EXHIBIT 3.02
BYLAWS
OF
BROOKS AUTOMATION, INC.
(f/k/a BROOKS-PRI AUTOMATION, INC.)
(f/k/a BROOKS AUTOMATION, INC.)
A DELAWARE CORPORATION
ADOPTED: NOVEMBER 14,1994
AMENDED: MAY 20, 2002
SECRETARY: /s/ LAWRENCE M. LEVY
---------------------
LAWRENCE M. LEVY
BY-LAWS
TABLE OF CONTENTS
ARTICLE I Stockholders........................................................... 1
Section 1.1 Annual Meeting......................................................... 1
Section 1.2 Special Meetings....................................................... 1
Section 1.3 Notice of Meeting...................................................... 1
Section 1.4 Quorum................................................................. 2
Section 1.5 Voting and Proxies..................................................... 2
Section 1.6 Action at Meeting...................................................... 2
Section 1.7 Action Without Meeting................................................. 2
Section 1.8 Voting of Shares of Certain Holders.................................... 2
Section 1.9 Stockholder Lists...................................................... 3
ARTICLE II Board of Directors..................................................... 3
Section 2.1 Powers................................................................. 3
Section 2.2 Number of Directors; Qualifications.................................... 3
Section 2.3 Nomination of Directors................................................ 4
Section 2.4 Election of Directors.................................................. 4
Section 2.5 Vacancies.............................................................. 4
Section 2.6 Change in Size of the Board............................................ 4
Section 2.7 Tenure and Resignation................................................. 4
Section 2.8 Removal................................................................ 5
Section 2.9 Meetings............................................................... 5
Section 2.10 Notice of Meeting...................................................... 5
Section 2.11 Agenda................................................................. 5
Section 2.12 Quorum................................................................. 5
Section 2.13 Action at Meeting...................................................... 6
Section 2.14 Action Without Meeting................................................. 6
Section 2.15 Committees............................................................. 6
ARTICLE III Officers............................................................... 6
Section 3.1 Enumeration............................................................ 6
Section 3.2 Election............................................................... 6
Section 3.3 Qualification.......................................................... 6
Section 3.4 Tenure................................................................. 7
Section 3.5 Removal................................................................ 7
Section 3.6 Resignation............................................................ 7
Section 3.7 Vacancies.............................................................. 7
Section 3.8 Chairman of the Board.................................................. 7
Section 3.9 President.............................................................. 7
Section 3.10 Vice-President(s)...................................................... 7
Section 3.11 Chief Financial Officer, Treasurer and Assistant Treasurers............ 7
Section 3.12 Secretary and Assistant Secretaries.................................... 8
Section 3.13 Other Powers and Duties................................................ 8
i
ARTICLE IV Capital Stock.......................................................... 8
Section 4.1 Stock Certificates..................................................... 8
Section 4.2 Transfer of Shares..................................................... 9
Section 4.3 Record Holders......................................................... 9
Section 4.4 Record Date............................................................ 9
Section 4.5 Transfer Agent and Registrar for Shares of stock of the Corporation.... 10
Section 4.6 Loss of Certificates................................................... 10
Section 4.7 Restrictions on Transfer............................................... 10
Section 4.8 Multiple Classes of Stock.............................................. 10
ARTICLE V Dividends.............................................................. 11
Section 5.1 Declaration of Dividends............................................... 11
Section 5.2 Reserves............................................................... 11
ARTICLE VI Powers of Officers to Contract With the Corporation.................... 11
ARTICLE VII Indemnification........................................................ 12
Section 7.1 Definitions............................................................ 12
Section 7.2 Right to Indemnification in General.................................... 13
Section 7.3 Proceedings Other Than Proceedings by or in the Right of the
Corporation............................................................ 14
Section 7.4 Proceedings by or in the Right of the Corporation...................... 14
Section 7.5 Indemnification of a Party Who is Wholly or Partly Successful.......... 14
Section 7.6 Indemnification for Expenses of a Witness.............................. 15
Section 7.7 Advancement of Expenses................................................ 15
Section 7.8 Notification and Defense of Claim...................................... 15
Section 7.9 Procedures............................................................. 16
Section 7.10 Action by the Corporation.............................................. 17
Section 7.11 Non-Exclusivity........................................................ 17
Section 7.12 Insurance.............................................................. 17
Section 7.13 No Duplicative Payment................................................. 18
Section 7.14 Expenses of Adjudication............................................... 18
Section 7.15 Severability........................................................... 18
ARTICLE VIII Miscellaneous Provisions............................................... 18
Section 8.1 Certificate of Incorporation........................................... 18
Section 8.2 Fiscal Year............................................................ 18
Section 8.3 Corporate Seal......................................................... 18
Section 8.4 Execution of Instruments............................................... 19
Section 8.5 Voting of Securities................................................... 19
Section 8.6 Evidence of Authority.................................................. 19
Section 8.7 Corporate Records...................................................... 19
Section 8.8 Charitable Contributions............................................... 19
ARTICLE IX Amendments............................................................. 19
Section 9.1 Amendment by Stockholders.............................................. 19
Section 9.2 Amendment by Board of Directors........................................ 20
ii
BYLAWS
OF
BROOKS-PRI AUTOMATION, INC.
(A Delaware Corporation)
ARTICLE I.
STOCKHOLDERS
Section 1.1. Annual Meeting. The annual meeting of the
stockholders of the corporation shall be held on such date as shall be fixed by
the Board of Directors, at such time and place within or without the State of
Delaware as may be designated in the notice of meeting. If the day fixed for the
annual meeting shall fall on a legal holiday, the meeting shall be held on the
next succeeding day not a legal holiday. If the annual meeting is omitted on the
day herein provided, a special meeting may be held in place thereof, and any
business transacted at such special meeting in lieu of annual meeting shall have
the same effect as if transacted or held at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the
stockholders may be called at any time by the president or by the board of
directors. Special meetings of the stockholders shall be held at such time, date
and place within or outside of the State of Delaware as may be designated in the
notice of such meeting.
Section 1.3. Notice of Meeting. A written notice stating the
place, date and hour of each meeting of the stockholders, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be given to
each stockholder entitled to vote at such meeting, and to each stockholder who,
under the Certificate of Incorporation or these Bylaws, is entitled to such
notice, by delivering such notice to such person or leaving it at their
residence or usual place of business, or by mailing it, postage prepaid, and
addressed to such stockholder at his address as it appears upon the books of the
corporation, at least ten (10) days and not more than sixty (60) before the
meeting. Such notice shall be given by the secretary, an assistant secretary, or
any other officer or person designated either by the secretary or by the person
or persons calling the meeting.
The requirement of notice to any stockholder may be waived (i) by a
written waiver of notice, executed before or after the meeting by the
stockholder or his attorney thereunto duly authorized, and filed with the
records of the meeting, (ii) if communication with such stockholder is unlawful,
(iii) by attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice, or (iv) as otherwise excepted by law. A waiver
of notice of any regular or special meeting of the stockholders need not specify
the purposes of the meeting.
If a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place, are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if
1
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 1.4. Quorum. The holders of a majority in interest of all
stock issued, outstanding and entitled to vote at a meeting shall constitute a
quorum. Any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is present.
Section 1.5. Voting and Proxies. Stockholders shall have one vote
for each share of stock entitled to vote owned by them of record according to
the books of the corporation, unless otherwise provided by law or by the
Certificate of Incorporation. Stockholders may vote either in person or by
written proxy, but no proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Proxies shall be filed
with the secretary of the meeting, or of any adjournment thereof. Except as
otherwise limited therein, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting. A proxy purporting to be executed by
or on behalf of a stockholder shall be deemed valid unless challenged at or
prior to its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to stock held in the name of two or more
persons shall be valid if executed by one of them unless at or prior to exercise
of the proxy the corporation receives a specific written notice to the contrary
from any one of them.
Section 1.6. Action at Meeting. When a quorum is present at any
meeting, a plurality of the votes properly cast for election to any office shall
elect to such office, and a majority of the votes properly cast upon any
question other than election to an office shall decide such question, except
where a larger vote is required by law, the Certificate of Incorporation or
these by-laws. No ballot shall be required for any election unless requested by
a stockholder present or represented at the meeting and entitled to vote in the
election.
Section 1.7. Action Without Meeting. All action required or
permitted to be taken by the stockholders must be taken at a meeting duly called
and held in accordance with law and in accordance with the Certificate of
Incorporation and these Bylaws. The stockholders cannot act by written consent.
Section 1.8. Voting of Shares of Certain Holders. Shares of stock
of the corporation standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may prescribe, or, in the absence of such provision, as the board of
directors of such corporation may determine.
Shares of stock of the corporation standing in the name of a deceased
person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator without a
transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares of capital stock
2
of the corporation standing in the name of a trustee or fiduciary may be voted
by such trustee or fiduciary.
Shares of stock of the corporation standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof into his
name if authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledgor on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or its proxy shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but shares
of its own stock held by the corporation in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares.
Section 1.9. Stockholder Lists. The secretary (or the
corporation's transfer agent or other person authorized by these Bylaws or by
law) 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 II.
BOARD OF DIRECTORS
Section 2.1. Powers. Except as reserved to the stockholders by
law, by the Certificate of Incorporation or by these Bylaws, the business of the
corporation shall be managed under the direction of the board of directors,
which shall have and may exercise all of the powers of the corporation. In
particular, and without limiting the foregoing, the board of directors shall
have the power to issue or reserve for issuance from time to time the whole or
any part of the capital stock of the corporation which may be authorized from
time to time to such person, for such consideration and upon such terms and
conditions as it shall determine, including the granting of options, warrants or
conversion or other rights to stock.
Section 2.2. Number of Directors: Qualifications. Except as
provided in Section 2.6 hereof, the board of directors shall consist of such
number of directors as
3
shall be fixed initially by the incorporator(s) and thereafter by the board of
directors before each annual or special meeting of the stockholders. No director
need be a stockholder.
Section 2.3. Nomination of Directors. Nominations for the election
of directors at an annual meeting of the stockholders, or special meeting in
lieu of the annual meeting, 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 at the meeting. Stockholders entitled to vote in such
election may nominate one or more persons for election as directors only if
written notice of such stockholder's intent to make such nomination or
nominations has been given either by personal delivery, overnight (receipted)
courier or by United States mail, postage prepaid, to the secretary of the
corporation not later than ninety days prior to the anniversary date of the
immediately preceding annual meeting or special meeting in lieu thereof. Such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the persons or person to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the consent of each nominee to serve as a director of the corporation if so
elected. The presiding officer of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Section 2.4. Election of Directors. The initial board of directors
shall be designated in the certificate of incorporation, or if not so
designated, elected by the incorporator(s) at the first meeting thereof.
Thereafter, directors shall be elected by the stockholders at their annual
meeting or at any special meeting the notice of which specifies the election of
directors as an item of business for such meeting.
Section 2.5. Vacancies. In the case of any vacancy in the board of
directors from death, resignation, disqualification or other cause, including a
vacancy resulting from enlargement of the board, the election of a director to
fill such vacancy shall be by vote of a majority of the directors then in
office, whether or not constituting a quorum. The director thus elected shall
hold office until the election of his successor.
Section 2.6. Change in Size of the Board. The number of the board
of directors may be changed by vote of a majority of the directors then in
office or by the stockholders by vote of eighty percent (80%) of the shares of
voting stock outstanding.
Section 2.7. Tenure and Resignation. Except as otherwise provided
by law, by the Certificate of Incorporation or by these Bylaws, directors shall
hold office until the next annual meeting of stockholders and thereafter until
their successors are chosen and
4
qualified. Any director may resign by delivering or mailing postage prepaid a
written resignation to the corporation at its principal office or to the
chairman of the board, if any, president, secretary or assistant secretary, if
any. Such resignation shall be effective upon receipt unless it is specified to
be effective at some other time or upon the happening of some other event.
Section 2.8. Removal. A director may be removed from office only
for cause (a) by vote of the holders of eighty percent (80%) of the voting stock
outstanding or (b) by vote of a majority of the directors then in office, and
only after reasonable notice and opportunity to be heard before the body
proposing to remove him.
Section 2.9. Meetings. Regular meetings of the board of directors
may be held without call or notice at such times and such places within or
without the State of Delaware as the Board may, from time to time, determine,
provided that notice of the first regular meeting following any such
determination shall be given to directors absent from such determination. A
regular meeting of the board of directors shall be held without notice
immediately after, and at the same place as, the annual meeting of the
stockholders or the special meeting of the stockholders held in place of such
annual meeting, unless a quorum of the directors is not then present. Special
meetings of the board of directors may be held at any time and at any place
designated in the call of the meeting when called by the chairman of the board,
the president, or a majority of the directors. Members of the board of directors
or any committee elected thereby may participate in a meeting of such board or
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time, and participation by such means shall constitute presence in
person at the meeting.
Section 2.10. Notice of Meeting. It shall be sufficient notice to a
director to send notice by mail at least seventy-two (72) hours before the
meeting addressed to such person at his usual or last known business or
residence address or to give notice to such person in person or by telephone at
least twenty-four (24) hours before the meeting. Notice shall be given by the
secretary, or in his absence or unavailability, may be given by an assistant
secretary, if any, or by the officer or directors calling the meeting. The
requirement of notice to any director may be waived by a written waiver of
notice, executed by such person before or after the meeting or meetings, and
filed with the records of the meeting, or by attendance at the meeting without
protesting prior thereto or at its commencement the lack of notice. A notice or
waiver of notice of a directors' meeting need not specify the purposes of the
meeting.
Section 2.11. Agenda. Any lawful business may be transacted at a
meeting of the board of directors, notwithstanding the fact that the nature of
the business may not have been specified in the notice or waiver of notice of
the meeting.
Section 2.12. Quorum. At any meeting of the board of directors, a
majority of the directors then in office shall constitute a quorum for the
transaction of business. Any meeting may be adjourned by a majority of the votes
cast upon the question, whether or not a quorum is present, and the meeting may
be held as adjourned without further notice.
5
Section 2.13. Action at Meeting. Any motion adopted by vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the board of directors, except where a different vote is
required by law, by the Certificate of Incorporation or by these Bylaws. The
assent in writing of any director to any vote or action of the directors taken
at any meeting, whether or not a quorum was present and whether or not the
director had or waived notice of the meeting, shall have the same effect as if
the director so assenting was present at such meeting and voted in favor of such
vote or action.
Section 2.14. Action Without Meeting. Any action by the directors
may be taken without a meeting if all of the directors consent to the action in
writing and the consents are filed with the records of the directors' meetings.
Such consent shall be treated for all purposes as a vote of the directors at a
meeting.
Section 2.15. Committees. The board of directors may, by the
affirmative vote of a majority of the directors then in office, appoint an
executive committee or other committees consisting of one or more directors and
may by vote delegate to any such committee some or all of their powers except
those which by law, the Certificate of Incorporation or these Bylaws they may
not delegate, hi the absence or disqualification of a member of a committee, the
members of the committee present and not disqualified, whether or not they
constitute a quorum, may by unanimous vote appoint another member of the board
of directors to act at the meeting in place of the absence or disqualified
member. Unless the board of directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but unless otherwise
provided by the board of directors or such rules, its meetings shall be called,
notice given or waived, its business conducted or its action taken as nearly as
may be in the same manner as is provided in these Bylaws with respect to
meetings or for the conduct of business or the taking of actions by the board of
directors. The board of directors shall have power at any time to fill vacancies
in, change the membership of, or discharge any such committee at any time. The
board of directors shall have power to rescind any action of any committee, but
no such rescission shall have retroactive effect.
ARTICLE III.
OFFICERS
Section 3.2. Election. The president, treasurer and secretary
shall be elected annually by the directors at their first meeting following the
annual meeting of the stockholders or any special meeting held in lieu of the
annual meeting. Other officers may be chosen by the directors at such meeting or
at any other meeting.
Section 3.3. Qualification. An officer may, but need not, be a
director or stockholder. Any two or more offices may be held by the same person.
Any officer may
6
be required by the directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the directors
may determine. The premiums for such bonds may be paid by the corporation.
Section 3.4. Tenure. Except as otherwise provided by the
Certificate of Incorporation or these Bylaws, the term of office of each officer
shall be for one year or until his successor is elected and qualified or until
his earlier resignation or removal.
Section 3.5. Removal. Any officer may be removed from office, with
or without cause, by the affirmative vote of a majority of the directors then in
office; provided, however, that an officer may be removed for cause only after
reasonable notice and opportunity to be heard by the board of directors prior to
action thereon.
Section 3.6. Resignation. Any officer may resign by delivering or
mailing postage prepaid a written resignation to the corporation at its
principal office or to the president, secretary, or assistant secretary, if any,
and such resignation shall be effective upon receipt unless it is specified to
be effective at some other time or upon the happening of some event.
Section 3.7. Vacancies. A vacancy in any office arising from any
cause may be filled for the unexpired portion of the term by the board of
directors.
Section 3.8. Chairman of the Board. The board of directors may
appoint a chairman of the board and may designate the chairman of the board as
chief executive officer. If the board of directors appoints a chairman of the
board, he shall perform such duties and possess such powers as are assigned to
him by the board of directors.
Section 3.9. President. The president shall be the chief executive
officer of the corporation, unless a chairman of the board is so designated.
Unless a chairman of the board is so designated or except as otherwise voted by
the board of directors, the president shall preside at all meetings of the
stockholders and of the board of directors at which present. The president shall
have such duties and powers as are commonly incident to the office and such
duties and powers as the board of directors shall from time to time designate.
Section 3.10. Vice-President(s). The vice-president(s), if any,
shall have such powers and perform such duties as the board of directors may
from time to time determine.
Section 3.11. Chief Financial Officer, Treasurer and Assistant
Treasurers. The treasurer or if the board of directors so determines, the
vice-president, finance or the chief financial officer, subject to the direction
and under the supervision and control of the board of directors, shall have
general charge of the financial affairs of the corporation. The treasurer shall
have custody of all funds, securities and valuable papers of the corporation,
except as the board of directors may otherwise provide. The treasurer shall keep
or cause to be kept full and accurate records of account which shall be the
property of the corporation, and which shall be always open to the inspection of
each elected officer and director of the corporation. The treasurer shall
deposit or cause to be
7
deposited all funds of the corporation in such depository or depositories as may
be authorized by the board of directors. The treasurer shall have the power to
endorse for deposit or collection all notes, checks, drafts, and other
negotiable instruments payable to the corporation. The treasurer shall perform
such other duties as are incidental to the office, and such other duties as may
be assigned by the board of directors. All of the duties of the treasurer may be
performed by the vice-president, finance and/or the chief financial officer, in
the discretion of the board of directors.
Assistant treasurers, if any, shall have such powers and perform such
duties as the board of directors may from time to time determine.
Section 3.12. Secretary and Assistant Secretaries. The secretary or
an assistant secretary shall record, or cause to be recorded, all proceedings of
the meetings of the stockholders and directors (including committees thereof) in
the book of records of this corporation. The record books shall be open at
reasonable times to the inspection of any stockholder, director, or officer. The
secretary or an assistant secretary shall notify the stockholders and directors,
when required by law or by these Bylaws, of their respective meetings, and shall
perform such other duties as the directors and stockholders may from time to
time prescribe. The secretary or an assistant secretary shall have the custody
and charge of the corporate seal, and shall affix the seal of the corporation to
all instruments requiring such seal, and shall certify under the corporate seal
the proceedings of the directors and of the stockholders, when required. In the
absence of the secretary or an assistant secretary at any such meeting, a
temporary secretary shall be chosen who shall record the proceedings of the
meeting in the aforesaid books.
Assistant secretaries, if any, shall have such powers and perform such
duties as the board of directors may from time to time designate.
Section 3.13. Other Powers and Duties. Subject to these Bylaws and
to such limitations as the board of directors may from time to time prescribe,
the officers of the corporation shall each have such powers and duties as
generally pertain to their respective offices, as well as such powers and duties
as from time to time may be conferred by the board of directors.
ARTICLE IV.
CAPITAL STOCK
Section 4.1. Stock Certificates. Each stockholder shall be
entitled to a certificate representing the number of shares of the capital stock
of the corporation owned by such person in such form as shall, in conformity to
law, be prescribed from time to time by the board of directors. Each certificate
shall be signed by the president or vice-president and treasurer or assistant
treasurer or such other officers designated by the board of directors from time
to time as permitted by law, shall bear the seal of the corporation, and shall
express on its face its number, date of issue, class, the number of shares for
which, and the name of the person to whom, it is issued. The corporate seal and
any or all of the signatures of corporation officers may be facsimile if the
stock
8
certificate is manually counter-signed by an authorized person on behalf of a
transfer agent or registrar other than the corporation or its employee.
If an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have ceased to be
such before the 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
time of its issue.
Section 4.2. Transfer of Shares. Title to a certificate of stock
and to the shares represented thereby shall be transferred only on the books of
the corporation by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred, a new
certificate or certificates shall be issued according to the interests of the
parties.
Section 4.3. Record Holders. Except as otherwise may be required
by law, by the Certificate of Incorporation or by these Bylaws, the corporation
shall be entitled to treat the record holder of stock as shown on its books as
the owner of such stock for all purposes, including the payment of dividends and
the right to receive notice and to vote with respect thereto, regardless of any
transfer, pledge or other disposition of such stock, until the shares have been
transferred on the books of the corporation in accordance with the requirements
of these Bylaws.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
Section 4.4. Record Date. In order that the corporation may
determine the stockholders entitled to receive notice of or to vote at any
meeting of stockholders or any adjournments thereof, 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 days
prior to the date of such meeting nor more than sixty days prior to any other
action. In such case only stockholders of record on such record date shall be so
entitled notwithstanding any transfer of stock on the books of the corporation
after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; and (ii) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating thereto.
9
Section 4.5. Transfer Agent and Registrar for Shares of stock of
the Corporation. The board of directors may appoint a transfer agent and a
registrar of the shares of stock of the corporation. Any transfer agent so
appointed shall maintain, among other records, a stockholders' ledger, setting
forth the names and addresses of the holders of all issued shares of stock of
the corporation, the number of shares held by each, the certificate numbers
representing such shares, and the date of issue of the certificates representing
such shares. Any registrar so appointed shall maintain, among other records, a
share register, setting forth the total number of shares of each class of shares
which the corporation is authorized to issue and the total number of shares
actually issued. The stockholders' ledger and the share register are hereby
identified as the stock transfer books of the corporation; but as between the
stockholders' ledger and the share register, the names and addresses of
stockholders, as they appear on the stockholders' ledger maintained by the
transfer agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as they appear
upon the stockholders' ledger, shall be conclusive evidence of who are the
stockholders entitled to receive notice of the meetings of stockholders, to vote
at such meetings, to examine a complete list of the stockholders entitled to
vote at meetings, and to own, enjoy and exercise any other property or rights
deriving from such shares against the corporation. Stockholders, but not the
corporation, or its directors, officers, agents or attorneys, shall be
responsible for notifying the transfer agent, in writing, of any changes in
their names or addresses from time to time, and failure to do so will relieve
the corporation, its other stockholders, directors, officers, agents and
attorneys, and its transfer agent and registrar, of liability for failure to
direct notices or other documents, or pay over or transfer dividends or other
property or rights, to a name or address other than the name and address
appearing in the stockholders' ledger maintained by the transfer agent.
Section 4.6. Loss of Certificates. In case of the loss,
destruction or mutilation of a certificate of stock, a replacement certificate
may be issued in place thereof upon such terms as the board of directors may
prescribe, including, in the discretion of the board of directors, a requirement
of bond and indemnity to the corporation.
Section 4.7. Restrictions on Transfer. Every certificate for
shares of stock which are subject to any restriction on transfer, whether
pursuant to the Certificate of Incorporation, the Bylaws or any agreement to
which the corporation is a party, shall have the fact of the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement that the corporation will
furnish a copy to the holder of such certificate upon written request and
without charge.
Section 4.8. Multiple Classes of Stock. The amount and classes of
the capital stock and the par value, if any, of the shares, shall be as fixed in
the Certificate of Incorporation. At all times when there are two or more
classes of stock, the several classes of stock shall conform to the description
and the terms and have the respective preferences, voting powers, restrictions
and qualifications set forth in the Certificate of Incorporation and these
Bylaws. Every certificate issued when the corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
10
either (i) the full text of the preferences, voting powers, qualifications and
special and relative rights of the shares of each class and series authorized to
be issued, or (ii) a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
ARTICLE V.
DIVIDENDS
Section 5.1. Declaration of Dividends. Except as otherwise
required by law or by the Certificate of Incorporation, the board of directors
may, in its discretion, declare what, if any, dividends shall be paid from the
surplus or from the net profits of the corporation for the current or preceding
fiscal year, or as otherwise permitted by law. Dividends may be paid in cash, in
property, in shares of the corporation's stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may
designate.
Section 5.2. Reserves. Before the payment of any dividend and
before making any distribution of profits, the board of directors, from time to
time and in its absolute discretion, shall have power to set aside out of the
surplus or net profits of the corporation such sum or sums as the board of
directors deems proper and sufficient as a reserve fund to meet contingencies or
for such other purpose as the board of directors shall deem to be in the best
interests of the corporation, and the board of directors may modify or abolish
any such reserve.
ARTICLE VI.
POWERS OF OFFICERS TO CONTRACT WITH THE CORPORATION
Any and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and perform any
contract or agreement of any nature between the corporation and themselves, or
any and all of the individuals from time to time constituting the board of
directors of the corporation, or any firm or corporation in which any such
director may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall thereby derive
personal or corporate profits or benefits or otherwise; provided, that (i) the
material facts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii)
if the material facts as to such person's relationship or interest are disclosed
or are known to the stockholders entitled to vote thereon, and the contract is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or agreement 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. Any director of the corporation who is interested in any
transaction as aforesaid may nevertheless be counted in determining the
existence of a quorum at any meeting of the board of directors which shall
authorize or ratify any such transaction. This Article shall not be construed to
invalidate any contract or other transaction which would otherwise be valid
under the common or statutory law applicable thereto.
11
ARTICLE VII.
INDEMNIFICATION
Section 7.1. Definitions. For purposes of this Article VII the
following terms shall have the meanings indicated:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the Corporation or
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the express
written request of the corporation.
"Court" means the Court of Chancery of the State of Delaware, the court
in which the Proceeding in respect of which indemnification is sought by a
Covered Person shall have been brought or is pending, or another court having
subject matter jurisdiction and personal jurisdiction over the parties.
"Covered Person" means a person who is a present or former director or
Officer of the corporation and shall include such person's legal
representatives, heirs, executors and administrators.
"Disinterested" describes any individual, whether or not that
individual is a director, Officer, employee or agent of the corporation, who is
not and was not and is not threatened to be made a party to the Proceeding in
respect of which indemnification, advancement of Expenses or other action is
sought by a Covered Person.
"Expenses" shall include, without limitation, all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
"Good Faith" shall mean a Covered Person having acted in good faith and
in a manner such Covered Person reasonably believed to be in or not opposed to
the best interests of the corporation or, in the case of an employee benefit
plan, the best interests of the participants or beneficiaries of said plan, as
the case may be, and, with respect to any Proceeding which is criminal in
nature, having had no reasonable cause to believe such Covered Person's conduct
was unlawful.
"Improper Personal Benefit" shall include, but not be limited to, the
personal gain in fact by reason of a person's Corporate Status of a financial
profit, monies or other advantage not also accruing to the benefit of the
corporation or to the stockholders generally and which is unrelated to his usual
compensation including, but not limited to, such profit, monies or other
advantage gained (i) in exchange for the exercise of influence over the
corporation's affairs, (ii) as a result of the diversion of corporate
opportunity, or (iii) pursuant to the use or communication of confidential or
inside information for the purpose of generating a profit from trading in the
corporation's securities. Notwithstanding the foregoing, "Improper Personal
Benefit" shall not include
12
any benefit, directly or indirectly, related to actions taken in order to
evaluate, discourage, resist, prevent or negotiate any transaction with or
proposal from any person or entity seeking control of, or a controlling interest
in, the corporation.
"Independent Counsel" means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and may include law firms or
members thereof that are regularly retained by the corporation but not by any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the standards of professional conduct then
prevailing and applicable to such counsel, would have a conflict of interest in
representing either the corporation or the Covered Person in an action to
determine the Covered Person's rights under this Article.
"Officer" means the chairman of the board, the president, vice
presidents, treasurer, assistant treasurer(s), secretary, assistant secretary
and such other executive officers as are appointed by the board of directors of
the corporation and explicitly entitled to indemnification hereunder.
"Proceeding" includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation (including
any internal corporate investigation), administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, other than
one initiated by the Covered Person, but including one initiated by a Covered
Person for the purpose of enforcing such Covered Person's rights under this
Article to the extent provided in Section 7.14 of this Article. "Proceeding"
shall not include any counterclaim brought by any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2. Right to Indemnification in General.
(a) Covered Persons. The corporation may indemnify, and may
advance Expenses, to each Covered Person who is a party to, was or is threatened
to be made a party to, or is otherwise involved in any Proceeding, as provided
in this Article and to the fullest extent permitted by applicable law in effect
on the date hereof and to such greater extent as applicable law may hereafter
from time to time permit.
The indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Covered Person.
(b) Employees and Agents. The corporation may, to the extent
authorized from time to time by the board of directors, grant indemnification
and the advancement
13
of Expenses to any employee or agent of the corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of Expenses of Covered Persons.
Section 7.3. Proceedings Other Than Proceedings by or in the Right
of the Corporation. Each Covered Person may be entitled to the rights of
indemnification provided in this Section 7.3 if, by reason of such Covered
Person's Corporate Status, such Covered Person is a party to, was or is
threatened to be made a party to, or is otherwise involved in any Proceeding,
other than a Proceeding by or in the right of the corporation. Each Covered
Person may be indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlement, actually and reasonably incurred by such Covered
Person or on such Covered Person's behalf in connection with such Proceeding or
any claim, issue or matter therein, if such Covered Person acted in Good Faith
and such Covered Person has not been adjudged during the course of such
proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding.
Section 7.4. Proceedings by or in the Right of the Corporation.
Each Covered Person may be entitled to the rights of indemnification provided in
this Section 7.4 if, by reason of such Covered Person's Corporate Status, such
Covered Person is a party to, or is threatened to be made a party to, or is
otherwise involved in any Proceeding brought by or in the right of the
corporation to procure a judgment in its favor. Such Covered Person may be
indemnified against Expenses, judgments, penalties, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection with such Proceeding if such Covered
Person acted in Good Faith and such Covered Person has not been adjudged during
the course of such proceeding to have derived an Improper Personal Benefit from
the transaction or occurrence forming the basis of such Proceeding.
Notwithstanding the foregoing, no such indemnification shall be made in respect
of any claim, issue or matter in such Proceeding as to which such Covered Person
shall have been adjudged to be liable to the corporation if applicable law
prohibits such indemnification; provided, however, that, if applicable law so
permits, indemnification shall nevertheless be made by the corporation in such
event if and only to the extent that the Court which is considering the matter
shall so determine.
Section 7.5. Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any provision of this Article to the contrary, to
the extent that a Covered Person is, by reason of such Covered Person's
Corporate Status, a party to or is otherwise, involved in and is successful, on
the merits or otherwise, in any Proceeding, such Covered Person shall be
indemnified to the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection therewith. If such Covered Person is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the corporation
shall indemnify such Covered Person to the maximum extent permitted by law,
against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably
14
incurred by such Covered Person or on such Covered Person's behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this
Section 7.5 and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
Section 7.6. Indemnification for Expenses of a Witness.
Notwithstanding any provision of this Article to the contrary, to the extent
that a Covered Person is, by reason of such Covered Person's Corporate Status, a
witness in any Proceeding, such Covered Person shall be indemnified against all
Expenses actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection therewith.
Section 7.7. Advancement of Expenses. Notwithstanding any
provision of this Article to the contrary, the corporation may advance all
reasonable Expenses which, by reason of a Covered Person's Corporate Status,
were incurred by or on behalf of such Covered Person in connection with any
Proceeding, within thirty (30) days after the receipt by the corporation of a
statement or statements from such Covered Person requesting such advance or
advances, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by the
Covered Person and shall include or be preceded or accompanied by an undertaking
by or on behalf of the Covered Person to repay any Expenses if such Covered
Person shall be adjudged to be not entitled to be indemnified against such
Expenses. Any advance and undertaking to repay pursuant to this Section 7.7 may
be unsecured interest-free, as the corporation sees fit. Advancement of Expenses
pursuant to this Section 7.7 shall not require approval of the board of
directors or the stockholders of the corporation, or of any other person or
body. The secretary of the corporation shall promptly advise the Board in
writing of the request for advancement of Expenses, of the amount and other
details of the request and of the undertaking to make repayment provided
pursuant to this Section 7.7.
Section 7.8. Notification and Defense of Claim. Promptly after
receipt by a Covered Person of notice of the commencement of any Proceeding,
such Covered Person shall, if a claim is to be made against the corporation
under this Article, notify the corporation of the commencement of the
Proceeding. The failure to notify the corporation will not relieve the
corporation from any liability which it may have to such Covered Person
otherwise than under this Article. With respect to any such Proceedings to which
such Covered Person notifies the corporation:
(a) The corporation will be entitled to participate in the defense
at its own expense.
(b) Except as otherwise provided below in this subparagraph (b),
the corporation (jointly with any other indemnifying party similarly notified)
will be entitled to assume the defense with counsel reasonably satisfactory to
the Covered Person. After notice from the corporation to the Covered Person of
its election to assume the defense of a suit, the corporation will not be liable
to the Covered Person under this Article for any legal or other expenses
subsequently incurred by the Covered Person in connection with
15
the defense of the Proceeding other than reasonable costs of investigation or as
otherwise provided below in this subparagraph (b). The Covered Person shall have
the right to employ his own counsel in such Proceeding but the fees and expenses
of such counsel incurred after notice from the corporation of its assumption of
the defense shall be at the expense of the Covered Person except as provided in
this paragraph. The fees and expenses of counsel shall be at the expense of the
corporation if (i) the employment of counsel by the Covered Person has been
authorized by the corporation, (ii) the Covered Person shall have concluded
reasonably that there may be a conflict of interest between the corporation and
the Covered Person in the conduct of the defense of such action and such
conclusion is confirmed in writing by the corporation's outside counsel
regularly employed by it in connection with corporate matters, or (iii) the
corporation shall not in fact have employed counsel to assume the defense of
such Proceeding. The corporation shall be entitled to participate in, but shall
not be entitled to assume the defense of any Proceeding brought by or in the
right of the corporation or as to which the Covered Person shall have made the
conclusion provided for in (ii) above and such conclusion shall have been so
confirmed by the corporation's said outside counsel.
(c) Notwithstanding any provision of this Article to the contrary,
the corporation shall not be obligated to indemnify the Covered Person under
this Article for any amounts paid in settlement of any Proceeding effected
without its written consent. The corporation shall not settle any Proceeding or
claim in any manner which would impose any penalty, limitation or
disqualification of the Covered Person for any purpose without such Covered
Person's written consent. Neither the corporation nor the Covered Person will
unreasonably withhold their consent to any proposed settlement.
(d) If it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b) above, payment to
the Covered Person of the additional amounts for which he is to be indemnified
shall be made within ten (10) days after such determination.
Section 7.9. Procedures.
(a) Method of Determination. A determination (as provided for by
this Article or if required by applicable law in the specific case) with respect
to a Covered Person's entitlement to indemnification shall be made either (i) by
the board of directors by a majority vote of a quorum consisting of
Disinterested directors, or (ii) in the event that a quorum of the board of
directors consisting of Disinterested directors is not obtainable or, even if
obtainable, such quorum of Disinterested directors so directs, by Independent
Counsel in a written determination to the board of directors, a copy of which
shall be delivered to the Covered Person seeking indemnification, (iii) by a
special litigation committee of the board of directors appointed by the board,
or (iv) by the vote of the holders of a majority of the corporation's capital
stock outstanding at the time entitled to vote thereon.
(b) Initiating Request. A Covered Person who seeks indemnification
under this Article shall submit a Request for Indemnification, including such
documentation and information as is reasonably available to such Covered Person
and is reasonably
16
necessary to determine whether and to what extent such Covered Person is
entitled to indemnification.
(c) Presumptions. In making a determination with respect to
entitlement to indemnification hereunder, the person or persons or entity making
such determination shall not presume that the Covered Person is or is not
entitled to indemnification under this Article.
(d) Burden of Proof. Each Covered Person shall bear the burden of
going forward and demonstrating sufficient facts to support his claim for
entitlement to indemnification under this Article. That burden shall be deemed
satisfied by the submission of an initial Request for Indemnification pursuant
to Section 7.9(b) above.
(e) Effect of Other Proceedings. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of a Covered Person to indemnification or create a
presumption that a Covered Person did not act in Good Faith.
(f) Actions of Others. The knowledge, actions, or failure to act,
of any director, officer, employee, agent, trustee or fiduciary of the
enterprise for whose daily activities the Covered Person was actually
responsible may be imputed to the Covered Person for purposes of determining the
right to indemnification under this Article.
Section 7.10. Action by the Corporation. Any action, payment,
advance determination other than a determination made pursuant to Section 7.9(a)
above, authorization, requirement, grant of indemnification or other action
taken by the Corporation pursuant to this Article shall be effected exclusively
through any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11. Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these Bylaws,
any agreement, a vote of stockholders or a resolution of the board of directors,
or otherwise. No amendment, alteration, rescission or replacement of this
Article or any provision hereof shall be effective as to any Covered Person with
respect to any action taken or omitted by such Covered Person in such Covered
Person's Corporate Status or with respect to any state of facts then or
previously existing or any Proceeding previously or thereafter brought or
threatened based in whole or to the extent based in part upon any such state of
facts existing prior to such amendment, alteration, rescission or replacement.
Section 7.12. Insurance. The corporation may maintain, at its
expense, an insurance policy or policies to protect itself and any Covered
Person, officer, employee or agent of the corporation or another enterprise
against liability arising out of this Article or
17
otherwise, whether or not the corporation would have the power to indemnify any
such person against such liability under the Delaware General Corporation Law.
Section 7.13. No Duplicative Payment. The corporation shall not be
liable under this Article to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that a Covered Person has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
Section 7.14. Expenses of Adjudication. In the event that any
Covered Person seeks a judicial adjudication, or an award in arbitration, to
enforce such Covered Person's rights under, or to recover damages for breach of,
this Article, the Covered Person shall be entitled to recover from the
corporation, and shall be indemnified by the corporation against, any and all
expenses (of the types described in the definition of Expenses in Section 7.1 of
this Article) actually and reasonably incurred by such Covered Person in seeking
such adjudication or arbitration, but only if such Covered Person prevails
therein. If it shall be determined in such adjudication or arbitration that the
Covered Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately prorated.
Section 7.15. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
Section 8.1. Certificate of Incorporation. All references in these
Bylaws to the Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as amended and in effect from
time to time.
Section 8.2. Fiscal Year. Except as from time to time otherwise
provided by the board of directors, the fiscal year of the corporation shall end
on September 30th of each year.
Section 8.3. Corporate Seal. The board of directors shall have the
power to adopt and alter the seal of the corporation.
18
Section 8.4. Execution of Instruments. All deeds, leases,
transfers, contracts, bonds, notes, and other obligations authorized to be
executed by an officer of the corporation on its behalf shall be signed by the
president or the treasurer except as the board of directors may generally or in
particular cases otherwise determine.
Section 8.5. Voting of Securities. Unless the board of directors
otherwise provides, the president or the treasurer may waive notice of and act
on behalf of this corporation, or appoint another person or persons to act as
proxy or attorney in fact for this corporation with or without discretionary
power and/or power of substitution, at any meeting of stockholders or
shareholders of any other corporation or organization, any of whose securities
are held by this corporation.
Section 8.6. Evidence of Authority. A certificate by the secretary
or any assistant secretary as to any action taken by the stockholders, directors
or any officer or representative of the corporation shall, as to all persons who
rely thereon in good faith, be conclusive evidence of such action. The exercise
of any power which by law, by the Certificate of Incorporation, or by these
Bylaws, or under any vote of the stockholders or the board of directors, may be
exercised by an officer of the corporation only in the event of absence of
another officer or any other contingency shall bind the corporation in favor of
anyone relying thereon in good faith, whether or not such absence or contingency
existed.
Section 8.7. Corporate Records. The original, or attested copies,
of the Certificate of Incorporation, Bylaws, records of all meetings of the
incorporators and stockholders, and the stock transfer books (which shall
contain the names of all stockholders and the record address and the amount of
stock held by each) shall be kept in Delaware at the principal office of the
corporation, or at an office of the corporation, or at an office of its transfer
agent or of the secretary or of the assistant secretary, if any. Said copies and
records need not all be kept in the same office. They shall be available at all
reasonable times to inspection of any stockholder for any purpose but not to
secure a list of stockholders for the purpose of selling said list or copies
thereof or for using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the corporation.
Section 8.8. Charitable Contributions. The board of directors from
time to time may authorize contributions to be made by the corporation in such
amounts as it may determine to be reasonable to corporations, trusts, funds or
foundations organized and operated exclusively for charitable, scientific or
educational purposes, no part of the net earning of which inures to the private
benefit of any stockholder or individual.
ARTICLE IX.
AMENDMENTS
Section 9.1. Amendment by Stockholders. Prior to the issuance of
stock, these Bylaws may be amended, altered or repealed by the incorporator(s)
by majority vote. After stock has been issued, these Bylaws may be amended
altered or repealed by the stockholders at any annual or special meeting by vote
or a majority of all shares
19
outstanding and entitled to vote, except that where the effect of the amendment
would be to reduce any voting requirement otherwise required by law, the
Certificate of Incorporation or another provision of these Bylaws, such
amendment shall require the vote that would have been required by law, the
Certificate of Incorporation or these Bylaws or such other provision of these
Bylaws. Notice and a copy of any proposal to amend these Bylaws must be included
in the notice of meeting of stockholders at which action is taken upon such
amendment.
Section 9.2. Amendment by Board of Directors. These Bylaws may be
amended or altered by the board of directors at a meeting duly called for the
purpose by majority vote of the directors then in office, except that directors
shall not amend the Bylaws in a manner which:
(a) changes the stockholder voting requirements for any action;
(b) alters or abolishes any preferential right or right of
redemption applicable to a class or series of stock with shares already
outstanding;
(c) alters the provisions of Article IX hereof; or
(d) permits the board of directors to take any action which under
law, the Certificate of Incorporation, or these Bylaws is required to be taken
by the stockholders.
Any amendment of these Bylaws by the board of directors may be altered
or repealed by the stockholders at any annual or special meeting of
stockholders.
20
AMENDMENTS TO BYLAWS
Amendment to Section 3.1 - May 20, 2002:
Section 3.1 is deleted in its entirety and replaced with the following:
"Section 3.1 Enumeration. The officers may include a chairman of the
board and shall include a president, a treasurer, a secretary and such other
officers and agents (including one or more executive vice presidents, senior
vice presidents, vice presidents, assistant treasurers, and assistant
secretaries), as the Board of Directors may, in its discretion, determine."
21