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EXHIBIT 3.1
BYLAWS
OF
APPLIED MATERIALS, INC.
(a Delaware corporation)
(As amended to July 7, 1999)
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TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES..................................................................1
1.1 Registered Office............................................................1
1.2 Other Offices................................................................1
ARTICLE II STOCKHOLDERS.............................................................1
2.1 Place of Meetings............................................................1
2.2 Annual Meeting...............................................................1
2.3 Special Meeting..............................................................1
2.4 Notice of Stockholders' Meetings.............................................2
2.5 Advance Notice of Stockholder Nominees.......................................2
2.6 Manner of Giving Notice; Affidavit of Notice.................................2
2.7 Quorum.......................................................................2
2.8 Adjourned Meeting; Notice....................................................3
2.9 Conduct of Business..........................................................3
2.10 Voting.......................................................................3
2.11 Waiver of Notice.............................................................3
2.12 Record Date for Stockholder Notice; Voting; Giving Consents..................3
2.13 Proxies......................................................................4
ARTICLE III DIRECTORS................................................................4
3.1 Powers.......................................................................4
3.2 Number of Directors..........................................................4
3.3 Election, Qualification and Term of Office of Directors......................4
3.4 Resignation and Vacancies....................................................4
3.5 Place of Meetings; Meetings by Telephone.....................................5
3.6 Regular Meetings.............................................................6
3.7 Special Meetings; Notice.....................................................6
3.8 Quorum.......................................................................6
3.9 Waiver of Notice.............................................................6
3.10 Board Action by Written Consent Without a Meeting............................7
3.11 Fees and Compensation of Directors...........................................7
3.12 Approval of Loans to Officers................................................7
3.13 Removal of Directors.........................................................7
3.14 Chairman of the Board of Directors...........................................7
ARTICLE IV COMMITTEES...............................................................7
4.1 Committees of Directors......................................................7
4.2 Committee Minutes............................................................8
4.3 Meetings and Action of Committees............................................8
ARTICLE V OFFICERS.................................................................8
5.1 Officers.....................................................................8
5.2 Election of Officers.........................................................9
5.3 Appointed Officers...........................................................9
5.4 Removal and Resignation of Officers..........................................9
5.5 Vacancies in Offices.........................................................9
5.6 Chairman of the Board........................................................9
5.7 President....................................................................9
5.8 Senior Vice Presidents and Vice Presidents...................................9
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TABLE OF CONTENTS
(CONTINUED)
PAGE
5.9 Secretary...................................................................10
5.10 Chief Financial Officer.....................................................10
5.11 Representation of Shares of Other Corporations..............................10
5.12 Authority and Duties of Officers............................................10
ARTICLE VI RECORDS AND REPORTS.....................................................11
6.1 Maintenance and Inspection of Records.......................................11
6.2 Inspection by Directors.....................................................11
ARTICLE VII GENERAL MATTERS.........................................................11
7.1 Execution of Corporate Contracts and Instruments............................11
7.2 Stock Certificates; Partly Paid Shares......................................11
7.3 Special Designation on Certificates.........................................12
7.4 Lost Certificates...........................................................12
7.5 Construction; Definitions...................................................12
7.6 Dividends...................................................................13
7.7 Fiscal Year.................................................................13
7.8 Seal........................................................................13
ARTICLE VIII AMENDMENTS..............................................................13
8.1 Amendments..................................................................13
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BYLAWS
OF
APPLIED MATERIALS, INC.
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the
corporation in the State of Delaware shall be Corporation Trust Center, 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of the
registered agent of the corporation at such location is The Corporation Trust
Company.
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
STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held
at such place, either, within or without the State of Delaware, as may be
designated by the board of directors. In the absence of any such designation,
stockholders' meetings shall be held at the corporation's principal executive
offices.
2.2 Annual Meeting. The annual meeting of stockholders shall
be held each year on a date and at a time designated by the board of directors.
At the meeting, directors shall be elected and any other proper business may be
transacted.
2.3 Special Meeting. Special meetings of the stockholders may be
called at any time by the board of directors, or by the chairman of the board,
or by the president of the corporation.
If a special meeting is called by any person or persons other
than the board of directors, the request shall be in writing, specifying the
time of such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the chairman of the board, the
president, any vice president, or the secretary of the corporation. No business
may be transacted at such special meeting otherwise than specified in such
notice. The officer receiving the request shall cause notice to be promptly
given to the stockholders entitled to vote, in accordance with the provisions of
Sections 4 and 5 of this Article II, that a meeting will be held at the time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days
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after the receipt of the request. If the notice is not given within 20 days
after the receipt of the request, the person or persons requesting the meeting
may give the notice. Nothing contained in this paragraph of this Section 3 shall
be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the board of directors may be held.
2.4 Notice of Stockholders' Meetings. All notices of meetings
with stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting. The notice shall specify the place, date, and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called.
2.5 Advance Notice of Stockholder Nominees. No nominations for
director of the corporation by any person other than the board of directors
shall be presented to any meeting of stockholders unless the person making the
nomination is a record stockholder and shall have delivered a written notice to
the secretary of the corporation no later than the close of business forty-five
days prior to the month and day of mailing the prior year's proxy statement.
Such notice shall (i) set forth the name and address of the person advancing
such nomination and the nominee, together with such information concerning the
person making the nomination and the nominee as would be required by the
appropriate Rules and Regulations of the Securities and Exchange Commission to
be included in a proxy statement soliciting proxies for the election of such
nominee, and (ii) shall include the duly executed written consent of such
nominee to serve as director if elected.
No proposal by any person other than the board of directors shall
be submitted for the approval of the stockholders at any regular or special
meeting of the stockholders of the corporation unless the person advancing such
proposal shall have delivered a written notice to the secretary of the
corporation no later than the close of business forty-five days prior to the
month and day of mailing the prior year's proxy statement. Such notice shall set
forth the name and address of the person advancing the proposal, any material
interest of such person in the proposal, and such other information concerning
the person making such proposal and the proposal itself as would be required by
the appropriate Rules and Regulations of the Securities and Exchange Commission
to be included in a proxy statement soliciting proxies for the proposal.
2.6 Manner of Giving Notice; Affidavit of Notice. Written
notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the corporation. An affidavit of the secretary
or an assistant secretary or of the transfer agent of the corporation that the
notice has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein.
2.7 Quorum. The holders of a majority 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
certificate of incorporation. Except as otherwise required by law, the
certificate of incorporation or these bylaws, the affirmative vote of the
majority of such quorum
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shall be deemed the act of the stockholders. If, however, such quorum is not
present or represented at any meeting of the stockholders, then either (i) the
chairman of the meeting or (ii) 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 is present or represented. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
2.8 Adjourned Meeting; Notice. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
2.9 Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
business.
2.10 Voting. Except as may be otherwise provided in the
certificate of incorporation, each stockholder shall be entitled to one vote for
each share of capital stock held by such stockholder. Voting may be by voice or
by ballot as the presiding officer of the meeting of the stockholders shall
determine. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder's proxy, and shall state the number of shares
voted.
2.11 Waiver of Notice. Whenever notice is required to be given
under any provision of the General Corporation Law of Delaware or of the
certificate of incorporation or these bylaws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be specified
in any written waiver of notice unless so required by the certificate of
incorporation or these bylaws.
2.12 Record Date for Stockholder Notice; Voting; Giving
Consents. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or 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 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action.
If the board of directors does not so fix a record date:
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(i) The record date for determining stockholders entitled to
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.
(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.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
2.13 Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by a written
proxy, signed by the stockholder and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after one year from
its date, unless the proxy provides for a longer period. A proxy shall be deemed
signed if the stockholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the
corporation generally.
ARTICLE III
DIRECTORS
3.1 Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors, except as
otherwise provided in the General Corporation Law of the State of Delaware or in
the certificate of incorporation.
3.2 Number of Directors. The board of directors shall consist
of eleven persons until changed by a proper amendment of this Section 3.2.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office expires.
3.3 Election, Qualification and Term of Office of Directors.
Except as provided in Section 3.4 of these bylaws, directors shall be elected at
each annual meeting of stockholders. Directors need not be stockholders. Each
director, including a director elected to fill a vacancy, shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal.
Elections of directors need not be by written ballot.
3.4 Resignation and Vacancies. Any director may resign at any
time upon written notice to the attention of the secretary of the corporation.
When one or more directors so
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resigns and the resignation is effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this section in the filling of other vacancies.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
certificate of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
The stockholders may elect a director at any time to fill any
vacancy not filled by the directors.
If a vacancy is the result of action taken by the shareholders
under Section 3.13 of these bylaws, then the vacancy shall be filled by the
holders of a majority of the shares then entitled to vote at an election of
directors.
3.5 Place of Meetings; Meetings by Telephone. The board of
directors of the corporation may hold meetings, both regular and special, either
within or outside the State of Delaware.
Members of the board of directors, or any committee designated by
the board of directors, may participate in a meeting of the board of directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons
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participating in the meeting can hear each other, and participation in a meeting
pursuant to this bylaw shall constitute presence in person at the meeting.
3.6 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.
3.7 Special Meetings; Notice. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the chairman
of the board, the president, any vice president, the secretary or any two
directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail or telegram, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the corporation. If the notice is
mailed, it shall be deposited in the United States mail at least four days
before the time of the holding of the meeting. If the notice is delivered
personally or by telephone or by telegram, it shall be delivered personally or
by telephone or to the telegraph company at least 48 hours before the time of
the holding of the meeting. Any oral notice given personally or by telephone may
be communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the purpose or the
place of the meeting, if the meeting is to be held at the principal executive
office of the corporation.
3.8 Quorum. At all meetings of the board of directors, a
majority of the authorized number of 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 is not present at any meeting of the
board of directors, then the directors present thereat may adjourn the meeting
from time to time, without notice other than the announcement at the meeting,
until a quorum is present.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.9 Waiver of Notice. Whenever notice is required to be given
under any provision of the General Corporation Law of Delaware or of the
certificate of incorporation or these bylaws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors, or members of a
committee of directors, need be specified in any written waiver of notice unless
so required by the certificate of incorporation or these bylaws.
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3.10 Board Action by Written Consent Without a Meeting. Any
action required or permitted to be taken at any meeting of the board of
directors, or of any committee thereof, may be taken without a meeting if all
members of the board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the board or committee.
3.11 Fees and Compensation of Directors. The board of directors
shall have the authority to fix the compensation of directors.
3.12 Approval of Loans to Officers. The corporation may lend
money to, or guarantee any obligations of, or otherwise assist any officer or
other employee of the corporation or any of its subsidiaries, including any
officer or employee who is a director of the corporation or any of its
subsidiaries, whenever, in the judgment of the directors, such loan, guaranty or
assistance, or an employee benefit or employee financial assistance plan adopted
by the board of directors or any committee thereof authorizing any such loan,
guaranty or assistance, may reasonably be expected to benefit the corporation.
The loan, guaranty or other assistance may be with or without interest and may
be unsecured, or secured in such a manner as the board of directors shall
approve, including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this section contained shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the corporation at common law or
under any statute.
3.13 Removal of Directors. Any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
3.14 Chairman of the Board of Directors. The corporation may
also have, at the discretion of the board of directors, a chairman of the board
of directors who may be considered an officer of the corporation.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the board of directors, or in the bylaws of
the corporation, 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
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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 Section 151(a) of the
General Corporation Law of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation, or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the bylaws of the corporation; and, unless the
resolution, bylaws or certificate of incorporation expressly so provides, no
such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware.
4.2 Committee Minutes. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
4.3 Meetings and Action of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and
Section 3.10 (action without a meeting), with such changes in the context of
those bylaws as are necessary to substitute the committee and its members for
the board of directors and its members; provided, however, that the time of
regular meetings of committees may be determined either by resolution of the
board of directors or by resolution of the committee, that special meetings of
committees may also be called by resolution of the board of directors and that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee not
inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 Officers. The officers of the corporation shall be a
president, a chief financial officer (who may be a vice president or treasurer
of the corporation) and a secretary. The corporation may also have, at the
discretion of the board of directors, a chairman of the board of directors, one
or more senior vice presidents and one or more other officers. One or more
officers may be appointed in accordance with the provisions of Section 5.3 of
these bylaws. Any number of offices may be held by the same person.
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5.2 Election of Officers. The officers of the corporation,
except such officers as may be appointed in accordance with the provisions of
Sections 5.3 or 5.5 of these bylaws, shall be elected by the board of directors.
5.3 Appointed Officers. The chief executive officer of the
corporation, or such other officer as the board of directors shall select, may
appoint, or the board of directors may appoint, such officers and agents of the
corporation as, in his or their judgment, are necessary to conduct the business
of the corporation. Each such officer shall hold office for such period, have
such authority, and perform such duties as are provided in these bylaws or as
the board of directors or the chief executive officer may from time to time
determine.
5.4 Removal and Resignation of Officers. Any officer may be
removed, either with or without cause, by an affirmative vote of the majority of
the board of directors at any regular or special meeting of the board or, except
in the case of an officer elected by the board of directors, by the chief
executive officer or such other officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to
the corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 Vacancies in Offices. Any vacancy occurring in any office
of the corporation shall be filled by the board of directors, except for
vacancies in the offices of subordinate officers which may be filled pursuant to
Section 5.3 hereof.
5.6 Chairman of the Board. The chairman of the board, if such
an officer be elected, shall, if present, preside at meetings of the board of
directors and the stockholders and exercise and perform such other powers and
duties as may be from time to time assigned by the board of directors or
prescribed by the bylaws.
5.7 President. Subject to such supervisory powers, if any, as
may be given by the board of directors to the chairman of the board, the
president shall be the chief executive officer of the corporation and shall,
subject to the control of the board of directors, have general supervision,
direction, and control of the business and the officers of the corporation. In
the absence or nonexistence of a chairman of the board, he shall preside at all
meetings of the stockholders and at all meetings of the board of directors. He
shall have the general powers and duties of management usually vested in the
office of president of a corporation and shall have such other powers and duties
as may be prescribed by the board of directors or these bylaws.
5.8 Senior Vice Presidents and Vice Presidents. In the absence or
disability of the president, the vice presidents, if any, in order of their rank
as fixed by the board of directors or, if not ranked, a vice president
designated by the board of directors, shall perform all the duties of the
president and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the president. The vice presidents shall have such other
powers and perform
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such other duties as from time to time may be prescribed for them respectively
by the board of directors, these bylaws, the president or the chairman of the
board.
5.9 Secretary. The secretary shall keep or cause to be kept,
at the principal executive office of the corporation or such other place as the
board of directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show the
time and place of each meeting, the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the board of directors required to be given
by law or by these bylaws. He shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these bylaws.
5.10 Chief Financial Officer. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He shall disburse
the funds of the corporation as may be ordered by the board of directors, shall
render to the president and directors, whenever they request it, an account of
all his transactions as chief financial officer and of the financial condition
of the corporation, and shall have other powers and perform such other duties as
may be prescribed by the board of directors or the bylaws.
5.11 Representation of Shares of Other Corporations. The
chairman of the board, the president, any vice president, the treasurer, the
secretary or assistant secretary of this corporation, or any other person
authorized by the board of directors or the president or a vice president, is
authorized to vote, represent, and exercise on behalf of this corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority granted herein may be
exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the
authority.
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5.12 Authority and Duties of Officers. In addition to the
foregoing authority and duties, all officers of the corporation shall
respectively have such authority and perform such duties in the management of
the business of the corporation as may be designated from time to time by the
board of directors.
ARTICLE VI
RECORDS AND REPORTS
6.1 Maintenance and Inspection of Records. The corporation
shall, either at its principal executive offices or at such place or places as
designated by the board of directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books, and
other records.
Any stockholder of record, in person or by attorney or other
agent, shall, upon written demand under oath stating the purpose thereof, have
the right during the usual hours for business to inspect for any proper purpose
the corporation's stock ledger, a list of its stockholders, and its other books
and records and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
6.2 Inspection by Directors. Any director shall have the right
to examine the corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
ARTICLE VII
GENERAL MATTERS
7.1 Execution of Corporate Contracts and Instruments. The
board of directors, except as otherwise provided in these bylaws, may authorize
any officer or officers, or agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the corporation; such
authority may be general or confined to specific instances. Unless so authorized
or ratified by the board of directors or within the agency power of an officer,
no officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
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7.2 Stock Certificates; Partly Paid Shares. The shares of a
corporation shall be represented by certificates, provided that the board of
directors of the corporation may provide by resolution or resolutions that some
or all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the corporation.
Notwithstanding the adoption of such a resolution by the board of directors,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of the corporation by the chairman or vice-chairman of the board of
directors, or the president or vice president, and by the chief financial
officer, the treasurer, or an assistant treasurer, or the secretary or an
assistant secretary of such corporation representing the number of shares
registered in certificate form. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the consideration to be
paid therefor. Upon the face or back of each stock certificate issued to
represent any such partly paid shares, or upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares of the same class,
but only upon the basis of the percentage of the consideration actually paid
thereon.
7.3 Special Designation on Certificates. If the corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the 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 that the corporation shall issue to represent such class or
series of stock; provided, however, 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 that
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, the designations, the preferences, and the 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.
7.4 Lost Certificates. The corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative to give the corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertified shares.
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7.5 Construction; Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
Delaware General Corporation Law shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
7.6 Dividends. The directors of the corporation, subject to
any restrictions contained in the General Corporation Law of Delaware or the
certificate of incorporation, may declare and pay dividends upon the shares of
its capital stock. Dividends may be paid in cash, in property, or in shares of
the corporation's capital stock.
The directors of the corporation may set apart out of any of the
funds of the corporation available for dividends a reserve or reserves for any
proper purpose and may abolish any such reserve.
7.7 Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors and may be changed by the board of
directors.
7.8 Seal. The board of directors may adopt a corporate seal,
and may use the same by causing it or a facsimile thereof, to be impressed or
affixed or in any other manner reproduced.
ARTICLE VIII
AMENDMENTS
8.1 Amendments. The bylaws of the corporation may be altered,
amended or repealed or new bylaws may be adopted by either the (i) board of
directors or (ii) stockholders upon the affirmative vote of the holders of not
less than a majority of the total voting power of all issued and outstanding
shares of stock in this corporation entitled to vote thereon.
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