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EXHIBIT 3.2
BY-LAWS
OF
NANOPHASE TECHNOLOGIES CORPORATION OF DELAWARE
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of Nanophase
Technologies Corporation of Delaware (the "Corporation") shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 1.2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meeting. All meetings of the stockholders for
the election of directors shall be held at such place either within or without
the State of Delaware as shall be designated 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 by the Board of Directors in its notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2.2. Time of Annual Meeting. Annual meetings of stockholders
shall be held on the third Thursday in June, if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which stockholders
shall elect directors to hold office for the term provided in Section 3.2 of
these By-laws and conduct such other business as shall be considered.
Section 2.3. Notice of Annual Meetings. Except as otherwise required
by law, written notice of the annual meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such
meeting not fewer than ten (10) nor more than sixty (60) days before the date
of the meeting.
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Section 2.4. Director Nominations. Only persons who are nominated in
accordance with the following procedures shall be eligible to serve as
directors. Nominations of persons for election to the Board of Directors of
the Corporation at a meeting of stockholders may be made (i) by or at the
direction of the Board of Directors, or (ii) by any stockholder of the
Corporation entitled to vote in the election of directors at the meeting who
complies with the notice procedures set forth in this Article II, Section 2.4.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to,
or mailed and received by, the Secretary of the Corporation at the principal
executive offices of the Corporation not less than sixty (60) nor more than
ninety (90) days prior to the meeting; provided, however, that if the
Corporation has not "publicly disclosed" (in the manner provided in the last
sentence of this Article II, Section 2.4) the date of the meeting at least
seventy (70) days prior to the meeting date, notice may be timely made by a
stockholder under this Section if received by the Secretary of the Corporation
not later than the close of business on the tenth day following the day on
which the Corporation publicly disclosed the meeting date. Such stockholder's
notice shall set forth (i) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as director if elected); and (ii) as to the stockholder
giving notice (A) the name and address, as they appear on the Corporation's
books, of such stockholder and (B) the class and number of shares of the
Corporation which are beneficially owned by such stockholder. At the request
of the Board of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible to serve as a
director of the Corporation unless nominated in accordance with the procedures
set forth herein. The presiding officer shall, if the facts so warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the By-laws, and if such officer
should so determine, such officer shall so declare to the meeting and the
defective nomination shall be disregarded. For purposes of these By-laws,
"publicly disclosed" or "public disclosure" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
Section 2.5. Annual Meeting Agenda Items. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
brought before the meeting (i) by or at the direction of the Board of
Directors, or (ii) by any stockholder of the Corporation who complies with the
notice procedures set forth in this Article II, Section 2.5, in the time herein
provided. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must deliver written notice to, or mail such
written notice so that it is received by, the Secretary of the Corporation, at
the principal executive offices of the Corporation, not less than one hundred
twenty (120) days prior to the first anniversary of the date of the
Corporation's proxy statement released to stockholders in connection with the
previous year's annual meeting of stockholders, except that if no annual
meeting of stockholders was held in the previous year or if the date of the
annual meeting has been changed by more than thirty (30) days from the
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previous year's meeting, a proposal shall be received by the Corporation within
ten (10) days after the Corporation has "publicly disclosed" the date of the
meeting in the manner provided in Article II, Section 2.4 above. The
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (A) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (B) the name and address,
as they appear on the Corporation's books, of the stockholder proposing such
business, (C) the class and number of shares of the Corporation which are
beneficially owned by the stockholder and (D) any material interest of the
stockholder in such business. At an annual meeting, the presiding officer
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance with the provisions
of this Article, Section 2.5, and if such officer should so determine, such
officer shall so declare to the meeting, and any such business not properly
brought before the meeting shall not be transacted. Whether or not the
foregoing procedures are followed, no matter which is not a proper matter for
stockholder consideration shall be brought before the meeting.
Section 2.6. Special Meetings of the Stockholders. Special meetings
of the stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the Board of
Directors. The business transacted at any special meeting of the stockholders
shall be limited to the purposes stated in the notice for the meeting
transmitted to stockholders.
Section 2.7. Notice of Special Meetings. 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 by the Secretary of
the Corporation not fewer 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 2.8. Fixing of Record Date. In order that the Corporation
may determine the stockholders entitled to vote at any meeting of stockholders
or any adjournment 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 a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted, and which shall be (i) not more than sixty (60) nor
less than ten (10) days before the date of a meeting, and (ii) not 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 any adjourned meeting.
Section 2.9. Voting Lists. 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 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
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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 2.10. Quorum and Adjournments. The holders of a majority of
the voting power of the stock issued and outstanding and entitled to vote
thereat, 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 Corporation's Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any such 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; provided that if the
adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed by the directors for the adjourned meeting, a new
notice shall be transmitted to the stockholders of record entitled to vote at
the adjourned meeting. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2.11. Vote Required. When a quorum is present at any meeting
of all stockholders, the affirmative vote of the holders of a majority of the
voting power of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall decide any question brought
before such meeting, unless the question is one upon which by express provision
of statute or of the Corporation's Certificate of Incorporation, a different
vote is required in which case such express provision shall govern and control
the decision of such question; provided, however, all elections of directors
shall be determined by a plurality of the votes cast.
Section 2.12. Voting Rights. Unless otherwise provided in the
Corporation's Certificate of Incorporation, each stockholder having voting
power shall at every meeting of the stockholders be entitled to one (1) 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 on after three (3) years from
its date, unless the proxy provides for a longer period. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted by law
filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used; provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. All voting,
including on the election of directors may (except where otherwise required by
law) be by a voice vote; provided, however, that upon demand therefor by a
stockholder entitled to vote or by his or her proxy, a stock vote shall be
taken. Every stock vote shall be taken by ballots, each of which shall state
the name of the stockholder or proxy voting and such other information as may
be required under the procedure established for the meeting. The Corporation
may, and to the extent required by law shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of
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stockholders, the person presiding at the meeting may, and to the extent
required by law shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his or her ability. Every vote taken
by ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
Section 2.13. Presiding Over Meetings. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders. In the absence or
inability to act of the Chairman, the Vice Chairman, the President or a Vice
President (in that order) shall preside, and in their absence or inability to
act another person designated by one of them shall preside. The Secretary of
the Corporation shall act as Secretary of each meeting of the stockholders. In
the event of his or her absence or inability to act, the chairman of the
meeting shall appoint a person who need not be a stockholder to act as
Secretary of the meeting.
Section 2.14. Conducting Meetings. Meetings of the stockholders
shall be conducted in a fair manner but need not be governed by any prescribed
rules of order. The presiding officer of the meeting shall establish an agenda
for the meeting. The presiding officer's rulings on procedural matters shall
be final. The presiding officer is authorized to impose reasonable time limits
on the remarks of individual stockholders and may take such steps as such
officer may deem necessary or appropriate to assure that the business of the
meeting is conducted in a fair and orderly manner.
ARTICLE III
DIRECTORS
Section 3.1. General Powers. The business and affairs of the
Corporation shall be under the direction of and managed by, a board comprised
of directors, which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not required by statute, by the
Corporation's Certificate of Incorporation or by these By-laws to be done by
the stockholders. Directors need not be residents of the State of Delaware or
stockholders of the Corporation. The number of directors shall be determined
in the manner provided in the Corporation's Certificate of Incorporation.
Section 3.2. Election. Directors shall be elected by class for three
(3) year or other terms as specified in the Corporation's Certificate of
Incorporation, and each director elected shall hold office during the term for
which he or she is elected and until his or her successor is elected and
qualified, subject, however, to his or her prior death, resignation, retirement
or removal from office.
Section 3.3. Removal. Directors may only be removed for cause,
except as otherwise provided by law, by the holders of at least 66-2/3% of the
voting power of the shares entitled to vote at an election of directors.
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Section 3.4. Vacancies. Any vacancies occurring in the Board of
Directors and newly created directorships shall be filled in the manner
provided in the Corporation's Certificate of Incorporation.
Section 3.5. Place of Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Delaware. The first meeting of each newly elected Board
of Directors shall be held immediately following the adjournment of the annual
meeting of the stockholders at the same place as such annual meeting and no
notice of such meeting shall be necessary to the newly elected directors in
order to legally constitute the meeting, provided a quorum shall be present.
In the event such meeting is not held at such time and place, the meeting may
be held at such time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the Board of Directors, or as
shall be specified in a written waiver signed by all of the directors.
Section 3.6 Participation by Conference Telephone. Unless otherwise
restricted by the Corporation's Certificate of Incorporation or these By-laws,
members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation by such means shall constitute presence in person at such
meeting.
Section 3.7. Regular Meetings. 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 3.8. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or the President on at least one day's notice to each director, either
personally, or by courier, telephone, telefax, mail or telegram. Special
meetings shall be called by the Chairman of the Board, the Chief Executive
Officer or the President in like manner and on like notice at the written
request of one- half or more of the directors comprising the Board of Directors
stating the purpose or purposes for which such meeting is requested. Notice of
any meeting of the Board of Directors for which a notice is required may be
waived in writing signed by the person or persons entitled to such notice,
whether before or after the time of such meeting, and such waiver shall be
equivalent to the giving of such notice. Attendance of a director at any such
meeting shall constitute a waiver of notice thereof, except where a director
attends a meeting for the express purpose of objecting to the transaction of
any business because such meeting is not lawfully convened. Neither the
business to be transacted at nor the purpose of any meeting of the Board of
Directors for which a notice is required need be specified in the notice, or
waiver of notice, of such meeting. The Chairman of the Board shall preside at
all meetings of the Board of Directors. In the absence or inability to act of
the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive
Officer, the President or the Chief Financial Officer (in that order) shall
preside, and in their absence or inability to act another director designated
by one of them shall preside.
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Section 3.9. Quorum; No Action on Certain Matters. At all meetings
of the Board of Directors, a majority of the then duly elected directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. 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 3.10. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board of Directors, the
Chairman of the Board or the President. Such resignation shall take effect at
the time specified therein and, unless tendered to take effect upon acceptance
thereof, the acceptance of such resignation shall not be necessary to make it
effective.
Section 3.11. Informal Action. Unless otherwise restricted by the
Corporation's Certificate of Incorporation or these By-laws, 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 consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 3.12. Presumption of Assent. A director of the Corporation
who is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be conclusively presumed to have assented to
the action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless he or she shall file his or her written dissent to such
action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
Section 3.13. Compensation of Directors. In the discretion of the
Board of Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors or a committee thereof,
may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a committee thereof, and may be awarded other compensation for
their services as directors. No such payment or award 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
COMMITTEES OF DIRECTORS
Section 4.1. Appointment and Powers. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
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disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors as provided in subsection (a)
of Section 151 of the Delaware General Corporation Law, fix the designations
and any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of the number of shares of any series), and
if the resolution which designates the committee or a supplemental resolution
of the Board of Directors shall so provide, such other items or tasks as may be
determined from time to time by resolution adopted by the Board of Directors.
Section 4.2. Committee Minutes. Each committee shall keep regular
minutes of its meetings and shall file such minutes and all written consents
executed by its members with the Secretary of the Corporation. Each committee
may determine the procedural rules for meeting and conducting its business and
shall act in accordance therewith, except as otherwise provided herein or
required by law. Adequate provision shall be made for notice to members of all
meetings; one-third of the members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
ARTICLE V
NOTICES
Section 5.1. Manner of Notice. Whenever, under applicable law or the
Corporation's Certificate of Incorporation or these By-laws, notice is required
to be given to any director or stockholder, unless otherwise provided in the
Corporation's Certificate of Incorporation or these By-laws, such notice may be
given in writing, by courier or mail, addressed to such director or
stockholder, at such director's or stockholder's address as it appears on the
records of the Corporation, with freight or postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall have been
deposited with such courier or in the United States mail. Notice may be given
orally if such notice is confirmed in writing in a manner provided therein.
Notice to directors may also be given by telegram, mailgram, telex or
telecopier.
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Section 5.2. Waiver. Whenever any notice is required to be given
under applicable law or the provisions of the Corporation's Certificate of
Incorporation or these By-laws, 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 VI
OFFICERS
Section 6.1. Number and Qualifications. The officers of the
Corporation shall be chosen by the Board of Directors and shall be a Chairman
of the Board, a Chief Executive Officer, a President, a Chief Financial
Officer, one or more Vice Presidents, a Secretary and a Treasurer. The Board
of Directors may also choose a Vice Chairman of the Board (or Vice Chairmen),
one or more Assistant Secretaries and Assistant Treasurers and such additional
officers as the Board of Directors may deem necessary or appropriate from time
to time. Membership on the Board of Directors shall not be a prerequisite to
the holding of any other office. Any number of offices may be held by the same
person, unless the Corporation's Certificate of Incorporation or these By-laws
otherwise provide.
Section 6.2. Election. The Board of Directors at its first meeting
after each annual meeting of stockholders shall elect a Chairman of the
Board, a Chief Executive Officer, a President, a Chief Financial Officer, one
or more Vice-Presidents, a Secretary and a Treasurer, and may choose a Vice
Chairman of the Board, one or more Assistant Secretaries and Assistant
Treasurers and such other officers as the Board of Directors shall deem
desirable.
Section 6.3. Other Officers and Agents. The Board of Directors may
choose 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 6.4. Salaries. The salaries or other compensation of the
officers and agents of the Corporation shall be fixed from time to time by the
Board of Directors, and no officer shall be prevented from receiving such
salary or other compensation by reason of the fact that such officer is also a
director of the Corporation.
Section 6.5. Term of Office. The officers of the Corporation shall
hold office until their successors are chosen and qualify or until their
earlier resignation or removal. Any officer elected or appointed by the Board
of Directors may be removed at any time, either with or without cause, by the
affirmative vote of a majority of the directors then in office at any meeting
of the Board of Directors. If a vacancy shall exist in the office of the
Corporation, the Board of Directors may elect any person to fill such vacancy,
such person to hold office as provided in Section 6.1 of this Article VI.
Section 6.6. The Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors
and shall see that orders and
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resolutions of the Board of Directors are carried into effect. The Chairman of
the Board shall perform such duties as may be assigned to him by the Board of
Directors.
Section 6.7. The Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the Corporation and shall,
in general, supervise and control all of the business and affairs of the
Corporation, unless otherwise provided by the Board of Directors. In the
absence of the Chairman of the Board, the Chief Executive Officer shall preside
at all meetings of the stockholders and of the Board of Directors and shall see
that orders and resolutions of the Board of Directors are carried into effect.
The Chief Executive Officer may sign bonds, mortgages, certificates for shares
and all other contracts and documents whether or not under the seal of the
Corporation except in cases where the signing and execution thereof shall be
expressly delegated by law, by the Board of Directors or by these By-laws to
some other officer or agent of the Corporation. The Chief Executive Officer
shall have general powers of supervision and shall be the final arbiter of all
differences between officers of the Corporation and the Chief Executive
Officer's decision as to any matter affecting the Corporation shall be final
and binding as between the officers of the Corporation subject only to its
Board of Directors.
Section 6.8. The President. Unless another party has been designated
as Chief Operating Officer, the President shall be the Chief Operating
Officer of the Corporation responsible for the day-to-day active management
of the business of the Corporation, under the general supervision of the
Chief Executive Officer. In the absence of the Chief Executive Officer, the
President shall perform the duties of the Chief Executive Officer, and when
so acting, shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer. The President shall have concurrent power
with the Chief Executive Officer to sign bonds, mortgages, certificates for
shares and other contracts and documents, whether or not under the seal of the
Corporation except in cases where the signing and execution thereof shall be
expressly delegated by law, by the Board of Directors, or by these By-laws to
some other officer or agent of the Corporation. In general, the President
shall perform all duties incident to the office of the President and such other
duties as the Chief Executive Officer or the Board of Directors may from time
to time prescribe.
Section 6.9. The Chief Financial Officer. The Chief Financial
Officer shall be the principal financial and accounting officer of the
Corporation. The Chief Financial Officer shall: (a) have charge of and be
responsible for the maintenance of adequate books of account for the
Corporation; (b) have charge and custody of all funds and securities of the
Corporation, and be responsible therefor and for the receipt and disbursement
thereof; and (c) perform all the duties incident to the office of the Chief
Financial Officer and such other duties as from time to time may be assigned to
him by the President or by the Board of Directors. If required by the Board of
Directors, the Chief Financial Officer shall give a bond for the faithful
discharge of the Chief Financial Officer's duties in such sum and with such
surety or sureties as the Board of Directors may determine.
Section 6.10. The Vice-Presidents. In the absence of the President
or in the event of the President's inability or refusal to act, the
Vice-Presidents (in the order designated, or in the absence of any designation,
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
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upon the President. The Vice-Presidents shall perform such other duties and
have such other powers as the Chief Executive Officer or the Board of Directors
may from time to time prescribe.
Section 6.11. The Secretary. 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 of the Corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. The Secretary shall give, or cause
to be given, 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 the Chief Executive
Officer, under whose supervision the Secretary shall be. The Secretary shall
have custody of the corporate seal of the Corporation and the Secretary 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 the Secretary's
signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by such officer's signature.
Section 6.12. The Treasurer. In the absence of the Chief Financial
Officer or in the event of the Chief Financial Officer's inability or refusal
to act, the Treasurer shall perform the duties of the Chief Financial Officer,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Financial Officer. The Treasurer shall perform
such other duties and have such other powers as the Chief Executive Officer or
the Board of Directors may from time to time prescribe.
Section 6.13. The Assistant Secretary. 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
the Secretary's 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 Chief Executive Officer or the Board of Directors may from
time to time prescribe.
Section 6.14. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the
event of the Treasurer's 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 Chief Executive Officer or the Board of Directors
may from time to time prescribe.
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ARTICLE VII
CERTIFICATES OF STOCK, TRANSFERS AND RECORD DATES
Section 7.1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by (a) the Chairman of the Board, the President or the Chief
Executive Officer, and (b) the Chief Financial Officer, Treasurer, Secretary,
an Assistant Secretary or an Assistant Treasurer of the Corporation; certifying
the number of shares owned by such holder in the Corporation. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the 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 powers, 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. Subject to the foregoing, certificates of stock of
the Corporation shall be in such form as the Board of Directors may from time
to time prescribe.
Section 7.2. Facsimile Signatures. 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 other signatures
on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
Section 7.3. Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the Corporation shall require and/or give the Corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the Corporation or its transfer agent or registrar with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 7.4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the
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Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 7.5. Registered Stockholders. 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 the Corporation shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VIII
CONFLICT OF INTERESTS
Section 8.1. Contract or Relationship Not Void. 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 such director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because such director's or officer's vote is counted for such purpose, if:
(i) The material facts as to such director's or officer's
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 vote of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(ii) The material facts as to such director's or officer's
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
(iii) 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.
Section 8.2. Quorum. 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.
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ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock or rights to acquire same, subject to the
provisions of the Corporation's Certificate of Incorporation. 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.
Section 9.2. Checks. 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.
Section 9.3. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 9.4. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 9.5. Stock in Other Corporations. Shares of any other
corporation which may from time to time be held by this Corporation may be
represented and voted at any meeting of stockholders of such corporation by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President of the Corporation, or by any proxy
appointed in writing by the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer or a Vice President of the
Corporation, or by any other person or persons thereunto authorized by the
Board of Directors. Shares represented by certificates standing in the name of
the Corporation may be endorsed for sale or transfer in the name of the
Corporation by the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or any Vice President of the Corporation
or by any other officer of officers thereunto authorized by the Board of
Directors. Shares belonging to the Corporation need not stand in the name of
the Corporation, but may be held for the benefit of the Corporation in the
individual name of the Chief Financial Officer or of any other nominee
designated for the purpose of the Board of Directors.
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ARTICLE X
AMENDMENTS
These By-laws may be altered, amended, or repealed or new by-laws may
be adopted only in the manner provided in the Corporation's Certificate of
Incorporation.
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