Attached files
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8-K - FORM 8-K - ZILOG INC | f55022e8vk.htm |
EX-3.1 - EX-3.1 - ZILOG INC | f55022exv3w1.htm |
Exhibit 3.2
Amended and Restated Bylaws
of
ZiLOG, Inc.
(a Delaware corporation)
(a Delaware corporation)
Adopted as of February 18, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I. IDENTIFICATION; OFFICES |
1 | |||
Section 1. NAME |
1 | |||
Section 2. PRINCIPAL AND BUSINESS OFFICES |
1 | |||
Section 3. REGISTERED AGENT AND OFFICE |
1 | |||
Section 4. PLACE OF KEEPING CORPORATE RECORDS |
1 | |||
ARTICLE II. STOCKHOLDERS |
1 | |||
Section 1. ANNUAL MEETING |
1 | |||
Section 2. SPECIAL MEETING |
1 | |||
Section 3. PLACE OF STOCKHOLDER MEETINGS |
1 | |||
Section 4. NOTICE OF MEETINGS |
2 | |||
Section 5. QUORUM AND ADJOURNED MEETINGS |
2 | |||
Section 6. FIXING OF RECORD DATE |
2 | |||
Section 7. VOTING LIST |
3 | |||
Section 8. VOTING |
3 | |||
Section 9. PROXIES |
4 | |||
Section 10. RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS |
4 | |||
Section 11. INFORMAL ACTION OF STOCKHOLDERS |
4 | |||
Section 12. ORGANIZATION |
4 | |||
ARTICLE III. DIRECTORS |
5 | |||
Section 1. NUMBER AND TENURE OF DIRECTORS |
5 | |||
Section 2. ELECTION OF DIRECTORS |
5 | |||
Section 3. SPECIAL MEETINGS |
5 | |||
Section 4. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS |
5 | |||
Section 5. QUORUM |
5 | |||
Section 6. VOTING |
5 | |||
Section 7. VACANCIES |
5 | |||
Section 8. REMOVAL OF DIRECTORS |
5 | |||
Section 9. INFORMAL ACTION OF DIRECTORS |
6 | |||
Section 10. PARTICIPATION BY CONFERENCE TELEPHONE |
6 | |||
Section 11. COMPENSATION OF DIRECTORS |
6 | |||
ARTICLE IV. WAIVER OF NOTICE |
6 | |||
Section 1. WRITTEN WAIVER OF NOTICE |
6 |
i
Page | ||||
Section 2. ATTENDANCE AS WAIVER OF NOTICE |
6 | |||
ARTICLE V. COMMITTEES |
7 | |||
Section 1. GENERAL PROVISIONS |
7 | |||
ARTICLE VI. OFFICERS |
7 | |||
Section 1. GENERAL PROVISIONS |
7 | |||
Section 2. ELECTION AND TERM OF OFFICE |
7 | |||
Section 3. REMOVAL OF OFFICERS |
8 | |||
Section 4. THE CHIEF EXECUTIVE OFFICER |
8 | |||
Section 5. THE PRESIDENT |
8 | |||
Section 6. THE CHAIRMAN OF THE BOARD |
8 | |||
Section 7. VICE CHAIRMAN OF THE BOARD |
8 | |||
Section 8. THE VICE PRESIDENT |
9 | |||
Section 9. THE SECRETARY |
9 | |||
Section 10. THE ASSISTANT SECRETARY |
9 | |||
Section 11. THE TREASURER |
9 | |||
Section 12. THE ASSISTANT TREASURER |
10 | |||
Section 13. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS |
10 | |||
Section 14. ABSENCE OF OFFICERS |
10 | |||
Section 15. COMPENSATION |
10 | |||
ARTICLE VII. INDEMNIFICATION |
10 | |||
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY
OR IN THE RIGHT OF THE CORPORATION |
10 | |||
Section 2.POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT
OF THE CORPORATION |
11 | |||
Section 3. AUTHORIZATION OF INDEMNIFICATION |
11 | |||
Section 4. GOOD FAITH DEFINED |
11 | |||
Section 5. INDEMNIFICATION BY A COURT |
12 | |||
Section 6. EXPENSES PAYABLE IN ADVANCE |
12 | |||
Section 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES |
12 | |||
Section 8. INSURANCE |
12 | |||
Section 9. CERTAIN DEFINITIONS |
13 | |||
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES |
13 | |||
Section 11. LIMITATION ON INDEMNIFICATION |
13 | |||
Section 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS |
13 | |||
ARTICLE VIII. CERTIFICATES FOR SHARES |
13 |
ii
Page | ||||
Section 1. CERTIFICATES OF SHARES |
13 | |||
Section 2. SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR |
14 | |||
Section 3. TRANSFER OF SHARES |
14 | |||
Section 4. LOST, DESTROYED OR STOLEN CERTIFICATES |
14 | |||
ARTICLE IX. DIVIDENDS |
14 | |||
Section 1. DECLARATIONS OF DIVIDENDS |
14 | |||
Section 2. REQUIREMENTS FOR PAYMENT OF DIVIDENDS |
14 | |||
ARTICLE X. GENERAL PROVISIONS |
15 | |||
Section 1. CONTRACTS |
15 | |||
Section 2. LOANS |
15 | |||
Section 3. CHECKS, DRAFTS, ETC |
15 | |||
Section 4. DEPOSITS |
15 | |||
Section 5. FISCAL YEAR |
15 | |||
Section 6. SEAL |
15 | |||
Section 7. ANNUAL STATEMENT |
15 | |||
ARTICLE XI. AMENDMENTS |
15 | |||
Section 1. AMENDMENTS |
15 |
iii
Amended and Restated Bylaws
of
ZiLOG, Inc.
(a Delaware corporation)
(a Delaware corporation)
Adopted as of February 18, 2010
ARTICLE I.
IDENTIFICATION; OFFICES
IDENTIFICATION; OFFICES
Section 1. NAME. The name of the corporation is ZiLOG, Inc. (the Corporation).
Section 2. PRINCIPAL AND BUSINESS OFFICES. The Corporation may have such principal and
other business offices, either within or outside of the state of Delaware, as the Board of
Directors may designate or as the Corporations business may require from time to time.
Section 3. REGISTERED AGENT AND OFFICE. The Corporations registered agent may be changed
from time to time by or under the authority of the Board of Directors. The address of the
Corporations registered agent may change from time to time by or under the authority of the Board
of Directors, or the registered agent. The business office of the Corporations registered agent
shall be identical to the registered office. The Corporations registered office may be but need
not be identical with the Corporations principal office in the state of Delaware. The
Corporations initial registered office shall be in the City of Dover, County of Kent, State of
Delaware.
Section 4. PLACE OF KEEPING CORPORATE RECORDS. The records and documents required by law
to be kept by the Corporation permanently shall be kept at the Corporations principal office.
ARTICLE II.
STOCKHOLDERS
STOCKHOLDERS
Section 1. ANNUAL MEETING. An annual meeting of the stockholders shall be held on such
date as may be determined by resolution of the Board of Directors. At each annual meeting, the
stockholders shall elect directors to hold office for the term provided in Section 3.1 of these
Bylaws.
Section 2. SPECIAL MEETING. A special meeting of the stockholders may be called by the
President of the Corporation, the Board of Directors, or by such other officers or persons as the
Board of Directors may designate.
Section 3. PLACE OF STOCKHOLDER MEETINGS. The Board of Directors may designate any place,
either within or without the State of Delaware, as the place of meeting for
any annual meeting or for any special meeting. If no such place is designated by the Board of Directors, the place of
meeting will be the principal business office of the Corporation.
Section 4. NOTICE OF MEETINGS. Unless waived as herein provided, whenever stockholders are
required or permitted to take any action at a meeting, written notice of the meeting shall be given
stating 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. Such written notice shall be given not less than ten
(10) days nor more than sixty (60) days before the date of the meeting to each stockholder entitled
to vote at the meeting or in the event of a merger, consolidation, share exchange, dissolution or
sale, lease or exchange of all or substantially all of the Corporations property, business or
assets not less than twenty (20) days before the date of the meeting. If mailed, notice is given
when deposited in the United States mail, postage prepaid, directed to the stockholder at the
stockholders address as it appears on the records of the Corporation. If electronically
transmitted, then notice is deemed given when transmitted and directed to a facsimile number or
electronic mail address at which the stockholder has consented to receive notice. An affidavit of
the secretary or of the transfer agent or other agent of the Corporation that the notice has been
given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
When a meeting is adjourned to another time or place in accordance with Section 2.5 of these
Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting in which the adjournment is taken. At the adjourned meeting the
Corporation may conduct any business which might have been transacted at the original meeting. If
the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 5. QUORUM AND ADJOURNED MEETINGS. Unless otherwise provided by law or the
Corporations Certificate of Incorporation, a majority of the shares entitled to vote, present in
person or represented by proxy, shall constitute a quorum at a meeting of stockholders. If less
than a majority of the shares entitled to vote at a meeting of stockholders is present in person or
represented by proxy at such meeting, a majority of the shares so represented may adjourn the
meeting from time to time without further notice. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the original meeting.
The stockholders present at a meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of such number of stockholders as may leave less than a quorum.
Section 6. FIXING OF RECORD DATE.
(a) For the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more than sixty (60) days nor
less than ten (10) days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the
2
day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) For the purpose of determining 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 established by the Board
of Directors, and which date shall not be more than ten (10) days after the date on which the
resolution fixing the record date is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal office, or an officer or agent of the Corporation having
custody of the book in which the proceedings of meetings of stockholders are recorded. Delivery to
the Corporations registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining stockholders consent to
corporate action in writing without a meeting shall be 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 to any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix the 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 the stockholders for any such purpose shall be the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
Section 7. VOTING LIST. The officer who has charge of the stock ledger of the Corporation shall prepare and make,
at least ten (10) days before every meeting of stockholders, a complete list of stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the place of the meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
Section 8. VOTING. Unless otherwise provided by the Certificate of Incorporation, each
stockholder shall be entitled to one vote for each share of capital stock held by each stockholder.
In all matters other than the election of directors, the affirmative vote of the
3
majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders. Directors shall be elected by plurality of the votes
of the shares present in person or represented by a proxy at the meeting entitled to vote on the
election of directors.
Section 9. PROXIES. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may authorize another
person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after
three (3) years from its date, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an irrevocable power. A proxy may remain
irrevocable regardless of whether the interest with which it is coupled is an interest in the stock
itself or an interest in the Corporation generally.
Section 10. RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS. Except as otherwise provided
by law or by the Certificate of Incorporation of the Corporation, any transaction or contract or
act of the Corporation or of the directors or the officers of the Corporation may be ratified by
the affirmative vote of the holders of the number of shares which would have been necessary to
approve such transaction, contract or act at a meeting of stockholders, or by the written consent
of stockholders in lieu of a meeting.
Section 11. INFORMAL ACTION OF STOCKHOLDERS. Any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may be taken at any
annual or special meeting of such 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,
shall be delivered to the Corporation 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. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous consent shall be given to those stockholders who
have not consented in writing. In the event that the action which is consented to is such as would
have required the filing of a certificate with any governmental body, if such action had been voted
on by stockholders at a meeting thereof, the certificate filed shall state, in lieu of any
statement required by law concerning any vote of stockholders, that consent had been given in
accordance with the provisions of Section 228 of the Delaware General Corporation Law (the DGCL),
and that notice has been given as provided in such section. Without limiting the manner by which
consent or notice may be given, written consent and written notice shall be deemed to be given if
sent by electronic transmission when directed to a facsimile number or electronic mail address at
which the recipient has consented to receive such electronic transmissions.
Section 12. ORGANIZATION. Such person as the Board of Directors may designate or, in the
absence of such a designation, the president of the Corporation or, in his or her absence, such
person as may be chosen by the holders of a majority of the shares entitled to vote who are
present, in person or by proxy, shall call to order any meeting of the stockholders and act as
chairman of such meeting. In the absence of the secretary of the Corporation, the chairman of the
meeting shall appoint a person to serve as secretary at the meeting.
4
ARTICLE III.
DIRECTORS
DIRECTORS
Section 1. NUMBER AND TENURE OF DIRECTORS. The number of directors of the Corporation
shall be determined from time to time by resolution of the Board of Directors. Each director shall
hold office until such directors successor is elected and qualified or until such directors
earlier resignation or removal. Any director may resign at any time upon written notice to the
Corporation.
Section 2. ELECTION OF DIRECTORS. Except as otherwise provided in this Bylaws, one or more
directors shall be elected at the annual meeting of stockholders. Directors need not be residents
of the State of Delaware. Elections of directors need not be by written ballot.
Section 3. 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 at least one-third of the number
of directors constituting the whole board. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or without the State of
Delaware, as the place for holding any special meeting of the Board of Directors called by them.
Section 4. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS.
Notice of any special meeting of the Board of Directors shall be given at least two (2)
days previous thereto by written notice to each director at his or her address. If mailed, such
notice shall be deemed to be delivered when deposited in the United States Mail so addressed, with
first-class postage thereon prepaid. If sent by any other means (including facsimile, courier,
electronic mail or express mail, etc.), such notice shall be deemed to be delivered when actually
delivered to the home or business address, electronic address or facsimile number of the director.
Section 5. QUORUM. A majority of the total number of directors as provided in Section 3.1
of these Bylaws shall constitute a quorum for the transaction of business. If less than a majority
of the directors are present at a meeting of the Board of Directors, a majority of the directors
present may adjourn the meeting from time to time without further notice.
Section 6. VOTING. The vote 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, unless the DGCL or the Certificate
of Incorporation requires a vote of a greater number.
Section 7. VACANCIES. Vacancies in the Board of Directors may be filled by a majority vote
of the Board of Directors or by an election either at an annual meeting or at a special meeting of
the stockholders called for that purpose. Any directors elected by the stockholders to fill a
vacancy shall hold office for the balance of the term for which he or she was elected. A director
appointed by the Board of Directors to fill a vacancy shall serve until the next meeting of
stockholders at which directors are elected.
Section 8. REMOVAL OF DIRECTORS. A director, or the entire Board of Directors, may be
removed, with or without cause, by the holders of a majority of the shares then entitled to vote at
an election of directors; provided, however, that if cumulative voting obtains
5
and less than the entire Board of Directors is to be removed, no director may be removed without cause if the votes
cast against such directors removal would be sufficient to elect him if then cumulatively voted at
an election of the entire Board of Directors.
Section 9. INFORMAL ACTION OF DIRECTORS. 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 committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of Directors or
committee. Without limiting the manner by which consent may be given, members of the Board of
Directors may consent by delivery of an electronic transmission when such transmission is directed
to a facsimile number or electronic mail address at which the Corporation has consented to receive such electronic
transmissions, and copies of the electronic transmissions are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 10. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of Directors, or
any committee designated by such board, may participate in a meeting of the Board of Directors, or
committee thereof, by means of conference telephone or similar communications equipment as long as
all persons participating in the meeting can speak with and hear each other, and participation by a
director pursuant to this Section 3.10 shall constitute presence in person at such meeting.
Section 11. COMPENSATION OF DIRECTORS. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation therefore. Members
of special or standing committees may be allowed like compensation for attending committee
meetings.
ARTICLE IV.
WAIVER OF NOTICE
WAIVER OF NOTICE
Section 1. WRITTEN WAIVER OF NOTICE. A written waiver of any required notice, signed by or
electronically transmitted by the person entitled to notice, whether before or after the date
stated therein, shall be deemed equivalent to notice. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
Section 2. ATTENDANCE AS WAIVER OF NOTICE. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, and objects at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
6
ARTICLE V.
COMMITTEES
COMMITTEES
Section 1. GENERAL PROVISIONS. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member at any meeting of a committee, the
member or members thereof present at any meeting 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 any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority 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, but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or substantially all of the
Corporations property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the Bylaws of the Corporation, and,
unless the resolution so provides, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger,
pursuant to Section 253 of the DGCL.
ARTICLE VI.
OFFICERS
OFFICERS
Section 1. GENERAL PROVISIONS. The Board of Directors shall elect a President and a
Secretary of the Corporation. The Board of Directors may also elect a Chairman of the Board, one
or more Vice Chairmen of the Board, one or more Vice Presidents, a Treasurer, one or more Assistant
Secretaries and Assistant Treasurers and such additional officers as the Board of Directors may
deem necessary or appropriate from time to time. Any two or more offices may be held by the same
person. The officers elected by the Board of Directors shall have such duties as are hereafter
described and such additional duties as the Board of Directors may from time to time prescribe.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation shall be elected
annually by the Board of Directors at the regular meeting of the Board of Directors held after each
annual meeting of the stockholders. If the election of officers is not held at such meeting, such
election shall be held as soon thereafter as may be convenient. New offices of the Corporation may
be created and filled and vacancies in offices may be filled at any time, at a meeting or by the
written consent of the Board of Directors. Unless removed pursuant to Section 6.3 of these Bylaws,
each officer shall hold office until his successor has been duly elected and qualified, or until
his earlier death or resignation. Election or appointment of an officer or agent shall not of
itself create contract rights.
7
Section 3. REMOVAL OF OFFICERS. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever, in its judgment, the best interests of
the Corporation would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person(s) so removed.
Section 4. THE CHIEF EXECUTIVE OFFICER. The Board of Directors shall designate whether the
Chairman of the Board, if one shall have been chosen, or the President shall be the Chief Executive
Officer of the Corporation. If a Chairman of the Board has not been chosen, or if one has been
chosen but not designated Chief Executive Officer, then the President shall be the Chief Executive
Officer of the Corporation. The Chief Executive Officer shall be the principal executive officer
of the Corporation and shall in general supervise and control all of the business and affairs of
the Corporation, unless otherwise provided by the Board of Directors. The Chief Executive Officer
shall preside at all meetings of the stockholders and of the Board of Directors and shall see that
orders and resolutions of the Board of Directors are carried into effect. The Chief Executive
Officer may sign bonds, mortgages, certificates for shares and all other contracts and documents
whether or not under the seal of the Corporation except in cases where the signing and execution
thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation. The Chief Executive Officer shall have general powers
of supervision and shall be the final arbiter of all differences between officers of the
Corporation and his decision as to any matter affecting the Corporation shall be final and binding
as between the officers of the Corporation subject only to the Board of Directors.
Section 5. THE PRESIDENT. In the absence of the Chief Executive Officer or in the event of
his inability or refusal to act, if the Chairman of the Board has been designated Chief Executive
Officer, the President shall perform the duties of the Chief Executive Officer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Chief Executive
Officer. At all other times the President shall have the active management of the business of the
Corporation under the general supervision of the Chief Executive Officer. The President shall have
concurrent power with the Chief Executive Officer to sign bonds, mortgages, certificates for shares
and other contracts and documents, whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by the Board of
Directors, or by these Bylaws to some other officer or agent of the Corporation. In general, the
President shall perform all duties incident to the office of president and such other duties as the
Chief Executive Officer or the Board of Directors may from time to time prescribe.
Section 6. THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if one is chosen, shall
be chosen from among the members of the board. If the Chairman of the Board has not been
designated Chief Executive Officer, the Chairman of the Board shall perform such duties as may be
assigned to the Chairman of the Board by the Chief Executive Officer or by the Board of Directors.
Section 7. VICE CHAIRMAN OF THE BOARD. In the absence of the Chief Executive Officer or in
the event of his inability or refusal to act, if the Chairman of the Board has been designated
Chief Executive Officer, the Vice Chairman, or if there be more than one, the Vice Chairmen, in the order determined by the
Board of Directors, shall perform the duties of
8
the Chief Executive Officer, and when so acting shall have all the powers of and be subject to all the restrictions upon the Chief Executive
Officer. At all other times, the Vice Chairman or Vice Chairmen shall perform such duties and have
such powers as the Chief Executive Officer or the Board of Directors may from time to time
prescribe.
Section 8. THE VICE PRESIDENT. In the absence of the President or in the event of his
inability or refusal to act, the Vice President (or in the event there be more than one Vice
President, the Executive Vice President and then the other Vice President or Vice Presidents in the
order designated, or in the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice Presidents shall perform such other
duties and have such other powers as the Chief Executive Officer or the Board of Directors may from
time to time prescribe.
Section 9. THE SECRETARY. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of the meetings of
the Corporation and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or
the Chief Executive Officer, under whose supervision he shall be. The Secretary shall have custody
of the corporate seal of the Corporation and the Secretary, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by his signature or by the signature of such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 10. THE ASSISTANT SECRETARY. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall, in the absence of the Secretary or
in the event of his inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the Chief Executive
Officer or the Board of Directors may from time to time prescribe.
Section 11. THE TREASURER. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the President and the
Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall give the Corporation a bond (which shall be
renewed every six (6) years) in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation,
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retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 12. THE ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there
be no such determination, then in the order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other powers as the Chief
Executive Officer or the Board of Directors may from time to time prescribe.
Section 13. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, Assistant Officers
and Agents, if any, other than those whose duties are provided for in these Bylaws, shall have such
authority and perform such duties as may from time to time be prescribed by resolution of the board
of directors.
Section 14. ABSENCE OF OFFICERS. In the absence of any officer of the Corporation, or for
any other reason the Board of Directors may deem sufficient, the Board of Directors may delegate
the powers or duties, or any of such powers or duties, of any officers or officer to any other
officer or to any director.
Section 15. COMPENSATION. The Board of Directors shall have the authority to establish
reasonable compensation of all officers for services to the Corporation.
ARTICLE VII.
INDEMNIFICATION
INDEMNIFICATION
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN
THE RIGHT OF THE CORPORATION. Subject to Section 7.3 below, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the fact that such person
is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director or officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
such person had no reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that such person did not
act in good faith and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
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Section 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Subject to Section 7.3 below, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if such person acted in
good faith and in a manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this Article VII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set forth in Section
7.1 or Section 7.2 above, as the case may be. Such determination shall be made (a) by a majority
vote of the directors who are not parties to such action, suit or proceeding, even though less than
a quorum, or (b) if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (c) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person
in connection therewith, without the necessity of authorization in the specific case.
Section 4. GOOD FAITH DEFINED. For purposes of any determination under Section 7.3 above, a
person shall be deemed to have acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his or her conduct was unlawful,
if such persons action is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term another
enterprise as used in this Section 7.4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person is or was serving at
the request of the Corporation as a director, officer, employee or agent. The provisions of this
Section 7.4 shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth in Section 7.1 or
7.2, as the case may be.
Section 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary determination in the
specific case under Section 7.3, and notwithstanding the absence of any determination thereunder,
any director or officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 7.1 and 7.2. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standards of conduct set forth in
Section 7.1 or 7.2, as the case may be. Neither a contrary determination in the specific case under
Section 7.3 nor the absence of any determination thereunder shall be a defense to such application
or create a presumption that the director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification pursuant to this
Section 7.5 shall be given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
Section 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the Corporation as
authorized in this Article VII.
Section 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation or any bylaw,
agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such
persons official capacity and as to action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the persons specified in Section 7.1 and 7.2
shall be made to the fullest extent permitted by law. The provisions of this Article VII shall not
be deemed to preclude the indemnification of any person who is not specified in Section 7.1 or 7.2
but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL,
or otherwise.
Section 8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such persons status as such, whether or not the Corporation would
have the power or the obligation to indemnify such person against such liability under the
provisions of this Article VII.
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Section 9. CERTAIN DEFINITIONS. For purposes of this Article VII, references to the
Corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such constituent corporation,
or is or was a director or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article VII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VII, references to fines shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and references to
serving at the request of the Corporation shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner not opposed to the best interests of the Corporation as referred to in this
Article VII.
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 11. LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained in this
Article VII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 7.5), the Corporation shall not be obligated to indemnify any director
or officer (or his or her heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board of Directors.
Section 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VII to directors and officers of the Corporation.
ARTICLE VIII.
CERTIFICATES FOR SHARES
CERTIFICATES FOR SHARES
Section 1. CERTIFICATES OF SHARES. The shares 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
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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 signed by, or in the name
of the Corporation by the Chairman or Vice Chairman of the Board of Directors, Chief Executive
Officer, or the President or Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation representing the number of shares registered
in certificate form. Any or all the signatures on the certificate may be a facsimile.
Section 2. SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have 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 such person or entity were such officer, transfer agent or
registrar at the date of issue.
Section 3. TRANSFER OF SHARES. Transfers of shares of the Corporation shall be made only
on the books of the Corporation by the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his or her attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and
on surrender for cancellation of certificate for such shares. Prior to due presentment of a
certificate for shares for registration of transfer, the Corporation may treat a registered owner
of such shares as the person exclusively entitled to vote, to receive notifications and otherwise
have and exercise all of the right and powers of an owner of shares.
Section 4. LOST, DESTROYED OR STOLEN CERTIFICATES. Whenever a certificate representing
shares of the Corporation has been lost, destroyed or stolen, the holder thereof may file in the
office of the Corporation an affidavit setting forth, to the best of his knowledge and belief, the
time, place, and circumstance of such loss, destruction or theft together with a statement of
indemnity sufficient in the opinion of the Board of Directors to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss of any such certificate.
Thereupon the Board may cause to be issued to such person or such persons legal representative a
new certificate or a duplicate of the certificate alleged to have been lost, destroyed or stolen.
In the exercise of its discretion, the Board of Directors may waive the indemnification
requirements provided herein.
ARTICLE IX.
DIVIDENDS
DIVIDENDS
Section 1. DECLARATIONS OF DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. REQUIREMENTS FOR PAYMENT OF DIVIDENDS. Before payment of any dividend there may
be set aside out of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think
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proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the directors shall think conducive to the interests of
the Corporation, and the directors may abolish any such reserve.
ARTICLE X.
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1. 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.
Section 2. LOANS. No loans shall be contracted on behalf of the Corporation and no
evidences 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 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Corporation shall be
signed by one or more officers or agents of the Corporation and in such manner as shall from time
to time be determined by resolution of the Board of Directors.
Section 4. DEPOSITS. The funds of the Corporation may be deposited or invested in such
bank account, in such investments or with such other depositaries as determined by the Board of
Directors.
Section 5. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
Section 6. SEAL. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words Corporate Seal, Delaware. Said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. ANNUAL STATEMENT. The Board of Directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the stockholders, a full
and clear statement of the business and condition of the Corporation.
ARTICLE XI.
AMENDMENTS
AMENDMENTS
Section 1. AMENDMENTS. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the
stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors
by the Certificate of Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal Bylaws is conferred upon the Board of
Directors by the Certificate of Incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal Bylaws.
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