Exhibit 3.2
BY-LAWS
of
SPO Medical Inc.
(a Delaware corporation)
Article I
Offices
1.1 The Board of Directors (the "Board") of the corporation shall fix the
location of the principal executive office of the corporation at any place
within or outside the State of Delaware.
1.2 The Board may at any time establish branch or subordinate offices at
any place or places.
Article II
Meetings of Stockholders
2.1 All meetings of the stockholders for the election of directors shall
be held at the principal office of the corporation , at such place as may be
fixed from time to time by the Board or at such other place either within or
without the State of Delaware as shall be designated from time to time by the
Board and stated in the notice of the meeting. Meetings of stockholders for any
other purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.2 Annual Meeting. Annual meetings of stockholders shall be held at such
other date and time as shall be designated from time to time by the Board and
stated in the notice of the meeting, at which they shall elect by a Board, and
transact such other business as may properly be brought before the meetings.
2.3 Special Meetings. Special meetings of the stockholders may be called
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, at the request of the Board, the Chairman of the
Board, the President or the stockholders owning a majority in amount of the
entire capital stock of the corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the meeting.
2.4 Notice of Meetings. Written notice of stockholders' meetings, stating
the place, date and time of the meeting and the purpose or purposes for which
the meeting is called, shall be given to each stockholder entitled to vote at
such meeting on not less than ten (10) nor more than sixty (60) days prior to
the meeting.
When a meeting is adjourned to another place, date or time, written notice
need not be furnished of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken,
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date and time of the adjourned meeting shall be furnished in conformity
herewith. At any adjourned meeting, any business may be transacted which might
have been transacted at the original meeting.
2.5 Business Matter of a Special Meeting. Business transacted at a special
meeting of stockholders shall be limited to the purposes stated in the notice.
2.6 List of Stockholders. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place, if other than the place of the meeting,
shall be specified in the notice of the meeting. 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.
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2.7 Organization and Conduct of Business. The Chairman of the Board, or in
his or her absence, the President of the corporation or, in their absence, such
person as the Board may have designated or, in the absence of such person, such
person as may be chosen by the holders of a majority of the shares entitled to
vote who are present, in person or by proxy, shall call to order any meeting of
the stockholders and act as Chairman of the meeting. In the absence of the
Secretary of the corporation, the Secretary of the meeting shall be such person
as the Chairman appoints.
The chairman of any meeting of the stockholders shall determine the order
of the business and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of the discussion as seems to him or her in
order.
2.8 Quorum and Adjournments. Except where otherwise provided by law or by
the Certificate of Incorporation or these By-Laws, the holders of a majority of
the stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all meetings of the
stockholders. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to have less than a quorum
if any action taken (other than adjournment) is approved by at least a majority
of the shares required to constitute a quorum. At such adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented.
2.9 Voting Rights. Unless otherwise provided in the 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
having voting power held by such stockholder.
2.10 Majority Vote. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or
the Certificate of Incorporation or these By-Laws, a different vote is required
in which case such express provision shall govern and control the decision of
such question.
2.11 Record Date for Stockholder Notice and Meeting. For purposes of
determining the stockholders entitled to notice of any meeting or to vote, or
entitled to receive payment of any divided or other distribution, or entitled to
exercise any right in respect of any change, conversion or exchange of stock for
the purpose of any other lawful action, the Board may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days before
any other action.
If the Board does not fix a record date, the record date of determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of the business on the
business day next preceding the day on which the meeting is held.
2.12 Proxies. Every person entitled to vote for directors or any other
matter shall have the right to do so either in person or by one or more agents
authorized by written proxy signed by the person and filed with the Secretary of
the corporation. A proxy shall be deemed signed if the stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telecopier
transmission or otherwise) by the stockholder or the stockholder's
attorney-in-fact. A validly executed proxy which does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that such proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy; or (ii) written notice of the death or
incapacity of the maker of the proxy is received by the corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of eleven months from the date of the proxy,
unless otherwise provided in the proxy.
2.13 Action Without a Meeting by Written Consent. Except for the removal
of a director, all actions required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take that action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the corporation by
delivery to its registered office, its principal place of business, or an
officer of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded.
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Article III
Directors
3.1 Number; Qualification. The number of directors shall be determined
from time to time by resolution of the Board and the initial Board shall consist
of three (3) directors. All directors shall be elected et the annual meeting or
any special meeting of the stockholders, except as provided in Section 3.2 of
this Article, and each director so elected shall hold office until his successor
is elected and qualified or until his earlier resignation or removal. Directors
need not be stockholders.
3.2 Resignation and Vacancies. A vacancy or vacancies in the Board shall
be deemed to exist in the case of the death, resignation or removal of any
director, or if the authorized number of directors be increased. Vacancies may
be filled by a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, unless otherwise provided in the
Certificate of Incorporation. If the Board accepts the resignation of a director
tendered to take effect at a future time, the Board shall have the power to
elect a successor to take office when the resignation is to become effective. If
there are no directors in office, then an election of the directors may be held
in the manner provided by law.
3.3 Removal of Directors. Unless otherwise restricted by statute, the
Certificate of Incorporation or these By-Laws, any director or the entire board
of directors may be removed, with or without cause, by the holders of a majority
of shares entitled to vote at an election of directors at the annual meeting or
any special meeting of the stockholders. In addition, an employee-director whose
employment with the Company is terminated for whatsoever reason shall,
automatically and without any further action, cease to be a director.
3.4 Powers. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these By-Laws directed or required to
be exercised or done by the stockholders.
Without prejudice to these general powers, and subject to the same
limitations, the directors shall have the power to
(a) Select and remove all officers, agents and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the Certificate of Incorporation and with these By-Laws; fix their
compensation; and require from them security for faithful service;
(b) Confer upon any office the power to appoint, remove and suspend
subordinate officers, employees and agents;
(c ) Change the location of the principal executive office or the
principal business office; cause the corporation to be qualified to do business
in any state, territory, dependency or country and conduct business within or
without the State of Delaware for the holding of any stockholder meetings,
including annual meetings;
(d) Adopt, make and use a corporate seal; prescribe the forms of
certificate of stock; and alter the form of the seal and certificate;
(e) Authorize the issuance of shares of stock of the corporation on any
lawful terms, in consideration of money paid, labor done, service actually
rendered, debt or securities canceled, tangible or intangible property actually
received;
(f) Borrow money and incur indebtedness on behalf of the corporation, and
cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecation and other evidences of debt and securities;
(g) Declare dividends from time to time in accordance with law;
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(h) Adopt from time to time such stock option, stock purchase, bonus or
other compensation plans for directors, officers, employees and agents of the
corporation and its subsidiaries as it may determine; and
(i) Adopt from time to time regulations not inconsistent with these
By-Laws for the management of the corporation's business and affairs.
3.5 Place of Meetings. The Board may hold meetings, both regular and
special, either within or without the State of Delaware.
3.6 Annual Meetings. The annual meeting of the Board shall be held
immediately following the annual meeting of the stockholders and no notice of
such meeting shall be necessary to the Board, provided, a quorum shall be
present. The annual meeting shall be the purposes of organization, and an
election of officers and the transaction of other business.
3.7 Regular Meetings. Regular meetings of the Board may be held without
notice at such time and at such place as shall from time to time be determined
by the Board.
3.8 Special Meetings. Special meetings of the Board may be called by the
Chairman of the Board, the President, a Vice-President or a majority of the
Board upon one (1) day's notice to each director.
3.9 Quorum and Adjournments. At all meetings of the Board, a majority of
the directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation. If a quorum is not
present at any meeting of the Board, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action is approved by at least a majority of the
required quorum for that meeting.
3.10 Action Without a Meeting. Unless otherwise restricted by the
Certificate of incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
3.11 Telephone Meetings. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, members of the Board, or any committee
designated by the Board, may participate in a meeting of the Board, or any
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 such participation in a meeting shall constitute presence in person at the
meeting.
3.12 Waiver of Notice. Notice of a meeting need not be given to any
director who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or its commencement. Al
such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting.
3.13 Fees and Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board and may be paid a
fixed for attendance at each meeting of the Board or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.14 Rights of Inspection. Every director shall have the absolute right at
any reasonable time to inspect and copy all books, records and documents of
every kind and to inspect the physical properties of the corporation and also of
its subsidiary corporations, domestic or foreign. Such inspection by a director
may be made in person or by agent or attorney and includes the right to copy and
obtain abstracts.
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Article IV
Committees of Directors
4.1 Selection. The Board may, by resolution passed by a majority of the
entire board, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or she or they constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member.
4.2 Powers. Any such committee, to the extent provided in the resolution
of the Board, shall have and may exercise all the powers and authority of the
directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors as provided in
Section 151(a) of the General Corporation Law of Delaware, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
By-Laws of the corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board.
4.3 Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board when required.
Article V
Officers
5.1 Officers Designated. The officers of the corporation shall be chosen
by the Board and shall be a President, a Chief Executive Officer, a Secretary
and a Treasurer. The Board may also choose a Chairman of the Board, one or more
vice-presidents, and one or more assistant Secretaries and Treasurers. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-Laws otherwise provide.
5.2 Appointment of Officers. The Officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 5.3 or
5.5 of this Article, shall be appointed by the Board, and each shall serve at
the pleasure of the Board, subject to the rights, if any, of an officer under
any contract of employment.
5.3 Subordinate Officers. The Board may appoint, and may empower the
President to appoint, such other officers and agents as the business of the
corporation may require, each of whom shall hold for such period, have such
authority and perform such duties as are provided in the By-Laws or as the Board
may from time to time determine.
5.4 Removal and Resignation of Officers. Subject to the rights, if any, of
any officer under any contract or employment, any officer may be removed, either
with or without cause, by an affirmative vote of the majority of the Board, at a
special meeting of the Board, or, except in the case of an officer chosen by the
Board, by any officer upon whom power of removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
notice or at 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 is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 Vacancies in Office. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office.
5.6 Compensation. The salaries of all officers of the corporation shall be
fixed from time to time by the Board and no officer shall be prevented from
receiving a salary because he or she is also a director of the corporation.
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5.7 Chairman of the Board. The Chairman of the Board, if such an officer
be elected, shall, if present, perform such other powers and duties as may be
assigned to him from time to time by the Board.
5.8 The President. Subject to such supervisory powers, if any, as may be
given to the Chairman of the Board, if there be such an officer, the President
or the Chief Executive Officer of the corporation, as the Board shall decide,
shall preside at all meetings of the stockholders and the Board, shall have
general and active management of the business of the corporation and shall see
that all orders and resolutions of the board of directors are carried into
effect. The President shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board to some
other officer or agent of the corporation.
5.9 The Vice President. The Vice-President (or in the event there be more
than one vice-president, the vice-presidents in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall, in the absence of the President or in the event of his
disability or refusal to act, perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The vice-presidents shall perform such other duties and have such
other powers as may from time to time be prescribed for them by the Board, the
President, the Chairman of the Board or these By-Laws.
5.10 The Secretary. The Secretary shall attend all meetings of the Board
and all meetings of the stockholders and record all the proceedings of the
meetings of the corporation and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committee when required.
The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board, and shall perform such other
duties as may be prescribed by the Board, the Chairman of the Board or the
President, under whose supervision he or she shall act. The Secretary shall have
custody of the corporate seal of the corporation and he or she, or an assistant
secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, the seal may be attested by his or her signature or by
the signature of such assistant secretary. 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 a resolution of the Board, a share
register, or a duplicate share register, showing the names of all the
stockholders and their addresses, the number and classes of shares held by each,
the number and date of the certificates issued for the same and the number and
date of cancellation of every certificate surrendered for cancellation.
5.11 The Assistant Secretary. The assistant Secretary, or if there be more
than one, the assistant secretaries in the order determined by the Board (or if
there be no such determination, then in the order of their election) shall, in
the absence of the Secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
5.12 The Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and 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 the Board. The Secretary shall
disburse the funds of the corporation as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the President and
the Board, at its regular meetings, or when the Board so requires, an account of
all his or her transactions as Treasurer and of the financial condition of the
corporation.
5.13 The Assistant Treasurer. The assistant Treasurer, or if there shall
be more than one, the assistant Treasurers in the order determined by the Board
(or if there be no such determination, then in the order of their election)
shall, 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
and shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
Article VI
Certificates for Shares
6.1 Certificates for Shares. The shares of the corporation shall be
represented by a certificate or shall be uncertificated. Certificates shall be
signed by, or in the name of the corporation by, the Chairman of the board of
directors, or the President or a Vice-President, and by the Treasurer or an
assistant Treasure, or the Secretary or an assistant Secretary of the
corporation.
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Within a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a written
notice containing the information required by the General Corporation Law of the
State of Delaware or a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
6.2 Signature on Certificates. Any of or all the signatures on a
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6.3 Transfer of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be cancelled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the
transaction shall be recorded upon the books of the corporation.
6.4 Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividend, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
6.5 Record Date. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting: provided,
however, that the Board may fix a new record date for the adjourned meeting.
6.6 Lost Certificates. The Board may direct a new certificate or
certificates be issued to replace any certificate or certificates theretofore
issued by the corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that face by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such isue of a new
certificate or certificates or uncertificated shares, the Board may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Article VII
Notices
7.1 Notices. Whenever, under the provisions of the statutes or the
Certificate of Incorporation or these By-Laws, notice is required to be given to
any director or stockholder it shall be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his or her address as it appears on the records of the
corporation, with the postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram, telephone or facsimile.
7.2 Waiver. Whenever any notice is required to be given under the
provisions of the statutes or the Certificate of Incorporation or these By-Laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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Article VIII
General Provision
8.1 Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
8.2 Dividend Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conductive to the interests
of the corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
8.3 Annual Statement. The Board shall present at each annual meeting, and
at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
8.4 Checks. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the Board may from time to time designate.
8.5 Corporate Seal. The Board shall provide a suitable corporate seal,
containing the name of the corporation, which seal shall be in the care of the
Secretary.
8.6 Execution of Corporate Contracts and Instruments. The Board, except as
otherwise provided in these By-Laws, may authorize any officer, or agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the corporation; such authority may be general or confined to
specific instances. Unless so authorized or ratified by the Board or within the
agency power of an officer, no officer or agent shall have any power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
Article IX
Indemnification of Directors,
Officers and Employees
Except to the extent expressly prohibited by the Delaware Corporation Law,
the corporation shall indemnify each person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, by reason of the
fact that such person or such person's testator or intestate is or was a
director, officer or employee of the corporation, or serves or served at the
request of the corporation, any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgment, fines, penalties, amounts paid in settlement and reasonable expenses,
including attorneys' fees, incurred in connection with such action or
proceeding, or any appeal therein, provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such person
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any
settlement or other nonadjudicated disposition of any threatened or pending
action or proceeding unless the corporation has given its prior consent to such
settlement or other disposition
The corporation may advance or promptly reimburse upon request any
person entitled to indemnification hereunder for all expenses, including
attorneys' fees, reasonably incurred in defending any action or proceeding in
advance of the final disposition thereof upon receipt of an undertaking by or on
behalf of such person to repay such amount if such person is ultimately found
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced or reimbursed exceed the amount to which
such person is entitled, provided, however, that such person shall cooperate in
good faith with any request by the corporation that common counsel be utilized
by the parties to an action or proceeding who are similarly situated unless to
do so would be inappropriate due to actual or potential differing interests
between or among such parties.
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Nothing herein shall limit or affect any right of any person
otherwise than hereunder to indemnification or expenses, including attorneys'
fees, under any statute, rule, regulation, certificate of incorporation, by-law,
insurance policy, contract or otherwise.
Anything in these by-laws to the contrary notwithstanding, no elimination
of this by-law, and no amendment of this by-law adversely affecting the right of
any person to indemnification or advancement of expenses hereunder shall be
effective until the 60th day following notice to such person or such action, and
no elimination of or amendment to this by-law shall deprive any person of his or
her rights hereunder arising out of alleged or actual occurrences, acts or
failures to act prior to such 60th day.
The corporation shall not, except by elimination or amendment of this
by-law in a manner consistent with the preceding paragraph, take any corporate
action or enter into any agreement which prohibits, or otherwise limits the
rights of any person to, indemnification in accordance with the provisions of
this by-law. The indemnification of any person provided by this by-law shall
continue after such person has ceased to be a director, officer or employee of
the corporation and shall inure to the benefit of such person's heirs,
executors, administrators and legal representatives.
The corporation is authorized to enter into agreements with any of its
directors, officers or employees extending rights to indemnification and
advancement of expenses to such person to the fullest extent permitted by
applicable law, but the failure to enter into any such agreement shall not
affect or limit the rights of such person pursuant to this by-law, it being
expressly recognized hereby that all directors, officers and employees of the
corporation, by serving as such after the adoption hereof, are acting in
reliance hereon and that the corporation is estopped to contend otherwise.
In case any provision in this by-law shall be determined at any time to be
unenforceable in any respect, the other provisions shall not in any way be
affected or impaired thereby, and the affected provision shall be given the
fullest possible enforcement in the circumstances, it being the intention of the
corporation to afford indemnification and advancement of expenses to its
directors, officers and employees, acting in such capacities or in the other
capacities mentioned herein, to the fullest extent permitted by law.
For purposes of this by-law, the corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his or her duties to the corporation also beneficiaries of the
plan, and excise taxes assessed on a person with respect to an employee benefit
plan pursuant to applicable law shall be considered indemnifiable expenses. For
purposes of this by-law, the term "corporation" shall include any legal
successor to the corporation, including any corporation which acquires all or
substantially all of the assets of the corporation in one or more transactions.
Article X
Amendments
In addition to the right of the stockholders of the corporation to make,
alter, amend, change, add to or repeal the By-Laws of the corporation, the Board
shall have the power (without the assent or vote of the stockholders) to make,
alter, amend, change add to or repeal the By-laws of the corporation.
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