CARDIOBIOMEDICAL CORPORATION
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(a Delaware corporation)
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BYLAWS
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As adopted by the Board of Directors as of June 1, 2003
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation
shall be at 1209 Orange Street, in the City of Wilmington, County of New Castle,
State of Delaware 19801. The registered agent of the Corporation at such address
is The Corporation Trust Company.
Section 1.2 Additional Offices. The Corporation may also have offices,
including its principal office, at such other places, both within and without
the State of Delaware, as the Board of Directors may from time to time determine
or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Time and Place. Meetings of stockholders may be held at such
time and place, within or without the State of Delaware, as the Board of
Directors may fix from time to time and as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2.2 Annual Meeting. Annual meetings of stockholders shall be held
each year at such date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting. At such annual
meeting, the stockholders shall elect a Board of Directors and transact such
other business as may properly be brought before the meeting.
Section 2.3 Notice of Annual Meeting. Written notice of the annual
meeting, stating the place (if any), date and time thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, shall be given to each
stockholder entitled to vote at such meeting not less than 10 (unless a longer
period is required by law) nor more than 60 days prior to the meeting. If
mailed, such notice shall be deemed to have been given when deposited in the
U.S. mail, postage prepaid, directed to the stockholder at such stockholder's
address as it appears on the records of the Corporation.
Section 2.4 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, if
any, or the President and shall be called by the President or Secretary at the
request in writing of a majority of the Board of Directors or at the request in
writing of the stockholders owning a majority of the shares of capital stock of
the Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 2.5 Notice of Special Meeting. Written notice of a special
meeting, stating the place (if any), date and time thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than 10 (unless a longer period is
required by law) nor more than 60 days prior to the meeting.
Section 2.6 List of Stockholders. The officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least 10 days prior to the meeting, 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 in person thereat.
Section 2.7 Presiding Officer; Business to be Transacted at Special
Meetings.
(a) Meetings of stockholders shall be presided over by the Chairman
of the Board, if any, or, if he is not present (or, if there is none), by the
President, or, if he is not present, by a Vice President, or, if he is not
present (or, if there is none), by such person who may have been chosen by the
Board of Directors, or, if none of such persons is present, by a chairman to be
chosen by the stockholders owning a majority of the shares of capital stock of
the Corporation issued and outstanding and entitled to vote at the meeting and
who are present in person or represented by proxy. The Secretary of the
Corporation, or, if he is not present, an Assistant Secretary, or, if he is not
present (or, if there is none), such person as may be chosen by the Board of
Directors, shall act as secretary of meetings of stockholders, or, if none of
such persons is present, the stockholders owning a majority of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote at
the meeting and who are present in person or represented by proxy shall choose
any person present to act as secretary of the meeting.
(b) Business transacted at any special meting of stockholders shall
be limited to the purposes stated in the notice.
Section 2.8 Quorum; Adjournments. The holders of a majority of the shares
of capital stock of the Corporation issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall be necessary to, and
shall constitute a quorum for, the transaction of business at all meetings of
the stockholders, except as otherwise provided by statute or by the Certificate
of Incorporation. If, however, a 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 the power to adjourn the
meeting from time to time, without notice of the adjourned meeting if the time
and place (if any) thereof, and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person and
vote at such adjourned meeting, are announced at the meeting at which the
adjournment is taken, until a quorum shall be present or represented. Even if a
quorum shall 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 the power to adjourn the meeting from time to time for good
cause, without notice of the adjourned meeting, if the time and place thereof
are announced at the meeting at which the adjournment is taken, until a date
which is not more than 30 days after the date of the original meeting. At any
such adjourned meeting, at which a quorum shall be present in person or
represented by proxy, any business may be transacted which might have been
transacted at the meeting as originally called. 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 of record entitled to vote thereat.
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Section 2.9 Voting.
(a) At any meeting of stockholders, every stockholder having the
right to vote shall be entitled to vote in person or by proxy, but no proxy
shall be voted or acted upon after three (3) years form its date, unless the
proxy provides for a longer period. Except as otherwise provided by law or the
Certificate of Incorporation, each stockholder of record shall be entitled to
one vote for each share of capital stock registered in such stockholder's name
on the books of the Corporation.
(b) All elections shall be determined by a plurality vote, and,
except as otherwise provided by law or the Certificate of Incorporation, all
other matters shall be determined by the affirmative vote of a majority of the
shares present in person or represented by proxy and voting on such other
matters.
Section 2.10 Action by Consent. Any action required or permitted by law or
the Certificate of Incorporation to be taken at any meeting of stockholders may
be taken without a meeting, without prior notice and without a vote, if a
written consent, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present or represented by proxy and
voted. Such written consent shall be filed with the minutes of meetings of
stockholders. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not so consented in writing thereto.
ARTICLE III
DIRECTORS
Section 3.1 General Powers; Number; Tenure. The business of the
Corporation shall be managed by its Board of Directors, which may exercise all
powers of the Corporation and perform all lawful acts and things which are not
by law, the Certificate of Incorporation or these Bylaws directed or required to
be exercised or performed by the stockholders. Within the limits specified in
this Section 3.1, the number of directors shall be determined by the Board of
Directors from time to time, except that if no such determination is made, the
number of directors shall be one (1), but may never be less than the number
otherwise permitted by law. The directors shall be elected at the annual meeting
of the stockholders, except as provided in Section 3.2 of this Article, and each
director elected shall hold office until his successor is elected and shall
qualify. Directors need not be stockholders.
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Section 3.2 Vacancies. If any vacancies occur in the Board of Directors,
or if any new directorships are created, they may be filled by a vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. Each director so chosen shall hold office until the
next annual meeting of stockholders and until his successor is duly elected and
shall qualify. If there are no directors in office, any officer or stockholder
may call a special meeting of stockholders in accordance with the provisions of
the Certificate of Incorporation or these Bylaws, at which meeting such
vacancies shall be filled.
Section 3.3 Removal; Resignation.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, any director, directors or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote on the election of directors.
(b) Any director may resign at any time by giving notice in writing
or by electronic transmission to the Board of Directors, the Chairman of the
Board, the President or the Secretary of the Corporation. Unless otherwise
specified in such written notice, a resignation shall take effect upon delivery
thereof to the Board of Directors or the designated officer. It shall not be
necessary for a resignation to be accepted before it becomes effective.
Section 3.4 Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 3.5 Annual Meeting. The annual meeting of each newly elected Board
of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event such meeting is not held at such time, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors or
as shall be specified in a written waiver signed by all of the directors.
Section 3.6 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice, at such time and place as may from time to time be
determined by the Board of Directors.
Section 3.7 Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President or by two or more
directors on at least two days' notice to each director, if such notice is
delivered personally, facsimile, or sent by telegram or express courier, or on
at least three days' notice if sent by mail. Special meetings shall be called by
the Chairman of the Board, President, Secretary or two or more directors in like
manner and on like notice on the written request of a majority of directors then
in office. Any such notice need not state the purpose or purposes of such
meeting except as provided in ARTICLE XII.
Section 3.8 Quorum; Adjournments. At all meetings of the Board of
Directors, a majority of the directors then in office 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
of Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any meeting of the
Board of Directors, the directors present may adjourn the meeting, from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
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Section 3.9 Compensation. Directors shall be entitled to such compensation
for their services as directors and to such reimbursement for any reasonable
expenses incurred in attending directors' meetings as may from time to time be
fixed by the Board of Directors. The compensation of directors may be on such
basis as is determined by the Board of Directors. Any director may waive
compensation for any meeting. Any director receiving compensation under these
provisions shall not be barred from serving the Corporation in any other
capacity and receiving compensation and reimbursement for reasonable expenses
for such other services.
Section 3.10 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting by
a consent thereto in writing or by electronic transmission, if all members of
the Board of Directors consent thereto in writing or participate in the
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of the proceedings of the Board of
Directors.
Section 3.11 Meetings by Telephone or Similar Communications. The Board of
Directors may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all directors participating
in the meeting can hear each other, and participation in such meeting shall
constitute presence in person by such director at such meeting.
ARTICLE IV
COMMITTEES
Section 4.1 Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate one or more committees, each
committee to consist of one (1) 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 present at any meeting and not disqualified form voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of the absent or disqualified member.
Section 4.2 Powers. To the extent provided in the resolution of the Board
appointing the committee and subject to any restrictions imposed by statute, any
such committee 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
Section 4.3 Procedure; Meetings. Each committee shall fix its own rules of
procedure and shall meet at such times and at such place or places as may be
provided by such rules or as the members of the committee shall provide. Each
committee shall keep regular minutes of its meetings and deliver such minutes to
the Board of Directors.
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Section 4.4 Quorum. A majority of the members of a committee shall
constitute a quorum for the transaction of business, and the affirmative vote of
a majority of the members of the committee shall be required for any action of
such committee except as may otherwise be specifically provided by statute or
the Certificate of Incorporation; provided, however, that when a committee of
one member is authorized under the provisions of Section 4.1 of this Article,
such one member shall constitute a quorum. If a quorum is not present at any
committee meeting, the directors present may adjourn the meeting, from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 4.5 Vacancies; Changes; Discharge. The Board of Directors shall
have the power at any time to fill vacancies in, to change the membership of,
and to discharge any committee.
Section 4.6 Compensation. Members of any committee shall be entitled to
such compensation for their services as members of any such committee and to
such reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. Any member
may waive compensation for any meeting. Any committee member receiving
compensation under these provisions shall not be barred from serving the
Corporation in any other capacity and from receiving compensation and
reimbursement of reasonable expenses for such other services.
Section 4.7 Action by Consent. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of its
proceedings.
Section 4.8 Meetings by Telephone or Similar Communications. The members
of any committee designated by the Board of Directors may participate in a
meeting of such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in such
meeting can hear each other and participation in such meeting shall constitute
presence in person at such meeting.
ARTICLE V
NOTICES
Section 5.1 Form; Delivery. Whenever, under the provisions of law, the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any director or stockholder, it shall not be construed to mean personal notice
unless otherwise specifically provided, but such notice may be given in writing,
by mail, addressed to such director or stockholder, at such party's address as
it appears on the records of the Corporation, with postage thereon prepaid. Such
notices shall be deemed to be given at the time they are deposited in the United
States mail. Notice to a director may also be given personally, express courier
or by telegram sent to his address as it appears on the records of the
Corporation or by facsimile.
Section 5.2 Waiver. Whenever any notice is required to be given under the
provisions of law, the Certificate of Incorporation or these Bylaws, a written
waiver thereof, signed by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the time stated therein, shall be deemed to be equivalent to
such notice. In addition, any stockholder who attends a meeting of stockholders
in person, or is represented at such meeting by proxy, without protesting at the
commencement of the meeting the lack of notice thereof to him, or any director
who attends a meeting of the Board of Directors or a committee without
protesting at the commencement of the meeting such lack of notice, shall be
conclusively deemed to have waived notice of such meeting.
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ARTICLE VI
OFFICERS
Section 6.1 Required Officers. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, Treasurer and
Secretary. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise provide.
Section 6.2 Other Officers; Term of Office; Removal. The Board of
Directors at its annual meeting after each annual meeting of stockholders shall
choose a President, a Secretary and a Treasurer. The Board of Directors may also
choose a Chairman of the Board, a Chief Executive Officer, a Chief Operating
Officer, a Chief Financial Officer, a Vice President or Vice Presidents, one or
more Assistant Secretaries and/or Assistant Treasurers, and such other officers
and agents as it shall deem necessary or appropriate. All officers of the
Corporation shall exercise such powers and perform such duties as shall from
time to time be determined by the Board of Directors. Each officer of the
Corporation shall hold office until his successor is chosen and shall qualify or
until his earlier resignation or removal. Any officer elected or appointed by
the Board of Directors may be removed, with or without cause, at any time by the
affirmative vote of a majority of the directors then in office. Such removal
shall not prejudice the contract rights, if any, of the person so removed. Any
vacancy occurring in any office of the Corporation may be filled in the manner
prescribed by the Board of Directors.
Section 6.3 Compensation. The salaries of all officers of the Corporation
shall be fixed from time to time by the Board of Directors and no officer shall
be prevented from receiving such salary by reason of the fact that he is also a
director of the Corporation.
Section 6.4 The Chairman of the Board. The Chairman of the Board, if any,
shall be an officer of the Corporation and, subject to the direction of the
Board of Directors, shall perform such executive, supervisory and management
functions and duties as may be assigned to him from time to time by the Board of
Directors. He shall, if present, preside at all meetings of stockholders and of
the Board of Directors.
Section 6.5 The President.
(a) The President shall be the chief executive officer of the
Corporation and, subject to the direction of the Board of Directors, shall have
general charge of the business, affairs and property of the Corporation and
general supervision over its other officers and agents. In general, he shall
perform all duties incident to the office of President and shall see that all
orders and resolutions of the Board of Directors are carried into effect. In
addition to and not in limitation of the foregoing, the President shall be
empowered to authorize any change of the registered office or registered agent
(or both) of the Corporation in the State of Delaware.
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(b) Unless otherwise prescribed by the Board of Directors, the
President shall have full power and authority on behalf of the Corporation to
attend, act and vote at any meeting of security holders of other corporations in
which the Corporation may hold securities. At such meeting the President shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities which the Corporation might have possessed and exercised if
it had been present. The Board of Directors may from time to time confer like
powers upon any other person or persons.
Section 6.6 The Vice Presidents. The Vice President, if any (or in the
event there be more than one, the Vice Presidents in the order designated, or in
the absence of any designation, in the order of their election), shall, in the
absence of the President or in the event of his disability, perform the duties
and exercise the powers of the President and shall generally assist the
President and perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Section 6.7 The Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committee of the Board of Directors, if required. He
shall give, or cause to be given, notice of all meetings of stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may from time to time be prescribed by the Board of Directors, the Chairman
of the Board or the President, under whose supervision he shall act. He shall
have custody of the seal of the Corporation, and he, 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 signature or by the signature of
such Assistant Secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing thereof by his signature.
Section 6.8 The Assistant Secretary. The Assistant Secretary, if any (or
in the event there be more than one, the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of his
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 6.9 The Treasurer. The Treasurer shall have the custody of the
corporate funds and other valuable effects, including 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 from time
to time be designated by the Board of Directors. He shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board,
the President and the Board of Directors, at regular meetings of the Board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
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Section 6.10 The Assistant Treasurer. The Assistant Treasurer, if any (or
in the event there shall be more than one, the Assistant Treasurers in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of his
disability, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 6.11 The Chief Financial Officer. The Chief Financial Officer, if
any, shall have the custody of the corporate funds and other valuable effects,
including 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 from time to time be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer, the Chief Operating Officer and the Board
of Directors, at meetings of the Board of Directors, or whenever they may
require it, an account of all his transactions as Chief Financial Officer and of
the financial condition of the Corporation.
Section 6.12 The Chief Operating Officer. Except as otherwise determined
by the Board of Directors, the Chief Operating Officer, if any, shall have
general charge of such day-to-day operations of the business as shall be
assigned to him by the Chief Executive Officer. The Chief Operating Officer
shall, in the absence of the Chief Executive Officer or in the event of his
disability, perform the duties and exercise the powers of the Chief Executive
Officer.
Section 6.13 The Chief Executive Officer.
(a) The Chief Executive Officer, if any, subject to the direction of
the Board of Directors, shall have general charge of the business, affairs and
property of the Corporation and general supervision over its other officers and
agents. In general, he shall perform all duties incident to the office of Chief
Executive Officer and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall, if present, preside at all meetings
of stockholders and of the Board of Directors. In addition to and not in
limitation of the foregoing, the Chief Executive Officer shall be empowered to
authorize any change of the registered office or registered agent (or both) of
the Corporation in the State of Delaware.
(b) Unless otherwise prescribed by the Board of Directors, the Chief
Executive Officer shall have full power and authority on behalf of the
Corporation to attend, act and vote at any meeting of security holders or other
corporations in which the Corporation may hold securities. At such meeting, the
Chief Executive Officer shall possess and may exercise any and all rights and
powers incident to the ownership of such securities which the Corporation might
have possessed and exercised if it had been present. The Board of Directors may
from time to time confer like powers upon any other person or persons.
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ARTICLE VII
BOARD OF ADVISORS
The Board of Directors, in its discretion, may authorize the formation of
an independent Board of Advisors. Any such Board of Advisors may make
recommendations concerning the business or policy of the corporation to the
Board of Directors in a strictly advisory capacity. Any such Board of Advisors
shall have no rights, powers or authority to issue final decisions in matters
concerning the business of the corporation. The number and composition of the
Board of Advisors shall be determined exclusively by the Board of Directors. The
Advisors, if any, shall be appointed by the Board of Directors and shall hold
their positions at the pleasure of the Board of Directors.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Reference is made to Section 145 (and any other relevant provisions) of
the General Corporation Law of the State of Delaware. Particular reference is
made to the class of persons (hereinafter called "Indemnitees") who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person (or the heirs, executors or administrators of such
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, by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise. The Corporation shall (and is hereby obligated to) indemnify
the Indemnitees, and each of them, in each and every situation where the
Corporation is obligated to make such indemnification pursuant to the aforesaid
statutory provisions. The Corporation shall indemnify the Indemnitees, and each
of them, in each and every situation where, under the aforesaid statutory
provisions, the Corporation is not obligated, but is nevertheless permitted or
empowered, to make such indemnification, it being understood, that, before
making such indemnification with respect to any situation covered under this
sentence, the Corporation shall promptly make or cause to be made, by any of the
methods referred to in subsection (d) of such Section 145, a determination as to
whether each Indemnitee acted in good faith and in a manner such Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that such Indemnitee's conduct was unlawful. No such
indemnification shall be made (where not required by statute) unless it is
determined that such Indemnitee acted in good faith and in a manner such
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that such Indemnitee's conduct was unlawful.
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ARTICLE IX
AFFILIATED TRANSACTIONS AND INTERESTED DIRECTORS
Section 9.1 Affiliated Transactions. 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 committee thereof which
authorizes the contract or transaction, or solely because any such director's or
officer's votes are counted for such purpose, if:
(a) The material facts as to the director's or officer's
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 vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or
(b) The material facts as to the director's or officer's
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
(c) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
Section 9.2 Determining Quorum. 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 thereof which authorizes the contract or
transaction.
ARTICLE X
STOCK CERTIFICATES
Section 10.1 Form; Signatures.
(a) Every holder of stock in the Corporation shall be entitled to
have a certificate, signed by the Chairman of the Board of Directors or the
President, and the Treasurer (or an Assistant Treasurer) or the Secretary (or an
Assistant Secretary) of the Corporation, representing the number and class (and
series, if any) of shares owned by such stockholder. Any or all of such
signatures may be facsimile. A certificate may be manually signed by a transfer
agent or registrar other than the Corporation or its employee but may be a
facsimile. In case any officer who has signed, or whose facsimile signature was
placed on, a certificate shall have ceased to be such officer before such
certificate is issued, it may nevertheless be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
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(b) All stock certificates representing shares of capital stock
which are subject to restrictions on transfer or to other restrictions may have
imprinted thereon such notation to such effect as may be determined by the Board
of Directors.
Section 10.2 Registration of Transfer. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 10.3 Registered Stockholders.
(a) Except as otherwise provided by law, the Corporation shall be
entitled to recognize the exclusive right of a person who is registered on its
books as the owner of shares of its capital stock to receive dividends or other
distributions, to vote as such owner, and to hold liable for calls and
assessments any person who is registered on its books as the owner of shares of
its capital stock. The Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person.
(b) If a stockholder desires that notices and/or dividends shall be
sent to a name or address other than the name or address appearing on the stock
ledger maintained by the Corporation (or by the transfer agent or registrar, if
any), such stockholder shall have the duty to notify the Corporation (or the
transfer agent or registrar, if any) in writing, of such desire. Such written
notice shall specify the alternate name or address to be used.
Section 10.4 Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting. If
no record is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the next day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the General Corporation Law of Delaware, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by the General Corporation Law of Delaware,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 10.5 Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation which is claimed 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 owner's legal
representative, to advertise the same in such manner as it shall require and/or
to give the Corporation a bond in such sum, or other security in such form, as
it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate claimed to have been lost, stolen or
destroyed.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Dividends. Subject to the provisions of the Certificate of
Incorporation, dividends upon the outstanding capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law, and may be paid in cash, in property or in shares of the
Corporation's capital stock.
Section 11.2 Reserves. The Board of Directors shall have full power,
subject to the provisions of law and the Certificate of Incorporation, to
determine whether any, and, if so, what part, of the funds legally available for
the payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors, in its sole discretion,
may fix a sum which may be set aside or reserved over and above the paid-in
capital of the Corporation for working capital or as a reserve for any proper
purpose, and may, from time to time, increase, diminish or vary such fund or
funds.
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Section 11.3 Fiscal Year. The fiscal year of the Corporation shall be as
determined from time to time by the Board of Directors.
Section 11.4 Seal. The corporate seal, if the directors shall adopt one,
shall have inscribed thereon the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or reproduced
in any other manner.
Section 11.5 Checks, Drafts, Notes and Other Instruments. Checks, notes,
drafts and other instruments for the payment of money drawn or endorsed in the
name of the Corporation may be signed by any officer or officers or person or
persons authorized by the Board of Directors to sign the same.
Section 11.6 Voting of Securities. Except as the Board of Directors may
otherwise designate, the President, any Vice President or the Treasurer shall
have the authority to waive notice of, and act as, or appoint any person or
persons to act as, proxy or attorney-in-fact for the Corporation (with or
without power of substitution) to vote or otherwise act at any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by the Corporation, or to consent to any action.
Section 11.7 Electronic Transmission. Any vote, notice, consent or other
action to be made by the Corporation or its officers, directors, agents or
stockholders may be taken via an electronic transmission or other similar method
of communication to the fullest extent permitted by the General Corporation Law
of the State of Delaware, as amended.
ARTICLE XII
AMENDMENTS
The Board of Directors shall have the power to make, amend, alter and
repeal these Bylaws, and to adopt new bylaws, by an affirmative vote of a
majority of the whole Board, provided that notice of the proposal to make,
amend, alter or repeal these Bylaws, or to adopt new bylaws, must be included in
the notice of the meeting of the Board of Directors at which such action takes
place.
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