EXHIBIT 3.2
BY-LAWS
OF
AXCELIS TECHNOLOGIES, INC.
Adopted by the Board of Directors on January 24, 2002
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ARTICLE I STOCKHOLDERS
SECTION 1.1. Place of Meetings. All meetings of stockholders shall be held
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at the principal office of the corporation or at such other place as may be
named in the notice.
SECTION 1.2. Annual Meeting. The annual meeting of stockholders for the
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election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date and at such hour and place as
the directors or an officer designated by the directors may determine. If the
annual meeting is not held on the date designated therefor, the directors shall
cause the meeting to be held as soon thereafter as convenient.
SECTION 1.3. Special Meetings. Special meetings of the stockholders may be
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called at any time by the Chairman of the Board, the Chief Executive Officer, or
by the Board of Directors.
SECTION 1.4. Notice of Meetings. Except where some other notice is
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required by law, written notice of each meeting of stockholders, stating the
place, date and hour thereof and the purposes for which the meeting is called,
shall be given by the Secretary not less than ten nor more than sixty days
before the date fixed for such meeting, to each stockholder of record entitled
to vote at such meeting. Notice shall be given personally to each stockholder or
left at his or her residence or usual place of business or mailed postage
prepaid and addressed to the stockholder at his or her address as it appears
upon the records of the corporation. In case of the death, absence, incapacity
or refusal of the Secretary, such notice may be given by a person designated
either by the Secretary or by the person or persons calling the meeting or by
the Board of Directors. A waiver of such notice in writing, signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent to such notice. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice. Except as
required by statute, notice of any adjourned meeting of the stockholders shall
not be required.
SECTION 1.5. Record Date. The Board of Directors may fix in advance a
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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, 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. 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 before 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, and 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. 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.
SECTION 1.6. Nomination of Directors. Only persons who are nominated in
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accordance with the following procedures shall be eligible for election as
directors at any annual or special meeting of stockholders. Nominations of
persons for election as directors may be made only by or at the direction of the
Board of Directors, or by any stockholder entitled to vote for the election of
directors at the meeting in compliance with the notice procedures set forth in
this Section 1.6. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the corporation by the
close of business on the Advance Notice Date. For the purposes of these by-laws,
the "Advance Notice Date" shall be one of the following:
(a) in the case of an annual meeting only, the date 90 days before the
anniversary date of the prior year's meeting, if (i) there was an annual
meeting in the prior year and (ii) the date of the current year's annual
meeting is not more than 30 days before or after the anniversary date of
the prior year's annual meeting; or
(b) if clause (a) does not apply, the date 45 days prior to the date of
the current year's annual meeting or a special meeting if at least 60
days' notice or prior public disclosure of the date of the current
year's annual meeting or the special meeting is given or made; or
(c) if neither clause (a) nor clause (b) applies, the date 15 days after
the day on which notice of the date of the current year's annual meeting
or the special meeting was mailed or public disclosure was made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of capital stock of the corporation that are beneficially owned by the
person and (iv) any other information relating to the person that is required to
be disclosed in solicitations for proxies for election of directors pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended, or any
successor provision thereto; and (b) as to the stockholder giving the notice,
(i) the name and record address of such stockholder and (ii) the class and
number of shares of capital stock of the corporation that are beneficially owned
by such stockholder.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if the chairman should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
SECTION 1.7. Advance Notice of Business at Annual Meetings. At any
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annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be brought properly
before an annual meeting, business must be either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Chief
Executive Officer, President or the Board of Directors, (b) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(c) properly brought before the meeting by a stockholder. In addition to any
other applicable requirements, for business to be brought properly before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Chairman of the Board, if any, the Chief Executive
Officer, the President or the Secretary. To be timely, a stockholder's notice
must be delivered to or mailed and received at the principal executive offices
of the corporation by the close of business on the Advance Notice Date as
defined in Section 1.6 of Article I
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hereof. A stockholder's notice shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and record address
of the stockholder proposing such business, (c) the class and number of shares
of the corporation that are beneficially owned by the stockholder and (d) any
material interest of the stockholder in such business.
Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 1.7, provided, however, that nothing in
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this Section 1.7 shall be deemed to preclude discussion by any stockholder of
any business properly brought before the annual meeting in accordance with said
procedure.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the foregoing procedure, and if the chairman should
so determine, he or she shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION 1.8. Voting List. The officer who has charge of the stock ledger
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of the corporation shall make or have made, at least 10 days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 10 days before 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. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or the books of the
corporation, or to vote at any meeting of stockholders.
SECTION 1.9. Quorum of Stockholders. At any meeting of the stockholders,
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the holders of a majority in interest of all stock issued and outstanding and
entitled to vote upon a question to be considered at the meeting, present in
person or represented by proxy, shall constitute a quorum for the consideration
of such question, but in the absence of a quorum a smaller group may adjourn any
meeting from time to time. When a quorum is present at any meeting, a majority
of the votes properly cast shall, except where a different vote is required by
law, by the Certificate of Incorporation or by these by-laws, decide any
question brought before such meeting. Any election by stockholders shall be
determined by a plurality of the votes cast by the stockholders entitled to vote
at the election.
SECTION 1.10. Proxies and Voting. Unless otherwise provided in the
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Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock held of record by such stockholder, but no proxy shall be voted or
acted upon after three years from its date, unless said proxy provides for a
longer period. Persons holding stock in a fiduciary capacity shall be entitled
to vote the shares so held, and persons whose stock is pledged shall be entitled
to vote unless in the transfer by the pledgor on the books of the corporation
the pledgee shall have been expressly empowered to vote thereon, in which case
only the pledgee or the pledgee's proxy may represent said stock and vote
thereon. Shares of the capital stock of the corporation belonging to the
corporation or to another corporation, a majority of whose shares entitled to
vote in the election of directors is owned by the corporation, shall neither be
entitled to vote nor be counted for quorum purposes.
SECTION 1.11. Conduct of Meeting. Meetings of the stockholders shall be
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presided over by one of the following officers in the order specified and if
present and acting: the Chairman or, in the event
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of the Chairman's absence or disability, the Vice Chairman, if any, or, in the
event of the Vice Chairman's absence or disability, the Chief Executive Officer,
or in the event of such person's absence or disability, a presiding officer
chosen by a majority of the Board of Directors. The Secretary of the
corporation, if present, or an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present the chairman of the meeting shall appoint a secretary of the meeting.
The Board of Directors may adopt such rules, regulations and procedures
for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted by
the Board of Directors, the chairman of the meeting 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, (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 the chairman of
the meeting shall determine, (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.
ARTICLE II DIRECTORS
SECTION 2.1. General Powers. The business and affairs of the corporation
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shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation that are not by law required to be
exercised by the stockholders. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
SECTION 2.2. Number; Election; Tenure and Qualification. Subject to any
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restrictions contained in the Certificate of Incorporation, the number of
directors that shall constitute the whole Board shall be fixed by resolution of
the Board of Directors. The directors shall be elected in the manner provided in
the Certificate of Incorporation, by such stockholders as have the right to vote
thereon. The number of directors may be increased or decreased by action of the
Board of Directors. Directors need not be stockholders of the corporation.
SECTION 2.3. Enlargement of the Board. Subject to any restrictions
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contained in the Certificate of Incorporation, the number of the Board of
Directors may be increased at any time, such increase to be effective
immediately unless otherwise specified in the resolution, by vote of a majority
of the directors then in office.
SECTION 2.4. Vacancies. Unless and until filled by the stockholders and
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except as otherwise determined by the Board of Directors in establishing a
series of Preferred Stock as to directors elected by the holders of such series,
any vacancy on the board of directors that results from an increase in the
number of directors shall be filled only by a majority of the board of directors
then in office, provided that a quorum is present, and any other vacancy
occurring in the board of directors shall be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. If at any time there are no directors in office, then an election of
directors may be held in accordance with the General Corporation Law of the
State of Delaware.
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SECTION 2.5. Resignation. Any director may resign at any time upon written
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notice to the corporation. Such resignation shall take effect at the time
specified therein, or if no time is specified, at the time of its receipt by the
Chairman, the Chief Executive Officer or the Secretary.
SECTION 2.6. Removal. Directors may be removed from office only as provided
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in the Certificate of Incorporation. The vacancy or vacancies created by the
removal of a director may be filled by the stockholders at the meeting held for
the purpose of removal or, if not so filled, by the directors in the manner
provided in Section 2.4 of Article II hereof.
SECTION 2.7. Committees. The Board of Directors may, by resolution or
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resolutions passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more directors of the
corporation. The Board of Directors may designate one or more directors as
alternate members of any committee to replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any
member of any such committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member. The Board of Directors shall have the power to change the members of any
such committee at any time, to fill vacancies therein and to discharge any such
committee, either with or without cause, at any time.
Any such committee, to the extent permitted by law and to the extent
provided in the resolution of the Board of Directors or in these by-laws, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize
the seal of the corporation to be affixed to all papers that may require it.
A majority of all the members of any such committee may fix its rules of
procedure, determine its action and fix the time and place, whether within or
without the State of Delaware, of its meetings and specify what notice thereof,
if any, shall be given, unless the Board of Directors shall otherwise by
resolution provide. Each committee shall keep regular minutes of its meetings
and make such reports as the Board of Directors may from time to time request.
SECTION 2.8. Meetings of the Board of Directors. Regular meetings of the
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Board of Directors may be held without call or formal notice at such places
either within or without the State of Delaware and at such times as the Board
may by vote from time to time determine. A regular meeting of the Board of
Directors may be held without call or formal notice immediately after and at the
same place as the annual meeting of the stockholders, or any special meeting of
the stockholders at which a Board of Directors is elected.
Special meetings of the Board of Directors may be held at any place either
within or without the State of Delaware at any time when called by the Chairman
of the Board or, in the event of such person's absence or disability, by the
Vice Chairman of the Board, if any, or, in the event of such person's absence or
disability, by the Chief Executive Officer, or, in the event of such person's
absence or disability, by the President or, in the event of such person's
absence or disability, by a majority of the Board of Directors. Reasonable
notice of the time and place of a special meeting shall be given to each
director unless such notice is waived by attendance or by written waiver in the
manner provided in these by-laws for waiver of notice by stockholders. Notice
may be given by, or by a person designated by, the Secretary, the person or
persons calling the meeting, or the Board of Directors. No notice of any
adjourned meeting of the Board of Directors shall be required. In any case it
shall be deemed sufficient notice to a director to send notice by mail at least
seventy-two hours, or by telegram or fax at least forty-eight hours, before the
meeting, addressed to such director at his or her usual or last known business
or home address.
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Directors or members of any committee may participate in a meeting of the
Board of Directors or of such committee by means of conference telephone or
similar 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.
SECTION 2.9. Quorum and Voting. A majority of the total number of
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directors shall constitute a quorum, except that when a vacancy or vacancies
exist in the Board, a majority of the directors then in office (but not less
than one-third of the total number of the directors) shall constitute a quorum.
A majority of the directors present, whether or not a quorum is present, may
adjourn any meeting from time to time. The vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors, except where a different vote is required by law, by the
Certificate of Incorporation or by these by-laws.
SECTION 2.10. Compensation. The Board of Directors may fix fees for their
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services and for their membership on committees, and expenses of attendance may
be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity, as an officer, agent or otherwise, and receiving compensation
therefor.
SECTION 2.11. Action Without Meeting. Any action required or permitted to
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be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting and without notice if a written consent thereto
is signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or of such committee.
ARTICLE III OFFICERS
SECTION 3.1. Number. The officers of the Corporation shall be chosen by
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the Board of Directors and may include, without limit, a Chairman of the Board
of Directors, a Vice Chairman of the Board of Directors, a Chief Executive
Officer, a President, one or more Vice Presidents, a Secretary, a Treasurer and
such other officers as may be elected in accordance with Article III, Section
3.2 of these By-Laws. Any number of offices may be held by the same person. No
officer need be a director of the Corporation. The Chairman of the Board of
Directors shall be a non-executive position.
SECTION 3.2. Election. Unless otherwise determined by the Board of
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Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. Each officer shall hold office until his or her successor has been
elected and qualified, or until his or her earlier death, resignation or
removal.
SECTION 3.3. Compensation. Officers of the corporation shall be entitled
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to such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors or any committee thereof appointed
for the purpose.
SECTION 3.4. Removal and Resignation; Vacancies. Any officer may be
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removed for or without cause at any time by the Board of Directors. Any officer
may resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors, the Chief Executive Officer, or the
President. Unless otherwise specified therein, such resignation shall take
effect upon delivery. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise, shall be filled by the Board of
Directors.
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SECTION 3.5. Authority and Duties of Officers. The officers of the
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Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law.
SECTION 3.6. The Chairman. The Chairman, or, in the event of the
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Chairman's absence or disability, the Vice Chairman, or in the event of the Vice
Chairman's absence or disability, a presiding officer chosen by a majority of
the Board of Directors, shall preside at all meetings of the stockholders and of
the Board of Directors and shall perform such other duties as may from time to
time be assigned to the Chairman by the Board of Directors.
SECTION 3.7. The Vice Chairman. The Vice Chairman shall assist the
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Chairman and shall perform such other duties as may from time to time be
assigned to the Vice Chairman by the Chairman or by the Board of Directors.
SECTION 3.8. The Chief Executive Officer. The Chief Executive Officer
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shall have general executive charge and control over the affairs of the
Corporation, subject to the Board of Directors, shall see that all orders and
resolutions of the Board of Directors are carried out, shall report thereon to
the Board of Directors, and shall have such other powers and perform such other
duties as shall be prescribed from time to time by the Board of Directors. In
the absence of the President, the duties of the President shall be performed,
and the President's powers may be exercised, by the Chief Executive Officer, or
in the absence of the Chief Executive Officer, by such Vice President as shall
be designated by the Chief Executive Officer, or failing such designation, such
duties shall be performed and such powers may be exercised by each Vice
President in the order described in Section 3.10, subject in any case to review
and superseding action by the Chief Executive Officer.
SECTION 3.9. The President. The President shall have general and active
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management of the operations of the business of the Corporation, subject to the
authority and direction of the Chief Executive Officer. The President shall have
and exercise such further powers and duties as may be specifically delegated to
or vested in the President from time to time by these By-Laws, the Chief
Executive Officer or the Board of Directors. In the absence of the Chief
Executive Officer, or in the event of the inability of or refusal to act by the
Chief Executive Officer, or if the Board of Directors has not designated a Chief
Executive Officer, the President shall perform the duties of the Chief Executive
Officer, and, when so acting, shall have all of the powers and be subject to all
of the restrictions upon the Chief Executive Officer.
SECTION 3.10. The Vice Presidents. Each Vice President shall perform such
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duties and exercise such powers as may be assigned to him or her from time to
time by the Board of Directors, the Chief Executive Officer or the President.
In the case of a Vice President who is designated as the Chief Financial
Officer, he or she shall perform such duties and exercise such powers as may be
assigned to him or her from time to time by the Board of Directors or the Chief
Executive Officer, including without limitation, the power and duty to render to
the Board of Directors or the Chief Executive Officer, whenever requested, a
statement of the financial condition of the Corporation, and to render a full
financial report at the annual meeting of the stockholders, if called upon to do
so, and to require from all officers or agents of the Corporation reports or
statements giving such information as he or she may desire with respect to any
and all financial transactions of the Corporation.
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. In the absence of the President or in the event of his
or her inability or refusal to act, the duties of the President shall be
performed by the Executive Vice-President, if any, Senior Vice President, if
any, or Vice President, if any, in that order (and, in the event there be more
than one person in any such office, in the order of their seniority), and
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when so acting, such officer shall have all the powers of and be subject to all
the restrictions upon the President.
SECTION 3.11. Secretary and Assistant Secretaries. The Secretary shall
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attend all meetings of the Board of Directors and of the stockholders and record
all the proceedings of such meetings in a book to be kept for that purpose,
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, shall maintain, or cause to be
maintained, a stock ledger and prepare, or cause to be prepared, lists of
stockholders and their addresses as required and shall have custody of the
corporate seal, which the Secretary or any Assistant Secretary shall have
authority to affix to any instrument requiring it and attest by any of their
signatures. The Board of Directors may give general authority to any other
officer to affix and attest the seal of the corporation.
Any Assistant Secretary may, in the absence of the Secretary or in the
event of the Secretary's inability or refusal to act, perform the duties and
exercise the powers of the Secretary.
SECTION 3.12. Treasurer and Assistant Treasurers. The Treasurer shall have
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the custody of the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by or
pursuant to resolution of the Board of Directors. The Treasurer shall disburse
the funds of the corporation upon the authorized depositories, taking proper
vouchers for such disbursements.
Any Assistant Treasurer may, in the absence of the Treasurer or in the
event of his or her inability or refusal to act, perform the duties and exercise
the powers of the Treasurer.
SECTION 3.13. Additional Officers. The Board of Directors may appoint such
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other officers and agents as it may deem appropriate, and such other officers
and agents shall hold their offices for such terms and shall exercise such
powers and perform such duties as may be determined from time to time by the
Board of Directors. The Board of Directors from time to time may delegate to any
officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him or her, for or without cause.
ARTICLE IV STOCK
SECTION 4.1. Certificates of Stock. One or more stock certificates, signed
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by the Chairman or Vice-Chairman of the Board of Directors or by the President
or a Vice-President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary shall be issued to each stockholder
certifying the number of shares owned by the stockholder in the corporation. Any
or all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent or registrar who shall have signed or whose facsimile
signature shall have been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Each certificate for shares of stock that are subject to any restriction on
transfer pursuant to the Certificate of Incorporation, the by-laws, 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.
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SECTION 4.2. Transfers of Shares of Stock. Subject to the restrictions, if
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any, stated or noted on the stock certificates, 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. 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 that stock, regardless of any transfer, pledge
or other disposition of that stock, until the shares have been transferred on
the books of the corporation in accordance with the requirements of these
by-laws.
SECTION 4.3. Lost Certificates. A new stock certificate may be issued in
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the place of any certificate theretofore issued by the corporation and alleged
to have been lost, stolen, destroyed or mutilated, upon such terms in conformity
with law as the Board of Directors shall prescribe. The directors may, in their
discretion, require the owner of the lost, stolen, destroyed or mutilated
certificate, or the owner's legal representatives, to give the corporation a
bond, in such sum as they may direct, to indemnify the corporation against any
claim that may be made against it on account of the alleged loss, theft,
destruction or mutilation of any such certificate, or the issuance of any such
new certificate.
SECTION 4.4. Fractional Share Interests. The corporation may, but shall not
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be required to, issue fractions of a share. If the corporation does not issue
fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or (iii) issue scrip or warrants in registered or
bearer form, which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void
if not exchanged for certificates representing full shares before a specified
date, or subject to the conditions that the shares for which scrip or warrants
are exchangeable may be sold by the corporation and the proceeds thereof
distributed to the holders of scrip or warrants, or subject to any other
conditions that the Board of Directors may impose.
SECTION 4.5. Dividends. Subject to the provisions of the Certificate of
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Incorporation, the Board of Directors may, out of funds legally available
therefor, at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient.
ARTICLE V INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the extent legally permissible, indemnify each
person who may serve or who has served at any time as a director or officer of
the corporation or of any of its subsidiaries, or who at the request of the
corporation may serve or at any time has served as a director, officer or
trustee of, or in a similar capacity with, another organization or an employee
benefit plan, against all expenses and liabilities (including counsel fees,
judgments, fines, excise taxes, penalties and amounts payable in settlements)
reasonably incurred by or imposed upon such person in connection with any
threatened, pending or completed action, suit or other proceeding, whether
civil, criminal, administrative or investigative, in which he may become
involved by reason of his serving or having served in such capacity (other than
a proceeding voluntarily initiated by such person unless he is successful on the
merits, the proceeding was authorized by the corporation or the proceeding seeks
a declaratory judgment regarding his own conduct); provided that no
indemnification shall be provided for any such person with
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respect to any matter as to which he shall have been finally adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation and, with respect to any
criminal action or proceeding, he had reasonable cause to believe his conduct
was unlawful or, to the extent such matter relates to service with respect to
any employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan; and provided, further, that as to
any matter disposed of by a compromise payment by such person, pursuant to a
consent decree or otherwise, the payment and indemnification thereof have been
approved by the corporation, which approval shall not unreasonably be withheld,
or by a court of competent jurisdiction. Such indemnification shall include
payment by the corporation of expenses incurred in defending a civil or criminal
action or proceeding in advance of the final disposition of such action or
proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under this article, which undertaking may be accepted without regard to the
financial ability of such person to make repayment.
A person entitled to indemnification hereunder whose duties include service
or responsibilities as a fiduciary with respect to a subsidiary or other
organization shall be deemed to have acted in good faith in the reasonable
belief that his action was in the best interests of the corporation if he acted
in good faith in the reasonable belief that his action was in the best interests
of such subsidiary or organization or of the participants or beneficiaries of,
or other persons with interests in, such subsidiary or organization to whom he
had a fiduciary duty.
For purposes of determining whether a person is entitled to indemnification
hereunder, the termination of any action, suit or other proceeding by judgment,
order, settlement (with or without court approval), conviction, or upon a plea
of nolo contendere, or its equivalent, shall not 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.
Where indemnification hereunder requires authorization or approval by the
corporation, such authorization or approval shall be conclusively deemed to have
been obtained, and in any case where a director of the corporation approves the
payment of indemnification, such director shall be wholly protected, if:
(i) the payment has been approved or ratified (l) by a majority vote
of a quorum of the directors consisting of persons who are not at that time
parties to the proceeding, (2) by a majority vote of a committee of two or more
directors who are not at that time parties to the proceeding and are selected
for this purpose by the full board (in which selection directors who are parties
may participate), or (3) by a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the proceeding; or
(ii) the action is taken in reliance upon the opinion of independent
legal counsel (who may be counsel to the corporation) appointed for the purpose
by vote of the directors or in the manner specified in clauses (l), (2) or (3)
of subparagraph (i); or
(iii) the payment is approved by a court of competent jurisdiction; or
(iv) the directors have otherwise acted in accordance with the
standard of conduct set forth in the Delaware General Corporation Law.
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Any indemnification or advance of expenses under this article shall be
paid promptly, and in any event within 30 days, after the receipt by the
corporation of a written request therefor from the person to be indemnified,
unless with respect to a claim for indemnification the corporation shall have
determined that the person is not entitled to indemnification. If the
corporation denies the request or if payment is not made within such 30 day
period, the person seeking to be indemnified may at any time thereafter seek to
enforce his rights hereunder in a court of competent jurisdiction and, if
successful in whole or in part, he shall be entitled also to indemnification for
the expenses of prosecuting such action. Unless otherwise provided by law, the
burden of proving that the person is not entitled to indemnification shall be on
the corporation.
The right of indemnification under this article shall be a contract
right inuring to the benefit of the directors, officers and other persons
entitled to be indemnified hereunder and no amendment or repeal of this article
shall adversely affect any right of such director, officer or other person
existing at the time of such amendment or repeal.
The indemnification provided hereunder shall inure to the benefit of
the heirs, executors and administrators of a director, officer or other person
entitled to indemnification hereunder. The indemnification provided hereunder
may, to the extent authorized by the corporation, apply to the directors,
officers and other persons associated with constituent corporations that have
been merged into or consolidated with the corporation who would have been
entitled to indemnification hereunder had they served in such capacity with or
at the request of the corporation.
The right of indemnification under this article shall be in addition
to and not exclusive of all other rights to which such director or officer or
other persons may be entitled. Nothing contained in this article shall affect
any rights to indemnification to which corporation employees or agents other
than directors and officers and other persons entitled to indemnification
hereunder may be entitled by contract or otherwise under law.
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, trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan
against any liability asserted against such person and incurred by such person
in any such capacity or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liability under the provisions of the General Corporation Law of the State of
Delaware.
ARTICLE VI GENERAL PROVISIONS
SECTION 6.1. Fiscal Year. Except as otherwise designated from time to
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time by the Board of Directors, the fiscal year of the corporation shall begin
on the first day of January and end on the last day of December.
SECTION 6.2. Corporate Seal. The corporate seal shall be in such form
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as shall be approved by the Board of Directors. The Secretary shall be the
custodian of the seal, and a duplicate seal may be kept and used by each
Assistant Secretary and by any other officer the Board of Directors may
authorize.
SECTION 6.3. Certificate of Incorporation. All references in these
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by-laws to the Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as in effect from time to time.
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SECTION 6.4. Execution of Instruments. Unless otherwise determined by
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resolution of the Board of Directors, the Chief Executive Officer, the
President, and Vice President, the Secretary or the Treasurer shall have power
to execute and deliver on behalf and in the name of the corporation any
instrument requiring the signature of an officer of the corporation, including
deeds, contracts, mortgages, bonds, notes, debentures, checks, drafts and other
orders for the payment of money. In addition, the Board of Directors, the
President, each Vice President, the Treasurer and the Secretary may expressly
delegate such powers to any other officer or agent of the corporation.
SECTION 6.5. Voting of Securities. Unless otherwise determined by
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resolution of the Board of Directors, the Chief Executive Officer, the
President, any Vice President or any other officer shall have full power and
authority on behalf of the corporation to attend any meeting of stockholders of
any corporation in which the corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
SECTION 6.6. Evidence of Authority. A certificate by the Secretary, an
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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 that action.
SECTION 6.7. Transactions with Interested Parties. No contract or
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transaction between the corporation and one or more of the directors or
officers, or between the corporation and any other corporation, partnership,
association or other organization in which one or more of the directors or
officers are directors or officers or have a financial interest, shall be void
or voidable solely for that reason or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or a
committee of the Board of Directors that authorizes the contract or transaction
or solely because the vote of any such director is counted for such purpose, if:
(1) The material facts as to the relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
such committee, and the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(2) The material facts as to the relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair to the corporation as of the time
it is authorized, approved or ratified by the Board of Directors, a committee of
the Board of Directors or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee that
authorizes the contract or transaction.
SECTION 6.8. Books and Records. The books and records of the corporation
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shall be kept at such places within or without the State of Delaware as the
Board of Directors may from time to time determine.
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ARTICLE VII AMENDMENTS
SECTION 7.1. By the Board of Directors. These by-laws may be altered,
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amended or repealed or new by-laws may be adopted by the affirmative vote of a
majority of the directors present at any regular or special meeting of the Board
of Directors at which a quorum is present.
SECTION 7.2. By the Stockholders. These by-laws may be altered, amended or
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repealed or new by-laws may be adopted by the affirmative vote of the holders of
a majority of votes properly cast at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting.
[Approved by the Board of Directors on January 24, 2002.]
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