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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
AMERICAN PLUMBING & MECHANICAL, INC.
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ARTICLE I
OFFICES
Section 1. The registered office of American Plumbing & Mechanical,
Inc. (the "Corporation") shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. 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 1. All meetings of the stockholders for the election of
Directors shall be held at such place as may be fixed from time to time by the
Board of Directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on such date
and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. At the annual meeting, the
stockholders shall elect by a plurality vote the Directors pursuant to Article
III of these Bylaws, and transact such other business as may properly be brought
before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to a vote at
such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) otherwise properly brought before
the meeting by a stockholder. For business 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 to and received at the
principal executive offices of the Corporation not less than 120 days nor more
than 150 days prior to the anniversary of the date of the proxy statement for
the previous year's annual meeting; provided, however, that if no annual meeting
was held in the previous year or the date of the annual meeting of stockholders
has been changed by more than 30 calendar days from the date contemplated at the
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time of the previous year's proxy statement, the notice must be received by the
Corporation at least 60 days prior to the date the Corporation intends to
distribute its proxy statement with respect to such meeting.
A stockholder's notice to the Secretary shall set forth, as to each
matter a stockholder proposes to bring before the annual meeting, (i) the nature
of the proposed business with reasonable particularity, including the exact text
of any proposal to be presented for adoption and any supporting statement, which
proposal and supporting statement shall not in the aggregate exceed 500 words,
and his reasons for conducting such business at the annual meeting, (ii) any
material interest of such stockholder in such business, (iii) the name,
principal occupation and record address of such stockholder, (iv) the class and
number of shares of the Corporation which are held of record or beneficially
owned by such stockholder, (v) the dates upon which such stockholder acquired
such shares of stock and documentary support for any claims of beneficial
ownership and (vi) such other matters as may be required by the Certificate of
Incorporation as amended or restated from time to time (the "Certificate of
Incorporation").
Notwithstanding any other provision in these Bylaws, no business shall
be conducted at an annual meeting except in accordance with the procedures set
forth in this Section 3. The presiding officer of an annual meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with this Section 3, and if
the presiding officer should so determine, the presiding officer shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
At any special meeting of stockholders, only such business shall be
conducted as shall have been specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors. In
accordance with Section 5 of this Article II, nothing in this Section 3 shall
entitle any stockholder to propose business for consideration at any special
meeting of stockholders.
Notwithstanding any other provision of these Bylaws, the Corporation
shall be under no obligation to include any stockholder proposal in its proxy
statement or otherwise present any such proposal to stockholders at a meeting of
stockholders if the Board of Directors reasonably believes that the proponents
thereof have not complied with Sections 13 and 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and the Corporation shall not be required to include in
its proxy statement to stockholders any stockholder proposal not required to be
included in its proxy statement to stockholders in accordance with the Exchange
Act and such rules or regulations; provided, however, nothing in this Section 3
shall be deemed to affect the rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
Section 4. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list
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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 (10)
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.
Section 5. Special meetings of the stockholders for any purpose may be
called only by the Chairman of the Board of Directors and shall be called within
10 days after receipt of the written request of the Board of Directors, pursuant
to a resolution approved by a majority of the entire Board of Directors. The
business permitted to be conducted at any special meeting of the stockholders is
limited to the business brought before the meeting by the Chairman or by the
Secretary at the request of a majority of the entire Board of Directors.
Section 6. Written notice of a special meeting stating the place, date
and hour of the meeting, and the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder entitled to vote at such
meeting.
Section 7. The holders of a majority of the stock issued, outstanding
and entitled to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented.
Section 8. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting, except as otherwise required by this
Section 8, if the time and place thereof are announced at the meeting at which
the adjournment is taken. At such adjourned meeting the Corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. If a quorum exists, action on a matter (other than the
election of directors) shall be approved if the votes cast in favor of the
matter exceed the votes cast opposing the matter. In determining the number of
votes cast, shares abstaining from voting or not voted on a matter will not be
treated as votes cast. The provisions of this paragraph will govern with respect
to all votes of stockholders except as otherwise provided for in these Bylaws or
in the Certificate of Incorporation or by a specific statutory provision
superseding the provisions contained in these Bylaws or the Certificate of
Incorporation.
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Section 10. Each stockholder shall at every meeting of the
stockholders, subject to any restriction or qualification set forth in the
Certificate of Incorporation, be entitled to one vote in person or by proxy for
each share of the capital stock having voting power held by such stockholder,
but no proxy shall be voted after three years from its date, unless the proxy
provides for a longer period.
Section 11. After an initial public offering of the Corporation's
Common Stock, any action required or permitted to be taken by the stockholders
of the Corporation must be affected at a duly called annual or special meeting
of stockholders of the Corporation and may not be effected by any consent in
writing of such stockholders.
Section 12. At each meeting of stockholders, the Chairman or
Vice-Chairman of the Board of Directors shall preside, and the secretary shall
keep records, and in the absence of either such officer, his duty shall be
performed by a person appointed at the meeting.
ARTICLE III
DIRECTORS
Number, Nomination, Removal
Section 1. The number of Directors shall be fixed from time to time by
the Board of Directors, but shall not be less than 3 nor more than 15 persons.
The Directors shall be elected at the annual meeting of the stockholders in
accordance with the provisions of Section 2 of this Article and Section 9 of the
Certificate of Incorporation, and each Director elected shall hold office until
his successor is elected and qualified. Directors need not be stockholders.
Section 2. Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, nominations for the election of Directors may be made by the Board
of Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally. Any
stockholder entitled to vote in the election of Directors generally may nominate
one or more persons for election as Directors at a meeting only if written
notice of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation not less than 120 days nor more
than 150 days prior to the anniversary of the date of the proxy materials for
the previous year's annual meeting; provided, however, that if no annual meeting
was held in the previous year or the date of the annual meeting of stockholders
has been changed by more than 30 calendar days from the date contemplated at the
time of the previous year's proxy statement, the notice must be received by the
Corporation at least 60 days prior to the date the Corporation intends to
distribute its proxy statement with respect to such meeting.
Each such notice given by a stockholder shall set forth the following
information, in addition to any other information or matters required by the
Certificate of Incorporation:
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(a) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, (i) the exact name of such
person, (ii) such person's age, principal occupation, business address
and telephone number and residence address and telephone number, (iii)
the number of shares (if any) of each class of stock of the Corporation
owned directly or indirectly by such person and (iv) such other
information regarding each nominee proposed by such stockholder as
would be required to be disclosed in solicitations of proxies for
election of directors pursuant to Regulation 14A under the Exchange Act
or any successor regulation thereto (including such person's notarized
written acceptance of such nomination, consent to being named in the
proxy statement as a nominee and statement of intention to serve as a
director if elected) had the nominee been nominated, or intended to be
nominated, by the Board of Directors; and
(b) as to the stockholder giving the notice, (i) his name and
record address, (ii) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice, (iii) the class and
number of shares of the Corporation which are held of record or
beneficially owned by him and the dates upon which he acquired such
shares of stock and documentary support for any claims of beneficial
ownership, and (iv) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder.
If the presiding officer of the meeting for the election of Directors
determines that a nomination of any candidate for election as a Director at such
meeting was not made in accordance with the applicable provisions of these
Bylaws, such nomination shall be void.
Section 3. Subject to the rights of the holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under specified circumstances, newly
created directorships resulting from any increase in the number of Directors and
any vacancy on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board of Directors. or by a sole remaining
Director, provided that any vacancy in the Board of Directors arising through
death, resignation or removal of the director elected by the Restricted Common
Stock shall be filled only by a special meeting of the holders of the Restricted
Common Stock called for the purpose of electing a director to fill such vacancy.
Any Director elected or chosen as provided herein shall hold office until the
sooner of the following events: (i) the expiration of the term of the
directorship to which he is appointed, (ii) such time as his successor is
elected and qualified or (iii) his resignation or removal. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of an incumbent Director.
Section 4. Subject to the rights of the holders of any class or series
of stock having preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under
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specified circumstances, any Director may be removed from office only for cause
by the stockholders in the manner provided in this Section 4. At any annual
meeting of the stockholders of the Corporation or at any special meeting of the
stockholders of the Corporation, the notice of which shall state that the
removal of a Director or Directors is among the purposes of the meeting, a
Director may be removed for cause by the affirmative vote of the holders of at
least 662/3 percent of the capital stock of the Corporation entitled to vote at
an election of such Director.
Section 5. The business of the Corporation shall be managed by its
Board of Directors, which 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.
Advisory Member of the Board of Directors
Section 6. The holders of a majority of the outstanding shares of the
Company's Restricted Common Stock may appoint one individual to serve as an
advisory member of the Board of Directors (the "Advisory Member"). Such Advisory
Member will be entitled to attend all meetings of the Board of Directors and
meetings of committees thereof and to speak at such meetings. Such Advisory
Member shall also be entitled to receive copies of any and all materials
delivered to the Board of Directors; provided, however, such Advisory Member
will not be entitled to a vote at any meeting of the Board of Directors or
committee thereof and shall not have any duties or responsibilities of a
Director. Other than reimbursement for expenses, if any, related to attendance
at each meeting of the Board of Directors, the Advisory Member will not be paid
for attendance at such meetings.
Meetings of the Board of Directors
Section 7. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 8. Meetings of the Board of Directors may be held at such time
and place as shall be specified in a notice given in the manner hereinafter
provided, or as shall be specified in a written waiver signed by all of the
Directors.
Section 9. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
Section 10. Special meetings of the Board of Directors may be called by
the Chairman of the Board on 24 hours' notice to each Director, either
personally or by telecopy or telegram; special meetings shall be called by the
president, chief executive officer or secretary in like manner and on like
notice on the written request of three Directors.
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Section 11. Except as provided in these Bylaws to the contrary, at all
meetings of the board a majority of the total number of Directors shall
constitute a quorum for the transaction of business and the vote of a majority
of the Directors entitled to vote and present at a meeting at which a quorum is
present shall be the act of the Board of Directors, unless the Certificate of
Incorporation shall require a vote of a greater number. If a quorum shall not be
present at any meeting of the Board of Directors, the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 12. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting, if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or committee.
Section 13. At all meetings of the Board of Directors, business shall
be transacted in such order as from time to time the Board of Directors may
determine.
At all meetings of the Board of Directors, the Chairman or
Vice-Chairman of the Board of Directors shall preside, and in the absence of
either such Director a person shall be chosen by the board from among the
Directors present to act as chairman of the meeting.
The secretary of the Corporation shall act as secretary of the meeting
of the Board of Directors, but in the absence of the secretary, the presiding
officer may appoint any person to act as secretary of the meeting.
Executive Committee; Committees of Directors
Section 14.
The Board of Directors may, by resolution adopted by a majority of the
whole Board of Directors, designate one (1) or more committees, each committee
to consist of one (1) or more Directors. The Board of Directors may designate
one (1) 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, and the alternate or alternates, if
any, designated for such member, of any committee, the member or members thereof
present at the meetings and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another Director 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
establishing such committee, 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
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in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
Section 15. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors.
Compensation of Directors
Section 16. 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 or
retainer as Director. No such payment shall preclude any Director from serving
the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever notice is required to be given to any Director or
stockholder pursuant to a statutory provision or the Certificate of
Incorporation or these Bylaws, 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 in 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 personally or by telegram or telecopy.
Section 2. Whenever notice is required to be given pursuant to a
statutory provision or the Certificate of Incorporation or Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be the Chairman of the Board of Directors, a chief
executive officer, a president, a secretary and a treasurer. The Board of
Directors may also appoint one or more chief operating officers, one or more
vice presidents and one or more assistant secretaries and assistant treasurers.
Any number of offices
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may be held by the same person, unless the Certificate of Incorporation or these
Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a Chairman of the Board of
Directors, a chief executive officer, a president, a secretary and a treasurer
and may choose one or more one or more chief operating officers, one or more
vice presidents and such other officers as the Board of Directors shall
determine in its sole discretion.
Section 3. 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 of Directors.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. 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. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
The Chairman of the Board of Directors
Section 6. The Chairman of the Board of Directors of the Corporation
shall preside at all meetings of stockholders and the Board of Directors. He
shall perform such duties and have such powers as usually appertain to the
office or as the Board of Directors may from time to time prescribe.
The Chief Executive Officer
Section 7. The Chief Executive Officer shall be a senior officer of the
Corporation and shall perform such duties and have such powers as usually
appertain to the office or as the Board of Directors may from time to time
prescribe. He shall have the authority to execute all documents and instruments
necessary to carry out the management of the business of the Corporation. He
shall report to the Board of Directors.
The President
Section 8. The president of the Corporation shall have general and
active management of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall have the authority to execute all documents and instruments necessary to
carry out the management of the business of the Corporation. He shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution
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thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of this Corporation. He shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe. He shall report to the Board of Directors.
The Chief Operating Officer
Section 9. The chief operating officer of the Corporation shall be
responsible for the day-to-day operations of the Corporation and shall have the
authority to execute all documents and instruments necessary to carry out such
operations. The chief operating officer shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe. The
chief operating officer shall report to the chief executive officer of the
Corporation.
The Chief Financial Officer
Section 10. The chief financial officer of the Corporation shall be
responsible for the finances of the Corporation and shall have the authority to
execute all documents and instruments necessary with respect to financial
matters, including, without limitation, loan agreements, indentures, promissory
notes, mortgage instruments, security agreements and financing statements. The
chief financial officer shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe. The chief
financial officer shall report to the chief executive officer of the
Corporation.
The Vice Presidents
Section 11. In the absence of the president or in the event of his
inability or refusal to act, the vice president (or in the event there is more
than one, the vice presidents in the order determined by the Board of Directors,
or, if there be no such determination, then in the order of their election),
shall perform the duties of the president, and when so acting, shall have all
the powers of and be subject to all the restrictions imposed upon the president.
The vice presidents shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
The Secretary and the Assistant Secretary
Section 12. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or president, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation, if any such seal be adopted by
resolution of the Board of Directors, and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board of Directors may give
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general authority to any other officer to affix the seal of the Corporation and
to attest the affirming thereof by his signature.
Section 13. 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, then in the order of their election) shall, in
the absence of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
The Treasurer and Assistant Treasurer
Section 14. The treasurer 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 president and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as treasurer
and of the financial condition of the Corporation.
Section 15. 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, then in the order of their election)
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the treasurer and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to a certificate, signed by, or in the name of the Corporation by, the Chairman
of the Board, the president or a vice president and the secretary or an
assistant secretary of the Corporation, certifying the number of shares owned by
him in the Corporation. Any signature on the certificate may be a facsimile. If
the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class of stock, the designations, preferences. and
relative participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights 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 designations, preferences and relative, participating,
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optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Where a certificate is countersigned (1) by a transfer agent
other than the Corporation or its employee or, (2) by a registrar other than the
Corporation or its employee, any signature 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.
Lost Certificates
Section 3. 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.
Transfers of Stock
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by a
proper evidence of succession, assignment 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.
Fixing Record Date
Section 5. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting prior to an initial public offering of the Corporation's
Common Stock, 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, 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, nor more than sixty (60) 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.
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Registered Stock Holders
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
Dividends
Section 1. 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 meetings, 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 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
Checks
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
Fiscal Year
Section 4. The fiscal year of the Corporation shall begin on the first
day of January of each year and end on the last day of December of each year,
unless otherwise determined by the Board of Directors.
Seal
Section 5. The corporate seal, if any such seal be adopted by
resolution of the Board of Directors, will be in such form as the Board of
Directors may prescribe. The seal may be used by
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causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise placed thereon.
Interested Directors and Officers
Section 6.
(a) No contract or transaction between the Corporation and one or more
of its Directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its Directors or officers are Directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the Director or officer is present at or participates in the meeting of the
board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purposes, if;
(1) the material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested Directors, even though the disinterested
Directors be less than a quorum; or
(2) the material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(3) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
(b) Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed, or new Bylaws may be
adopted by the affirmative vote of a majority of the entire Board of Directors
at any meeting and without the consent or vote of the stockholders. These Bylaws
may be altered, amended or repealed, or new Bylaws may be adopted by the
stockholders at any annual meeting of the stockholders or at any special meeting
of the stockholders, if notice of such alteration, amendment, repeal or adoption
of new Bylaws is contained in the notice of such meeting, by the affirmative
vote of at least 75% of the aggregate number of votes entitled to be cast
thereon and the affirmative vote of the holders of at least 75%
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of the then outstanding shares of each class of stock of the Corporation voting
separately as a class, provided that holders of shares of any series of
Preferred Stock shall not be entitled to vote with respect to any such amendment
unless (i) specifically required by the Directors' Resolution providing for the
issue of such series of Preferred Stock, (ii) provided in the Certificate of
Designation for the applicable series of Preferred Stock or (iii) otherwise
required by the DGCL.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 1. The Corporation shall, to the full extent permitted by
Section 145 of Title 8 of the General Corporation Law of the State of Delaware,
as amended from time to time, indemnify all officers and directors of the
Corporation whom it may indemnify pursuant thereto. The provisions of this
Article IX shall apply to acts or omissions occurring before or after the
adoption hereof. The right of indemnification herein provided for shall not be
exclusive of any other right to which any Director or officer may now or
hereafter be entitled under any statute, bylaw, agreement, vote of stockholders
or disinterested Directors or otherwise, shall continue as to a person who has
ceased to be such Director or officer entitled to indemnification pursuant to
this Article IX and shall inure to the benefit of the heirs, executors and
administrators of such Director or officer.
Section 2. The Corporation may 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, Advisory Member, 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 Article IX or
of Section 145 of the General Corporation Law of the State of Delaware.
Section 3. The indemnification provided by this Article IX shall be
subject to all valid and applicable laws, and, in the event this Article IX or
any of the provisions hereof or the indemnification contemplated hereby are
found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control, and this Article IX shall be regarded as modified
accordingly and, as so modified, shall continue in full force and effect.
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