Attached files
| file | filename |
|---|---|
| 8-K - MobileSmith, Inc. | v171857_8k.htm |
EXHIBIT
3.1
SIXTH
AMENDED AND RESTATED
BYLAWS
OF
SMART ONLINE,
INC.
ARTICLE
I
OFFICES
SECTION
1. REGISTERED
OFFICE. The
registered office of the Corporation shall be located at 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801, or at such other place as the
Board of Directors shall determine from time to time.
SECTION
2. PRINCIPAL
OFFICE AND OTHER OFFICES. The principal office of the
Corporation shall be located at such place as the Board of Directors may specify
from time to time. The Corporation may have such other offices at such other
places, either within or without the State of Delaware, as the Board of
Directors may from time to time determine, or as the affairs of the Corporation
may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
SECTION
1. PLACE OF
MEETING. Meetings of the stockholders of the Corporation shall be held at
such place, either within or without the State of Delaware, as may be designated
from time to time by the Board of Directors, or, if not so designated, then at
the principal office of the Corporation required to be maintained pursuant to
Article I, Section 2 hereof. The Board of Directors may, in its sole
discretion and subject to such guidelines and procedures as the Board of
Directors may adopt for such meeting, permit stockholders and proxy holders not
present at such meeting to: (i) participate in such meeting of
stockholders; and (ii) be deemed present in person and vote at such meeting of
stockholders, provided that: (A) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxy holder;
(B) the Corporation shall implement reasonable measures to provide
stockholders and proxy holders a reasonable opportunity to participate in the
meeting and to vote on matters submitted to the stockholders; and (C) if
any stockholder or proxy holder votes or takes other action at the meeting by
means of remote communication, the Corporation shall maintain a record of such
vote or other action.
SECTION
2. ANNUAL
MEETINGS. The
annual meeting of the stockholders shall be held during the month of June of
each year at such time and place as the Board of Directors shall determine, at
which time the stockholders shall elect a Board of Directors and transact such
other business as may be properly brought before the meeting. Notwithstanding
the foregoing, the Board of Directors may cause the annual meeting of
stockholders to be held on such other date in any year as they shall determine
to be in the best interest of the Corporation, and any business transacted at
said meeting shall have the same validity as if transacted on the date
designated herein.
SECTION
3. SPECIAL
MEETINGS. Special
meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or the Certificate of Incorporation, may be called by the
Chairman of the Board, Chief Executive Officer or President. The President or
Secretary shall call a special meeting when: (i) requested in writing by
any two or more of the directors, or one director if only one director is then
in office; or (ii) requested in writing by stockholders owning a majority
of the shares entitled to vote. Such written request shall state the purpose or
purposes of the proposed meeting.
SECTION
4. NOTICE OF
MEETINGS. Except
as otherwise required by statute or the Certificate of Incorporation, written
notice of each meeting of the stockholders, whether annual or special, shall be
served, either personally, by mail or private carrier, or by facsimile,
electronic mail or other electronic means, upon each stockholder of record
entitled to vote at such meeting, not less than ten (10) nor more than
sixty (60) days before the meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail addressed to the
stockholder at his address as it appears on the records of the Corporation, with
postage thereon prepaid. Notice shall be sent by facsimile, electronic mail or
other electronic means only to stockholders who have agreed to receive notice by
electronic means and who have not revoked such agreement. If transmitted
electronically, notice shall be deemed given: (1) by facsimile, when
directed to a number at which the stockholder has consented to receive notice;
(2) by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice; (3) by a posting on
an electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (a) such posting or (b) the giving
of such separate notice; and (4) by any other form of electronic
transmission, when directed to the stockholder. Notice of any meeting of
stockholders shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. The notice shall also state the means of remote communication, if any,
by which stockholders and proxy holders may be deemed present in person and vote
at such meeting. Notice of any meeting of stockholders shall not be required to
be given to any stockholder who, in person or by his authorized attorney, either
before or after such meeting, shall waive such notice in writing. Attendance of
a stockholder at a meeting, either in person or by proxy, shall itself
constitute waiver of notice and waiver of any and all objections to the place
and time of the meeting and manner in which it has been called or convened,
except when a stockholder attends a meeting solely for the purpose of stating,
at the beginning of the meeting, any such objections to the transaction of
business. Notice of the time and place of any adjourned meeting need not be
given otherwise than by the announcement at the meeting at which adjournment is
taken, unless the adjournment is for more than thirty (30) days or after
the adjournment a new record date is set.
SECTION
5. PROXIES. A stockholder may attend,
represent, and vote his shares at any meeting in person, or be represented and
have his shares voted for by a proxy which such stockholder has (i) duly
executed in writing or (ii) transmitted by electronic means and which has
been authenticated as required by law. No proxy shall be valid after three
(3) years from the date of its execution unless a longer period is
expressly provided in the proxy. Each proxy shall be revocable unless otherwise
expressly provided in the proxy or unless otherwise made irrevocable by
law.
SECTION
6. QUORUM. The holders of a majority of
the stock issued, outstanding and entitled to vote, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders and shall be required for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. When a quorum is present at the original meeting, any business which
might have been transacted at the original meeting may be transacted at an
adjourned meeting, even when a quorum is not present at the adjourned meeting.
The stockholders at a meeting at which a quorum is initially present may
continue to do business until adjournment, notwithstanding the withdrawal of
sufficient stockholders to leave less than a quorum. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote at such meeting, present in person or by proxy,
shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting unless the adjournment is for more than
thirty (30) days or after the adjournment a new record date is set, until
the required amount of voting stock shall be present. At such adjourned meeting
at which a quorum shall be present, in person or by proxy, any business may be
transacted that might have been transacted at the meeting originally
called.
SECTION
7. VOTING OF
SHARES. Each
outstanding share of voting capital stock of the Corporation shall be entitled
to one vote on each matter submitted to a vote at a meeting of the stockholders,
except as otherwise provided in the Certificate of Incorporation. The vote by
the holders of a majority of the shares voted on any matter at a meeting of
stockholders at which a quorum is present shall be the act of the stockholders
on that matter, unless the vote of a greater number is required by law, by the
Certificate of Incorporation, or by these Bylaws; provided, however, that
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Voting on all matters except the election of directors
shall be by voice vote or show of hands unless the holders of ten percent (10%)
of the shares represented at the meeting shall, prior to voting on any matter,
demand a written ballot on that particular matter. All elections of directors
shall be by written ballot, unless otherwise provided in the Certificate of
Incorporation. Shares of its own stock owned by the Corporation, directly or
indirectly, through a subsidiary or otherwise, shall not be voted and shall not
be counted in determining the number of shares entitled to vote; except that
shares held in a fiduciary capacity may be voted and shall be counted except to
the extent provided by law.
SECTION
8. ACTION
WITHOUT MEETING.
(a) Any
action required or permitted to 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 or consents in writing, setting forth the action so taken,
are signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and
voted.
(b) Every
written consent shall bear the date of signature of each stockholder who signs
the consent, and no consent shall be effective to take the corporate action
referred to in such consent unless, within sixty (60) days of the earliest
dated consent delivered to the Corporation in the manner required in these
Bylaws, written consents signed by a sufficient number of stockholders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt
requested.
(c) A
telegram, electronic mail or other electronic transmission consenting to action
to be taken and transmitted by a stockholder or proxy holder, or by a person or
persons authorized to act for a stockholder or proxy holder, shall be deemed to
be written, signed and dated, as required by Section 228 of the General
Corporation Law of Delaware and by these Bylaws, provided that any such
telegram, electronic mail or other electronic transmission sets forth or is
delivered with information from which the Corporation can determine:
(i) that the telegram, electronic mail or other electronic transmission was
transmitted by the stockholder, proxy holder or person authorized to act for the
stockholder or proxy holder; and (ii) the date on which such stockholder,
proxy holder or authorized person(s) transmitted such telegram, electronic mail
or other electronic transmission. The date on which such telegram, electronic
mail or other electronic transmission is transmitted shall be deemed to be the
date on which such consent was signed. Unless otherwise provided by resolution
of the Board of Directors, no consent given by telegram, electronic mail or
other electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered
to the Corporation by delivery to its registered office, its principal place of
business or an officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be made by hand or by certified or
registered mail, return receipt requested.
(d) Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing. If the action which is consented to is such as would have
required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by the stockholders
at a meeting thereof, then the certificate filed under such section shall state,
in lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of
Delaware.
SECTION
9. LIST OF
STOCKHOLDERS. The
Secretary shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete alphabetical list of the stockholders
entitled to vote at the meeting, 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, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not specified, at the place where the meeting is to be held. The
list shall be produced and kept at the time and place of meeting during the
whole time thereof, and may be inspected by any stockholder who is
present.
SECTION
10. INSPECTORS
OF ELECTION.
(a) In
advance of any meeting of stockholders, the Board of Directors may appoint any
persons, other than nominees for office, as inspectors of election to act at
such meeting or any adjournment thereof. If inspectors of election are not so
appointed, the chairman of any such meeting may appoint inspectors of election
at the meeting. The number of inspectors shall be either one (1) or three
(3). In case any person appointed as inspector fails to appear or fails or
refuses to act, the vacancy may be filled by appointment by the Board of
Directors in advance of the meeting or at the meeting by the person acting as
chairman.
(b) The
inspectors of election shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the authenticity, validity and effect of proxies, receive votes, ballots
or consents, hear and determine all challenges and questions in any way arising
in connection with the right to vote, count and tabulate all votes or consents,
determine the results and do such acts as may be proper to conduct the election
or vote with fairness to all stockholders. The inspectors of election shall
perform their duties impartially, in good faith, to the best of their ability
and as expeditiously as possible.
(c) If
there are three (3) inspectors of election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all.
(d) On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge or question or matter determined by them and shall
execute a certificate of any fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts stated therein.
SECTION
11. NOTICE OF
STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) Annual
Meetings of Stockholders.
(i) Nominations
of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of
stockholders: (a) pursuant to the notice of meeting pursuant to Article II,
Section 4 of these Bylaws; (b) by or at the direction of the Board of
Directors; or (c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this Bylaw
(Article II, Section 11), who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Bylaw.
(ii) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (c) of paragraph (a)(i) of this Bylaw, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder’s notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 60th calendar day nor earlier than the close
of business on the 90th calendar day prior to the first anniversary of the
preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is more than thirty
(30) calendar days before or more than sixty (60) calendar days after
such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th calendar day prior
to such annual meeting and not later than the close of business on the later of
the 60th calendar day prior to such annual meeting or the 10th calendar day
following the calendar day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder’s notice as described above. Such stockholder’s
notice shall set forth: (a) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, all information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) and Rule 14a-11 thereunder (including such
person’s written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, the name and
address of such stockholder, as they appear on the Corporation’s books, and of
such beneficial owner and the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(b) Special
Meetings of Stockholders.
(i) Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the notice of meeting under
Article II, Section 4 of these Bylaws. If directors are to be elected
at a special meeting of stockholders pursuant to the notice of meeting,
nominations of persons for election to the Board of Directors at such meeting
may be made (a) by or at the direction of the Board of Directors, or
(b) by any stockholder of the Corporation who is a stockholder of record at
the time of giving of notice provided for in this Bylaw, who shall be entitled
to vote at the meeting and who complies with the notice procedures set forth in
this Bylaw.
(ii) In
the event a special meeting of stockholders is called for the purpose of
electing one or more directors to the Board of Directors, any stockholder may,
pursuant to clause (b)(i) above, nominate a person or persons (as the case may
be) for election to such position(s) as specified in the notice of meeting, if
the stockholder shall have delivered notice containing the information specified
in paragraph (a)(ii) of this Bylaw to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the 90th
calendar day prior to such special meeting and not later than the close of
business on the later of the 60th calendar day prior to such special meeting or
the 10th calendar day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder’s notice as described above.
(c) General.
(i) Only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination or business
is not in compliance with this Bylaw, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For
purposes of this Bylaw, “public announcement” shall mean disclosure in a press
release reported in a national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(“Exchange Act”).
(iii) Notwithstanding
the foregoing provisions of this Bylaw, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8
under the Exchange Act.
SECTION
12. STOCKHOLDER
COMMUNICATIONS WITH DIRECTORS. The Board of Directors may
from time to time establish or amend the procedures for stockholder
communications to the Board of Directors. Such procedures shall be contained in
the Corporation’s proxy statement for its annual meeting of stockholders or such
other communication as the Board may deem appropriate in its sole discretion.
Any stockholder who desires to send a communication to members of the Board of
Directors shall be required to submit such communication in accordance with such
procedures. All communications properly submitted under the procedures
established by the Board of Directors, except those deemed inappropriate as
provided below, will be delivered to all members of the Board of Directors
periodically, generally in advance of each regularly scheduled Board meeting.
The Secretary shall not forward communications which (a) are not reasonably
related to the business of the Corporation, (b) concern individual
grievances or other interests that are personal to the stockholder submitting
the communication and that cannot reasonably be construed to present a matter of
concern to stockholders generally, or (c) under community standards,
contain offensive, scurrilous or abusive content or that advocate engaging in
illegal activities. If the Secretary, in his or her judgment, deems a
communication inappropriate under the foregoing criteria, it will be returned to
the person who submitted it together with a brief explanation of the reason why
it has been deemed inappropriate for delivery.
ARTICLE
III
BOARD OF
DIRECTORS
SECTION
1. GENERAL
POWERS. The
business and affairs of the Corporation shall be managed by the Board of
Directors, except as otherwise provided by law, by the Certificate of
Incorporation of the Corporation or by these Bylaws.
SECTION
2. NUMBER
AND QUALIFICATIONS.
The authorized number of directors shall be determined from time to time
by resolution of the Board of Directors, provided that the number of directors
shall not exceed nine (9), and provided further that any decrease in the number
of directors shall not shorten an incumbent director’s term of office. Directors
need not be residents of the State of Delaware or stockholders of the
Corporation. Prior to being nominated for election or appointed to the Board of
Directors, each proposed nominee or appointee must submit (or have previously
submitted) an irrevocable, conditional letter of resignation to the Board of
Directors (in a form reasonably acceptable to the Board of Directors) that shall
become effective upon such person being charged with a felony or equivalent
offense under the laws of any jurisdiction.
SECTION
3. ELECTION
OF DIRECTORS; TERM.
The directors shall be elected for annual terms at the annual meeting of
stockholders (or by written consent in lieu of such meeting) and such directors,
as provided in Section 7 of Article II, shall be elected by a
plurality of the votes of the shares present or represented by proxy at the
meeting (or held by stockholders executing the written consent in lieu of such
meeting) and entitled to vote in the election of directors. Each director shall
hold office until his death, resignation, retirement, removal, disqualification
or his successor is elected and qualifies.
SECTION
4. REMOVAL. At a special meeting of the
stockholders called for the purpose and in the manner provided in these Bylaws,
subject to any limitations imposed by law or the Certificate of Incorporation,
the Board of Directors, or any individual director, may be removed from office,
with or without cause, and a new director or directors elected by a vote of
stockholders holding a majority of the outstanding shares entitled to vote at an
election of directors.
SECTION
5. RESIGNATION.
Except as provided in Section 2 of this Article III, any director of
the Corporation may resign at any time by giving notice in writing or by
electronic transmission to the President or the Secretary of the Corporation.
The resignation of any director shall take effect upon receipt of such notice or
at such later time as shall be specified in such notice. The acceptance of such
resignation shall not be necessary to make it effective.
SECTION
6. VACANCIES. Any vacancy in the
Corporation’s Board of Directors, including, without limitation, any vacancy
created by an increase in the authorized number of directors or resulting from
the stockholders’ failure to elect the full authorized number of directors, may
be filled by the vote of a majority of the remaining directors then in office,
though less than a quorum. If the vacant office was held by a director elected
by a voting group, only the remaining director or directors elected by that
voting group or the holders of shares of that voting group are entitled to fill
the vacancy. A director appointed or elected to fill a vacancy shall be
appointed or elected for the unexpired term of his predecessor in office. The
stockholders may elect a director at any time to fill a vacancy not filled by
the directors.
SECTION
7. COMPENSATION. The Board of Directors may
cause the Corporation to compensate directors for their services as directors
and may provide for payment by the Corporation of all expenses incurred by
directors in attending regular and special meetings of the Board.
ARTICLE
IV
MEETINGS
OF DIRECTORS
SECTION
1. ANNUAL
AND REGULAR MEETINGS.
A regular meeting of the Board of Directors shall be held immediately
after, and at the same place as, the annual meeting of stockholders. In
addition, the Board of Directors may provide, by resolution, for the holding of
additional regular meetings.
SECTION
2. SPECIAL
MEETINGS. Special
meetings of the Board of Directors may be called by or at the request of the
Chairman of the Board, the President or any two or more directors, or one
director if only one director is then in office. Such meetings may be held at
the time and place designated in the notice of the meeting.
SECTION
3. NOTICE OF
MEETINGS.
(a) Regular
meetings of the Board of Directors may be held without notice. Written notice of
the time and place of all special meetings of the Board of Directors shall be
given no later than 5:00 p.m. in the time zone of the principal office of the
Corporation on a date after which at least two business days intervene before
the date of the meeting; such notice need not specify the purpose for which the
meeting is called. Notice of any meeting may be waived in writing at any time
before or after the meeting and will be waived by any director by attendance at
such meeting, except when the director attends the meeting for the express
purposes of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Notice of
an adjourned meeting need not be given if the time and place are fixed at the
meeting adjourning and if the period of adjournment does not exceed ten
(10) days in any one adjournment.
(b) The
transaction of all business at any meeting of the Board of Directors, however
called or noticed, or wherever held, shall be as valid as though made at a
meeting duly held after regular call and notice, if a quorum be present and if,
either before or after the meeting, each of the directors not present shall sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in any written waiver of notice or consent unless so required by the
Certificate of Incorporation or these Bylaws. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meetings.
SECTION
4. QUORUM. At all meetings of the Board
of Directors, the presence of a majority of the directors then in office shall
constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of the directors present at any meeting may adjourn from time to time
until a quorum is constituted. Notice of the time and place of any adjourned
meeting need only be given by announcement at the meeting at which adjournment
is taken.
SECTION
5. MANNER OF
ACTING. Except as
otherwise provided by law, these Bylaws or the Certificate of Incorporation, the
act of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
SECTION
6. ORGANIZATION. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, if any, or in his
or her absence by the Deputy Chairman of the Board, if any, or in their absence
by the President, or in the President’s absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in the
Secretary’s absence, the chairman of the meeting may appoint any person to act
as secretary of the meeting.
SECTION
7. ACTION
WITHOUT MEETING.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the Board
of Directors, or of any committee thereof, may be taken without a meeting, if
all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing or by electronic transmission, and such writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board of Directors or committee.
SECTION
8. TELEPHONIC
MEETINGS. Members
of the Board of Directors may participate in a meeting of such Board by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section shall constitute presence in person at such
meeting.
ARTICLE
V
COMMITTEES
OF THE BOARD
SECTION
1. CREATION. The Board of Directors may
designate one (1) or more directors to constitute an Executive Committee or
other committees, each of which, to the extent authorized by law and provided in
the resolution shall have and may exercise all of the authority delegated to the
Executive Committee or other committee by the Board of Directors in the
management of the Corporation, except as set forth in Section 7
below.
SECTION
2. VACANCY. Any permanent vacancy
occurring on a committee shall be filled by the Board of Directors.
SECTION
3. REMOVAL. Any member of a committee
may be removed at any time, with or without cause, by the Board of
Directors.
SECTION
4. PROCEDURES
AND MINUTES. Any
such committee shall elect a presiding officer from among its members and may
fix its own rules of procedure, which may not be inconsistent with these Bylaws.
Each committee shall keep regular minutes of its proceedings and report the same
to the Board of Directors when required.
SECTION
5. MEETINGS;
QUORUM. Regular
meetings of any such committee may be held without notice at such time and place
as such committee may fix by resolution. Special meetings of any such committee
may be called by any member thereof upon not less than one (1) day’s notice
stating the place and time of such meeting, which notice may be written or oral.
Any member of the committee may waive notice of meeting and no notice of a
meeting need be given to any member thereof who attends in person. The notice of
a meeting of a committee need not state the business proposed to be transacted
at the meeting. A majority of the members of any such committee shall constitute
a quorum for the transaction of business at any meeting thereof, and actions of
such committee must be authorized by the affirmative vote of a majority of the
members pursuant to a meeting at which a quorum is present. In the absence or
disqualification of a member of the committee, the member or members present and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of such absent or disqualified member.
SECTION
6. RESPONSIBILITY
OF DIRECTORS. The
designation of an Executive Committee or other committee and the delegation
thereto of authority shall not alone operate to relieve the Board of Directors,
or any member thereof, of any responsibility or liability imposed upon it or him
by law.
SECTION
7. RESTRICTIONS
ON COMMITTEES.
Neither the Executive Committee nor any other committee shall have the
authority to (a) approve or adopt or recommend to the stockholders any
action or matter expressly required by the General Corporation Law of Delaware
to be submitted to the stockholders for approval; (b) adopt, amend or
repeal Bylaws; (c) amend the Certificate of Incorporation;
(d) authorize distributions; (e) fill vacancies on the Board of
Directors or on any of its committees, except as provided in Section 5
above; (f) approve a plan of merger not requiring stockholder approval;
(g) authorize or approve reacquisition of shares, except according to a
formula or method prescribed by the Board of Directors; (h) authorize or
approve the issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except within limits specifically prescribed by the Board of
Directors; (i) fix compensation of the directors for serving on the Board
of Directors or on any committee; or (j) amend or repeal any resolution of
the Board of Directors which by its terms shall not be so amendable or
repealable.
ARTICLE
VI
OFFICERS
SECTION
1. OFFICERS. The Board of Directors shall
elect a President and a Secretary or Assistant Secretary, and may elect or
appoint a chief executive officer, one or more vice presidents, one or more
assistant secretaries, a treasurer or chief financial officer, and other or
additional officers as in its opinion are desirable for conduct of the business
of the Corporation. The Board of Directors may elect from its own membership a
Chairman of the Board. The Board of Directors may by resolution empower any
officer or officers of the Corporation to appoint from time to time such vice
presidents and other or additional officers as in the opinion of the officer(s)
so empowered by the Board of Directors are desirable for the conduct of the
business of the Corporation. Any two or more offices may be held by the same
person. In no event, however, may an officer act in more than one capacity where
action of two or more officers is required.
SECTION
2. ELECTION
AND TERM. Each
officer of the Corporation shall hold office for the term for which he is
elected or appointed, and until his successor has been duly elected or appointed
and has qualified, or until his death, resignation or removal pursuant to these
Bylaws. Elections by the Board of Directors may be held at any regular or
special meeting of the Board.
SECTION
3. REMOVAL. Any officer elected by the
Board of Directors may be removed, either with or without cause, by a vote of
the Board of Directors. Any officer appointed by another officer or officers may
be removed, either with or without cause, by either a vote of the Board of
Directors or by the officer or officers given the power to appoint that officer.
The removal of any person from office shall be without prejudice to the contract
rights, if any, of the person so removed.
SECTION
4. RESIGNATIONS. Any officer may resign at
any time by giving notice in writing or by electronic transmission to the Board
of Directors or to the President or Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein, no acceptance of such resignation shall be
necessary to make it effective.
SECTION
5. VACANCIES. A vacancy in any office
because of death, resignation, removal, disqualification, or any other cause,
shall be filled for the unexpired portion of the term in the manner prescribed
by these Bylaws for regular appointment or elections to such
offices.
SECTION
6. COMPENSATION. The compensation of all
officers of the Corporation shall be fixed by the Board of Directors, except
that the Board may delegate to any officer who has been given the power to
appoint subordinate officers the authority to fix the salaries of such appointed
officers. No officer shall be prevented from receiving a salary as an officer by
reason of the fact that the officer is also a member of the Board of
Directors.
SECTION
7. CHAIRMAN
OF THE BOARD. The
Chairman of the Board of Directors, if elected, shall preside at all meetings of
the Board of Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors or by these Bylaws.
SECTION
8. CHIEF
EXECUTIVE OFFICER.
The Chief Executive Officer, if elected, shall be the principal executive
officer of the Corporation and shall preside at meetings of the Board of
Directors in the absence of the Chairman of the Board. The Chief Executive
Officer shall be subject to the control and direction of the Board of Directors
and shall supervise and control the management of the Corporation.
SECTION
9. PRESIDENT. If no Chief Executive
Officer is elected, the President shall be the principal executive officer of
the Corporation, and shall preside at meetings of the Board of Directors in the
absence of the Chairman of the Board and the Chief Executive Officer. The
President shall be subject to the control and direction of the Board of
Directors, and in general, he shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of Directors,
the Chairman of the Board, or the Chief Executive Officer from time to
time.
SECTION
10. VICE
PRESIDENTS. In the absence or disability of the President or in the event
of his death, inability or refusal to act, the Vice Presidents, in the order of
their length of service as such, unless otherwise determined by the Board of
Directors, shall perform the duties and exercise the powers of the President. In
addition, the Vice Presidents shall perform such other duties and have such
other powers as the Board of Directors shall prescribe. Vice Presidents shall
not be executive officers of the Corporation except as designated by the Board
of Directors.
SECTION
11. SECRETARY
AND ASSISTANT SECRETARY.
The Secretary shall attend all meetings of the stockholders and of the
Board of Directors, and shall record all acts and proceedings of such meetings
in the minute book of the Corporation. The Secretary shall give notice in
conformity with these Bylaws of all meetings of the stockholders and of all
meetings of the Board of Directors requiring notice. The Secretary shall perform
all other duties given him in these Bylaws and other duties commonly incident to
his office and shall also perform such other duties and have such other powers
as the Board of Directors shall designate from time to time. The President may
direct any Assistant Secretary to assume and perform the duties of the Secretary
in the absence or disability of the Secretary, and each Assistant Secretary
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
SECTION
12. CHIEF
FINANCIAL OFFICER OR TREASURER AND ASSISTANT TREASURER. The Chief Financial Officer
or Treasurer shall keep or cause to be kept the books of account of the
Corporation in a thorough and proper manner, and shall render statements of the
financial affairs of the Corporation in such form and as often as required by
the Board of Directors or the President. The Chief Financial Officer or
Treasurer, subject to the order of the Board of Directors, shall have the
custody of all funds and securities of the Corporation. The Chief Financial
Officer or Treasurer shall perform other duties commonly incident to this office
and shall also perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time. The President
may direct any Assistant Treasurer to assume and perform the duties of the Chief
Financial Officer or Treasurer in the absence or disability of the Chief
Financial Officer or Treasurer, and each Assistant Treasurer shall perform other
duties commonly incident to this office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
SECTION
13. CONTROLLER
AND ASSISTANT CONTROLLER. The Controller, if one has
been appointed, shall have charge of the accounting affairs of the Corporation
and shall have such other powers and perform such other duties as the Board of
Directors shall designate. Each Assistant Controller shall have such powers and
perform such duties as may be assigned by the Board of Directors and the
Assistant Controllers shall exercise the powers of the Controller during that
officer’s absence or inability to act.
SECTION
14. OTHER
OFFICERS. The
other officers, if any, of the Corporation shall have such powers and duties in
the management of the Corporation as shall be stated in a resolution adopted by
the Board of Directors that is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject
to the control of the Board of Directors.
SECTION
15. DUTIES OF
OFFICERS MAY BE DELEGATED. In case of the absence of
any officer of the Corporation or for any other reason that the Board may deem
sufficient, the Board may delegate the powers or duties of such officer to any
other officer or to any director for the time being provided a majority of the
entire Board of Directors concurs in such delegation.
SECTION
16. BONDS. The Board of Directors may,
by resolution, require any or all officers, agents and employees of the
Corporation to give bond to the Corporation, with sufficient securities,
conditioned on faithful performance of the duties of their respective offices or
positions, and to comply with such other conditions as may from time to time be
required by the Board of Directors.
ARTICLE
VII
CAPITAL
STOCK AND TRANSFER OF SAME
SECTION
1. CERTIFICATES
FOR SHARES. The
shares of stock of the Corporation may be issued in book-entry form or evidenced
by certificates. However, every stockholder shall be entitled, upon request, to
have a certificate or certificates in such form as the Board of Directors shall
determine, certifying the number and class of fully paid shares owned by him. To
the extent that shares of stock are represented by certificates, 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 President or any Vice President or a person who has been designated as the
chief executive officer of the Corporation and by the Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer and sealed with the seal of the
Corporation or a facsimile thereof. The signatures of any such officers upon a
certificate may be facsimiles or may be engraved or printed or omitted if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the Corporation itself or an employee of the Corporation. In case any
officer who has signed or whose facsimile or other signature has been placed
upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of its issue. The certificates shall be
consecutively numbered or otherwise identified, and the name and address of the
persons to whom they are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation. A record shall
be kept of the respective names of the persons, firms or corporations owning the
stock represented by such certificates or held in book-entry form, the number
and class of shares represented by such certificates or held in book-entry form,
respectively, and the respective dates thereof, and in 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.
SECTION
2. TRANSFER
OF SHARES.
Transfer of shares shall be made on the stock transfer books of the
Corporation only upon surrender of the certificates for the shares sought to be
transferred by the record holder thereof or by his duly authorized agent,
transferee or legal representative. All certificates surrendered for transfer
shall be cancelled before new certificates for the transferred shares shall be
issued.
SECTION
3. TRANSFER
AGENT AND REGISTRAR.
The Board of Directors may appoint one or more transfer agents and one or
more registrars of transfer and may require all stock certificates to be signed
or countersigned by the transfer agent and registered by the registrar of
transfers.
SECTION
4. CLOSING
TRANSFER BOOKS AND FIXING RECORD DATE.
(a) For
the purpose of determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting. If no record date is fixed by
the Board of Directors, such record date 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. Such determination of stockholders of record shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
(b) For
the purpose of determining the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, such record date, when no
prior action by the Board of Directors is required by the General Corporation
Law of Delaware, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is filed with the
Secretary of the Corporation. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the General
Corporation Law of Delaware, such record date shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
(c) For
the purpose of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be
not more than sixty (60) days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
SECTION
5. LOST,
STOLEN OR DESTROYED STOCK CERTIFICATES. The Board of Directors may
authorize the issuance of a new share certificate, in place of a certificate
claimed to have been lost, misplaced, stolen or destroyed, upon receipt of an
affidavit of such fact from the person claiming the loss, theft or destruction.
When authorizing such issuance of a new certificate, the Board may require the
claimant to give the Corporation a bond in such sum as it may direct to
indemnify the Corporation against loss from any claim with respect to the
certificate claimed to have been lost or destroyed; or the Board may, by
resolution reciting that the circumstances justify such action, authorize the
issuance of the new certificate without requiring such a bond.
SECTION
6. HOLDER OF
RECORD. The
Corporation may treat as absolute owner of the shares the person in whose name
the shares stand of record on its books just as if that person had full
competency, capacity and authority to exercise all rights of ownership
irrespective of any knowledge or notice to the contrary or any description
indicating a representative, pledge or other fiduciary relation or any reference
to any other instrument or to the rights of any other person appearing upon its
record or upon the share certificate; except that any person furnishing to the
Corporation proof of his appointment as a fiduciary shall be treated as if he
were a holder of record of the Corporation’s shares.
SECTION
7. TREASURY
SHARES. Treasury
shares of the Corporation shall consist of such shares as have been issued and
thereafter acquired but not cancelled by the Corporation. Treasury shares shall
not carry voting or dividend rights, except rights in share
dividends.
ARTICLE
VIII
INDEMNIFICATION
AND REIMBURSEMENT OF DIRECTORS AND OFFICERS
SECTION
1. INDEMNIFICATION
FOR EXPENSES AND LIABILITIES. Subject to the
limitations set forth in Section 3 of this Article VIII, any person who at any
time serves or has served as a director, officer, employee or agent of the
Corporation, or in such capacity at the request of the Corporation for any
other corporation,
partnership, joint venture, trust, other enterprise, shall be entitled to be
indemnified by the Corporation to the fullest extent permitted by law against
(a) reasonable expenses, including reasonable attorneys’ fees, actually and
necessarily incurred by him in connection with any Proceeding, and whether or
not brought by or on behalf of the Corporation, seeking to hold him liable by
reason of the fact that he is or was acting in such capacity, and (b) reasonable
payments made by him in satisfaction of any judgment, money decree, fine,
penalty or settlement for which he may have become liable in any such
Proceeding.
SECTION
2. ADVANCE
PAYMENT OF EXPENSES.
The Corporation may, in its sole discretion, upon authorization
of a majority of the disinterested members of the Board of Directors
(or a duly appointed committee thereof), pay expenses incurred by a person
entitled to indemnification under Section 1 above, in defending a Proceeding (or
appearing as a witness at a time when he or she has not been named as a
defendant or a respondent with respect thereto) in advance of the final
disposition of such Proceeding, upon such conditions as a majority of the
disinterested members of the Board of Directors (or a duly appointed committee
thereof) may require, including without limitation, upon receipt of a secured or
unsecured undertaking by or on behalf of the director or officer involved to
repay the expenses described herein if it shall ultimately be determined that he
or she is not entitled to be indemnified by the Corporation against such
expenses.
SECTION
3. LIMITATION. Notwithstanding
anything to the contrary contained in these Bylaws, unless otherwise required by
law, no person shall be entitled to indemnification or advancement or
reimbursement of expenses in the event (a) such person’s employment or
affiliation with the Corporation has been terminated by the Corporation for
“cause”, as determined in accordance with such person’s written contract of
employment, if any, or if no such contract exists, as determined by the Board of
Directors (b) such person is convicted of commission of a felony (even if such
Proceeding is not final) or (c) a majority of the disinterested members of the
Board of Directors (or a duly appointed committee thereof), has determined, in
its sole discretion, that such person has not acted in good faith in the
performance of his or her duties on behalf of the Corporation.
SECTION
4. INSURANCE. The Corporation shall have
the power to purchase and maintain insurance (on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another domestic or foreign corporation, partnership, joint venture,
trust or other enterprise or as a trustee or administrator under an employee
benefit plan) against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability.
SECTION
5. OTHER
INDEMNIFICATION.
The Corporation’s obligation, if any, to indemnify any person who was or
is serving at its request as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or other
entity shall be reduced by any amount such person may collect as indemnification
from such other entity.
SECTION
6. OTHER
AUTHORITY TO INDEMNIFY.
This Article VIII shall not limit the right of the Corporation, to
the extent and in the manner permitted by law, to indemnify and to advance
expenses to any person (whether a director, officer, employee or agent) when and
as authorized by appropriate corporate action.
SECTION
7. DEFINITIONS. The following terms as used
in this Article shall have the following meanings. “Proceeding” means any
threatened, pending or completed action, suit, or proceeding and any appeal
therein (and any inquiry or investigation that could lead to such action, suit,
or proceeding), whether civil, criminal, administrative, or investigative
“Director,” “officer,” “employee” and “agent” include the estate or personal
representative of a director, officer, employee or agent. “Corporation” shall
have the meaning ascribed thereto in Section 145(h) of the General Corporation
Law of Delaware. References to “other enterprises”, “serving at the
request of the Corporation” and “not opposed to the best interests of the
Corporation” shall refer to the meanings ascribed to such phrases in Section
145(i) of the General Corporation Law of Delaware.
ARTICLE
IX
GENERAL
PROVISIONS
SECTION
1. DISTRIBUTIONS
TO STOCKHOLDERS.
The Board of Directors may from time to time authorize, and the
Corporation may make, distributions to its stockholders (including, without
limitation, dividends and distributions involving acquisition of the
Corporation’s shares) in the manner and upon the terms and conditions provided
by law, and subject to the provisions of its Certificate of
Incorporation.
SECTION
2. SEAL. The seal of the Corporation
shall be in such form as the Board of Directors may from time to time
determine.
SECTION
3. DEPOSITORIES
AND CHECKS. All
funds of the Corporation shall be deposited in the name of the Corporation in
such bank, banks or other financial institutions as the Board of Directors may
from time to time designate and shall be drawn out on checks, drafts or other
orders signed on behalf of the Corporation by such person or persons as the
Board of Directors may from time to time designate.
SECTION
4. LOANS. No loans shall be contracted
on behalf of the Corporation and no evidence of indebtedness shall be issued in
its name unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
SECTION
5. FISCAL
YEAR. The fiscal
year of the Corporation shall be fixed by the Board of Directors.
SECTION
6. CONTRACTS. The Board of Directors may
authorize any officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
Corporation, and such authority may be general or confined to specific
instances. Except as so authorized or otherwise expressly provided in these
Bylaws, no officer, agent or employee shall have any power or authority to bind
the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or in any amount.
SECTION
7. AMENDMENTS. The Bylaws of the
Corporation may be altered or amended and new Bylaws may be adopted by the
stockholders or, if authorized by the Certificate of Incorporation, by the Board
of Directors at any regular or special meeting of the Board of Directors;
provided, however, that, if such action is to be taken at a meeting of the
stockholders, notice of the general nature of the proposed change in the Bylaws
shall have been given in the notice of a meeting. Action by the stockholders
with respect to Bylaws shall be taken by an affirmative vote of a majority of
the shares entitled to elect directors, and action by the directors with respect
to Bylaws shall be taken by an affirmative vote of a majority of all directors
then holding office.