AMENDED AND RESTATED BYLAWS
OF
ADAL GROUP, INC.
(formerly) ESCAGENETICS CORPORATION
ARTICLE I
STOCKHOLDERS' MEETINGS
(1) MEETING PLACE: All meetings of the stockholders shall be held at
the principal office of the corporation, or at such other place as shall be
determined from time to time by the Board of Directors, and the place at which
any such meeting shall be held shall be stated in the notice and call of the
meeting.
(2) ANNUAL MEETING TIME: The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting, shall be held each year on a day and at a time
to be set by the Board of Directors. The time and place of holding any annual
meeting may be changed by resolution of the Board of Directors, provided that
notification of such change shall meet the notice requirements pursuant to
Section (6) hereof. If the annual meeting is not held on the date designated
therefor, the Board shall cause the meeting to be held as soon thereafter as may
be convenient.
(3) BUSINESS CONDUCTED AT ANNUAL MEETING:
(a) At an annual meeting of stockholders, an item of business
may be conducted, and a proposal may be considered and acted upon, only if such
item or proposal is brought before the meeting (i) by, or at the direction of,
the Board of Directors, or (ii) by any stockholder of the corporation who is
entitled to vote at the meeting and who complies with the procedures set forth
in the remainder of this Section (3). This Section (3) shall not apply to
matters of procedure.
(b) For an item of business or proposal to be 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 office of the corporation not less than seventy (70) days prior to the
date scheduled for the meeting (regardless of any postponements, deferrals or
adjournments of that meeting to a later date), or, if notice or public
disclosure of the date scheduled for the meeting is not given or made at least
eighty (80) days prior thereto, not more than ten (10) days following the day on
which notice of the date scheduled for the meeting is mailed or the day on which
disclosure of that date is made, whichever is earlier.
(c) A stockholder's notice to the Secretary under subsection
(b) hereof shall set forth, as to each item of business or proposal the
stockholder intends to bring before the meeting (i) a brief description of the
item of business or proposal and the reasons for bringing it before the meeting,
(ii) the name and address, as they appear on the corporation's books, of the
stockholder and of any other stockholders that the stockholder knows or
anticipates will support the item of business or proposal, (iii) the number and
class of shares of stock of the corporation that are beneficially owned on the
date of such notice by the stockholder and by any such other stockholders, and
(iv) any financial interest of the stockholder or any such other stockholders in
such item of business or proposal.
(d) The Board of Directors, or a designated committee thereof,
may reject a stockholder's notice that is not timely given in accordance with
the terms of subsection (b) hereof. If the Board of Directors, or a designated
committee thereof, determines that the information provided in a stockholder's
notice does not satisfy the requirements of subsection (c) hereof in any
material respect, the Secretary of the corporation shall notify the stockholder
of the deficiency in the notice. The stockholder shall have an opportunity to
cure the deficiency by providing additional information to the Secretary within
such period of time, not to exceed five (5) days from the date such deficiency
notice is given to the stockholder, as the Board of Directors or such committee
shall reasonably determine. If the deficiency is not cured within such period,
or if the Board of Directors or such committee determines that the additional
information provided by the stockholder, together with information previously
provided, does not satisfy the requirements of subsection (c) hereof in any
material respect, then the Board of Directors or such committee may reject the
stockholder's notice.
(e) Notwithstanding the procedures set forth in subsection (d)
hereof, if a stockholder desires to bring an item of business or proposal before
an annual meeting, and neither the Board of Directors nor any committee thereof
has made a prior determination of whether the stockholder has complied with the
procedures set forth in this Section (3) in connection with such item of
business or proposal, then the chairman of the meeting shall determine and
declare at the meeting whether the stockholder has so complied. If the chairman
determines that the stockholder has so complied, then the chairman shall so
state and ballots shall be provided for use at the meeting with respect to such
item of business or proposal. If the chairman determines that the stockholder
has not so complied, then, unless the chairman, in his sole and absolute
discretion, determines to waive such compliance, the chairman shall state that
the stockholder has not so complied and the item of business or proposal shall
not be brought before the meeting.
(f) This Section (3) shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the Board of Directors, but, in connection with such reports,
no item of business may be conducted, and no proposal may be considered and
acted upon, unless there has been compliance with the procedures set forth in
this Section (3) in connection therewith.
(4) ANNUAL MEETING - ORDER OF BUSINESS: At the annual meeting of
stockholders, the order of business shall be as follows unless otherwise
determined by the presiding officer:
(a) Calling the meeting to order.
(b) Proof of notice of meeting (or filing waiver) and proxy
report.
(c) Reading of minutes of last annual meeting.
(d) Reports of officers.
(e) Reports of committees.
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(f) Confirmation of selection of independent accountants.
(g) Election of directors.
(h) Miscellaneous business.
(5) SPECIAL MEETINGS:
(a) Special meetings of the stockholders for any purpose or
purposes may be called by the Chairman of the Board, the President, the Board of
Directors, or the holder or holders of not less than twenty-five percent (25%)
of all shares entitled to vote at the meeting.
(b) Subject to the requirements of Section (4) of Article III
if the purpose of the special meeting is the election of directors, if a special
meeting is called by any person or person other than the Board of Directors, the
Chairman of the Board or the President, the request shall be in writing,
specifying the time of such meeting and the general nature of the business
proposed to be transacted, and shall be delivered personally or sent by
registered mail or by telegraphic or other facsimile transmission to the
Chairman of the Board, the President, any Vice President, or the Secretary of
the corporation. No business may be transacted at such special meeting otherwise
than specified in such notice. The officer receiving the request shall cause
notice to be promptly given to the stockholders entitled to vote, in accordance
with the provisions of Section (6) hereof, that a meeting will be held not less
than thirty-five (35) nor more than sixty (60) days after the receipt of the
request. If the notice is not given within twenty (20) days after the receipt of
the request, the person or persons requesting the meeting may give the notice.
Nothing contained in this subsection (b) shall be construed as limiting, fixing,
or affecting the time when a meeting of stockholders called by action of the
Board of Directors may be held.
(6) NOTICE OF MEETINGS:
(a) Except as otherwise provided by law or the Certificate of
Incorporation, written notice of the place, date, and time of the annual meeting
of stockholders shall be given at least ten (10) days, and not more than sixty
(60) days, prior to the meeting to each stockholder of record entitled to vote
at such meeting.
(b) Except as otherwise provided by law or the Certificate of
Incorporation, written notice of the place, date, time, and purpose of each
special meeting of stockholders shall be given at least ten (10) days, and not
more than sixty (60) days, prior to the meeting to each stockholder of record
entitled to vote at such meeting.
(7) VOTING LIST: At least ten days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting, or any adjournment thereof, shall be made, arranged in alphabetical
order, with the address of and number of shares held by each stockholder. This
list shall be kept open at such meeting for the inspection of any stockholder
and shall also be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of ten days
prior to such meeting either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held.
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(8) QUORUM: Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, a quorum shall exist at any meeting of
stockholders if a majority of the votes entitled to be cast is represented in
person or by proxy. Any shares, the voting of which at said meeting has been
enjoined, or which for any reason cannot be lawfully voted at such meeting,
shall not be counted to determine a quorum at such meeting. If less than a
majority of the outstanding shares entitled to vote are represented at a
meeting, a majority of the shares so represented may adjourn the meeting from
time to time without further notice. If a quorum is present or represented at a
reconvened meeting following such an adjournment, any business may be transacted
that might have been transacted at the meeting as originally called. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. In the case of any
meeting of stockholders that is adjourned more than once because of the failure
of a quorum to attend, those who attend the third convening of such meeting,
although less than a quorum, shall nevertheless constitute a quorum for the
purpose of electing directors, provided that the percentage of votes represented
at the third convening of such meeting shall not be less than one-third of the
votes entitled to be cast.
(9) MANNER OF ACTING: If a quorum is present, the affirmative vote
of the majority of the votes represented at the meeting and entitled to be cast
on the subject matter shall be the act of the stockholders, unless the vote of a
greater number is required by these Bylaws, the Certificate of Incorporation, or
the General Corporation Law of Delaware.
(10) VOTING OF SHARES: Except as otherwise provided in these Bylaws
or to the extent that voting rights of the shares of any class or classes are
limited or denied by the Certificate of Incorporation, each stockholder, on each
matter submitted to a vote at a meeting of stockholders, shall have one vote for
each share of stock registered in his or her name in the books of the
corporation. Stockholders of this corporation shall not have the right to
cumulate votes with respect to elections of directors in the manner prescribed
by Title 8, Section 214, of the General Corporation Law of Delaware.
(11) BENEFICIAL OWNERS:
(a) If shares or other securities having voting power stand of
record in the names of two (2) or more persons, whether fiduciaries, members of
a partnership, joint tenants, tenants in common, tenants by the entirety, or
otherwise, or if two (2) or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect: (a) if only one (1) votes, his act
binds all; (b) if more than one (1) votes, the act of the majority so voting
binds all; (c) if more than one (1) votes, but the vote is evenly split on any
particular matter each faction may vote the securities in question
proportionally, or may apply to the Delaware Court of Chancery for relief as
provided in the General Corporation Law of Delaware, Section 217(b). If the
instrument filed with the Secretary shows that any such tenancy is held in
unequal interests, a majority or even-split for the purpose of this subsection
(a) shall be a majority or even-split in interest.
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(b) Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the
corporation he has expressly empowered the pledgee to vote thereon, in which
case only the pledgee, or his proxy, may represent such stock and vote thereon.
(12) FIXING OF RECORD DATE:
(a) For the purpose of determining 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, for such determination of stockholders, such date to be not more than
sixty (60) days and not less than ten (10) days prior to the date of such
meeting. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the
stockholders entitled to 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, 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. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery to its
registered office in 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 in Delaware shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required by law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
(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 adopts the resolution relating thereto.
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(13) PROXIES: A stockholder may vote either in person or by proxy
executed in writing by the stockholder or his or her duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
corporation before or at the time of the meeting. A proxy shall become invalid
three years after the date of its execution, unless otherwise provided in the
proxy. A proxy with respect to a specified meeting shall entitle the holder
thereof to vote at any reconvened meeting following adjournment of such meeting
but shall not be valid after the final adjournment thereof.
(14) ACTION BY STOCKHOLDERS WITHOUT A MEETING:
(a) Any action required or which may be taken at a meeting of
stockholders of the corporation may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
(b) Every written consent shall bear the date of signature of
each stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless, within sixty
(60) days of the earliest dated consent delivered to the corporation in the
manner herein required, written consents signed by a sufficient number of
stockholders to take action are delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
(15) WAIVER OF NOTICE: A waiver of any notice required to be given
any stockholder, signed by the person or persons entitled to such notice,
whether before or after the time stated therein for the meeting, shall be
equivalent to the giving of such notice. The attendance of a stockholder at a
meeting shall constitute a waiver of notice of such meeting, except when a
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Any stockholder so waiving shall be bound by
the proceedings of any such meeting in all respects as if due notice thereof had
been given.
(16) ACTION OF STOCKHOLDERS BY COMMUNICATIONS EQUIPMENT:
Stockholders may participate in a meeting of stockholders by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at a meeting.
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ARTICLE II
STOCK
(1) ISSUANCE OF SHARES: No shares of the corporation shall be issued
unless authorized by the Board of Directors, which authorization shall include
the maximum number of shares to be issued and the consideration to be received
for each share.
(2) CERTIFICATES: All shares of the corporation shall be represented
by certificates in such form, not inconsistent with the Certificate of
Incorporation, as the Board of Directors may from time to time prescribe.
Certificates of stock shall be issued in numerical order and shall be signed by
the President or any Vice President and the Secretary or an Assistant Secretary,
and may be sealed with the seal of the corporation or a facsimile thereof. The
signatures of such officers may be facsimiles if the certificate is manually
signed on behalf of a transfer agent, or registered by a registrar, other than
the corporation itself or an employee of the corporation. If an officer who has
signed or whose facsimile signature has been placed upon such certificate ceases
to be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if the person were an officer on the date of
issue. All certificates shall include conspicuous written notice of any
restrictions which may be imposed on the transferability of such shares.
Each certificate of stock shall state:
(a) that the corporation is organized under the laws of the
State of Delaware;
(b) the name of the person to whom issued; and
(c) the number and class of shares and the designation of
the series, if any, which such certificate represents.
(3) STOCK RECORDS: The stock transfer books shall be kept at the
principal place of business of the corporation or at the office of the transfer
agent or registrar of the corporation. The name and address of the person to
whom the shares represented thereby are issued, together with the class, number
of shares and date of issue, shall be entered on the stock transfer books of the
corporation.
(4) LEGENDS AND RESTRICTIONS ON TRANSFER: As long as the corporation
is authorized to issue more than one class of stock or more than one series of
any class, 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 shall be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, provided that, except as otherwise provided in Section 202 of Title 8,
General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, 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.
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Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable securities laws, all certificates representing shares
of the corporation shall bear a reference to the legend on the face and the
following legend on the reverse of the certificate:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933 or any applicable state
law, and no interest therein may be sold, distributed, assigned,
offered, pledged, or otherwise transferred unless there is an
effective registration statement under such Act and applicable state
securities laws covering any such transaction involving said
securities or (b) this corporation receives an opinion of legal
counsel for the holder of these securities (concurred in by legal
counsel for this corporation) stating that such transaction is
exempt from registration or this corporation otherwise satisfies
itself that such transaction is exempt from registration."
(5) TRANSFERS: Transfers of stock shall be made only upon the stock
transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and canceled.
(6) REGISTERED OWNER: Registered stockholders shall be treated by
the corporation as the holders in fact of the stock standing in their respective
names and the corporation shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as expressly provided
below or by the laws of the State of Delaware. The Board of Directors may adopt
by resolution a procedure whereby a stockholder of the corporation may certify
in writing to the corporation that all or a portion of the shares registered in
the name of such stockholder are held for the account of a specified person or
persons. The resolution shall set forth:
(a) The classification of stockholder who may certify;
(b) The purpose or purposes for which the certification may
be made;
(c) The form of certification and information to be
contained therein;
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(d) If the certification is with respect to a record date or
closing of the stock transfer books, the date within
which the certification must be received by the
corporation; and
(e) Such other provisions with respect to the procedure as
are deemed necessary or desirable.
Upon receipt by the corporation of a certification complying with
the procedure, the persons specified in the certification shall be deemed, for
the purpose or purposes set forth in the certification, to be the holders of
record of the number of shares specified in place of the stockholder making the
certification.
(7) MUTILATED, LOST OR DESTROYED CERTIFICATES: In case of any
mutilation, loss or destruction of any certificate of stock, another may be
issued in its place upon proof of such mutilation, loss or destruction or
receipt of an affidavit of such fact. The Board of Directors may impose
conditions on such issuance and may require the giving of a satisfactory bond or
indemnity to the corporation in such sum as they might determine or establish
such other procedures as they deem necessary.
(8) FRACTIONAL SHARES OR SCRIP: The corporation may: (a) issue
fractions of a share which shall entitle the holder to exercise voting rights,
to receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation; (b) arrange for the disposition of
fractional interests by those entitled thereto; (c) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
shares are determined; or (d) issue scrip in registered or bearer form which
shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip aggregating a full share.
ARTICLE III
BOARD OF DIRECTORS
(1) NUMBER AND POWERS: The management of all the affairs, property
and interests of the corporation shall be vested in a Board of Directors. The
Board of Directors shall consist of six (6) persons who shall be elected for a
term of one year, and shall hold office until their successors are elected and
qualified. The number of directors may thereafter be changed from time to time
by resolution of the Board of Directors or of the stockholders. Directors need
not be stockholders or residents of the State of Delaware. In addition to the
powers and authorities expressly conferred upon the Board of Directors by these
Bylaws and the Certificate of Incorporation, the Board of Directors may exercise
all such powers of the corporation and do all such lawful acts 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.
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(2) CHANGE OF NUMBER: Notwithstanding the power and authority of the
Board of Directors to amend these Bylaws, including, without limitation,
provisions relating to the number of directors, the number of directors may at
any time be increased or decreased by a vote of the majority of the voting stock
issued and outstanding, at any regular or special meeting of stockholders, if
the notice of such meeting contains a statement of the proposed increase or
decrease; and, in case of any such increase, the Board of Directors or the
stockholders at any regular or special meeting held before the Board of
Directors takes action, shall have power to elect such additional directors, to
hold office until the next annual meeting of the stockholders and until their
successors are elected and qualified.
(3) ELECTION AND TERM OF OFFICE: At each annual meeting of
stockholders, the stockholders shall elect directors. Directors may also be
elected at a special meeting of stockholders called specifically for that
purpose. Each director so elected shall hold office until the next annual
meeting of stockholders and until his successor shall have been elected and
qualified.
(4) NOMINATIONS FOR DIRECTORS:
(a) Nominations of candidates for election as directors at an
annual or special meeting of stockholders may only be made (i) by, or at the
direction of, the Board of Directors, or (ii) by any stockholder of the
corporation who is entitled to vote at the meeting and who complies with the
procedures set forth in the remainder of this Section (4).
(b) If a stockholder proposes to nominate one or more
candidates for election as directors at an annual or special meeting, 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 office of the corporation not less than
seventy (70) days prior to the date scheduled for the meeting (regardless of any
postponements, deferrals or adjournments of that meeting to a later date), or,
if notice or public disclosure of the date scheduled for the meeting is not
given or made at least eighty (80) days prior thereto, not more than ten (10)
days following the day on which notice of the date scheduled for the meeting is
mailed or the day on which disclosure of that date is made, whichever is
earlier.
(c) A stockholder's notice to the Secretary under subsection
(b) hereof shall set forth, as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the number and class of shares of stock of the corporation
that are beneficially owned on the date of such notice by such person, and (iv)
if the corporation at such time has any security registered pursuant to Section
12 of the Exchange Act, any other information relating to such person required
to be disclosed in solicitations of proxies with respect to nominees for
election as directors pursuant to Regulation 14A under the Exchange Act,
including but not limited to information required to be disclosed by Schedule
14A of Regulation 14A, and any other information that the stockholder would be
required to file with the Securities and Exchange Commission in connection with
the stockholder's nomination of such person as a candidate for director or the
stockholder's opposition to any candidate for director nominated by, or at the
direction of, the Board of Directors. In addition to the above information, a
stockholder's notice to the Secretary under subsection (b) hereof shall (A) set
forth (i) the name and address, as they appear on the corporation's books, of
the stockholder and of any other stockholders that the stockholder knows or
anticipates will support any candidate or candidates nominated by the
stockholder, and (ii) the number and class of shares of stock of the corporation
that are beneficially owned on the date of such notice by the stockholder and by
any such other stockholders, and (B) be accompanied by a written statement,
signed and acknowledged by each candidate nominated by the stockholder, that the
candidate agrees to be so nominated and to serve as a director of the
corporation if elected at the meeting.
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(d) The Board of Directors, or a designated committee thereof,
may reject any stockholder's nomination of one or more candidates for election
as directors if the nomination is not made pursuant to a stockholder's notice
timely given in accordance with the terms of subsection (b) hereof. If the Board
of Directors, or a designated committee thereof, determines that the information
provided in a stockholder's notice does not satisfy the requirements of
subsection (c) hereof in any material respect, the Secretary of the corporation
shall notify the stockholder of the deficiency in the notice. The stockholder
shall have an opportunity to cure the deficiency by providing additional
information to the Secretary within such period of time, not to exceed five (5)
days from the date such deficiency notice is given to the stockholder, as the
Board of Directors or such committee shall reasonably determine. If the
deficiency is not cured within such period, or if the Board of Directors or such
committee determines that the additional information provided by the
stockholder, together with information previously provided, does not satisfy the
requirements of subsection (c) hereof in any material respect, then the Board of
Directors or such committee may reject the stockholder's notice.
(e) Notwithstanding the procedures set forth in subsection (d)
hereof, if a stockholder proposes to nominate one or more candidates for
election as directors at an annual or special meeting, and neither the Board of
Directors nor any committee thereof has made a prior determination of whether
the stockholder has complied with the procedures set forth in this Section (4)
in connection with such nomination, then the chairman of the meeting shall
determine and declare at the meeting whether the stockholder has so complied. If
the chairman determines that the stockholder has so complied, then the chairman
shall so state and ballots shall be provided for use at the meeting with respect
to such nomination. If the chairman determines that the stockholder has not so
complied, then, unless the chairman, in his sole and absolute discretion,
determines to waive such compliance, the chairman shall state that the
stockholder has not so complied and the defective nomination shall be
disregarded.
(5) VACANCIES: All vacancies in the Board of Directors, whether
caused by resignation, death or otherwise, may, except as otherwise provided in
the Certificate of Incorporation, be filled by the affirmative vote of a
majority of the remaining directors attending a regular or special meeting
called for that purpose, even though less than a quorum of the Board of
Directors be present, or by a sole remaining director, or by the stockholders at
any regular or special meeting held prior to the filling of such vacancies by
the Board of Directors as above provided. A director thus elected to fill any
vacancy shall hold office for the unexpired portion of the term of the director
whose place shall be vacant and until his successor is elected and qualified.
Any directorship to be filled by reason of an increase in the number of
directors may be filled by the Board of Directors for a term of office
continuing only until the next election of directors by the stockholders.
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(6) RESIGNATION: Any director may resign at any time by delivering
written notice to the Chairman of the Board, the President, the Secretary, or
the Board, or to the registered office of the corporation in Delaware. Any such
resignation shall take effect at the time specified therein, or if the time is
not specified, upon delivery thereof and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
(7) REMOVAL OF DIRECTORS: At a meeting of stockholders called
expressly for that purpose, subject to any limitations imposed by law or the
Certificate of Incorporation, the entire Board of Directors, or any member
thereof, may be removed by a vote of the holders of a majority of shares then
entitled to vote at an election of such directors. However, if any stockholders
have the right to cumulate their votes in the election of certain directors, if
less than the entire Board is to be removed, no such director may be removed
without cause if the votes cast against his or her removal would be sufficient
to elect him or her if then cumulatively voted at an election of the entire
Board, or, if there be classes of directors, at an election of the class of
directors of which he or she is a part.
(8) REGULAR MEETINGS: Regular meetings of the Board of Directors or
any committee may be held without notice at the principal office of the
corporation or at such other place or places, either within or without the State
of Delaware, as the Board of Directors or such committee, as the case may be,
may from time to time designate. The annual meeting of the Board of Directors
shall be held without notice immediately after the adjournment of the annual
meeting of stockholders.
(9) SPECIAL MEETINGS:
(a) Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board, the President, the Secretary, or by
any one or more directors, to be held at the principal office of the corporation
or at such other place or places as the Board of Directors or the person or
persons calling such meeting may from time to time designate. Written notice of
the time and place of all special meetings of the Board of Directors shall be
given at least one (1) day before the date of the meeting.
(b) Special meetings of any committee may be called at any
time by such person or persons and with such notice as shall be specified for
such committee by the Board of Directors, or in the absence of such
specification, in the manner and with the notice required for special meetings
of the Board of Directors.
(10) QUORUM:
(a) Except as provided in subsection (b) hereof or in the
Certificate of Incorporation, a majority of the whole Board of Directors shall
be necessary at all meetings to constitute a quorum for the transaction of
business, but, if less than a majority are present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
(b) At each meeting of the Board at which a quorum is present,
the act of a majority of the directors present at the meeting shall be the act
of the Board of Directors, unless the vote of a greater number is required by
these Bylaws, the Certificate of Incorporation, or the General Corporation Law
of Delaware.
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(c) 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 a 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.
(11) WAIVER OF NOTICE: Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends
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. Whenever any notice is required to be given to any director under the
provisions of these Bylaws, the Certificate of Incorporation, or the General
Corporation Law of Delaware, a waiver of notice signed by the director or
directors entitled to such notice, whether before or after the time stated for
the meeting, shall be equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors or any committee appointed by the Board need be
specified in the waiver of notice of such meeting.
(12) REGISTERING DISSENT: A director who is present at a meeting of
the Board of Directors at which action on a corporate matter is taken shall be
presumed to have assented to such action unless his or her dissent shall be
entered in the minutes of the meeting, or unless he or she shall file his or her
written dissent to such action with the person acting as the secretary of the
meeting, before the adjournment thereof, or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
(13) EXECUTIVE AND OTHER COMMITTEES: The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
from among its members an Executive Committee and one or more other standing or
special committees. The Executive Committee shall have and may exercise all the
authority of the Board of Directors, and other standing or special committees
may be invested with such powers, subject to such conditions, as the Board of
Directors shall see fit; PROVIDED THAT, notwithstanding the above, no committee
of the Board of Directors shall have the authority to amend 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 the Certificate of Incorporation and by
law, fix the designations and 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 or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopt an agreement of merger or consolidation under Section 251 or
252 of the General Corporation Law of Delaware, recommend to the stockholders
the sale, lease, or exchange of all or substantially all of the corporation's
property and assets, recommend to the stockholders a dissolution of the
corporation or a revocation of a dissolution, amend the Bylaws of the
corporation, declare a dividend, authorize the issuance of stock, or adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware. All committees so appointed shall keep regular
minutes of their meetings and shall cause them to be recorded in books kept for
that purpose in the office of the corporation and shall report the same to the
Board of Directors at its next meeting. The designation of any such committee
and the delegation of authority thereto shall not relieve the Board of
Directors, or any member thereof, of any responsibility imposed by law.
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(14) REMUNERATION: By resolution of the Board of Directors, a fixed
sum and attendance fee, together with expenses of attendance, if any, may be
allowed the directors who are not salaried by the corporation for their services
and for attendance at each regular or special meeting of such Board; provided,
that nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of standing or special committees may be allowed like
compensation for attending committee meetings.
(15) LOANS AND GUARANTEES: The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiary, including any officer or employee who
is a director of the corporation or of its subsidiary, whenever, in the judgment
of the directors, such loan, guaranty, or assistance may reasonably be expected
to benefit the corporation. The loan, guaranty, or other assistance may be with
or without interest, and may be unsecured or secured in such manner as the Board
of Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation.
(16) ACTION BY DIRECTORS WITHOUT A MEETING: Any action required or
permitted to be taken at a meeting of the directors, or of a committee thereof,
may be taken without a meeting if a consent in writing, setting forth the action
so taken or to be taken, shall be signed by all of the directors, or all of the
members of the committee, as the case may be, and filed with the minutes of the
proceedings of such board or committee. Such consent shall have the same effect
as a unanimous vote.
(17) ACTION OF DIRECTORS BY COMMUNICATIONS EQUIPMENT: Any action
required or which may be taken at a meeting of directors, or of a committee
thereof, may be taken by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time. Participation by such means shall
constitute presence in person at a meeting.
ARTICLE IV
OFFICERS
(1) DESIGNATIONS: The officers of the corporation shall be a
Chairman of the Board, a President, one or more Vice-Presidents (one or more of
whom may be Executive Vice-Presidents), a Secretary and a Chief Financial
Officer or Treasurer, and such Assistant Secretaries, Assistant Treasurers and
other officers and agents as the Board may designate, who shall be elected for
one year by the directors at their first meeting after the annual meeting of
stockholders, and who shall hold office until their successors are elected and
qualified. Any two or more offices may be held by the same person.
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(2) THE CHAIRMAN OF THE BOARD: The Chairman of the Board (if such an
officer be appointed) shall be a director and shall perform such duties as shall
be assigned to him or her by the Board of Directors and in any employment
agreement. The Chairman shall be the chief executive officer of the corporation
and, subject to the control of the Board and the Executive Committee (if one be
established), shall supervise and control all of the assets, business, and
affairs of the corporation. The Chairman shall preside at all meetings of the
stockholders and at all meetings of the Board. The Chairman may sign
certificates for shares of the corporation, deeds, mortgages, bonds, contracts,
or other instruments, except when the signing and execution thereof have been
expressly delegated by the Board or by these Bylaws to some other officer or
agent of the corporation or are otherwise required by law to be signed or
executed by some other officer or in some other manner. If there is no President
or if the President dies or becomes unable to act, the Chairman shall also serve
as the Chief Executive Officer and shall perform the duties of the President,
except as may be limited by resolution of the Board of Directors, with all the
powers of and subject to all the restrictions upon the President.
(3) THE PRESIDENT: The President shall be the chief operating
officer of the corporation, and, if no Chairman of the Board has been appointed,
shall also be the chief executive officer of the corporation and a director. The
President may sign deeds, mortgages, bonds, contracts, or other instruments,
except when the signing and execution thereof have been expressly delegated by
the Board or by these Bylaws to some other officer or agent of the corporation
or are otherwise required by law to be signed or executed by some other officer
or in some other manner. The President shall vote the shares owned by the
corporation in other corporations, domestic or foreign, unless otherwise
prescribed by law or resolution of the Board. In general, the President shall
perform all such duties as shall be assigned to him or her by the Board and in
any employment agreement, subject at all times, however, to the direction and
supervision of the Board of Directors. In the absence of the Chairman of the
Board, the President, if a director, shall preside over all meetings of the
stockholders and over all meetings of the Board of Directors. The President
shall have the authority to appoint one or more Assistant Secretaries and
Assistant Treasurers, as he or she deems necessary.
(4) THE VICE PRESIDENTS: If no Chairman of the Board has been
appointed, in the absence or disability of the President, the Vice Presidents,
if any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a Vice President designated by the Board shall perform all 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; provided that no such Vice President
shall assume the authority to preside as Chairman of meetings of the Board
unless such Vice President is a member of the Board. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be
respectively prescribed for them by the Board, these Bylaws, the President, or
the Chairman of the Board (if one be appointed).
(5) THE SECRETARY: The Secretary shall:
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(a) have responsibility for preparing minutes of meetings of
the stockholders and the Board of Directors and for authenticating records of
the corporation;
(b) see that all notices (except as otherwise provided in
these Bylaws) are duly given in accordance with the provisions of these Bylaws
and as required by law;
(c) be custodian of the corporate records and seal of the
corporation, if one be adopted;
(d) keep a register of the post office address of each
stockholder and director;
(e) sign certificates for shares of the corporation;
(f) have general charge of the stock transfer books of the
corporation;
(g) when required by law or authorized by resolution of the
Board of Directors, sign with the President, or other officer authorized by the
President or the Board, deeds, mortgages, bonds, contracts, or other
instruments; and
(h) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned by the
President or the Board of Directors.
In the absence of the Secretary, an Assistant Secretary may perform
the duties of the Secretary.
(6) THE CHIEF FINANCIAL OFFICER OR TREASURER: If required by the
Board of Directors, the Chief Financial Officer or Treasurer shall give a bond
for the faithful discharge of his duties in such sum and with such surety or
sureties as the Board shall determine. The Chief Financial Officer or Treasurer
shall:
(a) have charge and custody of and be responsible for all
funds and securities of the corporation;
(b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever and deposit all such moneys in the
name of the corporation in banks, trust companies, or other depositories
selected in accordance with the provisions of these Bylaws; and
(c) in general, perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
by the President or the Board of Directors.
In the absence of the Chief Financial Officer or Treasurer, an
Assistant Treasurer may perform the duties of the Chief Financial Officer or
Treasurer.
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(7) DELEGATION: In the case of absence or inability to act of any
officer of the corporation and of any person herein authorized to act in his
place, the Board of Directors may from time to time delegate the powers or
duties of such officer to any other officer or any director or other person whom
it may select.
(8) OTHER OFFICERS AND AGENTS: One or more Vice Presidents and such
other officers and assistant officers as may be deemed necessary or advisable
may be appointed by the Board of Directors or, to the extent provided in Section
(3) hereof, by the President. Such other officers and assistant officers shall
hold office for such periods, have such authorities, and perform such duties as
are provided in these Bylaws or as may be provided by resolution of the Board.
Any officer may be assigned by the Board any additional title that the Board
deems appropriate. The Board may delegate to any officer or agent the power to
appoint any such assistant officers or agents and to prescribe their respective
terms of office, authorities, and duties.
(9) VACANCIES: Vacancies in any office arising from any cause may be
filled by the Board of Directors at any regular or special meeting of the Board.
The appointee shall hold office for the unexpired term and until his successor
is duly selected and qualified.
(10) RESIGNATION: Any officer may resign at any time by delivering
written notice to the Chairman of the Board, the President, the Secretary, or
the Board of Directors. Any such resignation shall take effect at the time
specified therein, or if the time is not specified, upon delivery thereof and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
(11) TERM AND REMOVAL: The officers of the corporation shall hold
office until their successors are appointed and qualified. Any officer or agent
may be removed by the Board with or without cause. An officer empowered to
appoint another officer or assistant officer also has the power to remove any
officer he or she would have the power to appoint whenever in his or her
judgment the best interests of the corporation would be served thereby. The
removal of an officer or agent shall be without prejudice to the contract
rights, if any, of the corporation or the person so removed. Appointment of an
officer or agent shall not of itself create contract rights.
(12) BONDS: The Board of Directors may, by resolution, require any
and all of the officers to give bonds to the corporation, with sufficient surety
or sureties, conditioned for the faithful performance of the duties of their
respective offices, and to comply with such other conditions as may from time to
time be required by the Board of Directors.
(13) SALARIES: The salaries of all officers and agents of the
corporation shall be fixed from time to time by the Board of Directors or by any
person or persons to whom the Board has delegated such authority. No officer
shall be prevented from receiving such salary by reason of the fact that such
officer is also a director of the corporation.
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ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
(1) The Board of Directors may authorize any officer or officers,
agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, except where
otherwise provided by law or these Bylaws. Such authority may be general or
confined to specific instances.
(2) No loans shall be contracted on behalf of the corporation and no
evidences of indebtedness shall be issued in its name unless authorized or
ratified by a resolution of the Board. Such authority may be general or confined
to specific instances. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiary, including any officer or employee who is a
director of the corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty, or assistance may reasonably be expected to
benefit the corporation.
(3) All checks, drafts, or other orders for the payment of money,
notes, or other evidences of indebtedness issued in the name of the corporation
shall be signed by such officer or officers, or agent or agents, of the
corporation and in such manner as is from time to time determined by resolution
of the Board.
(4) All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the Board may elect.
(5) 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 his or her or their votes are counted for such
purpose, if:
(a) The material facts as to his or her 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 or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(b) The material facts as to his or her 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.
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ARTICLE VI
DIVIDENDS AND FINANCE
(1) DIVIDENDS: Dividends may be declared by the Board of Directors
and paid out of the annual net profits of the corporation, or out of its net
assets in excess of its capital, subject to the conditions and limitations
imposed by the Certificate of Incorporation and the laws of the State of
Delaware.
(2) RESERVES: Before making any distribution of profits, there may
be set aside out of the net profits of the corporation such sum or sums as the
directors from time to time in their absolute discretion deem expedient as a
reserve fund to meet contingencies, or for equalizing dividends, or for
maintaining any property of the corporation, or for any other purposes. Any
profits of any year not distributed as dividends shall be deemed to have been
thus set apart until otherwise disposed of by the Board of Directors.
(3) DEPOSITORIES: The moneys of the corporation shall be deposited
in the name of the corporation in such bank or banks or trust company or trust
companies as the Board of Directors shall designate, and shall be drawn out only
by instrument signed by such persons and in such manner as may be determined by
resolution of the Board of Directors.
ARTICLE VII
NOTICES
(1) Whenever, under any provisions of these Bylaws, notice is
required to be given to any stockholder, unless provided otherwise in these
Bylaws, it shall be given in writing, timely and duly deposited in the United
States mail, postage prepaid, and addressed to his last known post office
address as shown by the stock record of the corporation or its transfer agent.
(2) Any notice required to be given to any director may be given by
the method stated in Section (1) hereof, or by facsimile, telex or telegram,
except that such notice other than one which is delivered personally shall be
sent to such address as such director shall have filed in writing with the
Secretary, or, in the absence of such filing, to the last known post office
address of such director.
(3) If no address of a stockholder or director be known, notice may
be sent to the principal place of business of the corporation.
(4) An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or the
names and addresses of the stockholder or stockholders, or director or
directors, to whom any such notice or notices was or were given, and the time
and method of giving the same, shall be conclusive evidence of the statements
therein contained.
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(5) All notices given by mail, as above provided, shall be deemed to
have been given as at the time of mailing and all notices given by facsimile,
telex or telegram shall be deemed to have been given as of the sending time
recorded at time of transmission.
(6) It shall not be necessary that the same method of giving notice
be employed in respect of all directors, but one permissible method may be
employed in respect of any one or more, and any other permissible method or
methods may be employed in respect of any other or others.
(7) The period or limitation of time within which any stockholder
may exercise any option or right, or enjoy any privilege or benefit, or be
required to act, or within which any director may exercise any power or right,
or enjoy any privilege, pursuant to any notice sent him in the manner above
provided, shall not be affected or extended in any manner by the failure of such
stockholder or such director to receive such notice.
(8) Whenever notice is required to be given, under any provision of
law or of the Certificate of Incorporation or Bylaws of the corporation, to any
person with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate under
any provision of the General Corporation Law of Delaware, the certificate shall
state, if such is the fact and if notice is required, that notice was given to
all persons entitled to receive notice except such persons with whom
communication is unlawful.
(9) Whenever notice is required to be given, under any provision of
law or the Certificate of Incorporation or Bylaws of the corporation, to any
stockholder to whom (i) notice of two consecutive annual meetings, and all
notices of meetings or of the taking of action by written consent without a
meeting to such person during the period between such two consecutive annual
meetings, or (ii) all, and at least two, payments (if sent by first class mail)
of dividends or interest on securities during a twelve month period, have been
mailed addressed to such person at his address as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required. Any action or meeting which shall be taken or
held without notice to such person shall have the same force and effect as if
such notice had been duly given. If any such person shall deliver to the
corporation a written notice setting forth his then current address, the
requirement that notice be given to such person shall be reinstated. In the
event that the action taken by the corporation is such as to require the filing
of a certificate under any provision of the General Corporation Law of Delaware,
the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to this paragraph.
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ARTICLE VIII
SEAL
The corporate seal of the corporation shall be in such form and bear
such inscription as may be adopted by resolution of the Board of Directors, or
by usage of the officers on behalf of the corporation. Said seal may be used by
causing it or a facsimile thereof to be impressed, affixed or reproduced.
ARTICLE IX
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
(1) The corporation shall 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 he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner in which he or she 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.
(2) The corporation shall 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 by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action, suit or proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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(3) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (1) and (2) hereof, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
(4) Any indemnification under Sections (1) or (2) hereof (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 he or she has
met the applicable standard of conduct set forth in Sections (1) or (2) hereof.
Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (c) by the stockholders.
(5) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in Section (4) hereof upon
receipt of an undertaking by or on behalf of such officer or director to repay
such amount if it should be ultimately determined that such person is not
entitled to be indemnified by the corporation as authorized in this Article or
otherwise. Such expenses incurred by other employees and agents shall be an paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
(6) The indemnification and advancement of expenses provided by or
granted pursuant to the other Sections of this Article 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 his
or her official capacity and as to action in another capacity while holding such
office, and shall 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. The indemnification powers of the
corporation shall be as broad as is allowed under applicable law.
(7) Upon the majority vote of a quorum of the Board of Directors,
the corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation shall have indemnified him or her against such
liability under the provisions of this Article.
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ARTICLE X
BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its stockholders and Board
of Directors, and shall keep at its registered office or principal place of
business, or at the office of its transfer agent or registrar, a record of its
stockholders, giving the names and addresses of all stockholders and the number
and class of the shares held by each. Any books, records, and minutes may be in
written form or any other form capable of being converted into written form
within a reasonable time.
ARTICLE XI
AMENDMENTS
These Bylaws may be altered, amended or repealed by the affirmative
vote of a majority of the voting stock issued and outstanding at any regular or
special meeting of the stockholders. The Board of Directors shall have power to
make, alter, amend and repeal the Bylaws of this corporation, unless the
stockholders in adopting, amending or repealing a particular Bylaw have provided
expressly that the Board of Directors may not amend or repeal that Bylaw. Any
such Bylaws made or adopted by the Board of Directors, or any alteration,
amendment or repeal of the Bylaws by the Board of Directors, may be changed or
repealed by the holders of a majority of the stock entitled to vote at any
stockholders' meeting.
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