Attached files
| file | filename |
|---|---|
| S-1 - REGISTRATION STATEMENT - Vape Holdings, Inc. | fs1_peoplestring.htm |
| EX-5.1 - OPINION OF BARBARA R. MITTMAN, ESQ. - Vape Holdings, Inc. | fs1ex5_peoplestring.htm |
| EX-3.1 - ARTICLES OF INCORPORATION - Vape Holdings, Inc. | fs1ex3i_peoplestring.htm |
| EX-23.1 - CONSENT OF WEINER GOODMAN & COMPANY, P.C., CERTIFIED PUBLIC ACCOUNTANTS - Vape Holdings, Inc. | fs1ex23_peoplestring.htm |
Exhibit
3.2
AMENDED
AND RESTATED BY-LAWS
OF
PEOPLESTRING
CORPORATION
ARTICLE
I
OFFICES
Section
1. Registered
Office. The registered office of PeopleString Corporation (the
“Corporation”) in the State of Delaware shall be located in the County of New
Castle at Suite 808, 1220 N. Market Street, Wilmington, Delaware
19801. The registered agent of the Corporation at the registered
office is American Incorporators Ltd.
Section
2. Other Offices. The
Corporation may also have offices at such other places, both within and without
the State of Delaware, as the Board of Directors of the Corporation (the “Board”
or “Board of Directors”) may from time to time determine or as the business of
the Corporation may require.
ARTICLE
II
STOCKHOLDERS
Section
1. Place of
Meeting. All meetings of the stockholders for the election of
directors and for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section
2. Annual
Meeting. Annual meetings of stockholders shall be held in the
month of May, on such day and at such time as the Board of Directors shall
designate, at which the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before the
meeting.
Section
3. Notice of Annual
Meeting. Notice of the annual meeting shall be given by
mailing, not more than sixty (60) days nor less than ten (10) days prior
thereto, a written notice stating the time and place thereof, directed to each
stockholder of record entitled to vote at the meeting at his, her or its address
as the same appears upon the records of the Corporation.
Section
4. List of
Stockholders. At least ten (10) days prior to each annual or
special meeting of the stockholders, the officer who has charge of the stock
ledger of the Corporation shall prepare and make a complete list of the
stockholders entitled to vote at said meeting, which shall be arranged in
alphabetical order and include the address of and the number of shares
registered in the name of each stockholder. The list shall be
produced and available for examination for a period of at least ten (10) days
prior to a meeting. Further, the list shall be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who may be present.
-1-
Section
5. Special
Meetings. Special meetings of the stockholders, for any
purpose or purposes, may be called by the Chairman of the Board or the
President, and shall be called by the President or Secretary at the request in
writing of a majority of the Board of Directors. Such request shall
state the purpose or purposes of the proposed meeting.
Section
6. Notice of Special
Meeting. Written or telegraphic notice of a special meeting of
stockholders, stating the time, place and object thereof, shall be given to each
stockholder entitled to vote thereat, not more than sixty (60) nor less than ten
(10) days before the date fixed for the meeting.
Section
7. Business Transacted at a Special
Meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section
8. Quorum. Except as
otherwise provided in the Certificate of Incorporation of the Corporation, as
amended (the “Certificate of Incorporation”), a majority of the issued and
outstanding shares of the Corporation’s common stock, par value $0.00001 per
share (“Common Stock”), present in person or represented by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders; provided, that when a specified matter is required to be voted on
by a class or series of capital stock, voting as a separate class or series, the
holders of a majority of the issued and outstanding shares of such class or
series, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to such matter.
Section
9. Method of
Voting. Each holder of Common Stock shall, at every meeting of
the stockholders, be entitled to one vote for each share of Common Stock held by
such stockholder.
Every
stockholder entitled to vote at a meeting of stockholders or to express consent
without a meeting may authorize another person or persons to act for him, her or
it by proxy. Every proxy shall be executed in writing by the
stockholder or his, her or its agent, except that a proxy may be given by a
stockholder or his, her or its agent by telegram or cable or its
equivalent. Unless it is coupled with an interest, a proxy shall be
revocable at will. A proxy shall not be revoked by the death or
incapacity of a stockholder but such proxy shall continue in force until revoked
by the personal representative or guardian of the stockholder. The
presence at any meeting of any stockholder who has given a proxy shall not
revoke such proxy unless the stockholder shall file written notice of such
revocation with the secretary of the meeting prior to the voting of such
proxy.
A person
named in a proxy as the attorney or agent of a stockholder may, if the proxy so
provides, substitute another person to act in his, her or its place, including
any other person named as an attorney or agent in the same proxy. The
substitution shall not be effective until an instrument effecting it is filed
with the Secretary of the Corporation.
Section
10. Action at
Meeting. When a quorum is present at any meeting, the holders
of a majority of the stock present or represented and voting on a matter (or if
there are two or more issues of stock entitled to vote as separate classes, then
in the case of each such class, the holders of a majority of the stock of that
class present or represented and voting on a matter) shall decide any matter to
be voted upon by the stockholders at such meeting, except when a different vote
is required by express provision of law, the Certificate of Incorporation or
these By-Laws. Any election of directors by stockholders shall be
determined by a plurality of the votes cast by the stockholders entitled to vote
at the election.
-2-
Section
11. Action by Stockholders Without a
Meeting. Subject to the provisions of Section 228 of the
Delaware General Corporation Law, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken in connection with any corporate
action by any provision of the Delaware General Corporation Law or of the
Certificate of Incorporation, the meeting and the vote of stockholders may be
dispensed with and the action may be taken without a meeting upon the written
consent of stockholders who would have been entitled to cast the minimum number
of votes that would be necessary to authorize such action at a meeting at which
all shares entitled to be voted thereat were present and voted.
Section
12. Conduct at
Meetings. At each meeting of stockholders, the Chairman of the
Board of Directors, or in his or her absence the President of the Corporation,
or in his or her absence any Executive Vice President or Senior Vice President
of the Corporation, or in his or her absence a chairman chosen by the vote of a
majority in interest of the stockholders present in person or represented by
proxy and entitled to vote thereat, shall act as chairman. The
Secretary or in his or her absence an Assistant Secretary or in the absence of
the Secretary and all Assistant Secretaries a person whom the chairman of the
meeting shall appoint shall act as secretary of the meeting and keep a record of
the proceedings thereof. The Board of Directors shall be entitled to
make such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such
rules and regulations, the chairman shall have the authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are necessary, appropriate or convenient for the proper conduct
of the meeting, including, without limitation, establishing an agenda or order
of business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such
meeting to stockholders of record of the Corporation and their duly authorized
and constituted proxies, and such other persons as the chairman shall permit,
restrictions on entry at the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. The chairman
shall have absolute authority over matters of procedure and there shall be no
appeal from the ruling of the chairman. The chairman may rule that a
resolution, nomination or motion not be submitted to the stockholders for a vote
unless seconded by a stockholder or a proxy for a stockholder. The
chairman may require that any person who is neither a bona fide stockholder nor
a proxy for a bona fide stockholder leave the meeting, and upon the refusal of a
stockholder to comply with a procedural ruling of the chairman which the
chairman deems necessary for the proper conduct of the meeting, may require that
such stockholder leave the meeting. The chairman may, on his or her
own motion, summarily adjourn any meeting for any period he or she deems
necessary if he or she rules that orderly procedures cannot be maintained at the
meeting. Unless, and to the extent, determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with rules of parliamentary
procedure.
-3-
Section
13. Procedure Necessary to Bring Business
Before an Annual Meeting. To be properly brought before an
annual meeting of stockholders, business must be either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) properly brought before the meeting by or at the
direction of the Board, or (c) properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing, either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
Corporation not less than one hundred and twenty (120) days in advance of the
date of the Corporation’s proxy statement released to stockholders in connection
with the previous year’s annual meeting of stockholders; provided, however, that
if the Corporation did not release a proxy statement in connection with the
previous year’s annual meeting then the stockholder must give such notice not
later than one hundred and twenty (120) days prior to the anniversary date of
the immediately preceding annual meeting. A stockholder’s notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this
Section 13 of Article II and any other applicable requirements; provided,
however, that nothing in this Section 13 of Article II shall be deemed to
preclude discussion by any stockholder of any business properly brought before
the annual meeting.
The
chairman of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 13 of Article II or any other
applicable requirements, which determination shall be conclusive, and, as a
result, any such business shall not be transacted.
ARTICLE
III
DIRECTORS
Section
1. Number and Election of
Directors. The number of directors which shall constitute the
whole Board shall be not less than one (1) nor more than nine (9)
directors. The Board, upon adoption of these By-laws, shall consist
of three (3) directors, and thereafter the number of directors which shall
constitute the whole Board may be increased or decreased by resolution of the
Board of Directors, but shall in no case be less than three (3)
directors. The directors shall be elected at the annual meeting of
the stockholders or a special meeting of the stockholders called for such
purpose, except as provided in Section 12 of this Article III, and each director
elected shall hold office until his or her successor is elected and
qualifies. Directors need not be stockholders.
Section
2. Nominations. Nominations
for the election of directors may be made by the Board of Directors or a
committee appointed by the Board of Directors or by a shareholder entitled to
vote in the election of directors generally.
-4-
Section
3. Regular
Meetings. Regular meetings of the Board may be held on five
(5) days written notice, at such time as shall be from time to time determined
by the Chairman of the Board or the President. Written notice for any
such meeting shall state the place, date and hour of the meeting and shall be
delivered either personally or by first class mail or overnight courier
service.
Section
4. Special
Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board or the President and shall be called by the
President or Secretary at the request in writing of a majority of the directors
then in office. Written notice of any special meeting shall be given,
either personally or by overnight courier service, to each director at least two
(2) days prior to the date thereof.
Section
5. Place of Meeting; Waiver of
Notice. Meetings of the Board of Directors shall be held at
such place as shall be designated in the notice of meeting if notice is
required. Notice of any meeting, if required, need not be given to
any director who signs a waiver of notice before or after the
meeting. The attendance of any director at any meeting without the
director protesting prior to the conclusion of such meeting the lack of notice
thereof shall constitute a waiver of notice by such director.
Section
6. Quorum. Except as
otherwise provided in the Certificate of Incorporation, a majority of the
directors then in office shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
Section
7. Manner of
Acting. Except as otherwise provided in the Certificate of
Incorporation or herein, the act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors.
Section
8. Action Without a
Meeting. Any action required or permitted to be taken by the
Board of Directors or by a committee thereof may be taken without a meeting if,
prior to such action, all of the members of the Board or committee consent in
writing to a resolution authorizing the action. Such written consents
may be executed in counterparts, and shall be filed with the minutes of the
Corporation.
Section
9. Telephonic Attendance at
Meeting. Any or all directors may participate in a meeting of
the Board of Directors or a committee of the Board by means of conference
telephone or any means of communication by which all persons participating in
the meeting are able to hear each other.
Section
10. Resignation. Any
director may resign by delivering his or her written resignation to the
Corporation at its principal office or to the Chairman, President or
Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
Section
11. Removal. Except as
otherwise provided by the Delaware General Corporation Law, any one or more or
all of the directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors, except
that the directors elected by the holders of a particular class or series of
stock may be removed without cause only by vote of the holders of a majority of
the outstanding shares of such class or series.
-5-
Section
12. Vacancies. If the
office of any director becomes vacant for any reason, such vacancy shall be
filled by a majority vote of the directors remaining in office.
Section
13. Compensation of
Directors. The directors may be paid their expenses, if any,
relating to their attendance at meetings of the Board of Directors, and
directors who are not full-time employees of the Corporation may be paid a fixed
sum for attendance at meetings of the Board of Directors or a stated salary as a
director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
Section
14. Committees of
Directors.
|
a)
|
Formation of
Committees. The Board of Directors may, by resolution
passed by a majority of the Board, designate one or more committees of the
Board of Directors, including an executive committee, each committee to
consist of two (2) or more directors of the Corporation. The
Board may designate one or more directors as alternative members of any
committee who may replace any absent or disqualified member at any meeting
of the committee. Any such committee, to the extent provided in
the enabling resolution and permitted under Section 141 the Delaware
General Corporation Law, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. Each
committee shall keep regular minutes of its meetings and report them to
the Board of Directors when
required.
|
|
b)
|
Quorum. A
majority of the members of a committee or subcommittee shall constitute a
quorum for the transaction of business at any meeting of such committee or
subcommittee.
|
|
c)
|
Required
Vote. The act of a majority of the members present at a
meeting at which a quorum is present shall be the act of the committee or
subcommittee.
|
ARTICLE
IV
OFFICERS
Section
1. Officers. The
Corporation’s officers shall be chosen by the Board of Directors and shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Treasurer,
and a Secretary. The Board of Directors may also choose one or more
Assistant Treasurers and Assistant Secretaries, and may designate one or more
Vice Presidents to be Executive Vice Presidents or Senior Vice
Presidents. The Board may delegate its powers of appointment, as
evidenced by a resolution of the Board of Directors.
-6-
Section
2. Tenure. Except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, each officer shall hold office until his or her successor is elected
and qualified, unless a different term is specified in the vote choosing or
appointing him or her, or until his or her earlier death, resignation or
removal.
Section
3. Resignation and
Removal. Any officer may resign by delivering his or her
written resignation to the Corporation at its principal office or to the
Chairman, President or Secretary. Such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event.
Any
officer may be removed at any time, with or without cause, by vote of a majority
of the entire number of directors then in office.
Except as
the Board of Directors may otherwise determine, no officer who resigns or is
removed shall have any right to any compensation as an officer for any period
following his or her resignation or removal, or any right to damages on account
of such removal, whether his or her compensation be by the month or by the year
or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the Corporation.
Section
4. Vacancies. Any
vacancy in the offices of the Chairman, the President or any other office shall
be filled by the Board of Directors.
Section
5. Chairman of the
Board. The Chairman of the Board shall preside at all meetings
of the shareholders and the Board of Directors. He or she shall, in
the absence or the disability of the President, perform the duties and exercise
the powers of the President unless the Board authorizes another officer of the
Company to perform such duties and exercise such powers, and shall perform such
other duties as may be delegated to him or her by the Board of
Directors.
Section
6. President. The
President, who shall be the Chief Executive Officer of the Corporation, shall in
general, subject to the control of the Board of Directors, supervise and control
all of the business and affairs of the Corporation. All other
officers shall be subject to the authority and supervision of the
President. The President may enter into and execute in the name of
the Corporation contracts or other instruments in the regular course of business
or contracts or other instruments not in the regular course of business which
are authorized, either generally or specifically, by the Board of
Directors. The President shall have the general powers and duties of
management usually vested in the office of president of a
corporation.
Section
7. Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents. The Board of Directors
may appoint one or more Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents, each of whom shall perform such duties and possess such powers
as shall be assigned him or her by the Board of Directors.
-7-
Section
8. Treasurer and Assistant
Treasurer. The Treasurer shall have charge and custody of, and
be responsible for, all funds and securities of the Corporation, shall keep or
cause to be kept regular books of account for the Corporation and shall perform
such other duties and possess such other powers as are incident to the office of
the treasurer of a corporation or as shall be assigned to the Treasurer by the
Board of Directors. The Assistant Treasurer, or if there shall be
more than one, the Assistant Treasurers, in the order determined by the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer set forth herein and as the
Board of Directors from time to time may prescribe.
Section
9. Secretary and Assistant
Secretary. The Secretary shall cause notices of all meetings
to be served as prescribed in these By-laws or by statute, shall keep or cause
to be kept the minutes of all meetings of the stockholders and the Board of
Directors, shall have charge of the corporate records and seal of the
Corporation and shall keep a register of the post-office address of each
stockholder which shall be furnished to the Secretary by such
stockholder. The Secretary shall perform such other duties and
possess such other powers as are incident to the office of the secretary of a
corporation or as are assigned by the Board of Directors. The
Assistant Secretary, or if there shall be more than one, the Assistant
Secretaries, in the order determined by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary set forth herein and as the Board of Directors from time
to time may prescribe.
Section
10. Subordinate Officers and
Agents. The Board of Directors may elect or appoint such other
officers and agents as the Board shall deem necessary or desirable, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of
Directors.
Section
11. Salaries. Officers
of the Corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the Board of
Directors, except that the Board of Directors may delegate such duty to a
committee of the Board or an officer or officers of the
Corporation.
ARTICLE
V
EXECUTION
OF DOCUMENTS
Section
1. Commercial Paper and
Contracts. All checks, notes, drafts and other commercial
paper of the Corporation shall be signed by the President or Treasurer of the
Corporation or by such other person or persons as the Board of Directors may
from time to time designate.
Section
2. Other
Instruments. All contracts, deeds, mortgages and other
instruments shall be executed by the President, any Vice President or any such
other person or persons as the Board of Directors may from time to time
designate, and, if necessary, by the Secretary or any Assistant
Secretary.
-8-
ARTICLE
VI
FISCAL
YEAR
The
fiscal year of the Corporation shall be the calendar year.
ARTICLE
VII
CERTIFICATES
REPRESENTING SHARES
Section
1. Issuance of
Stock. Unless otherwise voted by the stockholders and subject
to the provisions of the Certificate of Incorporation, the whole or any part of
any unissued balance of the authorized capital stock of the Corporation, or the
whole or any part of any unissued balance of the authorized capital stock of the
Corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
Section
2. Certificates of
Stock. The shares of capital stock of the Corporation shall be
represented by certificates, provided that the Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by
a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the
Board of Directors, every holder of stock represented by certificates, and upon
request, every holder of uncertificated shares, shall be entitled to have a
certificate representing the number of shares held by such holder, which
certificate shall be signed by the appropriate offices of the
Corporation. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if he or
she were such officer, transfer agent or registrar at the date of
issue.
Each certificate for shares of stock
which are subject to any restriction on transfer pursuant to the Certificate of
Incorporation, the By-laws, applicable securities laws or any agreement among
any number of stockholders or among such holders and the Corporation shall have
conspicuously noted on the face or back of the certificate either the full text
of the restriction or a statement of the existence of such
restriction.
Section
3. Transfers. Except
as otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law, shares of stock may be transferred on
the books of the Corporation by the surrender to the Corporation or its transfer
agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and
with such proof of authority or the authenticity of signature as the Corporation
or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or by these
By-laws, the Corporation shall be entitled to treat the record holder of stock
as shown in its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the Corporation in accordance with
the requirements of these By-laws.
-9-
Section
4. Lost, Stolen or Destroyed
Certificates. The Corporation may issue a new certificate of
stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including the presentation of reasonable evidence of such loss,
theft or destruction and the giving of such indemnity as the Board of Directors
may require for the protection of the Corporation or any transfer agent or
registrar.
ARTICLE
VIII
RECORD
DATE
For the
purpose of determining the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent to or
dissent from any proposal without any meeting or for the purpose of determining
stockholders entitled to receive payment of any dividend or allotment of any
right, or in order to make a determination of stockholders for any other
purpose, the Board of Directors shall fix, in advance, a date as the record date
for any such determination of stockholders. Such date shall not be
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action or event to
which it relates. When a determination of stockholders of record for
a stockholders’ meeting has been made as provided in this Article VIII, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting.
ARTICLE
IX
DIVIDENDS
The Board
of Directors may from time to time declare, and the Corporation may pay,
dividends or make other distributions on its outstanding shares of capital stock
in the manner and upon the terms and conditions provided by the Certificate of
Incorporation and by statute.
ARTICLE
X
AMENDMENT
Section
1. By the Board of
Directors. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of a majority of the
directors present at any regular or special meeting of the Board of Directors at
which a quorum is present.
Section
2. By the
Stockholders. These By-Laws may be altered, appended or
repealed or new by-laws may be adopted by the affirmative vote of the holders of
a majority of the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting.
-10-
ARTICLE
XI
INDEMNIFICATION
Section
1. Right to
Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “Proceeding”), by reason of the fact:
|
a)
|
that
he or she is or was a director or officer of the Corporation,
or
|
|
b)
|
that
he or she, being at the time a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, trustee,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect
to an employee benefit plan (collectively, “Another Enterprise” or “Other
Enterprise”),
|
whether
either in case (a) or in case (b) the basis of such Proceeding is alleged action
or inaction (x) in an official capacity as a director or officer of the
Corporation, or as a director, trustee, officer, employee or agent of such Other
Enterprise, or (y) in any other capacity related to the Corporation or such
Other Enterprise while so serving as a director, trustee, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent permitted under Section 145 of the Delaware General Corporation Law (or
any successor provision or provisions) as the same exists or may hereafter be
amended (but, in the case of any such amendment, with respect to actions taken
prior to such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including without limitation
attorneys’ fees, judgments, fines, excise taxes assessed in connection with an
employee benefit plan or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith. The persons
indemnified by this Article XI are hereinafter referred to as “indemnitees.”
Such indemnification as to such alleged action or inaction shall continue as to
an indemnitee who has after such alleged action or inaction ceased to be a
director of officer of the Corporation, or director, officer, employee or agent
of such Other Enterprise; and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators. Notwithstanding the foregoing, except as
may be provided in the Certificate of Incorporation or by the Board of
Directors, the Corporation shall not indemnify any such indemnitee in connection
with a proceeding (or portion thereof) initiated by such indemnitee (but this
prohibition shall not apply to a counterclaim, cross-claim or third-party
brought by the indemnitee in any proceeding) unless such proceeding (or portion
thereof) was authorized by the Board of Directors. The right to indemnification
conferred in this Article XI: (i) shall be a contract right; (ii) shall not be
affected adversely to any indemnitee by any amendment of these By-laws with
respect to any action or inaction occurring prior to such amendment; and (iii)
shall, subject to any requirements imposed by law and the Certificate of
Incorporation, include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition.
-11-
Section
2. Relationship to Other Rights and
Provisions Concerning Indemnification. The rights to
indemnification and to the advancement of expenses conferred in this Article XI
shall not be exclusive of any other right which any person may have or hereafter
acquire under these By-laws or under any statute, agreement, vote of
stockholders or disinterested directors or otherwise. The Certificate
of Incorporation may contain such other provisions concerning indemnification,
including provisions specifying reasonable procedures relating to and conditions
to the receipt by indemnitees of indemnification. In the event of a
conflict between the indemnification provision of these By-laws and an
indemnification provision of the Certificate of Incorporation, the Certificate
of Incorporation shall prevail.
Section
3. Agents and
Employees. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indemnification, and to
the advancement of expenses, to any employee or agent of the Corporation (or any
person serving at the Corporation’s request as a director, trustee, officer,
employee or agent of Another Enterprise) or to persons who are or were a
director, officer, employee or agent of any of the Corporation’s affiliates,
predecessor or subsidiary corporations or of a constituent corporation absorbed
by the Corporation in a consolidation or merger or who is or was serving at the
request of such affiliate, predecessor or subsidiary corporation or of such
constituent corporation as a director, officer, employee or agent of Another
Enterprise, in each case as determined by the Board of Directors to the fullest
extent of the provisions of this Article XI in cases of the indemnification and
advancement of expenses of directors and officers of the Corporation, or to any
lesser extent (or greater extent, if permitted by law) determined by the Board
of Directors.
ARTICLE
XII
INTERESTED
PARTIES
Section
1. Transactions with Interested
Parties. No contract or transaction between the Corporation
and one or more of the directors or officers, or between the Corporation any
other corporation, partnership, association, or other organization in which one
or more of the 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 a committee of the Board of Directors which authorizes
the contract or transaction or solely because his, her or their votes are
counted for such purpose, if:
(1) 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 authorized 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;
(2) 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
(3) 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 of the
Board of Directors, or the stockholders.
-12-
Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or at a committee which authorizes the
contract or transaction.
ARTICLE
XIII
CORPORATE
SEAL
The
Corporate Seal shall be in such form as may be prescribed by the Board of
Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE
XIV
FORCE
AND EFFECT OF BY-LAWS
These
By-laws are subject to the provisions of the law of the State of Delaware and
the Corporation’s Certificate of Incorporation, as it may be amended from time
to time. If any provision of these By-laws is inconsistent with a
provision in the Delaware statutes or the Certificate of Incorporation, the
provision of the Delaware statutes or the Certificate of Incorporation shall
govern.
Any
determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
Amended
and Restated: November 18, 2009
-13-