided in the resolution of the
Board or in these Bylaws, the authority to establish the compensation, benefits
and prerequisites for the executive officers, directors and other employees of
the corporation and such other authority as may be provided to the compensation
committee by the Board.
The Board may, by resolution, fix the regular meeting date of the
compensation committee, and notice of any such regular meeting date shall be
dispensed with. Special meetings of the compensation committee may be held at
the principal office of the corporation, or at any place which has been
designated from time to time by resolution of the compensation committee or by
written consent of all members thereof and may be called by the chairman of the
compensation committee, or any two members thereof, upon written notice to the
members of the compensation committee of the time and place of such special
meeting given in the manner provided for the giving of written notice to
members of the Board of the time and place of special meetings of the Board.
Vacancies in the membership of the compensation committee may be filled by the
Board. A majority of the authorized number of members of the compensation
committee shall constitute a quorum for the transaction of business; and
transactions of any meeting of the compensation committee, however called and
noticed, or wherever held, shall be as valid as though at a meeting duly held
after regular call and notice, if a quorum is present and if, either before or
after the meeting, each of the members not present signs a written waiver of
notice or a consent to holding such meeting or an approval of the minutes
thereof. All such waivers, consents or approvals shall be filed with the
corporation's records or made a part of the minutes of the meeting.
Any action required or permitted to be taken by the compensation committee
may be taken without a meeting, if all members of the compensation committee
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the compensation committee. Such action by written consent shall have the
same force and effect as a unanimous vote of such members of the compensation
committee. Any certificate or other document filed under any provision of the
Delaware General Corporation Law which relates to action so taken shall state
that the action was taken by unanimous written consent of the compensation
committee without meeting, and that these Bylaws authorize the members of the
compensation committee to so act.
SECTION 6.4 OTHER COMMITTEES. The Board may, but shall not be required
to, designate any other committee consisting of two or more directors, to serve
at the pleasure of the Board. Any such committee shall possess such powers of
the Board as the Board shall by its resolution provide, except that it shall not
in any event have authority with respect to any of
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the transactions which are prohibited to the executive committee by Section 6.1
of this Article VI.
Unless the Board shall otherwise prescribe the manner of proceedings of
any other committee, meetings of such committee may be regularly scheduled in
advance and may be called at any time by the Chairman of the Board, or the
President, or any two members of the committee; otherwise, the provisions of
these Bylaws with respect to notice and conduct of meetings of the Board shall
govern.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION.
7.1.1 ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT
OF THE CORPORATION. The corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her behalf in
connection with such action, suit or proceeding and any appeal therefrom,
if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
7.1.2 ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving or has
agreed to serve at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, against expenses
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(including attorneys' fees) actually and reasonably incurred by him or her
or on his or her behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the Court of Chancery or such other court shall deem
proper.
7.1.3 INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Section 7.1, to the
extent that a director, officer, employee or agent has been successful,
on the merits or otherwise, including, without limitation, to the extent
permitted by applicable law, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in
Sections 7.1.1 and 7.1.2, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by
him or her or on his or her behalf in connection therewith.
7.1.4 DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Sections 7.1.1 and 7.1.2, (unless ordered by a
court) shall be paid by the corporation, if a determination is made (a)
by the board of directors by a majority vote of the directors who were
not parties to such action, suit or proceeding, or (b) if such majority
of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders, that indemnification of the
director or officer is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections 7.1.1 and
7.1.2.
7.1.5 ADVANCE OF COSTS, CHARGES AND EXPENSES. Expenses (including
attorneys' fees) incurred by a person referred to in Sections 7.1.1 and
7.1.2 in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding; provided,
however, that the payment of such costs, charges and expenses incurred by
a director or officer 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
person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined
that such director or officer is not entitled to be indemnified by the
corporation as authorized in this ArticleEVII. Such costs, charges and
expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the majority of the directors deems
appropriate. The majority of the directors may, in the manner set forth
above,
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and upon approval of such director or officer of the corporation,
authorize the corporation's counsel to represent such person, in any
action, suit or proceeding, whether or not the corporation is a party to
such action, suit or proceeding.
7.1.6 PROCEDURE FOR INDEMNIFICATION. Any indemnification under
Sections 7.1.1, 7.1.2 and 7.1.3, or advance of costs, charges and
expenses under Section 7.1.5, shall be made promptly, and in any event
within 60 days, upon the written request of the director, officer,
employee or agent. The right to indemnification or advances as granted
by this ArticleEVII shall be enforceable by the director, officer,
employee or agent in any court of competent jurisdiction, if the
corporation denies such request, in whole or in part, or if no
disposition thereof is made within 60 days. Such person's costs and
expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall
also be indemnified by the corporation. It shall be a defense to any
such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses under Section 7.1.5, where the
required undertaking, if any, has been received by the corporation) that
the claimant has not met the standard of conduct set forth in Sections
7.1.1 and 7.1.2, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board
of directors, its independent legal counsel and its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in Sections
7.1.1 and 7.1.2, nor the fact that there has been an actual determination
by the corporation (including its board of directors, its independent
legal counsel and its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
7.1.7 SETTLEMENT. The corporation shall not be obligated to
reimburse the costs of any settlement to which it has not agreed. If in
any action, suit or proceeding, including any appeal, within the scope of
Sections 7.1.1 and 7.1.2, the person to be indemnified shall have
unreasonably failed to enter into a settlement thereof offered or
assented to by the opposing party or parties in such action, suit or
proceeding, then, notwithstanding any other provision hereof, the
indemnification obligation of the corporation to such person in
connection with such action, suit or proceeding shall not exceed the
total of the amount at which settlement could have been made and the
expenses incurred by such person prior to the time such settlement could
reasonably have been effected.
SECTION 7.2 SUBSEQUENT AMENDMENT. No amendment, termination or repeal of
this Article VII or of relevant provisions of the Delaware General Corporation
Law or any other applicable law shall affect or diminish in any way the rights
of any director or officer of the corporation to indemnification under the
provisions hereof with respect to any action, suit or proceeding arising out of,
or relating to, any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
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SECTION 7.3 OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification provided by this ArticleEVII shall not be deemed exclusive of
any other rights to which a director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in any other capacity while
holding office or while employed by or acting as agent for the corporation, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. Nothing contained in this
ArticleEVII shall be deemed to prohibit, and the corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth herein.
All rights to indemnification under this ArticleEVII shall be deemed to be a
contract between the corporation and each director or officer of the
corporation who serves or served in such capacity at any time while this
ArticleEVII is in effect. The corporation shall not consent to any
acquisition, merger, consolidation or other similar transaction unless the
successor corporation assumes by operation of law or by agreement the
obligations set forth in this ArticleEVII.
SECTION 7.4 INSURANCE. The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under this ArticleEVII.
SECTION 7.5 CERTAIN DEFINITIONS. For purposes of this ArticleEVII:
(i) references to "the corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had the power
and authority to indemnify its directors, officers, employees or agents,
so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprises, shall stand in the same position under this ArticleEVII with
respect to the resulting or surviving corporation as he or she would have
with respect to such constituent corporation if its separate existence
had continued;
(ii) references to "other enterprises" shall include employee
benefit plans;
(iii) references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan;
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(iv) references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and
(v) a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation," as
referred to in this Article VII.
SECTION 7.6 SAVINGS CLAUSE. If this ArticleEVII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each director or officer of the
corporation as to any costs, charges, expenses (including attorney's fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this ArticleEVII that shall not have
been invalidated and to the full extant permitted by applicable law.
SECTION 7.7 SUBSEQUENT LEGISLATION. If the Delaware General Corporation
Law is amended after the date hereof to further expand the indemnification
permitted to directors and officers of the corporation, then the corporation
shall indemnify such person to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
ARTICLE VIII
RECORDS AND REPORTS
SECTION 8.1 RECORDS. The corporation shall maintain adequate and correct
books and records of account of its business and properties.
SECTION 8.2 CHECKS AND DRAFTS. All checks, drafts and other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board.
SECTION 8.3 EXECUTION OF INSTRUMENTS. The Board 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 by the
Board, 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.
SECTION 8.4 FISCAL YEAR. The fiscal year of the corporation shall be a
December 31 fiscal year.
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SECTION 8.5 ANNUAL AUDIT. The corporation shall be subject to an annual
audit as of the end of its fiscal year by independent accountants appointed by,
and responsible to, the Board.
ARTICLE IX
DIVIDENDS ON STOCK
SECTION 9.1 DIVIDENDS ON STOCK. Subject to applicable law, the
Certificate of Incorporation and these Bylaws, the Board may, from time to
time, declare, and the corporation may pay, dividends on the outstanding shares
of capital stock of the corporation.
ARTICLE X
CERTIFICATES
SECTION 10.1 ISSUANCE. The corporation, as authorized by the Board, may
issue any and all forms of certificates of stock not inconsistent with law.
SECTION 10.2 CERTIFICATES FOR SHARES. Every holder of shares of the stock
of the corporation or shares of any other class or series of stock that may be
validly authorized and issued by the corporation shall be entitled to have a
certificate signed in the name of the corporation by the Chairman of the Board
or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, certifying the number of
shares and the class or series of shares owned by the stockholder. Any 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 an officer, transfer
agent or registrar at the date of issue.
SECTION 10.3 STATEMENTS ON CERTIFICATES. Any certificates for shares of
stock shall contain such legend or other statement as may be required by law or
applicable rule or regulation, by these Bylaws or by any agreements between the
corporation and the issue thereof.
SECTION 10.4 LOST OR DESTROYED CERTIFICATES. In case any certificate for
stock or other security issued by this corporation is lost or destroyed, the
Board may authorize the issuance of a new certificate or instrument therefor, on
such terms and conditions as it may determine, after proof of such loss or
destruction satisfactory to the Board. The Board may require a bond or other
security in an adequate amount as indemnity for any such certificate or
instrument when, in the Board's judgment, it is proper to do so.
SECTION 10.5 TRANSFER. Stock of the corporation shall be transferable on
the books of the corporation by the person named in the certificate, or by the
person entitled thereto, on surrender of the certificate for cancellation,
accompanied by proper evidence of succession, assignment or authority to
transfer. The corporation shall be entitled to treat the holder of
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record of any stock certificate as owner thereof, and, accordingly, shall not be
bound to recognize any equitable or other claim to, or interest in, such stock
on the part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 RECORD DATE.
11.1.1 STOCKHOLDERS MEETINGS. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, the Board may fix, in
advance, a record date, which shall not be more than sixty (60) nor less
than ten (10 days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned
meeting.
11.1.2 OTHER ACTIONS. In order that the corporation may determine
the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, the Board may fix, in advance, a record date, which shall not be
more than sixty (60) days prior to such action.
11.1.3 SUBSEQUENT TRANSFERS AND CLOSING TRANSFER BOOKS. When a
record date is fixed, only stockholders of record at the close of
business on that date are entitled to notice and to vote or to receive
the dividend, distribution or allotment of rights or to exercise the
rights, as the case may be, notwithstanding any transfer of any shares on
the books of the corporation after the record date, except as otherwise
provided in the Certificate of Incorporation or by agreement or in the
Delaware General Corporation Law. The Board may close the books of the
corporation against transfers of shares during the whole, or any part, of
any such period.
SECTION 11.2 INSPECTION OF CORPORATE RECORDS.
11.2.1 BY STOCKHOLDERS. Any stockholder, in person or by attorney
or other agent, shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours of business to inspect for
any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or
extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right
to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other
agent to so act on behalf of the stockholder.
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11.2.2 BY DIRECTORS. Each director shall have the right at any
reasonable time to inspect all books, records, documents of every kind,
and the physical properties of the corporation. The inspection may be
made in person or by agent or attorney, and the right of inspection
includes the right to make extracts and copies thereof.
SECTION 11.3 CORPORATE SEAL. The corporate seal of the corporation, if
any, shall be in such form as the Board shall prescribe.
ARTICLE XII
AMENDMENT OF BYLAWS
SECTION 12.1 AMENDMENT OF BYLAWS. These Bylaws may be adopted, amended or
repealed by the affirmative vote of the holders of at least 66 2/3% of the total
votes eligible to be cast at a legal meeting of the stockholders or by a
resolution adopted by a majority of the directors then in office.
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