EXHIBIT 3.2.1
AMENDED AND RESTATED BYLAWS
OF
UNITIVE, INC.
I. CORPORATE OFFICES
1.1 Registered Office. The registered office of the corporation shall be
in the City of Dover, County of Kent, State of Delaware. The name of the
registered agent of the corporation at such location is Incorporating Services,
Ltd.
1.2 Other Offices. The board of directors may at any time establish other
offices at any place or places where the corporation is qualified to do
business.
II. MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the board of
directors. The board of directors may, in its sole discretion, determine that a
meeting shall not be held at any place, but may instead be held solely by means
of remote communication as authorized by Section 211 of the General Corporation
Law of Delaware.
If authorized by the board of directors in its sole discretion, and
subject to such guidelines and procedures as the board of directors may adopt,
stockholders and proxyholders not physically present at a meeting of
stockholders may, by means of remote communication participate in a meeting of
stockholders and be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (i) the corporation shall
implement reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the corporation.
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. In the
absence of such designation, the annual meeting of stockholders shall be held on
the third Monday in April in each year at 1:00 p.m. However, if such day falls
on a legal holiday, then the meeting shall be held at the same time and place on
the next succeeding full business day. 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 anytime for any purpose or purposes, by the board of directors or by such
person or persons as may be authorized by the Certificate of Incorporation or
these Bylaws, by such person or persons duly designated by the board of
directors whose powers and authority, as expressly provided in a resolution of
the board of directors, include the power to call such meetings, or by
stockholders holding twenty-five percent (25%) of the voting power (determined
on an as-converted, basis) of the outstanding shares, but such special meetings
may not be called by any other person or persons.
2.4 Notice of Stockholders' Meetings.
(a) 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 ten (10) nor more than sixty (60) days before the date of
the meeting to each, stockholder entitled to vote at such meeting. The notice
shall specify the place, if any, date, and hour of the meeting, the means of
remote communication, if any, by which stockholders and proxyholders may be
deemed to be present in person and vote at such meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
(b) Without limiting the manner by which notice otherwise may be
given effectively to stockholders, any notice to stockholders given by the
corporation shall also be effective if given by a form of electronic
transmission consented to by the stockholder to whom the notice is given. Any
such consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (i) the corporation is
unable to deliver by electronic transmission, two consecutive notices given by
the corporation in accordance with such, consent and (ii) such inability becomes
known to the secretary or an assistant secretary of the corporation or to the
transfer agent, or other person responsible for the giving of notice; provided,
however, the inadvertent failure to treat such revocation shall not invalidate
any meeting or other action.
2.5 Manner of Giving Notice; Affidavit of Notice.
(a) 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 or
other 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.
(b) Notice given pursuant to subsection 2.4(b) of this section shall
be deemed given: (i) if by facsimile telecommunication, when directed to a
number at which the stockholder has consented to receive notice; (ii) if by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (iii) if by a posting on an
electronic network together with separate notice to the stockholder of such
specific posting, upon the later of such posting and the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when directed
to the stockholder. An affidavit of the secretary or an assistant secretary or
of the transfer agent or other agent of the corporation that the notice has been
given by a form of
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electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
2.6 Quorum. The holders of a majority of the voting power (determined on
an as-converted basis) 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. If
however, such quorum is not present or represented at any meeting of the
stockholders, then 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.
2.7 Adjourned Meeting; Notice. When a meeting is adjourned to another time
or place, unless these bylaws otherwise require, notice need not be given of the
adjourned meeting if the time and place, the means of remote communication, if
any, by which stockholders and proxyholders maybe deemed to be present in person
and vote at such meeting, thereof are announced at the meeting at which the
adjournment is takes. 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 thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.8 Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements).
Except as 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.
2.9 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, or a waiver by electronic transmission 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 seed be specified in any written
waiver or any waiver by electronic transmission of notice unless so required by
the certificate of incorporation or these bylaws.
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2.10 Stockholder Action by Written Consent Without a Meeting. Unless
otherwise provided in the certificate of incorporation, any action required by
this chapter to be taken at any annual or special meeting of stockholders of a
corporation, or any action that may be taken at any annual or special meeting of
such stockholders, may be taken without a meeting, without prior notice, and
without a vote if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less than, the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
A telegram, cablegram or other electronic transmission consenting to an
action to be taken and transmitted by a stockholder or proxyholder, or by a
person or persons authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this section,
provided that any such telegram, cablegram or other electronic transmission sets
forth or is delivered with information from which the corporation can determine
(a) that the telegram, cablegram or other electronic transmission was
transmitted by the stockholder or proxyholder and (b) the date on which such
stockholder or proxyholder or authorized person or persons transmitted such
telegram, cablegram or electronic transmission. The date on which such telegram,
cablegram or electronic transmission is transmitted shall be deemed to be the
date on which such consent was signed. No consent given by telegram, cablegram
or other electronic transmission shall be deemed to have been delivered until
such consent is reproduced in paper form and until such paper form shall have
been delivered to the corporation by delivery to its registered office in this
State, its principal place of business or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporation's registered office shall be made by
hand or by certified or registered mail, return receipt requested.
Notwithstanding the foregoing limitations on delivery, consents given by
telegram, cablegram or other electronic transmission maybe otherwise delivered
to the principal place of business of the corporation or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded if, to the extent and in the manner provided by
resolution of the board of directors of the corporation. Any copy, facsimile or
other reliable reproduction of a consent in writing may be substituted or used
in lien of the original writing for any and all purposes for which the original
writing could be used, provided that such copy, facsimile or other reproduction
shall, be a complete reproduction of the entire original writing.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action that is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.11 Record Date of 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
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of
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stock or for the purpose of any other lawful action, the board of directors may
fix, in advance, a record date that shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action.
If the board of directors does not so fix a record date:
(a) 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.
(b) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(c) 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.
2.12 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting 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 three (3)
years 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. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware.
2.13 List of Stockholders Entitled to Vote. The officer who has charge of
the stock ledger of a 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. The corporation shall not be required to include electronic
mail addresses or other electronic contact information on such list. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting for a period of at least 10 days prior to the meeting: (a) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting, or (b)
during ordinary business hours, at the principal place of business of the
corporation. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the
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meeting during the whole time thereof, and may be inspected by any stockholder
who is present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
2.14 Stockholder Proposals. Effective upon the Corporation's initial
public offering of stock under the Securities Act of 1933, provided that the
Corporation's shares of Series A-l Preferred Stock, Series A-2 Preferred Stock
and Series A-3 Preferred Stock shall have been converted into shares of Common
Stock pursuant to the Corporation's certificate of incorporation, any
stockholder wishing to bring any other business before a meeting of
stockholders, including, but not limited to, the nomination of persons for
election as directors, must provide notice to the corporation not more than
ninety (90) and not less than fifty (50) days before the meeting in writing by
registered mail, return receipt requested, of the business to be presented by
the stockholders at the stockholders' meeting. Any such notice shall set forth
the following as to each matter the stockholder proposes to bring before the
meeting: (a) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the meeting and, if
such business includes a proposal, to amend the bylaws of the corporation, the
language of the proposed amendment; (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
such stockholder; (d) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to propose such business; and (e)
any material interest of the stockholder in such business. Notwithstanding the
foregoing provisions of this Section 2.14, a stockholder shall also comply with
all applicable requirements of all applicable laws, rules and regulations,
including, but not limited to, the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, with respect to the
matters set forth in this section 2.14. In the absence of such notice to the
corporation meeting the above requirements, a stockholder shall not be entitled
to present any business at any meeting of stockholders.
III. DIRECTORS
3.1 Powers. Subject to the provisions of the General Corporation Law of
Delaware and any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed, and all corporate powers shall be exercised by or under the direction
of the board of directors.
3.2 Number of Directors. The number of directors constituting the Board of
Directors shall be five (5).
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 to hold
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office until the next annual meeting. Directors need not be stockholders unless
so required by the certificate of incorporation or these bylaws, wherein other
qualifications for directors may be prescribed. Each director, including a
director elected to fill a vacancy, shall hold office until his or her successor
is elected and qualified or until his or her 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
notice given in writing or electronic transmission to the corporation. Vacancies
shall be filled as provided in the certificate of incorporation.
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.
Unless otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the board of directors, or
any committee, by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
3.6 First Meetings. The first meeting of each newly elected board of
directors shall be held at such, time and place as shall be fixed by the vote of
the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. To the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, 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.
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.
3.8 Special Meetings; Notice. Special meetings of the board of directors
for any purpose or purposes maybe called at any time by the chairman of the
board, the president, any vice president, the secretary or any director.
Notice of the time and place of special meetings shall be, delivered
either personally or by mail, telex, facsimile, telephone or electronic
transmission to each director, addressed to each director at such director's
address and/or phone number and/or electronic transmission 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 (4) days before the time of
the holding of the meeting. If the notice is delivered personally or by telex,
facsimile, telephone or electronic transmission, it shall be delivered by
telephone or transmitted at least forty-eight (48) hours before the time of the
holding of the meeting. Notice by electronic transmission shall be effective if
given by a form of electronic transmission consented to by the director to whom
the notice is given. Any such consent shall be
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revocable by the director by written notice to the corporation. Any such consent
shall be deemed revoked if (i) the corporation is unable to deliver by
electronic transmission two consecutive notices given by the corporation in
accordance with such consent and (ii) such inability becomes known to the
secretary or an assistant secretary of the corporation or to the transfer agent,
or other person responsible for the giving of notice; provided, however, the
inadvertent failure to treat such revocation shall not invalidate any meeting or
other action. 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. Notice may be delivered by any person entitled to call a special
meeting or by an agent of such person.
3.9 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 announcement at the meeting, until a quorum
is present.
3.10 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, or a waiver by electronic transmission 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.
3.11 Adjourned Meeting; Notice. 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 announcement at the
meeting, until a quorum is present.
3.12 Board Action by Written Consent Without a Meeting. Unless otherwise
restricted by the certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the board of directors, or
of any committee thereof, may be taken without a meeting if all members of the
board or committee, as the case may be, consent thereto in writing or by
electronic transmission and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the board or
committee.
3.13 Fees and Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation or these bylaws, the board of directors shall
have the authority to fix the compensation of directors.
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3.14 Approval of Loans to Officers. Subject to compliance with applicable
law, including without limitation any federal or state securities law, the
corporation may lend money to, or guarantee any obligation of, or otherwise
assist any officer or other employee of the corporation or of its subsidiary,
including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the directors, 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 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.
3.15 Removal of Directors. Directors may be removed only as provided in
the certificate of incorporation.
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.
3.16 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
of the corporation. The Chairman of the Board shall, if such a person is
elected, preside at the meetings of the Board of Directors and exercise and
perform such other powers and duties as may from time to time be assigned to him
or her by the Board of Directors, or as may be prescribed by these bylaws.
IV. COMMITTEES
4.1 Committees of Directors. The board of directors on may, by resolution
passed by a majority of the whole board, designate one or more committees, with
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 thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors 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 the seal of the corporation to be affixed to all
papers that may require it; but no such committee shall have the power or
authority to (i) approve or adopt, or recommend to the stockholders, any action
or mater expressly required by this chapter to be submitted to stockholders for
approval or (ii) adopting, amending or repealing any bylaws of the corporation.
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,
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Section 3.5 (place of meetings and meetings by telephone), Section 3.7 (regular
meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of
adjournment), and Section 3.12 (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 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.
V. OFFICERS
5.1 Officers. The officers of the corporation shall be a chief executive
officer, a president, one or more vice presidents, a secretary, and a treasurer.
The corporation may also have, at the discretion of the board of directors, a
chairman of the board, one or more assistant vice presidents, assistant
secretaries, assistant treasurers, and any such other officers as 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.
5.2 Election of Officers. The officers of the corporation, except such
officers as maybe appointed in accordance with the provisions of Section 5.3 of
these bylaws, shall be chosen by the board of directors, subject to the rights,
if any, of an officer under any contract of employment.
5.3 Subordinate Officers. The board of directors may appoint, or empower
the president to appoint, such other officers and agents as the business of the
corporation may require, each of whom 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 may from time to time determine.
5.4 Removal and Resignation of Officers. Subject to the rights, if any, of
an officer under any contract of employment, 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 appointed by the board of directors, by any 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.
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
exercise and perform such other powers and duties as may from time to time be
assigned to him by the board of directors or as may
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be prescribed by these bylaws. If there is no president, then thee chairman of
the board shall also be the chief executive officer of the corporation and shall
have the powers and duties prescribed m Section 5.7 of these bylaws. The
chairman of the board of directors shall be chosen by the board of directors.
5.7 Chief Executive Officer. Subject to such supervisory powers, if any,
as may be given by the board of directors to the chairman of the board, the
chief executive officer of the corporation 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. The chief executive officer shall
preside at all meetings of the stockholders and, in the absence or nonexistence
of a chairman of the board, at all meetings of the Board of Directors at which
he or she is present. The chief executive officer shall have the general powers
and duties of management usually vested in the office of chief executive officer
of a corporation and shall have such other powers and duties as maybe prescribed
by the Board of Directors or these bylaws.
5.8 President. Subject to such supervisory powers, if any, as may be given
by the board of directors to the chairman of the board or the chief executive
officer, if there be such officers, the president 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 the chief executive officer, he or she shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a chairman of the board and
chief executive officer, at all meetings of the board of directors at which he
or she is present. He or she 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. The board of directors may provide in their discretion that the
offices of President and Chief Executive Officer may be held by the same person.
5.9 Vice Presidents. In the absence or disability of the chief executive
officer and president, the vice presidents, if any, is 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 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.
5.10 Secretary. The secretary or an agent of the corporation 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, whether regular or
special (and, if special, how authorized and the notice given), 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
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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. The secretary 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.
5.11 Treasurer. The treasurer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and record 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 treasurer shall deposit all money and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by
the board of directors. The treasurer 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 of his
transactions as treasurer and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or these bylaws.
5.12 Assistant Secretary. The assistant secretary, or, if there is more
than one, the assistant secretaries in the order determined by the stockholders
or board of directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the secretary or in the event of his
or her inability or refusal to act, perform the duties and exercise the powers
of the secretary and shall perform such other duties and have such other powers
as the board of directors or the stockholders may from time to time prescribe.
5.13 Representation of Shares of Other Corporations. The chairman of the
board, the chief executive officer, 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 chief executive
officer, 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.
5.14 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 or
the stockholders.
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VI. INDEMNITY
6.1 Indemnification of Directors and Officers. The corporation shall, to
the maximum extent and in the manner permitted by the General Corporation Law of
Delaware, indemnify each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.1, a "director" or "officer" of the corporation
includes any person (a) who is or was a director or officer of the corporation,
(b) who is or was serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (c) who was a director or officer of a corporation that was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation. Such indemnification shall be a
contract right and shall include the right to receive payment of any expenses
incurred by the indemnitee in connection with any proceeding in advance of its
final disposition, consistent with the provisions of applicable law as then is
effect. The right of indemnification provided in this Section 6.1 shall not be
exclusive of any other rights to which those seeking indemnification any
otherwise be entitled, and the provisions of this Section 6.1 shall inure to the
benefit of the heirs and legal representatives of any person entitled to
indemnity under this Section 6.1 and shall be applicable to proceedings
commenced or continuing after the adoption of this Section 6.1, whether arising
from acts or omissions occurring before or after such adoption. In furtherance,
but not in limitation of the foregoing provisions, the following procedures,
presumptions and remedies shall apply with respect to advancement of expenses
and the right to indemnification under this Section 6.1.
(a) Advancement of Expenses. All reasonable expenses incurred by or
on behalf of the indemnitee in connection with any proceeding shall be advanced
to the indemnitee by the corporation within 20 days after the receipt by the
corporation of a statement or statements from the indemnitee requesting such
advance or advances from time to time, whether prior to or after final
disposition of such proceeding, unless, prior to the expiration of such 20-day
period, the Board of Directors shall unanimously (except for the vote, if
applicable, of the indemnitee) determine that the indemnitee has no reasonable
likelihood of being entitled to indemnification pursuant to this Section 6.1.
Such statement or statements shall reasonably evidence the expenses incurred by
the indemnitee and, if required by law at the time of such advance, shall
include or be accompanied by an undertaking by or on behalf of the indemnitee to
repay the amounts advanced if it should ultimately be determined that the
indemnitee is not entitled to be indemnified against such expenses pursuant to
this Section 6.1.
(b) Procedure for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under this Section 6.1, an
indemnitee shall submit to the Secretary of the corporation a written request,
including such documentation and information as is reasonably available to the
indemnitee and reasonably necessary to determine whether and to what extent the
indemnitee is entitled to indemnification (the "Supporting Documentation"). The
determination of the indemnitee's entitlement to indemnification shall be made
not later than 60 days after receipt by the corporation of the written request
for indemnification together with the Supporting Documentation. The Secretary of
the corporation shall, promptly upon
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receipt of such a request for indemnification, advise the Board of Directors in
writing that the indemnitee has requested indemnification, whereupon the
corporation shall provide such indemnification, including without limitation
advancement of expenses, so long as the indemnitee is legally entitled thereto
in accordance with applicable law.
(ii) The indemnitee's entitlement to indemnification under
this Section 6.1 shall be determined in one of the following ways: (A) by a
majority vote of the Disinterested Directors (as hereinafter defined), if they
constitute a quorum of the Board of Directors; (B) by a written opinion of
Independent Counsel (as hereinafter defined) if (x) a Change of Control (as
hereinafter defined) shall have occurred and the indemnitee so requests or (y) a
quorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even, if obtainable, a majority of such Disinterested Directors
so directs; (C) by the stockholders of the corporation (but only if a majority
of the Disinterested Directors, if they constitute a quorum of the Board of
Directors, presents the issue of entitlement to indemnification to the
stockholders for their determination); or (D) as provided in Paragraph (c)
below.
(iii) to the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to Paragraph
(b)(ii) above, a majority of the Disinterested Directors shall select the
Independent Counsel, but only an Independent Counsel to which the indemnitee
does not reasonably object; provided, however, that if a Change of Control shall
have occurred, the indemnitee shall select such Independent Counsel, but only an
Independent Counsel to which the Board of Directors does not reasonably object.
(iv) The only basis upon which a finding that indemnification
may not be made is that such indemnification is prohibited by law.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Section 6.1, if a Change of Control shall
have occurred, the indemnitee shall be presumed to be entitled to
indemnification under this Section 6.1 upon submission of a request for
Indemnification together with the Supporting Documentation in accordance with
Paragraph (b)(i), and thereafter the corporation shall have the burden of proof
to overcome that presumption in reaching a contrary determination. In any event,
if the person or persons empowered under Paragraph (b)(ii) above to determine
entitlement to indemnification shall not have been appointed or shall not have
made a determination within 60 days after receipt by the corporation of the
request therefor together with the Supporting Documentation, the indemnitee
shall be deemed to be entitled to indemnification and the indemnitee shall be
entitled to such indemnification unless (A) the indemnitee misrepresented or
failed to disclose a material fact in making the request for indemnification or
in the Supporting Documentation or (B) such indemnification is prohibited by
law. The termination of any proceeding described in this Section 6,1, or of any
claim, issue or matter therein, by judgment, order, settlement or conviction, or
upon plea of nolo contendere or its equivalent, shall not, of itself, adversely
affect the right of the indemnitee to indemnification or create a presumption
that the indemnitee did not act in good faith and in a manner which the
indemnitee reasonably believed to be in or not opposed to the best interests of
the corporation or, with respect to any criminal proceeding, that the indemnitee
had reasonable cause to believe that the indemnitee's conduct was unlawful.
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(d) Remedies of Indemnitee.
(i) In the event that a determination is made pursuant to
Paragraph (b)(ii) that the indemnitee is not entitled to Indemnification under
this Section 6.1: (A) the indemnitee shall be entitled to seek an adjudication
of his entitlement to such indemnification either, at the indemnitee's sole
option, in (x) an appropriate court of the State of Delaware or any other court
of competent jurisdiction or (y) an arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association; (B) my
such judicial proceeding or arbitration shall be de novo and the indemnitee
shall not be prejudiced by reason of such adverse determination; and (C) in any
such judicial proceeding or arbitration the corporation shall have the burden of
proving that the indemnitee is not entitled to indemnification under this
Section 6.1.
(ii) If a determination shall have been made or deemed to have
been made, pursuant to Paragraph (b)(ii) or (iii), that the indemnitee is
entitled to indemnification, the corporation shall be obligated to pay the
amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination unless (A) the indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law. In the event that: (C) advancement of expenses is not
timely made pursuant to Paragraph (a); or (D) payment of indemnification is not
made within five days after a determination of entitlement to indemnification
has been made or deemed to have been made pursuant to Paragraph (b)(ii) or
(iii), the indemnitee shall be entitled to seek judicial enforcement of the
corporation's obligation to pay to the indemnitee such advancement of expenses
or indemnification. Notwithstanding the foregoing, the corporation may bring an
action, in an appropriate court in the State of Delaware or any other court of
competent jurisdiction, contesting the right of the indemnitee to receive
indemnification hereunder due to the occurrence of an event described in
subclause (A) or (B) of this clause (ii) (a "Disqualifying Event"); provided,
however, that in any such action the corporation shall have the burden of
proving the occurrence of such Disqualifying Event.
(iii) The corporation shall be precluded from asserting in any
judicial proceedings or arbitration commenced pursuant to this Paragraph (d)
that the procedures and presumptions of this Section 6.1 are not valid, binding
and enforceable and shall stipulate in any such court or before any such
arbitrator that the corporation is bound by all the provisions of this Section
6.1.
(iv) In the event that the indemnitee, pursuant to this
Paragraph (d), seeks a judicial adjudication of or as award in arbitration to
enforce his rights under, or to recover damages for breach of, this Section 6.1,
the indemnitee shall be entitled to recover from the corporation, and shall be
indemnified by the corporation against, any expenses actually and reasonably
incurred by the indemnitee if the indemnitee prevails in such judicial
adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that the indemnitee is entitled to receive part but
not all of the indemnification or advancement of expenses sought, the expenses
incurred by the indemnitee in connection with such judicial adjudication shall
be prorated accordingly.
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(e) Definitions. For purposes of this Section 6.1:
(i) "Change in Control" means a change in control of the
corporation of a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the corporation is then subject
to such reporting requirement; provided that, without limitation, such a change
in control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the corporation representing 25% or more of the combined voting
power of the corporation's then outstanding securities without the prior
approval of at least a majority of the members of the Board of Directors in
office immediately prior to such acquisition; (ii) the corporation is a party to
a merger, consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors thereafter, or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director whose
election or nomination for election by the corporation's stockholders was
approved by a vote of at least a majority of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
(ii) "Disinterested Director" means a director of the
corporation who is not a party to the proceeding in respect of which
indemnification is sought by the indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years has been,
retained to represent: (A) the corporation or the indemnitee in any matter
material to either such party or (B) any other party to the proceeding giving
rise to a claim for indemnification, under this Section 6.1. Notwithstanding the
foregoing, the term "Independent Counsel" shall not include any person who,
under the applicable standards of professional conduct then prevailing under the
law of the State of Delaware, would have a conflict of interest in representing
either the corporation or the indemnitee in an action to determine the
indemnitee's rights under this Section 6.1.
(f) Invalidity Severability; Interpretation. If any provision or
provisions of this Section 6.1 shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Section 6,1 (including,
without limitation, all portions of any Paragraph of this Section 6.1 containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible, the provisions of
this Section 6.1 (including, without limitation, all portions of any Paragraph
of this Section 6.1 containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid; illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable. Reference herein to laws, regulations or
agencies shall be deemed to include all amendments thereof, substitutions
therefor and successors thereto.
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6.2 Indemnification of Others. The corporation shall have the power, to
the extent and in the manner permitted by the General Corporation Law of
Delaware, to indemnify each of its employees and agents (other than directors
and officers) against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with, any proceeding, arising by reason of the fact that such person is or was
an agent of tile corporation. For purposes of this Section 6.2, an "employee" or
"agent" of the corporation (other than a director or officer) includes any
person (a) who is or was an employee or agent of the corporation, (b) who is or
was serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (c) who
was an employee or agent of a corporation that was a predecessor corporation of
the corporation or of another enterprise at the request of such predecessor
corporation.
6.3 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of the General Corporation Law of Delaware.
VII. RECORDS AND REPORTS
7.1 Maintenance and Inspection of Records. The corporation shall, either
at its principal executive office 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.
Any records maintained by a corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may be
kept on, or by means of, or be in the form of, any information storage device or
method, provided that the records so kept can be converted into clearly legible
paper form within a reasonable time. Any corporation shall so convert any
records so kept upon the request of any person entitled to inspect such records
pursuant to any provision of the Certificate of Incorporation, these Bylaws or
the General Corporation Law of Delaware. When records are kept in such manner, a
clearly legible paper from or by means of the information storage device or
method shall be admissible in evidence, and accepted for all other purposes, to
the same
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extent as an original paper record of the same information would have been,
provided the paper form accurately portrays the record.
7.2 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.
7.3 Annual Statement to Stockholders. The board of directors shall present
at each annual meeting, and at any special meeting of the stockholders when
called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
VIII. GENERAL MATTERS
8.1 Checks. From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts, other
orders for payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only the persons so
authorized shall sip or endorse those instruments.
8.2 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.
8.3 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 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 has
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.
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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, 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.
8.4 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.
8.5 Lost Certificates. Except as provided in this Section 8.5, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation and cancelled at
the same time. 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 uncertificated shares.
8.6 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.
8.7 Dividends. The directors of the corporation, subject to any
restrictions contained in the certificate of incorporation, may declare and pay
dividends upon the shares of its capital stock pursuant to the General
Corporation Law of Delaware. Dividends may be paid in cash, in property, or is
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. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
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8.8 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.
8.9 Seal. The corporation may adopt a corporate seal which may be altered
as desired, and may use the same by causing it or a facsimile thereof, to be
impressed or affixed or in any other manner reproduced.
8.10 Transfer of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction in its books.
8.11 Stock Transfer Agreements and Restrictions. The corporation shall
have power to enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the corporation to restrict
the transfer of shares of stock of the corporation of any one or more classes
owned by such stockholders in any manner not prohibited by the General
Corporation Law of Delaware.
8.12 Electronic Transmission. For purposes of these Bylaws, "electronic
transmission" means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved, and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process.
IX. AMENDMENTS
Subject to the requirements set forth in the certificate of incorporation,
the original or other bylaws of the corporation may be adopted, amended or
repealed by the stockholders, by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding shares of the
capital stock of the corporation (considered for this purpose as one class);
provided, however, that the corporation may, in its certificate of
incorporation, confer the power to adopt, amend or repeal bylaws upon the
directors. The fact that such power has been as conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
X. DISSOLUTION
If it should be deemed advisable in the judgment of the board of directors
of the corporation that the corporation should be dissolved, the board, after
the adoption of a resolution to that effect by a majority of the whole board at
any meeting called for that purpose, shall cause notice to be mailed to each
stockholder entitled to vote thereon of the adoption of the resolution and of a
meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If holders of a majority of the voting power of the outstanding
capital stock of the corporation entitled to vote thereon votes for the proposed
dissolution, then a certificate stating that the dissolution has been authorized
in accordance with the provisions of Section 275 of the General Corporation Law
of
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Delaware and setting forth the names and residences of the directors and
officers shall be executed, acknowledged, and filed and shall become effective
in accordance with Section 103 of the General Corporation Law of
Delaware. Upon such certificate's becoming effective in accordance with Section
103 of the General Corporation Law of Delaware, the corporation shall be
dissolved.
Whenever all the stockholders entitled to vole on a dissolution consent in
writing, either in person or by duly authorized attorney, to a dissolution, no
meeting of directors or stockholders shall be necessary. The consent shall be
filed and shall become effective in accordance with Section 103 of the General
Corporation Law of Delaware. Upon such consent's becoming effective in
accordance with Section 103 of the General Corporation Law of Delaware, the
corporation shall be dissolved. If the consent is signed by an attorney, then
the original power of attorney or a photocopy thereof shall be attached to and
filed with the consent. The consent filed with the Secretary of State shall have
attached to it the affidavit of the secretary or some other officer of the
corporation stating that the consent has been signed by or on behalf of all the
stockholders entitled to vote on a dissolution; in addition, there shall be
attached to the consent a certification by the secretary or some other officer
of the corporation setting forth the names and residences of the directors and
officers of the corporation.
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