EXHIBIT 3.3
AMENDED AND RESTATED BYLAWS
OF
HOME DIRECTOR, INC.
(as of December 19, 2002)
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of Home Director,
Inc. (the "Corporation") shall be located at 7132 Santa Teresa Boulevard, San
Jose, California 95139 or at such other location as shall be designated by the
board of directors of the Corporation (the "Board of Directors" or the "Board").
Section 2. Other Offices. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may require from
time to time.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meetings.
(a) Annual meetings of the stockholders of the Corporation, for the
purpose of the election of directors and for the conduct of such other business
as may lawfully come before it, shall be held on such date and at such time as
may be designated from time to time by the Board of Directors.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (i) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors, (ii) otherwise properly brought before the meeting by
or at the direction of the Board of Directors, or (iii) otherwise properly
brought before the meeting by a stockholder. For business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation no later than the date which
is 120 calendar days prior to the anniversary date of the previous annual
meeting of stockholders; provided, however, that in the event that the date of
the annual meeting is advanced by more than 60 days or delayed by more than 90
days from such anniversary, notice by the stockholder to be timely must be so
received not earlier than the one hundred twentieth day prior to such annual
meeting and not later than the close of business on the later of (1) the
sixtieth day prior to such annual meeting or (2) the tenth day following the
date on which notice of the date of the annual meeting was mailed or public
disclosure thereof was made, whichever first occurs. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting: (A) a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (B) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (C) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, (D) any material interest of the stockholder in such business,
and (E) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), in his capacity as a proponent of a stockholder proposal. In
addition to the foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required by the
regulations promulgated under the 1934 Act to the extent such regulations
require notice that is different from the notice required above.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this paragraph (b). The chairman of the annual meeting shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the meeting shall not
be transacted.
(c) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election as directors at
an annual meeting. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders by or at the direction of the
Board of Directors or by any stockholder entitled to vote in the election of
directors at the meeting who complies with the notice procedures set forth in
this paragraph (c). Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. Such notice shall set forth (i) as
to each person, if any, whom the stockholder proposes to nominate for election
or re-election as a director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the Corporation that are
beneficially owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nominations are to
be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A
under the 1934 Act (including without limitation such person's written consent
to being named in the proxy statement, if any, as a nominee and to serving as a
director if elected); and (ii) as to such stockholder giving notice, the
information required to be provided pursuant to subitems (B), (C) and (D) of
paragraph (b) of this Section 1. At the request of the Board of Directors, any
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person nominated by a stockholder for election as a director shall furnish to
the Secretary of the Corporation that information required to be set forth in
the notice of nomination which pertains to the nominee. No person shall be
eligible for election as a director unless nominated in accordance with the
procedures set forth in this paragraph (c). The chairman of the meeting shall,
if the facts warrant, determine and declare at the meeting that a nomination was
not made in accordance with the procedures prescribed by these Bylaws, and if he
should so determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
Section 2. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may only be called as provided in this Section 2
by the Chief Executive Officer of the Corporation, a majority of the Board of
Directors or the owners of 20% of the shares entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. Except as next
provided, notice shall be given as set forth in Section 4 of Article II of these
Bylaws. Upon receipt of a written request addressed to the Chairman of the
Board, the President, Vice President or Secretary, mailed or delivered
personally to such officer by any person (other than the majority of the Board
of Directors) entitled to call a special meeting of stockholders, such officer
shall cause notice to be given, to the stockholders entitled to vote, that a
meeting will be held at a time requested by the person or persons calling the
meeting, not less than 35 or more than 60 days after the receipt of such
request. If such notice is not given within 20 days after receipt of such
request, the persons calling the meeting may give notice thereof in the manner
provided by Section 4 of Article II of these Bylaws.
Section 3. Place of Meetings. The Board of Directors may designate
any place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or special meeting. If no designation is made,
the place of meeting shall be the principal office of the Corporation. The
Board of Directors may determine, in its sole discretion, that the meeting shall
not be held at any place, but instead be held solely by means of remote
communication.
Section 4. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice stating the place,
date and hour of the meeting, the means of remote communication, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such meeting, and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall, unless otherwise prescribed by statute,
be delivered not less than 10 days or more than 60 days before the date of the
meeting, to each stockholder of record entitled to vote at such meeting.
Written notice may be delivered through mail, telegram, cablegram, facsimile,
e-mail or other means of electronic transmission. If mailed, such notice shall
be deemed to be delivered when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder's address as it appears
on the records of the Corporation. If notice is delivered by any other means
permitted by this Section 4, then such notice shall be deemed to be delivered
when sent by the Corporation. An affidavit of the Secretary of the Corporation
that the notice has been given shall be prima facie evidence of the facts stated
therein.
Section 5. Waiver of Notice. Notice of a meeting need not be given to
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any stockholder who submits a waiver of notice given in writing or by electronic
transmission signed by the stockholder as of the time for such meeting.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder 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. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the stockholders, need be specified in any waiver
of notice.
Section 6. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders which may not be more than 60
days or less than 10 days prior to the date on which the particular action
requiring such determination of stockholders is to be taken but which shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders or of
stockholders entitled to receive payment of a dividend, the date next preceding
the date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof.
Section 7. Stockholder List. The Secretary shall prepare or cause to
be prepared a complete list of the stockholders entitled to vote at each meeting
of stockholders or any adjournment thereof, arranged in alphabetical order, with
the address of and the number of shares registered in the name of each
stockholder. Such list shall be open for examination by any stockholder, for
any purpose germane to the meeting for a period of at least 10 days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
meeting, or (ii) during the ordinary business hours, and at the principal place
of business of the Corporation. The list shall also be produced and kept at the
time and place of the meeting during the entire time thereof and may be
inspected by any stockholder who is present.
The stock ledger maintained by the Secretary pursuant to Section 9 of
Article IV of these Bylaws 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 in person or by proxy at any
meeting of stockholders.
Section 8. Conduct of Meeting. Meetings of the stockholders shall be
presided over by one of the following officers if present and acting, in the
following order of priority: the Chairman of the Board, the President, a Vice
President, or if none of the foregoing is in office and present and acting, by a
chairman to be chosen by the stockholders. The Secretary of the Corporation
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shall act as secretary of every meeting, but if the Secretary is not present,
the chairman of the meeting shall appoint a secretary of the meeting.
Section 9. Quorum. Except as otherwise provided by statute or by the
Certificate of Incorporation, a majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of stockholders for the transaction of
business. If less than a majority of the outstanding shares are represented at
a meeting, a majority of the shares so represented may adjourn the meeting from
time to time without further notice. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of stockholders
leaving less than a quorum. If the adjournment is for more than 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 entitled to
vote at the meeting.
Section 10. Proxy Representation. Every stockholder may authorize another
person or persons to act for him or her by proxy in all matters as to which such
stockholder is entitled to participate, whether by waiving notice of any
meeting, by voting or participating at a meeting, or by expressing consent or
dissent without a meeting. Every proxy appointment either executed in writing
or conveyed through telegram, cablegram, facsimile, e-mail or other means of
electronic transmission shall be signed by the stockholder or by the
stockholder's attorney-in-fact. No proxy shall be voted or acted upon after
three years from its date unless such proxy provides for a longer period. A
duly executed proxy shall be irrevocable if its 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 proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock itself
or an interest in the Corporation generally. A proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting.
Section 11. Voting of Shares. Except as otherwise provided in the
Certificate of Incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
stockholders. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote for the election of directors. Any other action shall be authorized by a
majority of the votes cast except as may be otherwise prescribed by statute or
by the provisions of the Certificate of Incorporation or these Bylaws. All
elections of directors shall be by written ballot.
Section 12. Voting of Shares by Certain Holders. Shares standing in
the name of another corporation may be voted by such officer, agent or proxy as
the bylaws of such corporation may prescribe or, in the absence of such
provision, as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be
voted by such person either in person or by proxy, without a transfer of such
shares into such person's name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
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receiver without the transfer thereof into such person's name, if authority to
do so be contained in an appropriate order of the court by which such receiver
was appointed.
Shares of its own stock belonging to the Corporation whether or not
registered in its name, shall not be deemed to be outstanding at any meeting for
purposes of determining the persons entitled to vote and the number of shares
outstanding.
Section 13. Stockholder Action Without Meeting. No action shall be
taken by the stockholders except at an annual or special meeting of stockholders
called in accordance with these Bylaws, and no action shall be taken by the
stockholders by written consent.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the
stockholders. The use of the phrase "whole Board" herein refers to the total
number of directors which the Corporation would have if there were no vacancies.
Section 2. Qualifications and Number. A director need not be a
stockholder or a citizen of the United States. The number of directors shall
initially be eight. Thereafter, the number of directors constituting the whole
Board of Directors may be increased or decreased from time to time by action of
the stockholders or of the Board of Directors, except that the number of
directors shall not be less than three or more than 15.
Section 3. Election and Term. Directors shall be elected by a plurality
of the votes cast at an annual meeting of the stockholders or any special
meeting of the stockholders called for such purpose. Each director so elected
shall hold office until the next annual meeting of the stockholders and until
his or her successor shall be duly elected or qualified, or until his or her
earlier resignation or removal.
Section 4. Vacancies. Any director may resign at any time by notice
given in writing or by electronic transmission to the Corporation. Vacancies,
including vacancies occasioned by an increase in the number of directors, may be
filled only by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director. Each director so chosen shall hold
office until a successor is duly elected and qualified or until his earlier
death, resignation or removal. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. If, at the
time of filling any vacancy caused by an increase in the number of directors,
the directors then in office shall constitute less than a majority of the whole
Board (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least 10% of the total number of the shares at the time outstanding having the
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right to vote for the election of directors, summarily order an election to be
held to fill any such vacancies, or to replace the directors chosen by the
directors then in office.
Section 5. Regular Meetings. An annual meeting of the Board of
Directors shall be held without notice immediately after, and at the same place
as, the annual meeting of stockholders. The Board of Directors may establish
the time and place for the holding of additional regular meetings without
notice.
Section 6. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
President or any two directors. The person or persons authorized to call special
meetings of the Board of Directors may fix the place for holding any special
meeting of the Board of Directors called by them.
Section 7. Notice or Constructive Waiver. No notice shall be required
for regular meetings of the Board of Directors for which the time and place have
been fixed. Written, oral, or any other mode of notice of the time and place,
including by electronic transmission, shall be given for special meetings of the
Board of Directors not less than 24 hours prior to the time fixed for the
meeting. Notice need not be given to any director who submits a waiver of
notice, in writing or by electronic transmission, signed by such director before
or after the time of the meeting. Attendance of any director at a meeting shall
constitute a waiver of notice of such meeting, except when such director 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 Board of Directors need be specified in any
waiver of notice.
Section 8. Quorum. A majority of the directors at the time in office
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors, provided that the number of directors constituting a quorum
shall in no case be less than one-third of the whole Board. If directors who
are less than the number required to constitute a quorum shall be present at a
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the meeting, until a
quorum shall be present.
Section 9. Participation by Telephone. Any member or members of the
Board of Directors or of any committee thereof, may participate in a meeting of
the Board, or such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
Section 10. Manner of Acting. The vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 11. Action Without a Meeting. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, any action that may be taken
at a meeting of the Board of Directors or any committee thereof may be taken
without a meeting if a consent in writing or electronic transmission, setting
forth the action to be so taken, shall be signed by all the members of the Board
of Directors or committee, as the case may be, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or such
committee. Such filing shall be in paper form if the minutes are maintained in
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paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 12. Compensation. The Board of Directors may provide for the
payment to each director of the expenses, if any, of the director's attendance
at each meeting of the Board of Directors and any committee thereof, a stated
salary as a director or a fixed sum for attendance at each meeting of the Board
of Directors and any committee thereof or both and/or for such other
compensation as the Board of Directors may determine. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 13. Removal of Directors. The Board of Directors, or any
individual director, may be removed from office at any time with or without
cause by the affirmative vote of the holders of at least a majority of the
outstanding shares entitled to vote for the election of directors; provided,
however, that unless otherwise provided in the Certificate of Incorporation, a
director may only be removed by the stockholders for cause.
Section 14. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees of the
Board, each committee to consist of one or more directors. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the Board of Directors of an alternate
director to replace the absent or disqualified member, the member or members of
the committee present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another director to act at the meeting in the place of the absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, with the exception of any authority the delegation
of which is prohibited by statute, and may authorize the seal of the Corporation
to be affixed to all papers which may require it. Each committee shall keep
regular minutes of its proceedings and report to the Board of Directors when
required by the Board of Directors to do so.
Section 15. Interested Directors. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
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 of Directors or the committee thereof which
authorizes the contract or transaction, or solely because such person's or
persons' votes are counted for such purpose if (i) the material facts as to such
person's or persons' relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
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disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to such person's or persons' 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 (iii) 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. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, who shall be the Chief Executive Officer, a President,
who shall be the Chief Operating Officer, a Secretary and a Chief Financial
Officer. The Corporation may also have, at the discretion of the Board of
Directors, one or more Vice Presidents, one or more Assistant Secretaries and
such other officers as may be appointed in accordance with the provisions of
Section 3 of this Article IV. Any number of offices may be held by the same
person.
Section 2. Election of Officers. The officers of the Corporation,
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article IV, shall be chosen by the Board of
Directors (or any committee thereof authorized to do so) and each shall serve at
the pleasure of the Board of Directors. The officers shall be elected annually
by the Board of Directors at the first meeting of the Board of Directors held
after the annual meeting of the stockholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as
is convenient. Each officer shall hold office until such officer's successor
shall have been duly elected and shall have qualified, or until such officer's
earlier death, resignation or removal.
Section 3. Subordinate Officers. The Board of Directors may appoint,
and may empower the Chairman of the Board or President to appoint, such other
officers as the business of the Corporation may require, each of whom shall have
such authority and perform such duties as are provided in these Bylaws or as the
Board of Directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Any officer may be
removed, with or without cause, by the Board of Directors, at any regular or
special meeting of the Board of Directors, or, except in case of an officer
appointed by the Board of Directors, by any officer upon whom such power of
removal may be conferred by the Board of Directors. Any such removal shall be
without prejudice to the rights, if any, of an officer under any contract to
which the officer is a party. Any officer may resign at any time by notice
given in writing or by electronic transmission to the Corporation. Any
resignation shall take effect at the date of the receipt of that notice or at
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any later time specified in that notice, and, unless otherwise specified in that
notice, the acceptance of the resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights, if any, of
the Corporation under any contract to which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointments to that
office.
Section 6. Chairman of the Board; Chief Executive Officer. The
Chairman of the Board, shall, if present, preside at meetings of the Board of
Directors and stockholders and exercise and perform such other powers and duties
as may be from time to time assigned to him by the Board of Directors or
prescribed by these Bylaws. The Chairman of the Board shall, in addition, be
the Chief Executive Officer of the Corporation and, in such capacity, shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and the officers of the Corporation.
Section 7. President; Chief Operating Officer. Subject to such
supervisory powers of the Board of Directors and the Chief Executive Officer,
the President shall be the Chief Operating Officer of the Corporation and shall
have general supervision, direction and control of the operations of the
Corporation. The President shall, in the absence of the Chairman of the Board,
preside at all meetings of the stockholders and all meetings of the Board of
Directors. The President shall have the powers and duties of management as may
be prescribed by the Board of Directors or these Bylaws and in the absence or
disability of the Chief Executive Officer, shall perform all duties of the Chief
Executive Officer and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Chief Executive Officer.
Section 8. Vice Presidents. Each of the Vice Presidents shall have
powers and perform such duties as from time to time may be prescribed by the
Board of Directors, these Bylaws, or the Chief Executive Officer of the
Corporation.
Section 9. Secretary. The Secretary shall keep or cause to be kept,
at the principal executive office or such other place as the Board of Directors
may direct, a book of minutes of all meetings and actions of directors,
committees of directors and stockholders, with the time and place of holding,
whether regular or special, and, if special, how authorized, the notice given,
the names of those present at directors' meetings or committee meetings, the
number of shares present or represented at stockholders' meetings, and the
proceedings.
The Secretary shall keep, or cause to be kept, at the principal executive office
or at the office of the Corporation's transfer agent or registrar, as determined
by resolution of the Board of Directors, a stock ledger, or a duplicate stock
ledger, showing the names of all stockholders and their addresses, the number
and classes of shares held by each, the number and date of certificates issued
for the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
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the stockholders and of the Board of Directors required by these Bylaws or
applicable law to be given, and shall keep the seal of the Corporation, if one
be adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors, these Bylaws or the
Chief Executive Officer of the Corporation.
Section 10. Chief Financial Officer. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. The Chief Financial Officer shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the Chief Executive Officer and directors, whenever
they request it, an account of all of such officer's transactions as Chief
Financial Officer and of the financial condition of the Corporation, and shall
have the powers and perform such other duties as may be prescribed by the Board
of Directors, these Bylaws or the Chief Executive Officer of the Corporation.
Section 11. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors. No officer shall be prevented from
receiving salary by reason of the fact that such officer is also a director of
the Corporation.
ARTICLE V
INDEMNITY
Section 1. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) (i) The Corporation shall indemnify any director or officer 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 or officer 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 entity or 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 such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
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Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(ii) The Corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that such person is or was an 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 entity or 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 such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) (i) The Corporation shall indemnify any director or officer who was or
is a party or is threatened to be made a party to any threatened or 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 or officer 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 entity or enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the Corporation and
except that no such indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(ii) The Corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened or 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 an 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 entity or enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted in
good faith and in a manner such person reasonably believed to be in or not
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opposed to the best interest of the Corporation and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
(c) (i) To the extent that a director or officer of the Corporation
shall be successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Section 1, 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.
(ii) To the extent that an employee or agent of the Corporation shall be
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Section 1, or in
defense of any claim, issue or matter therein, such person may be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, if the Board of Directors deems it
appropriate.
(d) Any indemnification under paragraphs (a) and (b) of this Section 1
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made with respect to each such person, (i) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (iv) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by a director or
officer in defending a civil or criminal action, suit or proceeding shall 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 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 Section 1. Such expenses incurred by other employees and agents (including
attorneys' fees) may be so paid upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 1 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 disinterested directors or otherwise, both as to action in such
persons' official capacity and as to action in another capacity while holding
such office. Any such indemnification may be subject to such conditions as may
be imposed under any policy of directors' and officers' liability insurance
obtained by the Corporation.
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(g) The Board of Directors may authorize the Corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation or a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
entity or enterprise against any liability asserted against such person and
incurred by such person in any such capacities, or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
such person against liability under the provisions of this Section 1. The Board
of Directors, without approval of the stockholders, shall have the power to
borrow money on behalf of the Corporation, including the power to pledge the
assets of the Corporation, from time to time to discharge the Corporation's
obligations with respect to indemnification, the advancement and reimbursement
of expenses and the purchase and maintenance of insurance referred to in this
Section 1.
(h) For the purposes of this Section 1, 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 and 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 entity or
enterprise, shall stand in the same position under the provisions of this
Article V 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 Section 1, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include 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 any employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner 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 Section 1.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 1 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 a person.
(k) The Court of Chancery of Delaware is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this Section 1 or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine the Corporation's obligation to advance expenses
(including attorneys' fees).
(l) In the event that any action, suit or proceeding is brought against
any person entitled to indemnification pursuant to this Article V, the
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Corporation shall have the right, at the cost and expense of the Corporation, to
defend such action in the name and on behalf of the indemnified party (using
counsel designated by the Corporation, who may also be counsel to the
Corporation); provided, however, that an indemnified party shall have the right
to conduct its own defense and designate its own counsel, if the conduct of such
defense by the Corporation or representation of such indemnified party by
counsel designated by the Corporation would be inappropriate because of actual
or potential differing interests between such indemnified party and the
Corporation.
ARTICLE VI
CERTIFICATES FOR STOCK AND THEIR TRANSFER
Section 1. Certificates for Stock. Certificates representing stock of
the Corporation shall be in such form as shall be determined by the Board of
Directors. Every holder of stock of the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation, (i) by the Chairman of the
Board of Directors, the President or a Vice President and (ii) by the Chief
Financial Officer or the Secretary or the Assistant Secretary of the
Corporation, and sealed with the corporate seal certifying the number of shares
owned by such person in the Corporation. Any or all of the signatures may be a
facsimile. The name and address of the person to whom the shares represented
thereby are issued, with the number of shares and the date of issue, shall be
entered on the stock transfer books of the Corporation.
Section 2. Transfer of Stock. Transfer of stock of the Corporation
shall be made on the stock transfer books of the Corporation and only by the
holder of record thereof or by such holder's legal representative, who shall
furnish proper evidence of authority to transfer, or by such holder's attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation and upon surrender of the certificates therefor for
cancellation. All certificates surrendered to the Corporation for cancellation
shall be canceled, and no new certificates shall be issued until the former
certificate for those shares shall have been surrendered and canceled, except in
the case of a lost, stolen or destroyed certificate which shall be issued in
accordance with Section 3 of this Article VI.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such person's legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to be lost, stolen or destroyed.
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Section 4. Uncertificated Stock. The Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of the stock of the Corporation shall be uncertificated
stock. Any such resolution shall not apply to shares of stock represented by a
certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
upon request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation by the Chairman of the
Board of Directors, or the President or Vice President, and by the Chief
Financial Officer or the Secretary or an Assistant Secretary of the Corporation
representing such shares in certificate form. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, agent or registrar who
has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of January and end on the last day of December of each
year.
Section 2. Corporate Seal. The Board of Directors shall adopt a
corporate seal which shall be circular in form and shall have inscribed thereon
the name of the Corporation, the state of incorporation, the year of its
organization and the words, "Corporate Seal."
Section 3. Electronic Signatures. For purposes of any consent, waiver,
or resignation by any stockholder, proxyholder, director or officer, which is
permitted by these Bylaws to be given by telegram, cablegram or other electronic
transmission, such consent, waiver, or resignation shall be deemed to be
written, signed and dated if such telegram, cablegram or other electronic
transmission sets forth or is delivered with information from which the
Corporation can determine (a) that the telegram, cablegram or other electronic
transmission was transmitted by the stockholder, proxyholder, director or
officer or by a person or persons authorized to act for the stockholder,
proxyholder, director or officer, as the case may be, and (b) the date on which
such person or persons transmitted such telegram, cablegram or other electronic
transmission. The date on which such telegram, cablegram or other electronic
transmission is transmitted shall be deemed to be the date on which such
consent, waiver or resignation was signed. No consent, waiver or resignation
given by telegram, cablegram or other electronic transmission shall be deemed to
be delivered until such consent, waiver or resignation is reproduced in paper
form and such reproduction is delivered to the Corporation.
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ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed, in whole or
in part, and new Bylaws may be adopted by the stockholders or by the Board of
Directors, at any regular or special meeting of the stockholders or the Board or
by unanimous written consent of the Board. Notice of any alteration, amendment,
repeal or the adoption of new Bylaws to be proposed at a meeting of stockholders
or the Board shall be contained in the notice of such meeting of stockholders or
the Board, as the case may be. All such amendments adopted at a meeting of
stockholders or the Board of Directors shall be approved by the holders of a
majority of the shares entitled to vote thereon or by a majority of the whole
Board of Directors, as the case may be.
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