Exhibit 3.3
RESTATED BYLAWS
OF
SANDISK CORPORATION
(Amended as of February 1, 1996)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
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County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
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both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
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directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year
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1996, shall be held at such place, date and hour as shall be fixed by the Board
of Directors (the "Board") and stated in the notice of the meeting, at which the
stockholders shall elect a board of directors, and transact such other business
as may properly be brought before the meeting.
shall be held at such place, date and hour as shall be fixed by the Board of
Directors (the "Board") and stated in the notice of the meeting, at which the
stockholders shall elect a board of directors, and transact such other business
as may properly be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place,
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date and hour of the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
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corporation shall prepare and make, or cause a third party to prepare and make,
at least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or
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purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the Board of
Directors, or at the request in writing of stockholders owning at least a
majority
of the entire capital stock of the corporation issued and outstanding and
entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting
Section 6. Written notice of a special meeting stating the place, date
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and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given 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.
Section 7. Business transacted at any special meeting of stockholders
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shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
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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 shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty 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.
Section 9. When a quorum is present at any meeting, the vote of the
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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, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. 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, but no proxy shall be voted on
after three 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 the General corporation Law of Delaware.
Section 11. Provided the candidate's name has been placed in
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nomination prior to the voting and one or more stockholders has given notice at
the meeting prior to the voting of the stockholder's intent to cumulate the
stockholder's votes, every stockholder entitled to vote at any election for
directors shall have the right to cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of directors to be elected
multiplied by the number of votes to which the stockholder's shares are normally
entitled, or distribute the stockholder's votes on the same principle among as
many candidates as the stockholder shall
think fit. The candidates receiving the highest number of votes of the shares
entitled to be voted for them up to the number of directors to be elected by
such shares are elected.
Section 12. Unless otherwise provided in the certificate of
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incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which 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, shall be 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. 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.
Section 13. At any meeting of the stockholders, only such business
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shall be conducted as shall have been properly brought before the meeting. To be
properly brought before a 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;
(b) otherwise properly brought before the meeting by or at the
direction of a majority of the total number of directors which the corporation
would have if there were no vacancies (the "Whole Board"); or
(c) otherwise properly be requested to be brought before any meeting
by a
stockholder.
For business to be properly requested to be brought before any 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 to or mailed and received at the principal executive
offices of the corporation, not less than eighty (80) days prior to the meeting;
provided, however, that in the event that the date of the meeting is not
publicly announced by the corporation by mail, press release or otherwise more
than ninety (90) days prior to the meeting, notice by the stockholder to be
timely must be delivered to the secretary of the corporation not later than the
close of business on the tenth day following the day on which such announcement
of the date of the meeting was communicated to stockholders. A stockholder's
notice to the secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting,
(b) the name and address of the stockholder proposing such business,
(c) a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote on such business on the date of such
notice and, if applicable, intends to appear in person or by proxy at the
meeting to introduce the business specified in the notice;
(d) the class and number of shares of the corporation which are
beneficially owned by the stockholder,
(e) such other information regarding each matter of business to be
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the matter been proposed, or intended to be proposed, by the
Board of Directors, and
(f) any material interest of the stockholder in such business.
Notwithstanding anything in the bylaws to the contrary, no business shall be
conducted at any meeting except in accordance with the procedures set forth in
this Section 12 of the bylaws. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of this Section
12 of the bylaws, and if he/she should so determine, he/she shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this Section 12,
a stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 12.
Section 14. Subject to the rights of holders of any class or series of
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stock having a preference over the Common Stock as to dividends or upon
liquidation, nominations for the election of directors may be made by the Board
of Directors or a committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally. However,
any stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been received by the secretary
of the corporation not less than 80 days in advance of such meeting; provided
however, that in the event that the date of the meeting was not publicly
announced by the corporation by mail, press release or otherwise more than 90
days prior to the meeting, notice by the stockholder to be timely must be
delivered to the secretary of the corporation not later than the close of
business on the tenth day following the day on which such announcement of the
date of the meeting was communicated to stockholders. Each such notice shall
set forth:
(a) The name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) A representation that the stockholder is a holder of record of
stock of the corporation entitled to vote for the election of directors on the
date of such notice and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice;
(c) A description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder;
(d) Such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and
(e) The consent of each nominee to serve as a director of the
corporation if so elected.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
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board shall be seven (7). Each director shall be elected at the annual meeting
of the stockholders except as provided in Section 2 of this Article III, and
shall hold office until his or her successor is elected and qualified. Directors
need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
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any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, except that in the event a director is removed by the
stockholders for cause, the stockholders shall be entitled to fill the vacancy
created as a result of such removal. The directors so chosen shall serve for the
remainder of the term of the vacated directorships being filled and until their
successors are duly elected and shall qualify, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute.
Section 3. The business of the corporation shall be managed by or
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under the direction of its board of directors, which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may hold
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meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected Board of Directors
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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. In 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.
Section 6. Regular meetings of the Board of Directors may be held
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without notice at such time and at such place as shall from time to time be
determined by the board.
Section 7. Special meetings of the board may be called by the
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president or chairman on five (5) days' notice to each director by mail or
twenty-four (24) hours notice to each director either personally or by
telephone, telegram or facsimile; special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors unless the board consists of only one director, in which case
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of the sole director. A written waiver
of notice, signed by the person entitled thereto, whether before or after the
time of the meeting stated therein, shall be deemed equivalent to notice.
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Section 8. At all meetings of the board a majority of the then
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existing directors shall constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Meetings of the Board of Directors shall be presided over
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by the chairman of the board, if any, or in his or her absence by the president,
or in their absence by a chairman chosen at the meeting. The secretary shall act
as secretary of the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the meeting. The chairman
of any meeting shall determine the order of business and the procedures at the
meeting.
Section 10. Unless otherwise restricted by the certificate of
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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, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 11. Unless otherwise restricted by the certificate of
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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
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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.
COMMITTEES OF DIRECTORS
Section 12. The Board of Directors may, by resolution passed by a
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majority of the whole board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
In the absence of 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/she 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, 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, 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 the
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bylaws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, 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.
Section 13. Each committee shall keep regular minutes of its meetings
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and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate of
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incorporation or these bylaws, the Board of Directors shall have the authority
to fix the compensation of directors. Director compensation may include, among
other things, payment of their expenses, if any, of attendance at each meeting
of the Board of Directors, payment of a fixed sum for attendance at each meeting
of the Board of Directors or payment of 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.
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the
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certificate of incorporation or bylaw, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority
of shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
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certificate of incorporation or of these bylaws, notice is required to be given
to any director or stockholder, such notice may be given in writing, by mail,
addressed to such director or stockholder, at his 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. An affidavit of the secretary or an assistant secretary or of the
transfer agent of the corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein. Notice to
directors may also be given personally or by telephone or telegram.
Section 2. Whenever any notice is required to be given under the
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provisions of the statutes or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether
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before or after the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
ARTICLE V
OFFICERS
Section 1. The Board of Directors shall designate certain officers of
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the corporation as executive officers of the corporation, and such executive
officers shall include the chairman of the board, if any, and the president, one
of whom shall be designated as the chief executive officer, the chief financial
officer, and such other officers as the Board of Directors may designate.
The Board of Directors may also create other offices of the
corporation that are not designated as executive offices and such non-executive
offices may include one or more vice-presidents, a secretary, assistant
secretaries, a treasurer, a
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controller and other assistants to the chief financial officer.
Section 2. The executive officers of the corporation shall be its
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members a chairman of the and one or more vice-chairmen of the board. The
non-executive officers of the corporation may be appointed by the Board of
Directors or by the chief executive officer. Any number of offices may be held
by the same person, unless the certificate of incorporation or these bylaws
otherwise provide.
Section 3. The Board of Directors at its first meeting after each
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annual meeting of stockholders shall choose a president or chief executive
officer, a chief financial officer and such other executive officers as the
board may elect.
Section 4. With respect to the non-executive offices established by
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the Board of Directors, the Board of Directors or, if so delegated by the , the
chief executive officer may appoint such other non-executive officers, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors
or by the president.
Section 5. The compensation of all the executive officers of the
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corporation shall be fixed by the Board of
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Directors, and the salaries of all the non-executive officers of the
corporation shall be fixed by the Board of Directors or, if so delegated by the
Board, the chief executive officer.
Section 6. The officers of the corporation shall hold office until
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their successors are duly elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any non- executive
officer appointed by the chief executive officer may be removed at any time by
such person. Any vacancy occurring in any office of the corporation appointed by
the Board of Directors shall be filled by the Board of Directors, and any
vacancy occurring in any non- executive office of the corporation appointed by
the chief executive officer shall be filled by the Board of Directors or by the
chief executive officer.
THE CHAIRMAN OF THE BOARD
Section 7. The chairman of the board, if any, shall preside at all
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meetings of the Board of Directors and of the stockholders at which he/she shall
be present. he/she shall have and may exercise such powers as are, from time to
time, assigned to him by the Board and as may be provided by law.
Section 8. In the absence of the chairman of the board,
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the vice-chairman of the board, if any, shall preside at all meetings of the
Board of Directors and of the stockholders at which he/she shall be present.
he/she shall have and may exercise such powers as are, from time to time,
assigned to him by the and as may be provided by law.
THE PRESIDENT AND VICE-PRESIDENT
Section 9. The president shall be the chief executive officer of the
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corporation; and in the absence of the chairman and vice-chairman of the board,
he/she shall preside at all meetings of the stockholders and the Board of
Directors; he/she 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.
Section 10. The president or any vice-president shall execute bonds,
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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.
Section 11. In the absence of the president or in the event of his
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inability or refusal to act, the vice-president, if any, (or in the event there
be more than one vice-president, the
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vice-presidents in the order designated by the directors, or in the absence of
any designation, then in the order of their election) shall perform the duties
of the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice- presidents shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 12. The secretary shall attend all meetings of the Board of
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Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He/she shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
president, under whose supervision he/she shall be. He/she shall have custody of
the corporate seal of the corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his 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
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affixing by his signature.
Section 13. The assistant secretary, or if there be more than one, the
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assistant secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his 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 may from
time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 14. The chief financial officer shall keep and maintain, or
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cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings and shares. The books of account shall at all
reasonable times be open to inspection by any director.
Section 15. The chief financial officer shall deposit all money and
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other valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board of Directors. He/she shall
disburse the funds of the corporation as may be ordered by the Board of
Directors, shall
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render to the president and directors, whenever they request it, an account of
all of his transactions as chief financial officer 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.
Section 16. If required by the Board of Directors, the chief financial
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officer shall give the corporation a bond (which shall be renewed every six
years) in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation.
Section 17. The treasurer, controller and the other assistants to the
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chief financial officer in the order determined by the Board of Directors or the
chief executive officer (or if there be no such determinations then in the order
of their election) shall, in the absence of the chief financial officer or in
the event of his inability or refusal to act, perform the duties and exercise
the powers of the chief financial officer and shall perform such other duties
and have such other powers as the Board of Directors or the chief executive
officer may from time to
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time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
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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 a
vice-president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
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.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
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issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on the certificate may be
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facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he/she
were such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
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certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation
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alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, 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.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
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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 upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine
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the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or 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 stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting: provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
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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
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otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
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subject to the provisions of the certificate of incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out
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of any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purposes as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the
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corporation shall be signed by such officer or officers or
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such other person or persons as the Board of Directors may from time to time
designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
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resolution of the Board of Directors.
SEAL
Section 5. The Board of Directors may adopt a corporate seal having
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inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 6. The corporation shall indemnify its officers and directors
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to the full extent and in the manner permitted by the General Corporation Law of
Delaware against expenses (including attorneys' fees), judgements, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding arising by reason of the fact such person is or was an agent
of the corporation. Reasonable expenses incurred by a director or officer of the
corporation in defending a civil or criminal action, suit or proceeding by
reason of the fact that he/she is or was a director or officer of the
corporation (or was
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serving at the corporation's request as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise) shall be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of a statement from such director or officer
requesting such advance and an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he/she
is not entitled to be indemnified by the corporation as authorized by relevant
sections of the General Corporation Law of Delaware.
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 (in addition to 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, an "employee" or "agent" of the corporation includes
any person (i) who is or was an employee or agent of the corporation, or (ii)
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.
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A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit. If the Delaware General Corporation Law is hereafter amended
to authorize, with the approval of a corporation's stockholders, further
reductions in the liability of the corporation's directors for breach of
fiduciary duty, then a director of the corporation shall not be liable for any
such breach to the fullest extent permitted by the Delaware General Corporation
Law as so amended. Any repeal or modification of the foregoing provisions of
this Article VII, Section 6 by the stockholders of the corporation shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
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
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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.
The foregoing rights of indemnification shall not be deemed exclusive
of any other rights to which any director or officer may be entitled apart from
the provisions of this Article VII.
CORPORATION STOCKHOLDINGS
Section 7. The chairman of the board, the president, the chief
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financial officer, or any other person authorized by the Board of Director 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.
ARTICLE VIII
AMENDMENTS
Section 1. These bylaws may be altered, amended or
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30.
repealed or new bylaws may be adopted by the stockholders or by the Board of
Directors, when such power is conferred upon the Board of Directors by the
certificate of incorporation, at any regular meeting of the stockholders or of
the Board of Directors or at any special meeting of the stockholders or of the
Board of Directors if notice of such alteration, amendment, repeal or adoption
of new bylaws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal bylaws is conferred upon the Board of Directors by
the certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
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