Exhibit 3.2
BY-LAWS
OF
SYMMETRICOM, INC.
(a Delaware corporation)
ARTICLE 1
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Meeting of Stockholders
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1.1 Place of Meeting. Meetings of stockholders may be held at such place,
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either within or without of the State of Delaware, as may be designated by or in
the manner provided in these by-laws, or, if not so designated, at the
registered office of the corporation or the principal executive offices of the
corporation.
1.2 Annual Meeting. Annual meetings of stockholders shall be held each year
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at such date and time as shall be designated from time to time by the Board of
Directors. In the absence of such designation, the annual meeting of
shareholders shall be held on the third Thursday of October in each year at
10:00 a.m. (Pacific Standard Time). 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 such annual meeting, the stockholders shall
elect by a plurality vote the number of directors equal to the number of
directors to be elected at such meeting (or, if fewer, the number of directors
properly nominated and qualified for election). The stockholders shall also
transact such other business as may properly be brought before the meetings.
To be properly brought before the annual meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors or the Chief Executive Officer, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or the Chief Executive Officer or (c) otherwise properly
brought before the meeting by a stockholder of record. In addition to any other
applicable requirements, for business to be properly brought before the annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice must be delivered by a nationally recognized courier service or mailed by
first-class United States mail, postage or delivery charges prepaid, and
received at the principal executive offices of the corporation, addressed to the
attention of the Secretary of the corporation, not less than 60 days nor more
than 90 days prior to the scheduled date of the meeting (regardless of any
postponements, deferrals or adjournments of that meeting to a later date);
provided, however, that in the event that less than 75 days' notice or prior
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public disclosure of the date of the scheduled meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the earlier of (a) the close of business on the 15th day following
the day on which such notice of the date of the scheduled annual meeting was
mailed or such public disclosure was made, whichever first occurs, and (b) two
days prior to the date of the scheduled meeting. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii)
the name and record address of the stockholder proposing such business, (iii)
the class, series and number of shares of the corporation that are owned
beneficially by the stockholder and (iv) any material interest of the
stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section; provided, however, that nothing in this
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Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting.
The Chairman of the Board of Directors of the corporation (or such other
person presiding at the meeting in accordance with these by-laws) shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Section, and if he or she should so determine, he or she shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
1.3 Special Meetings. Special meetings of the stockholders may be called
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for any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, by the Chief Executive Officer or Secretary only
at the request of the Chairman of the Board, the Chief Executive Officer or
President of the corporation or by a resolution duly adopted by the affirmative
vote of a majority of the Board of Directors or by the holders of shares
entitled to cast not less than 10% of the votes at such a meeting. Any such
request or resolution shall state the purpose or purposes of the proposed
meeting. Business transacted at any special meeting shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Written notice of stockholders' meetings, stating
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the place, date and time of the meeting and, in the case of a special meeting,
the purpose or purposes for which such special meeting is called, shall be given
to each stockholder entitled to vote at such meeting not less than 10 nor more
than 60 days prior to the meeting.
When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment is taken; provided,
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however, that if the date of any adjourned meeting is more than 30 days after
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the date for which the meeting was originally noticed, or if a new record date
is fixed for the adjourned meeting, written notice of the place, date and time
of the adjourned meeting shall be given in conformity herewith.
1.5 List of Stockholders. The officer in charge of the stock ledger of the
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corporation or the transfer agent shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, at a place within the city
where the meeting is to be held, which place, if other than the place of the
meeting, shall be specified in the notice of the
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meeting. The list shall also be produced and kept at the place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present in person thereat.
1.6 Organization and Conduct of Business. The Chairman of the Board of
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Directors or, in his or her absence, the Chief Executive Officer or President of
the corporation or, in their absence, such person as the Board of Directors may
have designated or, in the absence of such a person, such person as may be
chosen by the holders of a majority of the shares entitled to vote who are
present, in person or by proxy, shall call to order any meeting of the
stockholders and act as Chairman of the meeting. In the absence of the Secretary
of the corporation, the secretary of the meeting shall be such person as the
Chairman appoints.
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 discussion as seems to him or her in order.
1.7 Quorum and Adjournments. Except where otherwise provided by law or the
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certificate of incorporation or these by-laws, the holders of a majority of the
stock issued and outstanding and entitled to vote, present in person or
represented in proxy, shall constitute a quorum at all meetings of the
stockholders. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to have less than a quorum
if any action taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. If, however, a
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat who are present in person or
represented by proxy or, if no stockholder is present or represented by proxy,
by any officer entitled to preside at or to act as secretary of such meeting,
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented.
1.8 Voting Rights. Unless otherwise provided in the certificate of
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incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder.
1.9 Majority Vote. When a quorum is present at any meeting, the vote of
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the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the statutes or
of the certificate of incorporation or of these by-laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
1.10 Record Date for Stockholder Notice and Voting. For purposes of
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determining the stockholders entitled to notice of any meeting of stockholders
or any adjournment thereof, or to vote, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any right 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
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record date, which shall not be more than 60 days nor less than 10 days before
the date of any such meeting nor more than 60 days before any other action to
which such record date relates. 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
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ix a new record date for the adjourned meeting. If the Board of Directors does
not so fix a record date, 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 business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held. 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 to such purpose.
1.11 Proxies. To the extent permitted by law, any stockholder of record may
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appoint a person or persons to act as the stockholder's proxy or proxies at any
stockholder meeting for the purpose of representing and voting the stockholder's
shares. The stockholder may make this appointment by any means the General
Corporation Law of the State of Delaware specifically authorizes, and by any
other means the Secretary of the corporation may permit. Prior to any vote, and
subject to any contract rights of the proxy holder, the stockholder may revoke
the proxy appointment either directly or by the creation of a new appointment,
which will automatically revoke the former one. The inspector of elections
appointed for the meeting may establish requirements concerning such proxy
appointments or revocations that the inspector considers necessary or
appropriate to assure the integrity of the vote and to comply with law.
1.12 Inspectors of Election. The corporation shall, in advance of any
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meeting of stockholders, appoint one or more inspectors of election to act at
the meeting and make a written report thereof. The corporation may designate one
or more persons to act as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability.
ARTICLE 2
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Directors
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2.1 Number, Election, Tenure and Qualifications. The number of directors
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which shall constitute the whole Board of Directors shall initially be six (6);
provided, however, that the number of directors that shall constitute the whole
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Board of Directors shall be fixed from time to time by resolution adopted by a
majority of the entire Board of Directors. The classes of directors that shall
constitute the whole Board of Directors, if any, shall be as provided in the
certificate of incorporation of the corporation.
At each annual meeting of the stockholders, directors shall be elected to
replace those directors whose terms are then expiring, and each director so
elected shall hold office until such
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director's successor is duly elected and qualified or until such director's
earlier resignation, removal, death or incapacity.
Subject to the rights of holders of any class or series of stock having a
preference over the common stock as to dividends or upon liquidation,
nominations of persons for election to the Board of Directors at the annual
meeting, by or at the direction of the Board of Directors, may be made by any
nominating committee or person appointed by the Board of Directors; nominations
may also be made by any stockholder of record of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Section. Such nominations, other than those made by
or at the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the corporation. To be timely, a
stockholder's notice shall be delivered by a nationally recognized courier
service or mailed by first-class United States mail postage or delivery charges
prepaid, and received at the principal executive offices of the corporation
addressed to the attention of the Secretary of the corporation not less than 60
days nor more than 90 days prior to the scheduled date of the meeting
(regardless of any postponements, deferrals or adjournments of that meeting to a
later date); provided, however, that in the event that less than 75 days' notice
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or prior public disclosure of the date of the scheduled meeting is given or made
to stockholders, notice by the stockholder to be timely must be so received not
later than the earlier of (x) the close of business on the 15th day following
the day on which such notice of the date of the scheduled annual meeting was
mailed or such public disclosure was made, whichever first occurs, and (y) two
days prior to the date of the scheduled meeting. Such stockholder's notice to
the Secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class, series and number of
shares of capital stock of the corporation that are owned beneficially by the
person, (iv) a statement as to the person's citizenship and (v) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice, (i) the
name and record address of the stockholder and (ii) the class, series and number
of shares of capital stock of the corporation that are owned beneficially by the
stockholder. The corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the corporation to determine
the eligibility of such proposed nominee to serve as director of the
corporation. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth herein.
In connection with any annual meeting, the Chairman of the Board of
Directors (or such other person presiding at such meeting in accordance with
these by-laws) shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and
if he or she should so determine, he or she shall so declare to the meeting and
the defective nomination shall be disregarded.
Directors need not be stockholders.
2.2 Enlargement and Vacancies. The number of members of the Board of
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Directors may be increased at any time by vote of a majority of the directors
then in office. Sole power to
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fill vacancies and newly created directorships resulting from any increase in
the authorized number of directors shall be vested in the Board of Directors as
provided in the certificate of incorporation of the corporation, and each
director so chosen shall hold office until the next annual election at which, if
applicable, the term of the class to which they have been elected expires and in
any event until such director's successor is duly elected and qualified or until
such director's earlier resignation, removal from office, death or incapacity.
If there are no directors in office, then an election of directors may be held
in the manner provided by statute. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law or these
by-laws, may exercise the powers of the full board until the vacancy is filled.
2.3 Resignation and Removal. Any director may resign at any time upon
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written notice to the corporation at its principal place of business or to the
Chief Executive Officer or the Secretary. Such resignation shall be effective
upon receipt of such notice unless the notice specifies such resignation to be
effective at some other time or upon the happening of some other event. 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, unless otherwise specified by law or the certificate of
incorporation of the corporation.
2.4 Powers. The business of the corporation shall be managed by or under
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the direction of the Board of Directors which may exercise all such powers of
the corporation and do all such lawful acts and things which are not by statute
or by the certificate of incorporation or by these by-laws directed or required
to be exercised or done by the stockholders.
2.5 Chairman of the Board. If the Board of Directors appoints a Chairman
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of the Board, such Chairman shall, when present, preside at all meetings of the
stockholders and the Board of Directors. The Chairman shall perform such duties
and possess such powers as are customarily vested in the office of the Chairman
of the Board or as may be vested in the Chairman by the Board of Directors.
2.6 Place of Meetings. The Board of Directors may hold meetings, both
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regular and special, either within or without the State of Delaware.
2.7 Annual Meetings. The annual meetings of the Board of Directors shall
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be held immediately following the annual meeting of stockholders, and no notice
of such meeting shall be necessary to the Board of Directors, provided a quorum
shall be present. The annual meetings shall be for the purposes of organization,
and an election of officers and the transaction of other business.
2.8 Regular Meetings. Regular meetings of the Board of Directors may be
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held without notice at such time and place as may be determined from time to
time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given prompt notice of such determination.
A regular meeting may be held immediately following the annual meeting of
stockholders, and at the same place as the annual meeting of stockholders.
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2.9 Special Meetings. Special meetings of the Board of Directors may be
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called by the Chairman of the Board, the Chief Executive Officer, the President,
the Secretary on the written request of two or more directors, or by one
director in the event that there is only one director in office. 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, cable, commercial
delivery service, telex, facsimile transmission or electronic means, charges
prepaid, sent to such director's business or home address as they appear upon
the records of the corporation. In case such notice is mailed, it shall be
deposited in the United States mail at least four days prior to the time of
holding of the meeting. In case such notice is delivered personally or by
telegram, cable, commercial delivery service, telex, facsimile transmission or
electronic means, it shall be so delivered at least twenty-four hours prior to
the time of the holding of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes of the meeting.
2.10 Quorum, Action at Meeting, Adjournments. At all meetings of the Board
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of Directors, a majority of directors then in office, but in no event less than
one third of the entire Board 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 law or by the
certificate of incorporation. For purposes of this Section, the term "entire"
shall mean the number of directors last fixed by the stockholders or directors,
as the case may be, in accordance with law and these by-laws; provided, however,
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that if less than all the number so fixed of directors were elected, the "entire
Board" shall mean the greatest number of directors so elected to hold office at
any one time pursuant to such authorization. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
2.11 Action Without Meeting. Unless otherwise restricted by the
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certificate of incorporation of the corporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board of Directors or committee, as the case may be, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
2.12 Telephone Meetings. Unless otherwise restricted by the certificate of
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incorporation of the corporation or these by-laws, any member of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or of any committee, as the case may be, by means of conference
telephone or similar 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.
2.13 Committees. The Board of Directors may, by resolution passed by a
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majority of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. Any such committee, to the extent
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provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation of the corporation, adopting an agreement of merger
or consolidation, 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 these by-laws of the corporation; and,
unless the resolution designating such committee or the certificate of
incorporation of the corporation expressly so provides, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance
of stock. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and make such reports
to the Board of Directors as the Board of Directors may request. Except as the
Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the directors or in
such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these by-laws for the conduct of its business by the
Board of Directors.
2.14 Fees and Compensation of Directors. Unless otherwise restricted by
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the certificate of incorporation of the corporation or these by-laws, the Board
of Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE 3
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Officers
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3.1 Officers Designated. The officers of the corporation shall be chosen
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by the Board of Directors and shall be a Chief Executive Officer, a President, a
Secretary and a Chief Financial Officer or Treasurer. The Board of Directors may
also choose a Chief Operating Officer, one or more Vice Presidents and one or
more assistant Secretaries or assistant Treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation of the
corporation or these by-laws otherwise provide.
3.2 Election. The Board of Directors at its first meeting after each
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annual meeting of stockholders shall choose a Chief Executive Officer, a
President, a Secretary and a Chief Financial Officer or Treasurer. Other
officers may be appointed by the Board of Directors at such meeting, at any
other meeting or by written consent, or may be appointed by the Chief Executive
Officer pursuant to a delegation of authority from the Board of Directors.
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3.3 Tenure. The officers of the corporation shall hold office until their
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successors are chosen and qualify, unless a different term is specified in the
vote choosing or appointing such officer, or until such officer's earlier death,
resignation or removal. Any officer elected or appointed by the Board of
Directors or by the Chief Executive Officer may be removed with or without cause
at any time by the affirmative vote of a majority of the Board of Directors or a
committee duly authorized to do so, except that any officer appointed by the
Chief Executive Officer may also be removed at any time by the Chief Executive
Officer. Any vacancy occurring in any office of the corporation may be filled by
the Board of Directors, at its discretion. Any officer may resign by delivering
such officer's written resignation to the corporation at its principal place of
business or to the Chief Executive Officer or the Secretary. Such resignation
shall be effective upon receipt unless it is specified to be effective at some
other time or upon the happening of some other event.
3.4 The Chief Executive Officer. Subject to such supervisory powers, if
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any, as may be given by the Board of Directors to the Chairman of the Board, the
Chief Executive Officer shall preside at all meetings of the stockholders and in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He or she shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation.
3.5 The President. The President shall, in the event there shall be no
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Chief Executive Officer or in the absence of the Chief Executive Officer or in
the event of his or her disability or refusal to act, perform the duties of the
Chief Executive Officer, and when so acting, shall have the powers of and
subject to all the restrictions upon the Chief Executive Officer. The President
shall perform such other duties and have such other powers as may from time to
time be prescribed for such person by the Board of Directors or the Chief
Executive Officer.
3.6 The Vice President. The Vice President (or in the event there be more
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than one, the Vice Presidents in the order designated by the directors, or in
the absence of any designation, in the order determined by their tenure in
office) shall, in the absence of the President or in the event of his or her
disability or refusal to act, perform the duties of the President, and when so
acting, shall have the powers of and be subject to all the restrictions upon the
President. The Vice President(s) shall perform such other duties and have such
other powers as may from time to time be prescribed for them by the Board of
Directors or the Chief Executive Officer.
3.7 The Secretary. The Secretary shall attend all meetings of the Board of
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Directors and the stockholders and record all votes and the proceedings of the
meetings in a book to be kept for that purpose and shall perform like duties for
the standing committees, when required. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and special meetings of the Board
of Directors, and shall perform such other duties as may from time to time be
prescribed by the Board of Directors or the Chief Executive Officer, under whose
supervision he or she shall act. The Secretary shall have custody of the seal of
the corporation, and the Secretary, or an Assistant Secretary, shall have
authority to affix the same to any instrument
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requiring it, and, when so affixed, the seal may be attested by his or her
signature or by the signature of such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing thereof by his or her signature. The
Secretary shall keep, or cause to be kept, at the principal executive office 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 issued
for the same and the number and date of cancellation of every certificate
surrendered for cancellation.
3.8 The Assistant Secretary. The Assistant Secretary, or if there be more
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than one, the Assistant Secretaries in the order designated by the Board of
Directors (or in the absence of any designation, in the order determined by
their tenure in office) shall assist the Secretary in the performance of his or
her duties and, 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 may
from time to time be prescribed by the Board of Directors or the Chief Executive
Officer.
3.9 The Chief Financial Officer. The Chief Financial Officer shall have
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the custody of the Corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the corporation in such depositories as may be designated
by the Board of Directors. The Chief Financial Officer shall disburse the funds
of the corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chief Executive Officer
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his or her transactions as Chief
Financial Officer and of the financial condition of the corporation. The Chief
Financial Officer shall perform such other duties and have other powers as may
from time to time be prescribed by the Board of Directors or the Chief Executive
Officer.
3.10 Treasurer and Assistant Treasurers. The Treasurer shall have such
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duties as may be specified by the Chief Financial Officer to assist the Chief
Financial Officer in the performance of his or her duties and to perform such
other duties and have other powers as may from time to time be prescribed by the
Board of Directors or the Chief Executive Officer. It shall be the duty of the
Assistant Treasurers to assist the Treasurer in the performance of his or her
duties and to perform such other duties and have other powers as may from time
to time be prescribed by the Board of Directors or the Chief Executive Officer.
3.11 Bond. If required by the Board of Directors, any officer shall give
----
the corporation a bond in such sum and with such surety or sureties and upon
such terms and conditions as shall be satisfactory to the Board of Directors,
including without limitation a bond for the faithful performance of the duties
of such officer's office and for the restoration to the corporation of all
books, papers, vouchers, money and other property of whatever kind in such
officer's possession or under such officer's control and belonging to the
corporation.
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3.12 Delegation of Authority. The Board of Directors may from time to time
-----------------------
delegate the powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
ARTICLE 4
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Notices
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4.1 Delivery. Whenever, under the provisions of law, or of the certificate
--------
of incorporation of the corporation or these by-laws, written notice is required
to be given to any director or stockholder, such notice may be given by mail,
addressed to such director or stockholder, at such person's address as it
appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail or delivered to a nationally recognized
courier service. Unless written notice by mail is required by law, written
notice may also be given by telegram, cable, telex, commercial delivery
services, facsimile or electronic means, addressed to such director or
stockholder at such person's address as it appears on the records of the
corporation, in which case such notice shall be deemed to be given when
delivered into the control of the persons charged with effecting such
transmission, the transmission charge to be paid by the corporation or the
person sending such notice and not by the addressee. Oral notice or other
in-hand delivery, in person or by telephone, shall be deemed given at the time
it is actually given.
4.2 Waiver of Notice. Whenever any notice is required to be given under
----------------
the provisions of law or of the certificate of incorporation of the corporation
or of these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. In addition to the foregoing,
notice of a meeting need not be given to any director who signs a waiver of
notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals executed under this Section
shall be filed with the corporate records or made a part of the minutes of the
meeting.
ARTICLE 5
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Indemnification
---------------
5.1 Actions Other Than By or in the Right of the Corporation. Subject to
--------------------------------------------------------
Section 5.4 of this Article 5, the corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation to
procure a judgment in its favor) by reason of the fact that such person 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 expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
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connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceedings, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
5.2 Actions By or in the Right of the Corporation. Subject to Section 5.4
---------------------------------------------
of this Article 5, the corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person 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 expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation;
provided, however, that no indemnification shall be made under this Section 5.2
- -------- -------
of this Article 5 in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct in the
performance of such person's duty to the corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery of the State of Delaware or such other court shall
deem proper.
5.3 Success on the Merits. To the extent that any person described in
---------------------
Sections 5.1 or 5.2 of this Article 5 has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in said
Sections, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
5.4 Specific Authorization. Any indemnification under Sections 5.1 or 5.2
----------------------
of this Article 5 (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of any person described in said Sections is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in said Sections. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders of the corporation.
5.5 Advance Payment. Expenses incurred in defending a civil or criminal
---------------
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action,
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suit or proceeding as authorized by the Board of Directors in the manner
provided for in Section 5.4 of this Article 5 upon receipt of an undertaking by
or on behalf of any person described in said Section to repay such amount unless
it shall ultimately be determined that such person is entitled to
indemnification by the corporation as authorized in this Article 5.
5.6 Non-Exclusivity. The indemnification provided by this Article 5 shall
---------------
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
provision of the certificate of incorporation of the corporation, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent of the corporation and shall inure to the
benefit of the heirs, executors and administrators of such a person. Any repeal
or amendment of any of the provisions of this Article 5 shall not adversely
affect any right or potential of any indemnitee existing at the time of such
repeal or amendment.
5.7 Insurance. The Board of Directors may authorize, by a vote of the
---------
majority of the full Board of Directors, the corporation to 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 such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability under the
provisions of this Article 5.
5.8 Severability. If any word, clause or provision of this Article 5 or any
------------
award made hereunder shall for any reason be determined to be invalid, the
provisions hereof shall not otherwise be affected thereby but shall remain in
full force and effect.
5.9 Intent of Article. The intent of this Article 5 is to provide for
-----------------
indemnification to the fullest extent permitted by Section 145 of the General
Corporation Law of the State of Delaware. To the extent that such Section or any
successor Section may be amended or supplemented from time to time, this Article
5 shall be amended automatically and construed so as to permit indemnification
to the fullest extent from time to time permitted by law.
ARTICLE 6
---------
Capital Stock
-------------
6.1 Certificates for Shares. The shares of the corporation shall be
-----------------------
represented by certificates or shall be uncertificated. Certificates shall be
signed by, or in the name of the corporation by, the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President and by the Chief
Financial Officer, the Secretary or an Assistant Secretary of the corporation.
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
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certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue. Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required by the General Corporation Law of the
State of Delaware or a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.2 Transfer of Stock. Upon surrender to the corporation or the transfer
-----------------
agent of the corporation of a certificate of shares duly endorsed or accompanied
by proper evidence of succession, assignation or authority to transfer, and
proper evidence of compliance of other conditions to rightful transfer, it shall
be the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions and proper evidence of compliance
of other conditions to rightful transfer from the registered owner of
uncertificated shares, such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
6.3 Registered Stockholders. The corporation shall be entitled to recognize
-----------------------
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
6.4 Lost, Stolen or Destroyed Certificates. The Board of Directors may
--------------------------------------
direct that a new certificate or certificates be issued to replace any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing the issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of the lost, stolen or destroyed certificate
or certificates, or his or her legal representative, to give reasonable evidence
of such loss, theft or destruction, to advertise the same in such manner as it
shall require, and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed
or the issuance of such new certificate.
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ARTICLE 7
---------
Certain Transactions
--------------------
7.1 Transactions with Interested Parties. No contract or transaction
------------------------------------
between the corporation and one or more of its directors or officers, or between
the corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction or solely because the vote or votes of such director or
officer are counted for such purpose, if:
(a) the material facts as to such person's relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or
(b) the material facts as to such person's relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(c) the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the Board of Directors or a
committee thereof or the stockholders.
7.2 Quorum. Common or interested directors may be counted in determining
------
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE 8
---------
General Provisions
------------------
8.1 Dividends. Dividends upon the capital stock of the corporation, subject
---------
to any restrictions contained in the General Corporation Law of the State of
Delaware or the provisions of the certificate of incorporation of the
corporation, if any, may be declared by the Board of Directors at any regular or
special meeting or by written consent. Dividends may be paid in cash, in
property or in shares of the capital stock, subject to the provisions of the
certificate of incorporation of the corporation.
8.2 Reserves. The Board of Directors may set apart out of any funds of the
--------
corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve.
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8.3 Checks. All checks or demands for money and notes of the corporation
------
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
8.4 Corporate Seal. The Board of Directors may, by resolution, adopt a
--------------
corporate seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced. The seal may be altered from time to time by the Board of
Directors.
8.5 Fiscal Year. The fiscal year of the corporation shall be fixed by
-----------
resolution of the Board of Directors.
8.6 Execution of Corporate Contracts and Instruments. The Board of
------------------------------------------------
Directors, except as otherwise provided in these by-laws, 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.
8.7 Representation of Shares of Other Corporations. Any of the Chief
----------------------------------------------
Executive Officer, the President or any Vice President, the Chief Financial
Officer or the Treasurer or any Assistant Treasurer, or the Secretary or any
Assistant Secretary of the corporation is authorized to vote, represent and
exercise on behalf of the corporation all rights incident to any and all shares
of any corporation or corporations standing in the name of this corporation.
The authority herein granted to said officers to vote or represent on
behalf of the corporation any and all shares held by the corporation in any
other corporation or corporations may be exercised either by such officers in
person or by any other person authorized so to do by proxy or power of attorney
duly executed by any of said officers.
ARTICLE 9
---------
Amendments
----------
Except as provided in the certificate of incorporation of the corporation,
the Board of Directors is expressly empowered to adopt, amend or repeal these
by-laws; provided, however, that any adoption, amendment or repeal of these
-------- -------
by-laws by the Board of Directors shall require the approval of at least a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board of
Directors). Except as provided in the certificate of incorporation of the
corporation, the stockholders shall also have power to adopt, amend or repeal
these by-laws at any regular or special meeting of stockholders; provided,
--------
however, that in addition to any vote of the holders of any class or series of
- -------
stock of
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this corporation required by law or by the certificate of incorporation of this
corporation, the affirmative vote of the holders of at least a majority
of the voting power of all of the then outstanding shares of the stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for such adoption, amendment or
repeal by the stockholders of any provisions of these by-laws and notice of such
adoption, amendment or repeal shall be contained in the notice of such meeting.
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