Exhibit 3.3
BYLAWS
OF
SCOOP, INC.,
a Delaware corporation
TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES......................................................... 1
Section 1.1 Registered Office......................................... 1
Section 1.2 Other Offices............................................. 1
ARTICLE II MEETINGS OF STOCKHOLDERS........................................ 1
Section 2.1 Place of Meetings......................................... 1
Section 2.2 Annual Meeting of Stockholders............................ 1
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof............. 1
Section 2.4 Voting.................................................... 2
Section 2.5 Proxies................................................... 2
Section 2.6 Special Meetings.......................................... 2
Section 2.7 Notice of Stockholder's Meetings.......................... 2
Section 2.8 Stockholder Proposals..................................... 2
Section 2.9 Maintenance and Inspection of Stockholder List............ 3
ARTICLE III DIRECTORS...................................................... 3
Section 3.1 Number, Election and Tenure............................... 3
Section 3.2 Vacancies................................................. 4
Section 3.3 Notification of Nomination................................ 4
Section 3.4 Powers.................................................... 5
Section 3.5 Directors' Meetings....................................... 5
Section 3.6 Regular Meetings.......................................... 5
Section 3.7 Special Meetings.......................................... 5
Section 3.8 Quorum.................................................... 5
Section 3.9 Action Without Meeting.................................... 6
Section 3.10 Telephonic Meetings....................................... 6
Section 3.11 Committees of Directors................................... 6
Section 3.12 Minutes of Committee Meetings............................. 6
Section 3.13 Compensation of Directors................................. 6
Section 3.14 Indemnification........................................... 7
ARTICLE IV OFFICERS........................................................ 9
Section 4.1 Officers.................................................. 9
Section 4.2 Election of Officers...................................... 9
Section 4.3 Subordinate Officers...................................... 9
Section 4.4 Compensation of Officers.................................. 9
Section 4.5 Term of Office; Removal and Vacancies..................... 9
Section 4.6 Chairman of the Board..................................... 9
Section 4.7 President.................................................10
Section 4.8 Vice President............................................10
Section 4.9 Secretary................................................ 10
Section 4.10 Assistant Secretaries.................................... 10
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TABLE OF CONTENTS (Cont')
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Page
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Section 4.11 Chief Financial Officer................................. 10
Section 4.12 Assistant Treasurer..................................... 11
ARTICLE V CERTIFICATES OF STOCK.......................................... 11
Section 5.1 Certificates............................................ 11
Section 5.2 Signatures on Certificates.............................. 11
Section 5.3 Statement of Stock Rights, Preferences, Privileges...... 11
Section 5.4 Lost Certificates....................................... 12
Section 5.5 Transfers of Stock...................................... 12
Section 5.6 Fixing Record Date...................................... 12
Section 5.7 Registered Stockholders................................. 12
ARTICLE VI GENERAL PROVISIONS............................................ 13
Section 6.1 Dividends............................................... 13
Section 6.2 Payment of Dividends.................................... 13
Section 6.3 Checks.................................................. 13
Section 6.4 Fiscal Year............................................. 13
Section 6.5 Corporate Seal.......................................... 13
Section 6.6 Manner of Giving Notice................................. 13
Section 6.7 Waiver of Notice........................................ 13
Section 6.8 Annual Statement........................................ 13
Section 6.9 Minutes and Accounting Records.......................... 14
ARTICLE VII AMENDMENTS................................................... 14
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BYLAWS
OF
SCOOP, INC.,
a Delaware corporation
ARTICLE I
OFFICES
---------------
Section 1.1 REGISTERED OFFICE. The registered office shall be in the City
of Dover, County of Kent, State of Delaware.
Section 1.2 OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
----------------------------
Section 2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at
any place within or without the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the corporation. Section 2.2 ANNUAL
MEETING OF STOCKHOLDERS. The annual meeting of stockholders shall be held each
year on a date and a time designated by the Board of Directors. At each annual
meeting directors shall be elected and any other proper business may be
transacted.
Section 2.3 QUORUM; ADJOURNED MEETINGS AND NOTICE THEREOF. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment is for
more than thirty days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote thereat.
Section 2.4 VOTING. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes, or
the Certificate of Incorporation, or these Bylaws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
Section 2.5 PROXIES. At each meeting of the stockholders, each stockholder
having the right to vote may vote in person or may authorize another person or
persons to act for him by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Each stockholder shall have
one vote for each share of stock having voting power, registered in his name on
the books of the corporation on the record date set by the Board of Directors as
provided in Article V, Section 5.6 hereof. All elections shall be had and all
questions decided by a plurality vote.
Section 2.6 SPECIAL MEETINGS. Special meetings of the stockholders of the
corporation for any purpose or purposes may be called at any time by the Board
of Directors, the Chairman of the Board of Directors, the President of the
corporation or stockholders holding shares entitled to cast not less than 10% of
the votes at such meeting. Special meetings of the stockholders of the
corporation may not be called by any other person or persons.
Section 2.7 NOTICE OF STOCKHOLDER'S MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
Section 2.8 STOCKHOLDER PROPOSALS. At an annual meeting of stockholders,
only such business shall be conducted, and only such proposals shall be acted
upon, as shall have been brought before the annual meeting (a) by, or at the
direction of, a majority of the directors, or (b) by any stockholder of the
corporation who complies with the notice procedures set forth in this Section
2.8. For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
corporation not less than 60 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled annual meeting is given or made, notice
by the
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stockholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day on
which such public disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the proposal desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (b) the name and address, as they appear on the corporation's
books, of the stockholder proposing such business and any other stockholders
known by such stockholder to be supporting such proposal, (c) the class and
number of shares of the corporations's stock which are beneficially owned by the
stockholder on the date of such stockholder notice and by any other stockholders
known by such stockholder to be supporting such proposal on the date of such
stockholder notice, and (d) any financial interest of the stockholder in such
proposal. The presiding officer of the annual meeting shall determine and
declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this Section 2.8. If the presiding officer
determines that a stockholder proposal was not made in accordance with the terms
of this Section 2.8, he shall so declare at the annual meeting and any such
proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
Section 2.9 MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST. The officer who
has charge of the stock ledger of the corporation shall prepare and make, at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to 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, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
ARTICLE III
DIRECTORS
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Section 3.1 NUMBER, ELECTION AND TENURE. The authorized number of directors
which shall constitute the whole Board shall not be less than five (5) nor more
than nine (9). The exact number of directors shall be fixed by a resolution duly
adopted by the Board of Directors.
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When permitted under applicable law, the directors shall be divided into
three classes, as nearly equal in number as possible, with a term of three years
each, and the term of office of one class shall expire each year. One class
shall hold initially for a term expiring at the first annual meeting of the
stockholders following classification of the Board, another class shall hold
office initially for a term expiring at the second annual meeting of the
stockholders following classification of the Board, and another class shall hold
office initially for a term expiring at the third annual meeting of stockholders
following classification of the Board. Beginning with the first annual meeting
of the stockholders and each succeeding annual meeting of stockholders, the
directors of the class of directors whose term expires at such meeting will be
elected to hold office for a term expiring at the third succeeding annual
meeting. Each director will hold office for the term for which the is elected
and until his successor is duly elected and qualified; provided, however, that
unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any or all of the directors of the corporation may be removed from office by the
stockholders at any annual or special meeting of stockholders by the affirmative
vote of a majority of the outstanding shares of Common Stock of the corporation,
the notice of which shall state that the removal of a director or directors is
among the purposes of the meeting.
Section 3.2 VACANCIES. Vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors shall be filled solely by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the new directorship created
or the directorship in which the vacancy occurred and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 3.3 NOTIFICATION OF NOMINATION. Subject to the rights, if any, of
the holders of shares of Preferred Stock then outstanding, if any, only persons
who are nominated in accordance with the following procedures shall be eligible
for election as directors. Nominations of person for election to the Board of
Directors of the corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board, or by any stockholder of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 3.3. Such nominations, other than those
made by or at the direction of the Board or by any nominating committee or
person appointed by the Board, shall be made pursuant to timely notice 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 less than 60 days prior to the scheduled annual
meeting, regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that if less than 70 days' notice or
prior public disclosure of the date of the scheduled annual meeting is given or
made, notice by the stockholder, to be timely, must be so delivered or received
not later than the close of business on the tenth day following the earlier of
the day on which such notice of the date of the scheduled annual meeting was
mailed or the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth
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(a) as to each person whom the stockholder proposes to nominate for election or
reelection as a director, (i) the name, age, business address and residence
address of the person, (ii) the principal number of shares of capital stock of
the corporation which are beneficially owned by the person and (iii) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving the notice, (i) the name and address, as they appear on the corporation's
books, of the stockholder and (ii) the class and number of shares of the
corporation's stock which are beneficially owned by the stockholder on the date
on such stockholder notice. The corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the corporation
to determine the eligibility of such proposed nominee to serve as director of
the corporation.
The presiding officer of the annual meeting shall determine and declare at
the annual meeting whether the nomination was made in accordance with the terms
of this Section 3.3. If the presiding officer determines that a nomination was
not made in accordance with the terms of this Section 3.3, he shall so declare
at the annual meeting and any such defective nomination shall be disregarded.
Section 3.4 POWERS. The property and business of the corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities by these Bylaws expressly conferred upon them, the Board
may exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Section 3.5 DIRECTORS' MEETINGS. The directors may hold their meetings and
have one or more offices, and keep the books of the corporation outside of the
State of Delaware.
Section 3.6 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by the Board.
Section 3.7 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the President on forty-eight hours' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or the Secretary in like manner and on like notice on the written
request of two directors unless the Board consists of only one director; in
which case special meetings shall be called by the President or Secretary in
like manner or on like notice on the written request of the sole director.
Section 3.8 QUORUM. At all meetings of the Board of Directors a majority of
the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting of the Board of Directors the directors
present
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thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. If only one
director is authorized, such sole director shall constitute a quorum.
Section 3.9 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 3.10 TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
Section 3.11 COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one or more of the directors of
the corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the Bylaws of the corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Section 3.12 MINUTES OF COMMITTEE MEETINGS.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
Section 3.13 COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
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compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
Section 3.14 INDEMNIFICATION.
(a) The corporation shall indemnify any person who was or is made 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 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 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 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 conduct was unlawful.
(b) 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 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 against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty 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 liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation shall be successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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(d) Any indemnification under paragraphs (a) and (b) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in paragraphs (a) and (b). Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
manner provided in paragraph (d) upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Section 3.14.
(f) The indemnification provided by this Section 3.14 shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, 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 heirs, executors and administrators of such a person.
(g) The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the corporation 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 a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Section 3.14.
(h) For the purposes of this Section 3.14, 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 power and authority to indemnify its directors, officers, and 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, limited liability company,
trust or other enterprise, shall stand in the same position under the provisions
of this Section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued. (i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise
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taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include 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
a person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this section.
ARTICLE IV
OFFICERS
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Section 4.1 OFFICERS. The officers of this corporation shall be chosen by
the Board of Directors and shall include a Chairman of the Board, a President, a
Secretary, and a Chief Financial Officer. The corporation may also have at the
discretion of the Board of Directors such other officers as are desired,
including one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 4.3 hereof. In the event there are two or more
Vice Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise provide.
Section 4.2 ELECTION OF OFFICERS. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall choose the officers of
the corporation.
Section 4.3 SUBORDINATE OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board. Section 4.4 COMPENSATION OF
OFFICERS. The salaries of all officers and agents of the corporation shall be
fixed by the Board of Directors. Section 4.5 TERM OF OFFICE; REMOVAL AND
VACANCIES. The officers of the corporation shall hold office until their
successors are chosen and qualify in their stead. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors. Section 4.6 CHAIRMAN OF THE BOARD. The Chairman of
the Board, if such an officer be elected, shall, if present, preside at all
meetings of the Board of Directors and exercise and perform such other powers
and duties as may be from time to time assigned to him by the Board of Directors
or prescribed by these Bylaws. If there is no President, the Chairman of the
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Board shall in addition be the Chief Executive Officer of the corporation and
shall have the powers and duties prescribed in Section 4.7 of this Article IV.
Section 4.7 PRESIDENT. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. He shall preside at all meetings of the stockholders and, in the
absence of the Chairman of the Board, or if there be none, at all meetings of
the Board of Directors. He shall be an ex-officio member of all committees and
shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
Section 4.8 VICE PRESIDENT. In the absence or disability of the President,
the Vice Presidents in order of their rank as fixed by the Board of Directors,
or if not ranked, the Vice President designated by the Board of Directors, shall
perform all 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. The Vice
Presidents shall have such other duties as from time to time may be prescribed
for them, respectively, by the Board of Directors. Section 4.9 SECRETARY. The
Secretary shall attend all sessions of the Board of Directors and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose; and shall perform like duties for the standing
committees when required by the Board of Directors. He shall give, or cause to
be given, notice of all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or these Bylaws. He shall keep in safe custody the seal of the
corporation, and when authorized by the Board, affix the same to any instrument
requiring it, and when so affixed it shall be attested by his signature or by
the signature of an Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 4.10 ASSISTANT SECRETARIES. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors, or if there be no such determination, the Assistant Secretary
designated by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 4.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys, and other valuable effects in the name
and to the credit of the corporation, in such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, at its regular
meetings, or when the Board of Directors so
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requires, an account of all his transactions as Chief Financial Officer and of
the financial condition of the corporation. If required by the Board of
Directors, he shall give the corporation a bond, in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors, for the
faithful performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 4.12 ASSISTANT TREASURER. The Assistant Treasurer, or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board
of Directors, or if there be no such determination, the Assistant Treasurer
designated by the Board of Directors, shall, in the absence or disability of the
Chief Financial Officer, perform the duties and exercise the powers of the Chief
Financial Officer and shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
---------------------
Section 5.1 CERTIFICATES. Every holder of stock of the corporation shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the Chairman or Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Chief
Financial Officer or an Assistant Treasurer of the corporation, certifying the
number of shares represented by the certificate owned by such stockholder in the
corporation.
Section 5.2 SIGNATURES ON CERTIFICATES. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 5.3 STATEMENT OF STOCK RIGHTS, PREFERENCES, PRIVILEGES. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights
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of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 5.4 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5.5 TRANSFERS OF STOCK. Upon surrender to the corporation, or the
transfer agent of the corporation, of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5.6 FIXING RECORD DATE. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. 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 of Directors may fix a new record date for the adjourned
meeting.
Section 5.7 REGISTERED STOCKHOLDERS. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim or interest in such share 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.
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ARTICLE VI
GENERAL PROVISIONS
------------------
Section 6.1 DIVIDENDS. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of Incorporation.
Section 6.2 PAYMENT OF DIVIDENDS. Before payment of any dividend there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve fund to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interests
of the corporation, and the directors may abolish any such reserve.
Section 6.3 CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 6.4 FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
Section 6.5 CORPORATE SEAL. The corporate seal shall have inscribed thereon
the name of the corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise. Section 6.6
MANNER OF GIVING NOTICE. Whenever, under the provisions of the statutes or of
the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 6.7 WAIVER OF NOTICE. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed to be equivalent.
Section 6.8 ANNUAL STATEMENT. The Board of Directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
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Section 6.9 MINUTES AND ACCOUNTING RECORDS. The minutes of proceedings of
the shareholders, Board of Directors, and Committees of the Board, and the
accounting books and records shall be kept at the principal executive office of
the Corporation, or at such other place or places as designated by the Board of
Directors. The minutes shall be kept in written form, and the accounting books
and records shall be kept either in written form or in a form capable of being
converted into written form. The minutes and accounting books and records shall
be open to inspection during usual business hours on the written demand of any
shareholder or holder of a voting trust certificate, for a purpose reasonably
related to the holder's interests in the Corporation. The inspection may be made
in person or by an agent or attorney, and includes the right to copy and make
extracts.
ARTICLE VII
AMENDMENTS
----------
The Board of Directors is expressly empowered to adopt, amend or repeal
bylaws of the corporation, without the approval of the stockholders. Any
adoption, amendment or repeal of bylaws of the corporation by the Board of
Directors shall require the approval of a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any resolution providing for adoption,
amendment or repeal is presented to the Board). The stockholders shall also have
power to adopt, amend or repeal the bylaws of the corporation. In addition to
any vote of the holders of any class or series of stock of this corporation
required by law or by the Certificate of Incorporation, the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66-2/3%) of the
outstanding shares of Common Stock of the corporation shall be required to
adopt, amend or repeal any provision of the bylaws of the corporation.
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