Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
of
NEPHROS, INC.
TABLE OF CONTENTS
Page
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ARTICLE I OFFICES........................................................ 1
Section 1.01 REGISTERED OFFICE...................................... 1
Section 1.02 PRINCIPAL OFFICE....................................... 1
Section 1.03 OTHER OFFICES.......................................... 1
ARTICLE II MEETINGS OF STOCKHOLDERS...................................... 1
Section 2.01 ANNUAL MEETINGS........................................ 1
Section 2.02 SPECIAL MEETINGS....................................... 1
Section 2.03 PLACE OF MEETINGS...................................... 2
Section 2.04 NOTICE OF MEETINGS..................................... 2
Section 2.05 QUORUM................................................. 2
Section 2.06 VOTING................................................. 3
Section 2.07 LIST OF STOCKHOLDERS................................... 4
Section 2.08 STOCK LEDGER........................................... 4
Section 2.09 INSPECTOR OF ELECTION.................................. 4
Section 2.10 STOCKHOLDER ACTION WITHOUT MEETINGS.................... 4
Section 2.11 RECORD DATE............................................ 4
ARTICLE III BOARD OF DIRECTORS........................................... 5
Section 3.01 GENERAL POWERS......................................... 5
Section 3.02 NUMBER AND TERM........................................ 5
Section 3.03 ELECTION OF DIRECTORS.................................. 5
Section 3.04 RESIGNATION AND REMOVAL................................ 6
Section 3.05 VACANCIES.............................................. 6
Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING......... 6
Section 3.07 FIRST MEETING.......................................... 6
Section 3.08 REGULAR MEETINGS....................................... 6
Section 3.09 SPECIAL MEETINGS....................................... 7
Section 3.10 QUORUM AND ACTION...................................... 7
Section 3.11 ACTION BY CONSENT...................................... 7
Section 3.12 COMPENSATION........................................... 7
Section 3.13 COMMITTEES............................................. 7
Section 3.14 OFFICES OF THE BOARD................................... 8
Section 3.15 INTERESTED DIRECTORS................................... 8
ARTICLE IV OFFICERS...................................................... 8
Section 4.01 OFFICERS............................................... 8
Section 4.02 ELECTION AND TERM...................................... 9
Section 4.03 SUBORDINATE OFFICERS................................... 9
Section 4.04 REMOVAL AND RESIGNATION................................ 9
Section 4.05 VACANCIES.............................................. 9
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Section 4.06 PRESIDENT.............................................. 9
Section 4.07 CHAIRMAN OF THE BOARD.................................. 9
Section 4.08 CHIEF EXECUTIVE OFFICER/CHIEF FINANCIAL OFFICER/CHIEF
OPERATING OFFICER/OFFICE OF THE CHIEF EXECUTIVE........ 9
Section 4.09 VICE PRESIDENT......................................... 10
Section 4.10 SECRETARY.............................................. 10
Section 4.11 TREASURER.............................................. 10
Section 4.12 ASSISTANT SECRETARIES.................................. 11
Section 4.13 ASSISTANT TREASURERS................................... 11
Section 4.14 OTHER OFFICERS......................................... 11
Section 4.15 COMPENSATION........................................... 11
Section 4.16 VOTING SECURITIES OWNED BY THE CORPORATION............. 11
ARTICLE V SHARES AND THEIR TRANSFER...................................... 12
Section 5.01 CERTIFICATES FOR STOCK................................. 12
Section 5.02 TRANSFER OF STOCK...................................... 12
Section 5.03 REGULATIONS............................................ 12
Section 5.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES..... 12
ARTICLE VI SHARES AND THEIR TRANSFER..................................... 12
Section 6.01 CERTIFICATES FOR STOCK................................. 12
Section 6.02 TRANSFER OF STOCK...................................... 12
Section 6.03 REGULATIONS............................................ 12
Section 6.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES..... 12
Section 6.05 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
ARTICLE VII MISCELLANEOUS................................................ 16
Section 7.01 SEAL................................................... 16
Section 7.02 WAIVER OF NOTICES...................................... 16
Section 7.03 LOANS AND GUARANTIES................................... 16
Section 7.04 GENDER................................................. 17
Section 7.05 AMENDMENTS............................................. 17
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AMENDED AND RESTATED
BYLAWS
Of
NEPHROS, INC.
a Delaware Corporation
ARTICLE I
OFFICES
Section 1.01 REGISTERED OFFICE. The registered office of NEPHROS, INC.
(hereinafter called the "Corporation") shall be at such place in the State of
Delaware as shall be designated by the Board of Directors (hereinafter called
the "Board").
Section 1.02 RINCIPAL OFFICE. The principal office for the transaction
of the business of the Corporation shall be at such location, within or without
the State of Delaware, as shall be designated by the Board.
Section 1.03 OTHER OFFICES. The Corporation may also have an office or
offices at such other place of places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders of
the Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
Section 2.02 SPECIAL MEETINGS. Special meetings of the stockholders of
the Corporation for any purpose or purposes may be called at any time by the
Board, or by a committee of the Board which, or officer of the corporation who,
has been duly designated by the Board and whose powers and authority, as
provided in a resolution of the Board or in the Bylaws, include the power to
call such meetings, but such special meetings may not be called by any other
person or persons; provided however, that if and to the extent that any special
meeting of stockholders may be called by any other person or persons specified
in any provisions of the Certificate of Incorporation or any amendment thereto
of any certificate filed under Section 151(g) of the General Corporation Law of
the State of Delaware (or its successor statue as in effect from time to time
hereafter), then such special meeting may also be called by the person or
persons, in the manner, at the time and for the purposes so specified.
Section 2.03 PLACE OF MEETINGS. All meetings of the stockholders shall
be held at such places, within or without the State of Delaware, as may from
time to time be designated by the person or persons calling the respective
meetings and specified in the respective notices or waivers of notice thereof.
Section 2.04 NOTICE OF MEETINGS. Except as otherwise required by law,
notice of each meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him personally, or by
depositing such notice in the United States mail or overnight delivery service,
in a postage prepaid envelope, or by-hand delivery service, charges prepaid,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his address last known to the Secretary,
or by transmitting a notice thereof to him at such address by telegraph,
telecopy, cable or wireless. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall be required.
Every notice of a meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting shall also state the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
Whenever notice is required to be given to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of any 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 have been 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.
No notice need be given to any person with whom communication is
unlawful, nor shall there be any duty to apply far any permit or license to give
notice to any such person.
Section 2.05 QUORUM. Except as expressly required by law, the holders
of record of a majority in voting interest of the shares of stock of the
Corporation entitled to be voted, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders of the Corporation or any adjournment thereof. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. In the absence of a quorum at
any meeting or any adjournment thereof, a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all the stockholders, any officer entitled to preside
at or to act as secretary of such meeting may adjourn such meeting from time to
time. At
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any such adjourned meeting at which a quorum is present any business may be
transacted which might have been transacted at the meeting as originally called.
Section 2.06 VOTING.
(a) At each meeting of the stockholders, each stockholder shall be
entitled to vote in person or by proxy each share or fractional share of the
stock of the Corporation which has voting rights on the matter in question and
which shall have been held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 2.07 of these Bylaws as
the record date for the determination of stockholders entitled to notice of and
to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (A) at
the close of business on the day next preceding the day on which notice of the
meeting shall be given or (B) if notice of the meeting shall be waived, at the
close of business on the day next preceding the day on which the meeting shall
be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
he shall have expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or otherwise, or with respect to which two or more
persons have the same fiduciary relationship, shall be voted in accordance with
the provisions of the General Corporation Law of Delaware.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized
and delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless be shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders all
matters, except as otherwise provided in the Certificate of Incorporation, in
these Bylaws or expressly required by law, shall be decided by the vote of a
majority in voting interest of the stockholders present in person or by proxy
and entitled to vote thereat and thereon. The stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum. The vote at any meeting of the stockholders on any
question need not be by ballot, unless so directed by the chairman of the
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meeting. On a vote by ballot, each ballot shall be signed by the stockholder
voting, or by his proxy if there be such proxy, and it shall state the number of
shares voted.
Section 2.07 LIST OF STOCKHOLDERS. The Secretary of the Corporation
shall prepare and make, at least ten (10) days before very meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting at the principal place of business of the
Corporation. The list shall also be produced and kept at the time and place of
the meeting during the entire duration thereof, and may be inspected by any
stockholder who is present.
Section 2.08 STOCK LEDGER. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the list
of stockholders required by Section 2.07 of this Article II or, to the extent
entitled by Section 220 of the General Corporation Law of the State of Delaware,
the books and records of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 2.09 INSPECTOR OF ELECTION. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election to act at
the meeting or any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails
to appear or act, the vacancy may be filled by appointment made by the directors
in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector so appointed shall first subscribe an oath faithfully to execute
the duties of an inspector at such meeting with strict impartiality and
according to the best of his ability. Such inspectors shall decide upon the
qualification of the voters and shall report the numbers of shares represented
at the meeting and entitled to vote on such question, shall conduct and accept
the votes, and, when the voting is completed, shall ascertain and report the
number of shares voted respectively for and against the question. Reports of the
inspectors shall be in writing and subscribed and delivered by them to the
Secretary of the Corporation. Inspectors need not be stockholders of the
Corporation, and any officer of the Corporation may be an inspector on any
question other than a vote for or against a proposal in which he shall have a
material interest. No director or candidate for the office of director shall act
as an inspector of an election of directors.
Section 2.10 STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required
by the General Corporation Law of the State of Delaware to be taken at any
annual or special meeting of the stockholders, or any action which may be taken
at any annual or special meeting of the stockholders, 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 each holder of outstanding
stock entitled to vote thereon.
Section 2.11 RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to
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exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix 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 record date: (i) in the case
of determination of stockholders entitled to vote at any meeting of stockholders
or adjournment thereof, shall, unless otherwise required by law, not be more
than sixty nor less than ten days before the date of such meeting; (ii) in the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days from the
date upon which the resolution fixing the record date is adopted by the Board;
and (iii) in the case of any other action, shall not be more than sixty days
prior to such other action. If no record date is fixed: (i) 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 day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of 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 in accordance with applicable law, or, if prior action by the Board
is required by law, shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action; and (iii) the record date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all of the powers of the Corporation, except such as are by the
Certificate of Incorporation, by these Bylaws or expressly required by law
conferred upon or reserved to the stockholders.
Section 3.02 NUMBER AND TERM. A director need not be a stockholder, a
citizen of the United States, or a resident of the State of Delaware. The number
of directors constituting the whole Board shall be not less than three nor more
than fifteen, except that, where all the shares of stock of the corporation are
owned beneficially and of record by less than three stockholders, the number of
directors may be less than three but not less than the number of such
stockholders. Subject to the foregoing limitation, such number may be fixed from
time to time by the Board.
Section 3.03 ELECTION OF DIRECTORS. Directors shall be divided into
three classes and shall be elected to staggered terms in the manner provided in
the Certificate of Incorporation. Any director may resign at any time upon
written notice to the corporation. In the interim between annual meetings of
stockholders or special meetings of stockholders called for the election of
directors and/or for the removal of one or more directors and for the filling of
any vacancies in the Board, including vacancies resulting from the removal of
directors for
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cause, any vacancy in the Board may be filled by the vote of a majority of the
remaining directors then in office, although less than a quorum, or by the sole
remaining director.
Section 3.04 RESIGNATION AND REMOVAL. Any director of the Corporation
may resign at any time by giving written notice to the Board or to the Secretary
of the Corporation. Any such resignation shall take effect at the date specified
therein, or, if the time is not specified, it shall take effect immediately upon
its receipt; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Except as otherwise provided by the Certificate of Incorporation or
expressly required by law, any director or the entire board of directors may be
removed, but only for cause, by the holders of a majority of shares then
entitled to vote at an election of directors.
Section 3.05 VACANCIES. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors, or
any other cause, may be filled by vote of the majority of the remaining
directors, although less than a quorum, or by a sole remaining director. Each
director so chosen to fill a vacancy shall hold office until his successor shall
have been elected and shall quality or until he shall resign or shall have been
removed. No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
Upon the resignation of one or more directors from the Board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided hereinabove in the filling of other vacancies.
Section 3.06 PLACE OF MEETING; TELEPHONE CONFERENCE MEETING. The Board
may hold any of its meetings at such place or places within or without the State
of Delaware as the Board may from time to time by resolution designate or as
shall be designated by the person or persons calling the meeting or in the
notice or waiver of notice of any such meeting. Directors may participate in any
regular or special meeting by means of conference telephone or similar
communications equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 3.07 FIRST MEETING. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
Section 3.08 REGULAR MEETINGS. Regular meetings of the Board may be
held at such times as the Board shall from time to time by resolution determine.
If any day fixed for a meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day which is not a legal holiday. Except as
expressly required by law, notice of regular meetings need not be given.
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Section 3.09 SPECIAL MEETINGS. Special meetings of the Board may be
called at any time by the Chairman of the Board, the President, the Secretary or
by any two (2) directors, to be held at the principal office of the Corporation,
or at such other place or places, within or without the State of Delaware, as
the person or persons calling the meeting may designate.
Notice of the time and place of special meetings shall be given to
each director either (i) by depositing such notice in the United States mail of
overnight delivery service, in a postage prepaid envelope, or by-hand delivery
service, charges prepaid, addressed to him at his address as it is shown upon
the records of the Corporation, or if it is not so shown on such records or is
not readily ascertainable, at the place in which the meetings of the directors
are regularly held, or by transmitting a notice thereof to him at such address
by telegraph, telecopy, cable or wireless, at least forty-eight (48) hours prior
to the time of the holding of such meeting, or (ii) by orally communicating the
time and place of the special meeting to him at least forty-eight (48) hours
prior to the time of the holding of such meeting. Either of the notices as above
provided shall be due, legal and personal notice to such director.
Section 3.10 QUORUM AND ACTION. Except as otherwise provided in these
Bylaws or expressly required by law, the presence of a majority of the
authorized number of directors shall be required to constitute a quorum for the
transaction of business at any meeting of the Board, and all matters shall be
decided at any such meeting, a quorum being present, by the affirmative votes of
a majority of the directors present, subject to Section 3.15. In the absence of
a quorum, a majority of directors present at any meeting may adjourn the same
from time to time until a quorum shall be present. Notice of any adjourned
meetings need not be given. The directors shall act only as a Board, and the
individual directors shall have no power as such.
Section 3.11 ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of such committee, as the case may be, and such written consent is filed
with the minutes of proceedings of the Board or such committee. Such action by
written consent shall have the same force and effect as the unanimous vote of
such directors.
Section 3.12 COMPENSATION. No stated salary need be paid to directors,
as such, for their services but, as fixed from time to time by resolution of the
Board, the directors may receive directors' fees, compensation and reimbursement
for expenses for attendance at directors' meetings, for serving on committees
and for discharging their duties; provided that nothing herein contained shall
be construed to preclude any director from serving the Corporation in any outer
capacity and receiving compensation therefor.
Section 3.13 COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of a member of the committee, the member or
members thereof present at any meeting and not disqualified from voting,
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whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the extent permitted by
law and provided in the resolution of the Board, shall have and may exercise all
the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it.
Unless the Board otherwise provides, each committee designated by the
Board may make, alter and repeal rules for conduct of its business. In the
absence of such rules each committee shall conduct its business in the same
manner as the Board conducts its business pursuant to these Bylaws. Any such
committee shall keep written minutes of its meetings and report the same to the
Board when required.
Section 3.14 OFFICES OF THE BOARD. A Chairman of the Board or a Vice
Chairman may be appointed from time to time by the Board and shall have such
powers and duties as shall be designated by the Board.
Section 3.15 INTERESTED DIRECTORS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or 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 (i) 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 votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) 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 (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 4.01 OFFICERS. The officers of the Corporation shall be a
President, a Secretary and a Treasurer. The Corporation may also have, at the
discretion of the Board, a Chairman of the Board, a Chief Executive Officer, a
Chief Financial Officer one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers
and such other officers as may be appointed in accordance with the provisions of
Section 4.03 of these Bylaws. One person may hold two or more offices.
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Section 4.02 ELECTION AND TERM. The officers of the Corporation,
except such officers as may be appointed in accordance with the provisions of
Section 4.03 or Section 4.05 of those Bylaws, shall be chosen annually by the
Board, and each shall hold his office until he shall resign or shall be removed
or otherwise disqualified to serve, or until his successor shall be elected and
qualified.
Section 4.03 SUBORDINATE OFFICERS. The Board may appoint, or may
authorize the Chief Executive Officer to appoint, such other officers as the
business of the Corporation may require, each of whom shall have such authority
and perform such duties as are provided in these Bylaws or as the Board or the
President from time to time may specify, and shall hold office until he shall
resign or shall be removed or otherwise disqualified to serve.
Section 4.04 REMOVAL AND RESIGNATION. Any officer may be removed, with
or without cause, by a majority of the directors at the time in office, at any
regular or special meeting of the Board, or, except in case of an officer chosen
by the Board, by the Chief Executive Officer upon whom such power of removal may
be conferred by the Board.
Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4.05 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for the regular appointments to such office.
Section 4.06 PRESIDENT. The President of the Corporation shall,
subject to the control of the Board, have general supervision, direction and
control of the business and affairs of the Corporation. He shall preside at all
meetings of stockholders and the Board. He shall have the general powers and
duties of management usually vested in the chief executive officer of a
corporation, and shall have such other powers and duties with respect to the
administration of the business and affairs of the Corporation as may from time
to time be assigned to him by the Board or as prescribed by the Bylaws.
Section 4.07 CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the stockholders and the Board and exercise and
perform such other powers and duties with respect to the administration of the
business and affairs of the Corporation as may from time to time be assigned to
him by the Board or is as prescribed by the Bylaws.
Section 4.08 CHIEF EXECUTIVE OFFICER/CHIEF FINANCIAL OFFICER/CHIEF
OPERATING OFFICER/ OFFICE OF THE CHIEF EXECUTIVE. In the event the Board of
Directors elects a Chief Executive Officer, Chief Financial Officer and/or a
Chief Operating Officer, or establishes an Office of the Chief Executive, the
person or persons so elected or the members of such office shall individually or
jointly, as the case may be, have general and active management of the property,
business and affairs of the Corporation, subject to the supervision and control
of the Board. The Chief Executive Officer, the Chief Financial
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Officer, the Chief Operating Officer, or members of the Office of the Chief
Executive, as the case may be, also shall have such powers and perform such
other duties as prescribed from time to time by the Board of Directors.
Section 4.09 VICE PRESIDENT. The Vice President(s), if any, shall
exercise and perform such powers and duties with respect to the administration
of the business and affairs of the Corporation as from time to time may be
assigned to each of them by the President, by the Chairman of the Board, if any,
by the Board or as is prescribed by the Bylaws. In the absence or disability of
the President, the Vice Presidents, in order of their rank as fixed by the
Board, or if not ranked, the Vice President designated by the Board, shall
perform all of the duties of the President and when so acting shall have all of
the powers of and be subject to all the restrictions upon the President.
Section 4.10 SECRETARY. The Secretary shall keep, or cause to be kept,
a book of minutes at the principal office for the transaction of the business of
the Corporation or such other place as the Board may order, of all meetings of
directors and stockholders, with the time and place of holding, whether regular
or special, and if special, how authorized and the notice thereof given, the
names of those present at directors' meetings, the number of shares present or
represented at stockholders' meetings and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office
for the transaction of the business of the Corporation or at the office of the
Corporation's transfer agent, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board required by these Bylaws or
expressly required by law to be given, and he shall keep the seal of the
Corporation in sole custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board or these Bylaws. If for any
reason the Secretary shall fail to give notice of any special meeting of the
Board called by one or more of the persons identified in Section 3.09 of these
Bylaws, or if he shall fail to give notice of any special meeting of the
stockholders called by one or more of the persons identified in Section 2.02 of
these Bylaws, then any such person or persons may give notice of any such
special meeting.
Section 4.11 TREASURER. The Treasurer shall keep and maintain or cause
to be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of capital, shall be classified according to source and
shown in a separate account. The books of account at all reasonable times shall
be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation with such depositories as may be designated
by the Board. He shall
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disburse the funds of the Corporation as may be ordered by the Board, shall
render to the President, to the Chief Executive Officer and to the directors,
whenever they request it, an account of all of his transactions as Treasurer and
of the financial condition of the Corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board or these Bylaws.
Section 4.12 ASSISTANT SECRETARIES. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 4.13 ASSISTANT TREASURERS. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer. If required by the Board of Directors,
an Assistant Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 4.14 OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
Section 4.15 COMPENSATION. The compensation of the officers of the
Corporation, if any, shall be fixed from time to time by the Board.
Section 4.16 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
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ARTICLE V
SHARES AND THEIR TRANSFER
Section 5.01 CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, in such
form as the Board shall prescribe, certifying the number and class of shares of
the stock of the Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
President or a Vice President and by the Secretary or an Assistant Secretary or
by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificates may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
such certificate shall thereafter have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificates, or whose facsimile signature shall have
been placed thereupon, were such officer, transfer agent or registrar at the
date of issue. A record shall be kept of the respective names of the persons,
firms or corporations owning the stock represented by such certificates, the
number and class of shares represented by such certificates, respectively, and
the respective dates thereof, and in the case of cancellation, the respective
dates of cancellation. Every certificate surrendered to the Corporation for
exchange or transfer shall be cancelled, and no new certificate or certificates
shall be issued in exchange for any existing certificate until such existing
certificate shall have been so cancelled, except in cases provided for in
Section 5.04 of these Bylaws.
Section 5.02 TRANSFER OF STOCK. Transfer of shares of stock of the
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary, or with a transfer clerk or a
transfer agent appointed as provided in Section 5.03 of these Bylaws, and upon
surrender of the certificate or certificates for such shares properly endorsed
and the payments of all taxes thereon. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security, and not absolutely, such fact shall be stated
expressly in the entry of transfer if, when the certificate or certificates
shall be presented to the Corporation for transfer, both the transferor and the
transferee request the Corporation to do so.
Section 5.03 REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. The Board may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
Section 5.04 LOST, STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In
any case of loss, theft, destruction, or mutilation of any certificate of stock,
another may be issued in its place upon proof of such loss, theft, destruction,
or mutilation and
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upon the giving of a bond of indemnity to the Corporation in such form and in
such sums as the Board may direct; provided, however, that a new certificate may
be issued without requiring any bond when, in the judgment of the Board, it is
proper to do so.
ARTICLE VI
INDEMNIFICATION
Section 6.01 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 6.03 of
this Article VI, 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 is or was a director or officer of the Corporation
serving at the request of the Corporation as a director or officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his 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 which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 6.02 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR
IN THE RIGHT OF THE CORPORATION. Subject to Section 6.03 of this Article VI, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
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 to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 6.03 AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article VI (unless ordered by a court) shall be made by the
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Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 6.01
or Section 6.02 of this Article VI, as the case may be. Such determination shall
be made (i) 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 (ii) 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 (iii) by the stockholders who were not parties to such action, suit
or proceeding. To the extent, however, that a director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 6.04 GOOD FAITH DEFINED. For purposes of any determination
under Section 6.03 of this Article VI, a person shall be deemed to have acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given on reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 6.04 shall
mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 6.04 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 6.01 or 6.02 of this
Article VI, as the case may be.
Section 6.05 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 6.03 of this Article VI, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
6.01 and 6.02 of this Article VI. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or
officer is proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections 6.01 or 6.02 of this Article VI, as
the case may be. Neither a contrary determination in the specific case under
Section 6.03 of this Article VI nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this Section
6.05 shall be given to the Corporation promptly upon the filing of such
application. If successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
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Section 6.06 EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VI.
Section 6.07 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VI shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any By-Law, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, it being the
policy of the Corporation that indemnification of the person specified in
Sections 6.01 and 6.02 of this Article VI shall be made to the fullest extent
permitted by law. The provisions of this Article VI shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 6.01
or 6.02 of this Article VI but whom the Corporation has the power or obligation
to indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 6.08 INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him, in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or
the obligation to indemnify him against such liability under the provisions of
this Article VI.
Section 6.09 CERTAIN DEFINITIONS. For purposes of this Article VI,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, shall stand in the same position under the provisions of this
Article VI with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VI, references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit plan;
and references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article VI.
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Section 6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this Article VI shall, unless otherwise provided when authorized or
ratified, continues as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 6.11 LIMITATION ON INDEMNIFICATION. Notwithstanding anything
contained in this Article VI to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 6.05 hereof), the
Corporation shall not be obligated to indemnify any director or officer in
connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 6.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VI to directors and officers of the Corporation.
ARTICLE VII
MISCELLANEOUS
Section 7.01 SEAL. The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in the State of
Delaware and showing the year of incorporation.
Section 7.02 WAIVER OF NOTICES. Whenever notice is required to be
given under any provision of these bylaws, the Certificate of Incorporation or
expressly required by law, a written waiver, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when a person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors, or members of a committee of directors
need be specified in any written waiver of notice unless required by the
Certificate of Incorporation.
Section 7.03 LOANS AND GUARANTIES. The Corporation may lend money to,
or guarantee any obligation of, and otherwise assist any officer or other
employee of the Corporation or of its subsidiaries, including any officer who is
a director, whenever, in the judgment of the Board, 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 shall approve, including,
without limitation, a pledge of shares of stock of the Corporation.
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Section 7.04 GENDER. All personal pronouns used in these Bylaws shall
include the other genders, whether used in the masculine, feminine or neuter
gender, and the singular shall include the plural, and vice versa, whenever and
as often as may be appropriate.
Section 7.05 AMENDMENTS. These Bylaws, or any of them, may be
rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the
Board, by vote of a majority of the number of directors then in office as
directors, acting at any meeting of the Board or (ii) by the stockholders, by
the vote of a majority of the outstanding shares of voting stock of the
Corporation, at an annual meeting of stockholders, without previous notice, or
at any special meeting of stockholders, provided that notice of such proposed
amendment, modification, repeal or adoption is given in the notice of special
meeting; provided, however, that these Bylaws may not be amended in a manner
that would conflict with the Corporation's Certificate of Incorporation. Any
Bylaw made or altered by the stockholders may be altered or repealed by the
Board or may be altered or repealed by the stockholders.
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