Exhibit 3.1
BYLAWS
OF
INTEGRATED BIOPHARMA, INC.
Article I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such place
as may be designated from time to time by the Board of Directors, the Chairman
of the Board or the Chief Executive Officer or, if not so designated, at the
principal office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated by
the Board of Directors, the Chairman of the Board or the Chief Executive Officer
(which date shall not be a legal holiday in the place where the meeting is to be
held). If no annual meeting is held in accordance with the foregoing provisions,
a special meeting may be held in lieu of the annual meeting, and any action
taken at that special meeting shall have the same effect as if it had been taken
at the annual meeting, and in such case all references in these Bylaws to the
annual meeting of the stockholders shall be deemed to refer to such special
meeting.
1.3 Special Meetings.
(a) Special meetings of stockholders for any purpose or purposes for which
meetings may be lawfully called, may be called at any time by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or by one or
more stockholders holding shares in the aggregate entitled to cast not less than
fifty percent (50%) of the votes at that meeting. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
(b) If a special meeting is called by anyone other than the Board of Directors,
the Chairman of the Board or the Chief Executive Officer, then the request shall
be in writing, specifying the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by
other written communication, including by electronic transmission, to the
Chairman of the Board, the Chief Executive Officer, any Vice President or the
Secretary of the corporation. Upon receipt of a written request of any person or
persons who have duly called a special meeting, it shall be the duty of the
Secretary of the corporation to fix the date of the meeting to be held at such
date and time as the Secretary may fix, not less than ten (10) nor more than
sixty (60) days after the receipt of the request, and to give due notice thereof
in accordance with the provisions of Section 1.4 of these Bylaws. If the notice
is not given within twenty (20) days after receipt of the request, then the
person or persons requesting the meeting may give the notice. Nothing contained
in this Section 1.3(b) shall be construed as limiting, fixing or affecting the
time when a meeting of stockholders called by action of the Board of Directors
may be held.
1.4 Notice of Meetings. Except as otherwise provided by law, notice of each
meeting of stockholders, whether annual or special, 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. Without limiting the manner by
which notice otherwise may be given to stockholders, any notice shall be
effective if given by a form of electronic transmission consented to (in a
manner consistent with Delaware law) by the stockholder to whom the notice is
given. The notices of all meetings shall state the place, date and time of the
meeting and the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such meeting.
The notice of a special meeting shall state, in addition, the purpose or
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purposes for which the meeting is called. If notice is given by mail, such
notice shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder's address as it appears
on the records of the corporation. If notice is given by electronic
transmission, such notice shall be deemed given at the time specified in Section
232 of the General Corporation Law of the State of Delaware.
1.5 Voting List. The Secretary shall prepare, 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, for a period of at least 10 days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with notice of the meeting, or
(ii) during ordinary business hours, at the principal place of business of the
corporation. 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.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of business.
A quorum, once established at a meeting, shall not be broken by the withdrawal
of enough votes to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned from time to time
to any other time and to any other place at which a meeting of stockholders may
be held under these Bylaws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no stockholder
is present, by any officer entitled to preside at or to act as secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting, and the
means of remote communication, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such adjourned meeting, are
announced at the meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share of
stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided by law or the
Certificate of Incorporation. Each stockholder of record entitled to vote at a
meeting of stockholders may vote in person (including by means of remote
communications, if any, by which stockholders may be deemed to be present in
person and vote at such meeting) or may authorize another person or persons to
vote for such stockholder by a proxy executed or transmitted in a manner
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permitted by Delaware law by the stockholder or such stockholder's authorized
agent and delivered (including by electronic transmission) to the Secretary of
the corporation. No such proxy shall be voted upon after three years from the
date of its execution, unless the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, any matter other
than the election of directors to be voted upon by the stockholders at such
meeting shall be decided by the affirmative vote of the holders of shares of
stock having a majority of the votes cast by the holders of all of the shares of
stock present or represented and voting on such matter (or if there are two or
more classes of stock entitled to vote as separate classes, then in the case of
each such class, the holders of a majority of the stock of that class present or
represented and voting on such matter), except when a different vote is required
by law, the Certificate of Incorporation or these Bylaws. When a quorum is
present at any meeting, any election by stockholders of directors shall be
determined by a plurality of the votes cast by the stockholders entitled to vote
on the election.
1.10 Nomination of Directors.
(a) Except for (i) any directors elected in accordance with Section 2.8 hereof
by the Board of Directors to fill a vacancy or newly-created directorships, or
(ii) as otherwise required by applicable law or stock market regulation, only
persons who are nominated in accordance with the procedures in this Section 1.10
shall be eligible for election as directors. Nomination for election to the
Board of Directors of the corporation at a meeting of stockholders may be made
(i) by or at the direction of the Board of Directors or (ii) by any stockholder
of the corporation who (x) complies with the notice procedures set forth in
Section 1.10(b) and (y) is a stockholder of record on the date of the giving of
such notice and on the record date for the determination of stockholders
entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received in writing by the
Secretary at the principal executive offices of the corporation as follows: (x)
in the case of an election of directors at an annual meeting of stockholders,
not less than 90 days nor more than 120 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 20 days, or delayed by
more than 60 days, from the first anniversary of the preceding year's annual
meeting, a stockholder's notice must be so received not earlier than the 120th
day prior to such annual meeting and not later than the close of business on the
later of (A) the 90th day prior to such annual meeting and (B) the tenth day
following the day on which notice of the date of such annual meeting was mailed
or public disclosure of the date of such annual meeting was made, whichever
first occurs; or (y) in the case of an election of directors at a special
meeting of stockholders, not earlier than the 120th day prior to such special
meeting and not later than the close of business on the later of (A) the 90th
day prior to such special meeting and (B) the tenth day following the day on
which notice of the date of such special meeting was mailed or public disclosure
of the date of such special meeting was made, whichever first occurs. The
stockholder's notice to the Secretary shall set forth: (x) as to each proposed
nominee (i) such person's name, age, business address and, if known, residence
address, (ii) such person's principal occupation or employment, (iii) the class
and number of shares of stock of the corporation which are beneficially owned by
such person, and (iv) any other information concerning such person that must be
disclosed as to nominees in proxy solicitations pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (y) as to
the stockholder giving the notice (i) such stockholder's name and address, as
they appear on the corporation's books, (ii) the class and number of shares of
stock of the corporation which are owned, beneficially and of record, by such
stockholder, (iii) a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the person(s) named in its
notice and (v) a representation whether the stockholder intends or is part of a
group which intends (A) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the corporation's outstanding capital
stock required to elect the nominee and/or (B) otherwise to solicit proxies from
stockholders in support of such nomination; and (z) as to the beneficial owner,
if any, on whose behalf the nomination is being made (i) such beneficial owner's
name and address, (ii) the class and number of shares of stock of the
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corporation which are beneficially owned by such beneficial owner, (iii) a
description of all arrangements or understandings between such beneficial owner
and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made and (iv) a
representation whether the beneficial owner intends or is part of a group which
intends (A) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation's outstanding capital stock requirement
to elect the nominee and/or (B) otherwise to solicit proxies from stockholders
in support of such nomination. In addition, to be effective, the stockholder's
notice must be accompanied by the written consent of the proposed nominee to
serve as a director if elected. The corporation may require any proposed nominee
to furnish such other information as may reasonably be required to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
A stockholder shall not have complied with this Section 1.10(b) if the
stockholder or beneficial owner, if any, on whose behalf the nomination is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholder's nominee in compliance with
the representations with respect thereto required by this Section 1.10.
(c) The chairman of any meeting shall, if the facts warrant, determine that a
nomination was not made in accordance with the provisions of this Section 1.10
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination is made solicited (or is part of a group which solicited) or did
not so solicit, as the case may be, proxies in support of such stockholder's
nominee in compliance with the representations with respect thereto required by
this Section 1.10).
(d) Except as otherwise required by law, nothing in this Section 1.10 shall
obligate the corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.10, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the corporation to present a
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such vote may have been received by the corporation.
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(f) For purposes of this Section 1.10, "public disclosure" shall include
disclosure in a press release reported by the Dow Jones New Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
1.11 Notice of Business at Annual Meetings.
(a) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (iii) properly brought before the
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, (x) if such business relates to the nomination of a
person for election as a director of the corporation, the procedures in Section
1.10 must be complied with and (y) if such business relates to any other matter,
the stockholder must (A) have given timely notice thereof in writing to the
Secretary in accordance with the procedures set forth in Section 1.11(b) and (B)
be a stockholder of record on the date of the giving of such notice and on the
record date for the determination of stockholders entitled to vote at such
annual meeting.
(b) To be timely, a stockholder's notice must be received in writing by the
Secretary at the principal executive offices of the corporation not less than 90
days nor more than 120 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 20 days, or delayed by more than 60
days, from the first anniversary of the preceding year's annual meeting, a
stockholder's notice must be so received not earlier than the 120th day prior to
such annual meeting and not later than the close of business on the later of (A)
the 90th day prior to such annual meeting and (B) the tenth day following the
day on which notice of the date of such annual meeting was mailed or public
disclosure of the date of such annual meeting was made, whichever first occurs.
The 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 address,
as they appear on the corporation's books, of the stockholder proposing such
business, and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (iii) the class and number of shares of stock of
the corporation which are owned, of record and beneficially, by the stockholder
and beneficial owner, if any, (iv) a description of all arrangements or
understandings between such stockholder or such beneficial owner, if any, and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of the
stockholder or such beneficial owner, if any, in such business, (v) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting and (vi) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (A) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the corporation's outstanding
capital stock required to approve or adopt the proposal and/or (B) otherwise to
solicit proxies from stockholders in support of such proposal. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting of stockholders except in accordance with the procedures set
forth in this Section 1.11; provided, that any stockholder proposal which
complies with Rule 14a-8 of the proxy rules (or any successor provision)
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promulgated under the Securities Exchange Act of 1934, as amended, and is to be
included in the corporation's proxy statement for an annual meeting of
stockholders shall be deemed to comply with the requirements of this Section
1.11. A stockholder shall not have complied with this Section 1.11(b) if the
stockholder or beneficial owner, if any, on whose behalf the nomination is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholder's nominee in compliance with
the representations with respect thereto required by this Section 1.11.
(c) The chairman of any meeting shall, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with the
provisions of this Section 1.11 (including whether the stockholder or beneficial
owner, if any, on whose behalf the proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's proposal in compliance with the representation
with respect thereto required by this Section 1.11), and if the chairman should
so determine, the chairman shall so declare to the meeting and such business
shall not be brought before the meeting.
(d) Notwithstanding the foregoing provisions of this Section 1.11, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual meeting of stockholders of the corporation to present business,
such business shall not be transacted, notwithstanding that proxies in respect
of such vote may have been received by the corporation.
(e) For purposes of this Section 1.11, "public disclosure" shall include
disclosure in a press release reported by the Dow Jones New Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
1.12 Conduct of Meetings.
(a) Meetings of stockholders shall be presided over by the Chairman of the
Board, if any, or in the Chairman's absence by the Vice Chairman of the Board,
if any, or in the Vice Chairman's absence by the Chief Executive Officer, or in
the Chief Executive Officer's absence by the President, or in the President's
absence by a Vice President, or in the absence of all of the foregoing persons
by a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen by vote of the stockholders at the meeting. The
Secretary shall act as secretary of the meeting, but in the Secretary's absence
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
(b) The Board of Directors of the corporation may adopt by resolution such
rules, regulations and procedures for the conduct of any meeting of stockholders
of the corporation as it shall deem appropriate including, without limitation,
such guidelines and procedures as it may deem appropriate regarding the
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participation by means of remote communication of stockholders and proxyholders
not physically present at a meeting. Except to the extent inconsistent with such
rules, regulations and procedures as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation, their
duly authorized and constituted proxies or such other persons as shall be
determined; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
(c) The chairman of the meeting shall announce at the meeting when the polls for
each matter to be voted upon at the meeting will be opened and closed. If no
announcement is made, the polls shall be deemed to have opened when the meeting
is convened and closed upon the final adjournment of the meeting. After the
polls close, no ballots, proxies or votes or any revocations or changes thereto
may be accepted.
(d) In advance of any meeting of stockholders, the Board of Directors, the
Chairman of the Board or the Chief Executive Officer shall appoint one or more
inspectors of election to act at the meeting and make a written report thereof.
One or more other persons may be designated as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is present, ready
and willing to act at a meeting of stockholders, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Unless otherwise
required by law, inspectors may be officers, employees or agents of the
corporation. Each inspector, before entering upon the discharge of such
inspector's duties, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of such
inspector's ability. The inspector shall have the duties prescribed by law and
shall take charge of the polls and, when the vote in completed, shall make a
certificate of the result of the vote taken and of such other facts as may be
required by law.
1.13 Action by Consent in Lieu of a Meeting. Whenever the vote of stockholders
at a meeting thereof is required or permitted to be taken for or in connection
with any corporate action, by any provision of statute or of the Certificate of
Incorporation or of these Bylaws, the meeting and vote of stockholders may be
dispensed with, and the action taken without such meeting and 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 of
stock of the corporation entitled to vote thereon were present and voted.
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Article II
DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall be managed
by or under the direction of a Board of Directors, who may exercise all of the
powers of the corporation except as otherwise provided by law or the Certificate
of Incorporation.
2.2 Number, Election and Qualification. The number of directors of the
Corporation shall be established from time to time by the Board of Directors.
Election of directors need not be by written ballot. Directors need not be
stockholders of the corporation.
2.3 Classes of Directors. The Board of Directors shall be and is divided into
three classes: Class I, Class II and Class III.
2.4 Terms of Office. Each director shall serve for a term ending on the date of
the third annual meeting following the annual meeting at which such director was
elected; provided, that each director initially appointed to Class I shall serve
for a term expiring at the corporation's annual meeting of stockholders held in
2006; each director initially appointed to Class III shall serve for a term
expiring at the corporation's annual meeting of stockholders held in 2007; and
each director initially appointed to Class II shall serve for a term expiring at
the corporation's annual meeting of stockholders held in 2008; provided,
further, that the term of each director shall continue until the election and
qualification of a successor and be subject to such director's earlier death,
resignation or removal.
2.5 Quorum. A majority of the directors at any time in office shall constitute a
quorum for the transaction of business. If at any meeting of the Board of
Directors there shall be less than such a quorum, a majority of the directors
present may adjourn the meeting from time to time without further notice other
than announcement at the meeting, until a quorum shall be present.
2.6 Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors unless a greater number is
required by law or by the Certificate of Incorporation.
2.7 Removal. Directors of the corporation may be removed only for cause and only
by the affirmative vote of the holders of a majority of the votes which all the
stockholders would be entitled to cast in any annual election of directors or
class of directors.
2.8 Vacancies. Any vacancy or newly-created directorships in the Board of
Directors, however occurring shall be filled only by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director and shall not be filled by the stockholders. A director elected to fill
a vacancy shall hold office until the next election of the class for which such
director shall have been chosen, subject to the election and qualification of a
successor and to such director's earlier death, resignation or removal.
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2.9 Resignation. Any director may resign by delivering a resignation in writing
or by electronic transmission to the corporation at its principal office or to
the Chairman of the Board, the Chief Executive Officer or the Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some later time or upon the happening of some later event.
2.10 Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and place as shall 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 notice of the determination. A regular
meeting of the Board of Directors may be held without notice immediately after
and at the same place as the annual meeting of stockholders.
2.11 Special Meetings. Special meetings of the Board of Directors may be held at
any time and place designated in a call by the Chairman of the Board, the Chief
Executive Officer, two or more directors, or by one director in the event that
there is only a single director in office.
2.12 Notice of Special Meetings. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
in person or by telephone or electronic mail at least 24 hours in advance of the
meeting, (ii) by sending a telegram or telecopy or delivering written notice by
hand, to such director's last known business or home address at least 48 hours
in advance of the meeting, or (iii) by sending written notice, via first-class
mail or reputable overnight courier, to such director's last known business or
home address at least 72 hours in advance 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.
2.13 Meetings by Conference Communications Equipment. Directors may participate
in meetings of the Board of Directors or any committee thereof by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation by
such means shall constitute presence in person at such meeting.
2.14 Action by Consent. 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 to the action in writing or by electronic transmission, and
the written consents or electronic transmissions are filed with the minutes of
proceedings of the Board of Directors or committee.
2.15 Committees. The Board of Directors may designate one or more committees,
each committee to consist of one or more of the directors of the corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
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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
and subject to the provisions of law, 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. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time
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 Bylaws for the Board of
Directors.
2.16 Compensation of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
Article III
OFFICERS
3.1 Titles. The officers of the corporation shall consist of a Chief Executive
Officer, a President, a Secretary, a Treasurer and such other officers with such
other titles as the Board of Directors may from time to time determine,
including a Chairman of the Board, a Vice Chairman of the Board, and one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of
Directors may appoint such other officers as it may deem appropriate.
3.2 Election. The Chief Executive Officer, President, Treasurer and Secretary
shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders. Other officers may be appointed by
the Board of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may
be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws, each officer shall hold office until such
officer's successor is elected and qualified, unless a different term is
specified in the resolution electing or appointing such officer, or until such
officer's earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering a written
resignation to the corporation at its principal office 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 later time or upon the happening
of some later event.
Any officer may be removed at any time, with or without cause,
by vote of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no
officer who resigns or is removed shall have any right to any compensation as an
officer for any period following such officer's resignation or removal, or any
right to damages on account of such removal, whether such officer's compensation
be by the month or by the year or otherwise, unless such compensation is
expressly provided in a duly authorized written agreement with the corporation.
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3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of Chief Executive Officer,
Treasurer and Secretary. Each such successor shall hold office for the unexpired
term of such officer's predecessor and until a successor is elected and
qualified, or until such officer's earlier death, resignation or removal.
3.7 Chairman of the Board. The Board of Directors may appoint from its members a
Chairman of the Board, who need not be an employee or officer of the
corporation. If the Board of Directors appoints a Chairman of the Board, such
Chairman shall perform such duties and possess such powers as are assigned by
the Board of Directors and, if the Chairman of the Board is also designated as
the corporation's Chief Executive Officer, shall have the powers and duties of
the Chief Executive Officer prescribed in Section 3.8 of these Bylaws. Unless
otherwise provided by the Board of Directors, the Chairman of the Board shall
preside at all meetings of the Board of Directors and stockholders.
3.8 Chief Executive Officer. The Chief Executive Officer shall have general
charge and supervision of the business of the Corporation subject to the
direction of the Board of Directors.
3.9 President. The President shall perform such other duties and shall have such
other powers as the Board of Directors and the Chief Executive Officer (if the
Chairman of the Board or another person is serving in such position) may from
time to time prescribe.
3.10 Vice Presidents. Any Vice President shall perform such duties and possess
such powers as the Board of Directors or the Chief Executive Officer may from
time to time prescribe. In the event of the absence, inability or refusal to act
of the Chief Executive Officer or the President, the Vice President (or if there
shall be more than one, the Vice Presidents in the order determined by the Board
of Directors) shall perform the duties of the Chief Executive Officer and when
so performing shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer. The Board of Directors may assign
to any Vice President the title of Executive Vice President, Senior Vice
President or any other title selected by the Board of Directors.
3.11 Secretary and Assistant Secretaries. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the secretary, including without limitation the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents.
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Any Assistant Secretary shall perform such duties and possess
such powers as the Board of Directors, the Chief Executive Officer or the
Secretary may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Secretary.
In the absence of the Secretary or any Assistant Secretary at
any meeting of stockholders or directors, the chairman of the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.12 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties
and shall have such powers as may from time to time be assigned by the Board of
Directors or the Chief Executive Officer. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these Bylaws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess
such powers as the Board of Directors, the Chief Executive Officer or the
Treasurer may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Treasurer, the Assistant Treasurer (or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Treasurer.
3.13 Salaries. Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by
the Board of Directors.
Article IV
CAPITAL STOCK
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and subject to
the provisions of the Certificate of Incorporation, the whole or any part of any
unissued balance of the authorized capital stock of the corporation or the whole
or any part of any shares of the authorized capital stock of the corporation
held in the corporation's treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such lawful
consideration and on such terms as the Board of Directors may determine.
4.2 Certificates of Stock. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and by
the Board of Directors, certifying the number and class of shares owned by such
holder in the corporation. Each such certificate shall be signed by, or in the
name of the corporation by, the Chairman or Vice Chairman, if any, 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. Any or all of the signatures on the certificate may be a facsimile.
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Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, these
Bylaws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
There shall be set forth on the face or back of each
certificate representing shares of such class or series of stock of the
corporation a statement that the corporation will furnish without charge to each
stockholder who so requests a copy of the full text of 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.
4.3 Transfers. Except as otherwise established by rules and regulations adopted
by the Board of Directors, and subject to applicable law, shares of stock may be
transferred on the books of the corporation by the surrender to the corporation
or its transfer agent of the certificate representing such shares properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or by these
Bylaws, the corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in accordance with
the requirements of these Bylaws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record
date for the determination of the stockholders entitled to notice of or to vote
at any meeting of stockholders, or entitled to receive payment of any dividend
or other distribution or allotment of any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action.
Such record date shall not be more than 60 nor less than 10 days before the date
of such meeting, nor more than 60 days prior to any other action to which such
record date relates.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. If no record date is fixed, 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.
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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.
Article V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
5.1 General. 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) by reason of the
fact that he 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 him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 no reasonable cause to believe his 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 he 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 his conduct was unlawful.
5.2 Derivative Actions. 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 he 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 him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable 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 or such other court shall deem proper.
5.3 Indemnification in Certain Cases. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
5.1 and 5.2, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
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5.4 Procedure. Any indemnification under Sections 5.1 and 5.2 (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such Sections 5.1 and 5.2. Such
determination shall be made (a) 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 (b) 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 (c) by the stockholders.
5.5 Advances for Expenses. 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, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall be ultimately determined that he is not entitled to be
indemnified by the corporation as authorized in this Article V.
5.6 Rights Not Exclusive. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this Article V
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any law,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
5.7 Insurance. The corporation shall have power 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
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 this Article V.
5.8 Definition of Corporation. For the purposes of this Article VI, references
to "the corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation so
that any person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article V with respect to the resulting or
surviving corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
5.9 Survival of Rights. The indemnification and advancement of expenses provided
by, or granted pursuant to this Article V shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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Article VI
GENERAL PROVISIONS
6.1 Fiscal Year. Except as from time to time otherwise designated by the Board
of Directors, the fiscal year of the corporation shall begin on the first day of
July of each year and end on the last day of June in each year.
6.2 Corporate Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
6.3 Waiver of Notice. Whenever notice is required to be given by law, by the
Certificate of Incorporation or by these Bylaws, a written waiver signed by the
person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before, at or after the time stated in such notice,
shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened.
6.4 Voting of Securities. Except as the Board of Directors may otherwise
designate, the Chief Executive Officer or the Treasurer may waive notice of, and
act as, or appoint any person or persons to act as, proxy or attorney-in-fact
for this corporation (with or without power of substitution) at any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
6.5 Evidence of Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
6.6 Certificate of Incorporation. All references in these Bylaws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
6.7 Severability. Any determination that any provision of these Bylaws is for
any reason inapplicable, illegal or ineffective shall not affect or invalidate
any other provision of these Bylaws.
6.8 Pronouns. All pronouns used in these Bylaws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
6.9 Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for
the payment of money of the corporation shall be signed, endorsed or accepted in
the name of the corporation by such officer, officers, person or persons as from
time to time may be designated by the Board of Directors or by an officer or
officers authorized by the Board of Directors to make such designation.
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6.10 Execution of Contracts, Deeds, Etc. The Board of Directors may authorize
any officer or officers, agent or agents, in the name and on behalf of the
corporation to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances.
Article VII
AMENDMENTS
These Bylaws may be altered, amended or repealed, in whole or
in part, or new Bylaws may be adopted by the Board of Directors or by the
stockholders as provided in the Certificate of Incorporation.
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