AMENDED AND RESTATED BYLAWS
OF
HMZ METALS, INC.,
a Delaware corporation
(formerly known as Biogan International, Inc.)
ARTICLE I
OFFICES
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Section 1. REGISTERED OFFICE. The registered office of the Corporation
in the State of Delaware shall be CorpAmerica, Inc., 30 Old Rudnick Lane, City
of Dover, Kent County, Delaware 19901, but such registered office may be changed
from time to time by the Board of Directors in the manner provided by law and
need not be identical to the principal place of business of the Corporation.
Section 2. OTHER OFFICES. The Corporation may also maintain or
establish an office or offices at such other place or places, within or without
the State of Delaware, as the Board of Directors may from time to time determine
by resolution.
ARTICLE II
STOCKHOLDERS
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Section 1. ANNUAL MEETING. If required by applicable law, an annual
meeting of the stockholders shall be held for the election of directors at such
date, time and place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by law, may be called by
the Board of Directors, the Chairman of the Board or the President, and shall be
called by the Secretary of the Corporation at the request in writing by holders
of not less than a majority of the total voting power of all outstanding
securities of the Corporation then entitled to vote. Each special meeting of the
stockholders shall be held, respectively, at any place within or without the
State of Delaware as determined by the Board of Directors, or as designated in a
waiver of notice signed by all of the stockholders. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice of such meeting.
Section 3. NOTICE OF MEETINGS.
(a) Whenever stockholders are required or permitted
to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and
hour of the meeting and, in the case of a special meeting, the
notice shall state the purpose or purposes for which the
meeting is called. Unless otherwise provided by law, such
notice shall be given not less than ten (10) days nor more
than sixty (60) days before the date of the meeting. Notice
shall be delivered either personally or by mail to each
stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited
in the United States mail, postage prepaid, addressed to the
stockholder at such stockholder's address as it appears on the
records of the Corporation.
(b) A written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any regular
or special meeting need be specified in any written waiver of
notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person
attends the 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.
Section 4. ADJOURNMENTS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
any such adjourned meeting at which a quorum is present, the Corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 5. QUORUM. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, at each meeting of stockholders the presence
in person or by proxy of the holders of a majority in voting power of the
outstanding shares of stock entitled to vote at the meeting shall be necessary
and sufficient to constitute a quorum. In the absence of a quorum, the
stockholders so present may, by a majority in voting power thereof, adjourn the
meeting from time to time in the manner provided in Section 4 of these Bylaws
until a quorum shall attend. Shares of its own stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation or any subsidiary of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 6. ORGANIZATION. The President of the Corporation, or in the
event of his absence or omission or refusal to act, an officer designated by the
Board of Directors, shall call each meeting of the stockholders to order and
shall act as Chairperson of such meeting. If for any reason whatsoever neither
the President nor the officer who called the meeting acts or will act as the
Chairperson of the meeting of the stockholders, then the stockholders present,
in person or by proxy, and entitled to vote thereat may by majority vote appoint
a stockholder who shall act as Chairperson of the meeting. The Secretary of the
Corporation, or in the event of such person's absence or omission or refusal to
act, the person selected by the Chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof.
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Section 7. VOTING. Unless otherwise provided in the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one (1) vote for each share of stock held by such
stockholder which has voting power upon the matter in question. Voting at
meetings of stockholders need not be by written ballot. At all meetings of
stockholders for the election of directors, a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by the Certificate of Incorporation, these Bylaws, the rules
or regulations of any national securities exchange or interdealer quotation
system of a registered national securities association applicable to the
Corporation, or any applicable law or pursuant to any regulation applicable to
the Corporation or its securities, be decided by the affirmative vote of the
holders of a majority in voting power of the shares of stock of the Corporation
which are present in person or by proxy and entitled to vote thereon.
Section 8. ATTENDANCE AND PROXIES. Each stockholder entitled to vote at
a meeting of stockholders or to express consent or dissent to corporate action
in writing without a meeting may authorize another person or persons to act for
such stockholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by delivering a proxy in accordance with
applicable law bearing a later date to the Secretary of the Corporation.
Section 9. SHARES HELD BY FIDUCIARIES, PLEDGEES AND JOINT OWNERS OF
STOCK. Persons holding stock in a fiduciary capacity shall be entitled to vote
the shares so held. Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the Corporation such
person has expressly empowered the pledgee to vote therein, in which case only
the pledgee or such pledgee's proxy may represent such stock and vote thereon.
If shares or other securities having voting power stand of record in the names
of two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary of the Corporation is given written notice to the contrary
and is furnished with a copy of the instrument or order appointing them or
creating a relationship wherein it is so provided, their acts with respect to
voting shall have the following effect: (1) if only one votes, such person's act
binds all; (2) if more than one vote, the act of the majority so voting binds
all; (3) if more than one vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question proportionally, or any
person voting the shares, or a beneficiary, if any, may apply to the Court of
Chancery or such other court as may have jurisdiction to appoint an additional
person to act with the person so voting the shares, which shall then be voted as
determined by a majority of such persons and the person appointed by the Court.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even split for the purpose of this section shall be a
majority or even split in interest.
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Section 10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof (other than to
express consent to corporate action in writing without a
meeting), the Board of Directors may fix a record date, which
record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty
(60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held. 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.
(b) In order that the Corporation may determine the
stockholders 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 a record date, which
record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty
(60) days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
Section 11. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by
the Certificate of Incorporation, any action required or permitted to be taken
at any annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents 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 and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which minutes of proceedings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall, to the extent required by law, be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
Corporation. Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty (60) days of
the earliest dated consent delivered to the Corporation in the manner required
by this Section 12, written consents signed by a sufficient number of holders to
take such action are delivered to the Corporation in the manner required by this
Section 12.
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Section 12. RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order that
the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by applicable law, shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
to any officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
Section 13. VOTING LIST. The Secretary of the Corporation shall prepare
and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. 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 (10) 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. Upon the willful
neglect or refusal of the directors to produce such a list at any meeting for
the election of directors, they shall be ineligible for election to any office
at such meeting. Except as otherwise provided by law, the stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section 14. INSPECTORS OF ELECTION. The Corporation may, and shall if
required by law, in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation, to act at the
meeting or any adjournment thereof and to make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of duties of inspector, 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 or inspectors so appointed or designated shall: (i) ascertain the
number of shares of capital stock of the Corporation outstanding and the voting
power of each such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies and ballots,
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(iii) count all votes and ballots, (iv) determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination
by the inspectors, and (v) certify their determination of the number of shares
of capital stock of the Corporation represented at the meeting and such
inspectors' count of all votes and ballots. Such certification and report shall
specify such other information as may be required by law. In determining the
validity and counting of proxies and ballots cast at any meeting of stockholders
of the Corporation, the inspectors may consider such information as is permitted
by applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
ARTICLE III
BOARD OF DIRECTORS
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Section 1. BOARD OF DIRECTORS. The business, property and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors and, subject to such restrictions as may be imposed by law, the
Certificate of Incorporation or these Bylaws, the Board of Directors may
exercise all of the powers of the Corporation. Directors need not be residents
of the State of Delaware nor stockholders of the Corporation.
Section 2. NUMBER OF DIRECTORS. The Board of Directors shall consist of
one or more members, the number thereof to be determined from time to time by
resolution of the Board of Directors, except as otherwise provided by law or the
Certificate of Incorporation.
Section 3. ELECTION AND TERM. Except as otherwise provided in Section 5
of this Article III, the directors shall be elected each year at the annual
meeting of the stockholders, or at a special meeting of the stockholders held in
lieu of the annual meeting if the same is not held when provided for by these
Bylaws. Each director shall hold office until such director's successor is duly
elected and qualified or until such director's earlier death, resignation,
disqualification or removal.
Section 4. RESIGNATION. Any director or officer of the Corporation may
resign at any time by giving written notice of such director's resignation to
the Corporation. The resignation shall take effect at the time specified in the
notice, or if no time is specified, at the time of its receipt by either the
Board of Directors, the President or the Secretary of the Corporation. The
acceptance of a resignation shall not be necessary to make it effective unless
expressly so provided in the resignation.
Section 5. VACANCY AND INCREASE. Any vacancy on the Board of Directors
and any newly created directorships resulting from any increase in the
authorized number of directors may be filled by the affirmative vote of a
majority of the remaining directors, although such majority is less than a
quorum, or by the sole remaining director. Each director so elected shall hold
office until the expiration of the term of office of such director's predecessor
in office or until such director's successor is duly elected and qualified.
Section 6. REMOVAL. Except as otherwise provided by the Delaware
General Corporation Law, any director of the Corporation may be removed from
office at any time, with or without cause, by a majority of the stockholders
entitled to vote at any stockholders' meeting at which a quorum is present.
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ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
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Section 1. PLACE OF MEETINGS. The Board of Directors of the Corporation
may hold meetings, both annual and special, either within or without the State
of Delaware.
Section 2. ANNUAL MEETINGS. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of the stockholders,
on the same day and at the same place where such annual meeting shall be held.
Notice of the annual meeting of the Board of Directors need not be given. In the
event the annual meeting of the stockholders is not so held, the annual meeting
of the Board of Directors may be held at such place, either within or without
the State of Delaware, on such date and at such time as specified in a written
notice thereof provided in accordance with Section 4 of this Article V.
Section 3. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held whenever and wherever called by the President, the Chief Executive
Officer, the Chairman of the Board, the Secretary or by any member of the Board
of Directors then in office at the place, day and time determined by the person
or persons calling the meeting.
Section 4. NOTICE. The Secretary or an officer designated by the Board
of Directors shall give notice to each director of the date, time and place of
each special meeting of the Board of Directors. Such notice shall be given
either by United States mail at least three (3) days prior to the meeting or
delivered personally or by telephone, telegram or telecopier to each director at
least twenty-four (24) hours prior to the meeting. The attendance of a director
at any meeting shall constitute a waiver of notice of such meeting, except where
a director attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. In addition, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice.
Section 5. ACTION BY WRITTEN 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 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 such committee.
Section 6. MEETING BY CONFERENCE TELEPHONE. Members of the Board of
Directors, or any committee of the Board, may participate in a meeting of the
Board or such committee by means of conference telephone or similar
communications equipment so long as all persons participating in the meeting can
hear each other. Such participation shall constitute presence in person at such
meeting.
Section 7. QUORUM. A majority of the total number of directors shall
constitute a quorum for the transaction of any and all business. If at any
meeting of the Board of Directors less than a quorum is present, a majority of
those directors present may adjourn the meeting without notice, other than by
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announcement at the meeting, until a quorum shall be present. The act of a
majority of the directors present at any meeting of the Board of Directors at
which a quorum is present shall constitute the act of the Board of Directors
unless the act of a greater number is required by law, the Certificate of
Incorporation or these Bylaws. Section
8. COMPENSATION. The Board of Directors shall have the authority to fix
the compensation of the directors. The directors may be paid for their expenses,
if any, incurred in attending each Board meeting and may be paid a fixed sum for
attendance at each meeting or a stated salary as a director. Nothing contained
herein shall preclude any director from serving the Corporation in any other
capacity or from receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings if
approved by resolution of the Board of Directors.
Section 9. ORDER OF BUSINESS. At all meetings of the Board of
Directors, business shall be transacted in such order as from time to time the
Board of Directors may determine. The Chairman of the Board shall preside at all
meetings of the Board, provided, however, that in the absence of the Chairman at
the meeting, a temporary chairman shall be chosen by the Board from among the
directors present and such temporary chairman so chosen shall preside at the
meeting. The Secretary of the Corporation, or in the event of such person's
absence or omission or refusal to act, the person selected by the Chairman of
the meeting, shall act as secretary of the meeting and keep the minutes thereof.
ARTICLE V
COMMITTEES OF THE BOARD OF DIRECTORS
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Section 1. FORMATION. The Board of Directors may designate one or more
committees, each committee to consist of one or more 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.
Section 2. POWERS. Such committees, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all of the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation except where action of the Board of Directors is
required by the Delaware General Corporation Law or other applicable law, and
may authorize the seal of the Corporation to be affixed to all instruments,
papers and documents which may require it; except that regardless of Board
resolution, committees of the Board shall have no power to do any of the
following: (i) amend the Certificate of Incorporation; (ii) adopt an agreement
of merger or consolidation; (iii) recommend to the stockholders the sale, lease
or exchange of all or substantially all of the Corporation's property and
assets; (iv) recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; or (v) adopt, amend or repeal any bylaw of the
Bylaws of the Corporation; or (vi) unless the resolution of the Board, the
Certificate of Incorporation or these Bylaws expressly so provide, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock or to adopt a certificate of ownership and merger.
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Section 3. MEETINGS. Regular meetings of committees of the Board shall
be held at such time and place as the committee may determine, and special
meetings may be called at any time by an officer of the Corporation or by any
member of the committee. No notice of any meeting of a committee of the Board
shall be required, and a majority of the members of the committee shall
constitute a quorum for the transaction of business. Minutes of all such
meetings shall be kept and presented to the Board of Directors upon request.
ARTICLE VI
OFFICERS
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Section 1. PRINCIPAL OFFICERS. The officers of the Corporation shall be
chosen by the Board of Directors. The principal officers shall be a Chief
Executive Officer, a President, a Secretary, a Treasurer and such number of Vice
Presidents, Assistant Secretaries or Assistant Treasurers as the Board may from
time to time determine or elect. Any number of offices may be held by the same
person.
Section 2. ADDITIONAL OFFICERS. The Board may appoint such other
officers and agents as it shall deem necessary who shall hold office for such
term and shall exercise such powers and perform such duties as may be determined
from time to time by the Board.
Section 3. TERM OF OFFICE/RESIGNATION. Each officer shall hold office
until such officer's successor is duly elected and qualified or until such
officer's earlier death, resignation or removal. Any officer may resign at any
time upon giving written notice to the Corporation. Any resignation shall take
effect at the time specified therein, or if no time is specified, the
resignation shall take effect immediately upon receipt by the Corporation.
Unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 4. REMOVAL. All officers shall serve at the pleasure of the
Board, and any officer or agent or member of any committee elected or appointed
by the Board may be removed by the Board whenever in its judgment the best
interests of the Corporation will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
Section 5. POWERS AND DUTIES OF OFFICERS. Each officer shall perform
the duties and exercise the powers expressly conferred or provided for in these
Bylaws, as well as the usual duties and powers incident to such office, and such
other duties and powers as may be assigned to him from time to time by the Board
of Directors, the President or the Chief Executive Officer.
Section 6. CHAIRMAN OF THE BOARD. The Board of Directors may select
from among its members a Chairman of the Board who may preside at all meetings
of the Board of Directors and approve the minutes of all proceedings. The
Chairman shall consult with and advise the officers of the Corporation with
respect to the conduct of the business and affairs of the Corporation.
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Section 7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the officer primarily responsible for implementing the policies and
directives of the Board of Directors. The Chief Executive Officer shall have all
of the same powers as are held by the President of the Corporation, and such
additional general, executive and management powers as are specifically
delegated to him by the Board of Directors or applicable law.
Section 8. THE PRESIDENT. Subject to the control of the Board of
Directors and the Chief Executive Officer, the President shall have general
charge, management and control of the affairs, properties and operations of the
Corporation in the ordinary course of its business, with all such duties, powers
and authority with respect to such affairs, properties and operations as may be
reasonably incident to such responsibilities; the President may appoint or
employ and discharge employees and agents of the Corporation and fix their
compensation; the President may make, execute, acknowledge and deliver any and
all contracts, leases, deeds, conveyances, assignments, bills of sale,
transfers, releases and receipts, any and all mortgages, deeds of trust,
indentures, pledges, chattel mortgages, liens and hypothecations, and any and
all bonds, debentures and notes, and any and all other obligations and
encumbrances and any and all other instruments, documents and papers of any kind
or character for and on behalf of and in the name of the Corporation, and, with
the Secretary or an Assistant Secretary, the President may sign all certificates
for shares of the capital stock of the Corporation; the President shall do and
perform such other duties and have such additional authority and powers as from
time to time may be assigned to or conferred upon him by the Board of Directors.
Section 9. VICE PRESIDENTS. In the absence of the President or in the
event of such officer's disability or refusal to act, the Vice President (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated by the Board of 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. Any Vice President shall perform
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors of the Corporation.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have general supervision, directions and control of the financial affairs of the
Corporation and shall have such other powers and duties as may be prescribed by
the Board of Directors. In the absence of a named Treasurer, the Chief Financial
Officer shall also have the powers and duties of the Treasurer as hereinafter
set forth and shall be authorized and empowered to sign as Treasurer in any case
where such officer's signature is required.
Section 11. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements and books belonging to the Corporation and shall
deposit all monies and all other valuable affects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of
Directors. Whenever required by the Board of Directors, the Treasurer shall
render a statement of the Corporation's cash account. The Treasurer shall enter
or cause to be entered on the books of the Corporation full and accurate
accounts of all monies received and paid out by, for, or on account of the
Corporation. The Treasurer shall keep such books of the Corporation under such
person's supervision or direction. The Treasurer shall have such other powers
and duties as may be conferred upon or assigned to him by the Board of
Directors. The Treasurer shall perform all acts incident to the position of
Treasurer subject always to the control of the Board of Directors. The Treasurer
shall, if required by the Board of Directors, give such bond for the faithful
discharge of such person's duties in such form and amounts as the Board of
Directors may require.
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Section 12. ASSISTANT TREASURERS. An Assistant Treasurer shall, in the
absence of the Treasurer or in the event of such officer's inability or refusal
to act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties as the Board of Directors may from time to time
prescribe or perform such duties of the Treasurer as the Treasurer of this
Corporation may delegate from time to time.
Section 13. SECRETARY. The Secretary: (1) shall keep the minutes of all
meetings of the Board of Directors and the minutes of all meetings of the
stockholders in books provided for that purpose; (2) shall attend to the giving
and serving of all notices; (3) may sign with the President or a Vice President
in the name of the Corporation and/or attest the signatures of either to all
contracts, conveyances, transfers, assignments, encumbrances, authorizations and
all other instruments, documents and papers, of any and every description
whatsoever, of or executed for or on behalf of the Corporation and affix the
seal of the Corporation thereto; (4) may sign with the President or a Vice
President all certificates for shares of the capital stock of the Corporation
and affix the corporate seal of the Corporation thereto; (5) shall have charge
of and maintain and keep or supervise and control the maintenance and keeping of
the stock certificate books, transfer books and stock ledgers and such other
books and papers as the Board of Directors may authorize, direct or provide for,
all of which shall at all reasonable times be open to the inspection of any
director, upon request, at the office of the Corporation during business hours;
(6) shall in general perform all the duties incident to the office of Secretary;
and (7) shall have such other powers and duties as may be conferred upon or
assigned to him by the Board of Directors, subject always to the control of the
Board of Directors.
Section 14. ASSISTANT SECRETARIES. Each Assistant Secretary shall have
the usual powers and duties pertaining to such person's office, together with
such other powers and duties as may be conferred upon or assigned to him by the
Board of Directors or the Secretary. The Assistant Secretaries shall have and
exercise the powers of the Secretary during that officer's absence or inability
to act.
ARTICLE VII
CONFLICT OF INTEREST AND INDEMNIFICATION
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Section 1. DIRECTORS' AND OFFICERS' INTERESTS IN CONTRACTS. No contract
or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other Corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors, stockholders or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board or
committee thereof which authorizes the contract or transaction, or solely
because any such director's or officer's votes are counted for such purpose, if:
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(a) the material facts as to such director's or
officer's relationship or interest and as to the contract or
transaction are disclosed or known to the Board of Directors
or committee of the Board, and the Board of Directors or
committee of the Board in good faith authorizes, approves or
ratifies the contract or other transaction by the affirmative
vote of a majority of the disinterested directors present,
even though the disinterested directors be less than a quorum
(such interested director to be counted only in calculating
the presence of a quorum); or,
(b) the material facts as to such director's or
officer's relationship or interest and as to the contract or
transaction are disclosed or known to the stockholders
entitled to vote thereon, and such contract or other
transaction is specifically approved in good faith by the
stockholders; or
(c) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof, or
the stockholders.
Section 2. NONLIABILITY OF DIRECTORS IN CERTAIN CASES. A member of the
Board of Directors, or a member of any committee of the Board, shall, in the
performance of such member's duties, be fully protected in relying in good faith
upon the records of the Corporation and upon such information, opinions, reports
or statements presented to the Corporation by any of the Corporation's officers
or employees, or committees of the Board of Directors, or by any other person as
to matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation.
Section 3. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS; INSURANCE.
(a) The Corporation shall have power to indemnify to
the fullest extent permitted by applicable law as it presently
exists or hereafter be amended, 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 such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe the person's conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that the person's conduct was unlawful.
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(b) The Corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or
settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the Corporation and
except that no indemnification shall be made with respect to
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 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.
(c) To the extent that a present or former director
or officer of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in
connection therewith.
(d) Any indemnification under subsections (a) and (b)
(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 present or former director,
officer, employee or agent is proper in the circumstances
because such person has met the applicable standard of conduct
set forth in subsections (a) and (b). Such determination shall
be made, with respect to a person who is a director or officer
at the time of such determination, (1) by a majority vote of
the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of
such directors, even though less than a quorum, or (3) if
there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative 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 such director or officer to
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repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the
Corporation as authorized in this Article VII. Such expenses
(including attorneys' fees) incurred by former directors and
officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation deems
appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this section shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of
expenses may be entitled under any Bylaw, agreement, vote of
stockholders, or of disinterested directors or otherwise, both
as to action in such person's official capacity and as to
action in another capacity while holding such office.
(g) The Corporation shall have the 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 and incurred by such person in
any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to
indemnify such person against such liability under the
provisions of this Article.
(h) For purposes of this section, references to the
"Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or
was a director, officer, employee or agent of such 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 with respect to the
resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Article, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to
the best interests of the Corporation" as referred to in this
Article.
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(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall,
unless otherwise provided when authorized or ratified,
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 person.
(k) Any repeal or modification of the foregoing
provisions of this Article VII shall not adequately affect any
right or protection hereunder of any person with respect to
any act or omission occurring prior to the time of such repeal
or modification.
ARTICLE VIII
BOOKS, DOCUMENTS AND ACCOUNTS
-----------------------------
Section 1. MAINTENANCE OF BOOKS AND RECORDS. The Board of Directors
shall have power to keep the books, documents and accounts of the Corporation
outside of the State of Delaware. A record of the Corporation's stockholders,
giving the names and addresses of all stockholders and the number and class of
shares held by each, shall be kept at its registered office or principal place
of business, or at the office of its transfer agent or registrar.
Section 2. INSPECTION OF BOOKS AND RECORDS. Any stockholder of record
of the Corporation, in person or by attorney or other agent, shall upon written
demand under oath stating the purpose thereof, have the right during usual
business hours to inspect for any proper purpose the Corporation's stock ledger,
a list of its stockholders and its other books and records, and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably related
to such person's interest as a stockholder. In every instance where an attorney
or other agent shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the Corporation at its
registered office in Delaware or at its principal place of business.
ARTICLE IX
CAPITAL STOCK
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Section 1. STOCK CERTIFICATES. Every owner of shares in this
Corporation shall be entitled to have a certificate in such form, as not
inconsistent with the Certificate of Incorporation or any law, as may be
prescribed by the Board of Directors, certifying the number of shares, and the
class or series, owned by him in the Corporation. Every certificate for shares
shall be signed by the Chairman of Board or the President and the Secretary or
an Assistant Secretary. Unless otherwise provided by law, signatures may be
facsimile and shall be effective irrespective of whether any person whose
signature appears on the certificates shall have ceased to be an officer before
the certificate is delivered by the Corporation. Such certificates issued shall
bear all statements or legends required by law to be affixed thereto.
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Section 2. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by the laws of the State of Delaware and these Bylaws.
Transfers of stock shall be made on the books of the Corporation only by the
person named in the certificate, or by such person's attorney-in-fact or legal
representative, duly and lawfully authorized in writing, and upon the surrender
of the certificate therefor, which shall be cancelled. A new certificate shall
be issued for a like number of shares.
Section 3. REGISTERED STOCKHOLDERS. To the extent permitted by
applicable law, the Corporation shall be entitled to treat the person in whose
name any share of stock or any warrant, right or option is registered as the
owner thereof for all purposes and shall not be bound to recognize any equitable
or other claim to, or interest in, such share, warrant, right or option on the
part of any other person, whether or not the Corporation shall have express or
other notice thereof.
Section 4. NEW CERTIFICATES. The Corporation may issue a new
certificate for shares in place of any certificate previously issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or such person's legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 5. DIVIDENDS. Subject to the limitations contained in the
Delaware General Corporation Law and Certificate of Incorporation, the Board of
Directors may declare and pay dividends upon the shares of the Corporation's
capital stock, which dividends may be paid either in cash, securities of the
Corporation or other property.
Section 6. REGULATIONS. The Board of Directors shall have power and
authority to make all such rules and regulations as they may deem appropriate or
necessary concerning the issue, transfer and registration or the replacement of
certificates for shares of the capital stock of the Corporation, provided that
such rules and regulations shall not be inconsistent with applicable law, the
Certificate of Incorporation or these Bylaws.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 2. SEAL. The Board of Directors shall have the power to
prescribe a form of seal for the Corporation and to use it by causing it or a
facsimile thereof to be impressed, affixed, printed or reproduced in any other
manner.
Section 3. SECURITIES OF OTHER CORPORATIONS. The President of the
Corporation or any person authorized by the Board of Directors shall have power
and authority to transfer, endorse for transfer, vote, consent or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute and deliver any waiver, proxy or
consent with respect to any such securities.
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Section 4. DEPOSITORIES. Funds of the Corporation not otherwise
employed shall be deposited from time to time in such banks or other
depositories as either the Board of Directors, the President or the Treasurer
may select or approve.
Section 5. SIGNING OF CHECKS, NOTES, ETC. Unless otherwise provided by
law or these Bylaws, all checks, drafts and other orders for the payment of
money out of funds of the Corporation and all notes and other evidences of
indebtedness of the Corporation shall be signed on behalf of the Corporation in
such manner, and by such officer or person, as shall from time to time be
authorized by the Board of Directors.
Section 6. PERSONS. Wherever used or appearing in these Bylaws, all
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person, persons,
entity or entities may require.
Section 7. LAWS AND STATUTES. Wherever used or appearing in these
Bylaws, the words "law" or "laws" or "statute" or "statutes," respectively,
shall mean and refer to laws and statutes, or a law or a statute, of the State
of Delaware, to the extent only that such is or are expressly applicable, except
where otherwise expressly stated or the context requires that such words not be
so limited.
Section 8. HEADINGS. The headings of the Articles and Sections of these
Bylaws are inserted for convenience of reference only and shall not be deemed to
be a part thereof or used in the construction or interpretation thereof.
ARTICLE XI
AMENDMENTS
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These Bylaws may be amended or repealed or new Bylaws may be made or
adopted:
(a) by the affirmative vote of the holders of at
least a majority of the outstanding stock of this Corporation
at any annual or special meeting of the stockholders; or
(b) by the affirmative vote of a majority of the
Directors present at any meeting of the Board of Directors at
which a quorum is present, provided that such action is
authorized in the Certificate of Incorporation.
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