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8-K - Environmental Infrastructure Holdings Corp | v176115_8k.htm |
AMENDED
AND RESTATED BY-LAWS OF
ENVIRONMENTAL
INFRASTRUCTURE HOLDINGS CORP.
Offices
Section
1.01 Offices. Environmental Infrastructure Holdings
Corp. (the “Corporation”) may have offices at such places, both
within and without the State of Delaware, as the board of directors of the
Corporation (the “Board
of Directors”) from time to time shall determine or
the business of the Corporation may require.
Section
1.02 Books and
Records. Any
records maintained by the Corporation in the regular course of its business,
including its stock ledger, books of account and minute books, may be maintained
on any information storage device or method; provided that the records so kept can be converted
into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect such records pursuant to applicable law.
Meetings
of the stockholders
Section
2.01 Place of
Meetings. All
meetings of the stockholders shall be held at such place, if any, either within
or without the State of Delaware, as shall be designated from time to time by
resolution of the Board of Directors and stated in the notice of
meeting.
Section
2.02 Annual
Meeting. If
required by law, the annual meeting of the stockholders for the election of
directors and for the transaction of such other business as may properly come
before the meeting shall be held at such date, time and place, if any, as shall
be determined by the Board of Directors and stated in the notice of the
meeting.
Section
2.03 Special
Meetings. Special meetings of stockholders for any
purpose or purposes may be called only by the Board of Directors, pursuant to a
resolution adopted by a majority of the entire Board of Directors, either upon
motion of a Director or upon written request by the holders of at least a
majority of the voting power of all the shares of capital stock of the
Corporation then outstanding and entitled to vote generally in the election of
Directors. Any such request by stockholders shall be delivered to, or
mailed and received by, the Secretary of the Corporation at the Corporation’s
principal executive offices, shall set forth the purpose or purposes of the
meeting, and shall be in proper form. To be in proper form, a
stockholder’s notice to the Secretary must set forth as to each matter such
stockholder(s) propose(s) to bring before the meeting:
(a) The
name and record address of each such stockholder;
(b) The
class or series and number of shares of capital stock of the Corporation that
are owned beneficially or of record by each such stockholder;
(c) A
brief description of each proposed item of business desired to be brought before
the meeting, including the text of any proposed amendment to the Certificate of
Incorporation or these By-Laws;
(d) A
description of all arrangements or understandings between each such stockholder
and any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interests of such
stockholder in such business; and
(e) A
representation that such stockholder intends to appear in person or by proxy at
the meeting to bring such business before the meeting.
At any
such special meeting, only such business may be transacted as is related to the
purpose or purposes set forth in the notice of meeting. Special meetings may be
held at any place, within or without Delaware.
Section
2.04 Adjournments. Any meeting of the stockholders, annual
or special, may be adjourned from time-to-time to reconvene at the same or some
other place, if any, and notice need not be given of any such adjourned meeting
if the time and place, if any, thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more than 30 days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting. If after the adjournment a new record date is fixed
for stockholders entitled to vote at the adjourned meeting, the Board of
Directors shall fix a new record date for notice of the adjourned meeting and
shall give notice of the adjourned meeting to each stockholder of record
entitled to vote at the meeting as of the record date for notice of such
adjourned meeting.
Section
2.05 Notice of
Meetings. Notice
of the place, if any, date, hour, the record date for determining the
stockholders entitled to vote at the meeting (if such date is different from the
record date for stockholders entitled to notice of the meeting) and means of
remote communication, if any, of every meeting of stockholders shall be given by
the Corporation not less than ten days nor more than 60 days before such meeting
(unless a different time is specified by law) to every stockholder entitled to
vote at the meeting as of the record date for determining the stockholders
entitled to notice of the meeting. Notices of special meetings shall
also specify the purpose or purposes for which the meeting has been
called. Except as otherwise provided herein or permitted by
applicable law, notice to stockholders shall be in writing and delivered
personally or mailed to the stockholders at their address appearing on the books
of the Corporation. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, notice of meetings may be
given to stockholders by means of electronic transmission in accordance with
applicable law. Notice of any meeting need not be given to any
stockholder who shall, either before or after the meeting, submit a waiver of
notice or who shall attend such meeting, except when the stockholder attends for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
2
Section
2.06 List of
Stockholders. The officer of the Corporation who has
charge of the stock ledger shall prepare a complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares of each
class of capital stock of the Corporation registered in the name of each
stockholder at least ten days before any meeting of the
stockholders. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, at the principal place of business of the Corporation. The
list shall also be produced and kept at the time and place of the meeting the
whole time thereof and may be inspected by any stockholder who is
present. If the meeting is held solely by means of remote
communication, the list shall also be open for inspection by any stockholder
during the whole time of the meeting as provided by applicable
law. Except as provided by applicable law, the stock ledger of the
Corporation shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger and the list of stockholders or to vote in person or
by proxy at any meeting of stockholders.
Section
2.07 Quorum. Unless otherwise required by law, the
Certificate of Incorporation of the Corporation (the “Certificate
of Incorporation”) or these
By-Laws, at each meeting of the stockholders, a majority in voting power of the
outstanding shares of the Corporation entitled to vote at the meeting, present
in person or represented by proxy, shall constitute a quorum. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time-to-time,
in the manner provided in Section 2.04, until a quorum shall be present or
represented. A quorum, once established, shall not be broken by the
subsequent withdrawal of enough votes to leave less than a quorum. At
any such adjourned meeting at which there is a quorum, any business may be
transacted that might have been transacted at the meeting originally
called.
3
Section
2.08 Conduct of
Meetings. The
Board of Directors may adopt by resolution such rules and regulations for the
conduct of the meeting of the stockholders as it shall deem
appropriate. At every meeting of stockholders, the President, or in
his or her absence or inability to act, the Treasurer, or, in his or her absence
or inability to act, the person whom the President shall appoint, shall act as
chairman of, and preside at, the meeting. The Secretary or, in his or
her absence or inability to act, the person whom the chairman of the meeting
shall appoint secretary of the meeting, shall act as secretary of the meeting
and keep the minutes thereof. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors, the chairman of
any meeting of the stockholders shall have the right and authority to prescribe
such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (a) the establishment of
an agenda or order of business for the meeting; (b) the determination of when
the polls shall open and close for any given matter to be voted on at the
meeting; (c) rules and procedures for maintaining order at the meeting and the
safety of those present; (d) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (e) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (f) limitations on the time allotted to
questions or comments by participants.
Section
2.09 Voting;
Proxies. Unless
otherwise required by law or by the Certificate of Incorporation, the election
of directors need not be by
written ballot and shall be
decided by a plurality of the votes cast at a meeting of the stockholders by the
holders of stock entitled to vote in the election. Unless otherwise
required by law, the Certificate of Incorporation or these By-Laws, any matter,
other than the election of directors, brought before any meeting of stockholders
shall by decided by the vote of the holders of a majority of the votes cast in
favor of such action at a meeting of the stockholders by the holders of stock
entitled to vote thereon. Each stockholder entitled to vote at a
meeting of stockholders or to express consent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A
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 stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by delivering to
the Secretary a revocation of the proxy or a new proxy bearing a later
date. Voting at meetings of stockholders need not be by written ballot.
4
Section
2.10 Inspectors at
Meetings of Stockholders. The Board of Directors, in advance of
any meeting of stockholders, may, and shall, if required by law, appoint one or
more inspectors, who may be employees of the Corporation, to act at the meeting
or any adjournment thereof and make a written report thereof. The
Board of Directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate
is able to act at a meeting, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall (a)
ascertain the number of shares outstanding and the voting power of each, (b)
determine the shares represented at the meeting, the existence of a quorum and
the validity of proxies and ballots, (c) count all votes and ballots, (d)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors and (e) certify their
determination of the number of shares represented at the meeting and their count
of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of their
duties. Unless otherwise provided by the Board of Directors, the date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be determined by the person
presiding at the meeting and shall be announced at the meeting. No
ballot, proxies, votes or any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery of the State of Delaware upon application by a stockholder shall
determine otherwise. In determining the validity and counting of
proxies and ballots cast at any meeting of stockholders, the inspectors may
consider such information as is permitted by applicable law. No
person who is a candidate for office at an election may serve as an inspector at
such election.
Section
2.11 Written Consent of
Stockholders Without a Meeting. Any action to be taken at any annual or
special meeting of 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 to be so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered electronically, by hand or by certified or registered
mail, return receipt requested, 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. Every written consent shall
bear the date of signature of each stockholder who signs the consent, and no
written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated consent delivered in the
manner required by this Section 2.11, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation as
aforesaid. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall, to the extent
required by applicable law, be given to those stockholders who have not
consented in writing, and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting if the record date for notice of
such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the
Corporation.
5
Section
2.12 Fixing the Record
Date.
(a) In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, 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 60 nor less than ten
days before the date of such meeting. If the Board of Directors so
fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board of Directors
determines, at the time it fixes such record date, that a later date on or
before the date of the meeting shall be the date for making such
determination. 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 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 determination of
stockholders entitled to vote at the adjourned meeting and in such case shall
also fix as the record date for stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for the
determination of stockholders entitled to vote therewith at the adjourned
meeting.
(b) In
order that the Corporation may determine the stockholders entitled to express
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 record date shall not be more than ten 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, the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting: (i) when no
prior action by the Board of Directors is required by law, the record date for
such purpose 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
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 and (ii)
if prior action by the Board of Directors is required by law, the record date
for such purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action. Delivery
shall be by hand or by certified or registered mail, return receipt
requested.
6
(c) In
order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 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
2.13 Notification of
Annual Meeting Business. Any stockholder may bring
business before an annual meeting only if:
(a) Such
stockholder is a stockholder of record on the date of given notice as provided
for in this Section 2.13 and on the record date for the determination of
stockholders entitled to vote at such annual meeting;
(b) Such
business is properly before the meeting pursuant to the laws of the State of
Delaware; and
(c) Such
stockholder complies with the notice procedures set forth in this Section
2.13. In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely written notice thereof in proper form to the
Secretary. To be timely, a stockholder’s notice to the Secretary must
be delivered to or distributed and received at the principal executive offices
of the Corporation not less than 60 days nor more than 120 days prior to the
anniversary date on which the Corporation first distributed its proxy materials
for the prior year’s annual meeting of stockholders; provided,
however,
that in the event that the annual meeting is called for a date that is not
within 30 days before or after the anniversary of the prior year’s annual
meeting, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was distributed or public
disclosure of the date of the annual meeting was made, whichever first
occurs. In no event shall the public disclosure of an adjournment of
an annual meeting commence a new time period for the giving of a stockholder’s
notice as described above. For purposes of this Section 2.13, “public
disclosure” shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, or comparable national news service or any
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. To be in proper form, a stockholder’s notice to the Secretary
must comply with all the same requirements that apply to special meetings of
stockholders as set forth in Section 2.03 of these By-Laws.
7
No
business shall be conducted at an annual meeting of stockholders except business
brought before the meeting in accordance with the procedures set forth in this
Section 2.13. If the person presiding at an annual meeting determines
that business was not properly brought before the annual meeting in accordance
with the foregoing procedures, he or she shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not
be transacted.
Board
of directors
Section
3.01 General
Powers. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. The Board of Directors may adopt
such rules and procedures, not inconsistent with the Certificate of
Incorporation, these By-Laws or applicable law, as it may deem proper for the
conduct of its meetings and the management of the
Corporation.
Section
3.02 Number; Term of
Office. The
Board of Directors shall consist of at least 3 members, as authorized from
time-to-time by the Board of Directors. Each director shall hold
office until a successor is duly elected and qualified or until the director’s
earlier death, resignation, disqualification or removal.
Section
3.03 Newly Created
Directorships and Vacancies. Any newly created directorships
resulting from an increase in the authorized number of directors and any
vacancies occurring in the Board of Directors may be filled by the affirmative vote of a
majority of the remaining members of the Board of Directors, although less than
a quorum. A director so elected shall be elected to hold office until
the earlier of the expiration of the term of office of the director whom he or
she has replaced, a successor is duly elected and qualified or the earlier of
such director’s death, resignation or removal.
Section
3.04 Resignation. Any director may resign at any time by
notice given in writing or by electronic transmission to the
Corporation. Such resignation shall take effect at the date of
receipt of such notice by the Corporation or at such later time as is therein
specified.
8
Section
3.05 Compensation. Directors shall receive such compensation
for their services as the Board of Directors, or a committee thereof so
authorized, may determine. Any Director may serve the Corporation in
any other capacity and receive compensation therefor.
Section
3.06 Regular
Meetings. Regular
meetings of the Board of Directors may be held without notice at such times and
at such places as may be determined from time-to-time by the Board of Directors
or by its chairman (the “Chairman of
the Board”).
Section
3.07 Special
Meetings. Special
meetings of the Board of Directors may be held at such times and at such places
as may be determined by the Chairman of the Board or the President on at least
24 hours notice to each director given by one of the means specified in
Section
3.10 hereof other than by mail or on at
least three days notice if given by mail. Special meetings shall be
called by the Chairman of the Board or the President in like manner and on like
notice on the written request of any two or more
directors.
Section
3.08 Telephone
Meetings. Board of
Directors or Board of Directors committee meetings may be held by means of
telephone conference or other communications equipment by means of which all
persons participating in the meeting can hear each other and be
heard. Participation by a director in a meeting pursuant to this
Section 3.08 shall constitute presence in person at such
meeting.
Section
3.09 Adjourned
Meetings. A
majority of the directors present at any meeting of the Board of Directors,
including an adjourned meeting, whether or not a quorum is present, may adjourn
and reconvene such meeting to another time and place. At least 24
hours notice of any adjourned meeting of the Board of Directors shall be given
to each director whether or not present at the time of the adjournment, if such
notice shall be given by one of the means specified in Section
3.10 hereof other
than by mail, or at least three days notice if by mail. Any business
may be transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
Section
3.10 Notices. Subject to Section
3.07 and Section
3.11 hereof,
whenever notice is required to be given to any director by applicable law, the
Certificate of Incorporation or these By-Laws, such notice shall be deemed given
effectively if given in person or by telephone, mail addressed to such director
at such director’s address as it appears on the records of the Corporation,
facsimile, email or by other means of electronic
transmission.
9
Section
3.12 Organization. At each meeting of the Board of
Directors, the Chairman of the Board or, in his or her absence, another director
selected by the Board of Directors shall preside. The Secretary shall
act as secretary at each meeting of the Board of Directors. If the
Secretary is absent from any meeting of the Board of Directors, the person
presiding at the meeting may appoint any person to act as secretary of the
meeting.
Section
3.13 Quorum of
Directors. The
presence of a majority of the Board of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section
3.14 Action by Majority
Vote. Except as
otherwise expressly required by these By-Laws, by the Certificate of
Incorporation or by applicable law, the vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section
3.15 Action Without
Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these By-Laws, 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
directors, or members of such committee, as the case may be, consent thereto in
writing or by electronic transmission, and the writings or electronic
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee in accordance with applicable law.
Section
3.16 Committees of the
Board of Directors. The Board of Directors may designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. If a member of
a committee shall be absent from any meeting, or disqualified from voting
thereat, the remaining member or members present at the meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may, by a unanimous vote, 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 permitted by applicable
law, 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 that may
require it to the extent so authorized by the Board of
Directors. Unless the Board of Directors provides otherwise, at all
meetings of such committee, a majority of the then authorized members of the
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of the members of the committee present at any meeting at
which there is a quorum shall be the act of the committee. Each
committee shall keep regular minutes of its meetings. Unless the
Board of Directors provides otherwise, each committee designated by the Board of
Directors may make, alter and repeal rules and procedures for the conduct of its
business. In the absence of such rules and procedures, each committee
shall conduct its business in the same manner as the Board of Directors conducts
its business pursuant to this Article III.
10
Section
3.17 Liability. To the fullest extent permitted by law,
a director of the Corporation shall not be personally liable to the Corporation
or to its stockholders for monetary damages for any breach of fiduciary duty as
a director. No amendment to, modification of or
repeal of this Section
3.17 shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
Officers
Section
4.01 Positions and
Election. The
officers of the Corporation shall be elected by the Board of Directors and shall
include a Chairman of the Board, a President, one or more Executive Vice
Presidents, one or more Vice Presidents, a Treasurer and a
Secretary. The
Board of Directors, in its discretion, may also elect or appoint, or provide for the
appointment of, such other officers and agents as may from time-to-time appear
necessary or advisable in the conduct of the business and affairs of the
Corporation. Any individual may be elected to, and may hold, more
than one office of the Corporation.
Section
4.02 Term. Each officer of the Corporation shall
hold office until such officer’s successor is elected and qualified or until
such officer’s earlier death, resignation or removal.
11
Section
4.03 Removal. Except where otherwise expressly
provided in a contract authorized by the Board of Directors, any officer elected or appointed by the
Board of Directors may be removed by the Board of Directors at any time with or
without cause by the majority vote of the members of the Board of Directors then
in office. The removal of an officer shall be without prejudice to
his or her contract rights, if any. The election or appointment of an
officer shall not of itself create contract rights.
Section
4.04 Resignation. Any officer of the
Corporation may resign at any time by giving written notice of his or her
resignation to the President or Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section
4.05 Vacancies. Should any vacancy occur
among the officers, the position shall be filled for the unexpired portion of
the term by appointment made by the Board of Directors.
Section
4.06 Chairman of the
Board. The
Chairman of the Board shall preside at all meetings of the Board of Directors
and shall have such other powers and perform such other duties as may be
assigned by the Board of Directors.
Section
4.07 The
President. The
President shall have such other powers and perform such other duties as may be
assigned by the Board of Directors.
Section
4.08 Executive Vice
Presidents. The
Executive Vice Presidents shall assist the President in the management of the
business and affairs of the Corporation and shall perform such other duties as
may be assigned by the President or by the Board of
Directors.
Section
4.09 Vice
Presidents. Each
Vice President shall have such powers and perform such duties as may be assigned
by the President or by the Board of Directors.
Section
4.10 Treasurer. The Treasurer shall have charge of all
funds of the Corporation and shall perform all acts incident to the position of
Treasurer, subject to the control of the
President and the Board of Directors.
Section
4.11 The
Secretary. The
Secretary shall attend all sessions of the Board of Directors and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform like duties for committees
when required. He or she shall give, or cause to be given, notice of
all meetings of the stockholders and meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or the President. The Secretary shall keep in safe custody the seal
of the Corporation and shall see that it is affixed to all documents, the
execution of which, on behalf of the Corporation, under its seal, is necessary
or proper, and when so affixed may attest the same.
12
Section
4.12 Designation of an
Officer as the Chief Executive Officer. The Board of Directors
shall designate one of the elected officers as the Chief Executive Officer of
the Corporation. The Chief Executive Officer shall be in general and
active charge of the business and affairs of the
Corporation.
Section
4.13 Duties of Officers
May be Delegated. In the case of the absence of any
officer, or for any other reason that the Board of Directors may deem
sufficient, the President or the Board of Directors may delegate for the time
being the powers or duties of such officer to any other officer or to any
director.
ARTICLE
V
indemnification
Section
5.01 The Corporation shall indemnify, advance
expenses, and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person (a
“Covered
Person”) who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
“Proceeding”), by reason of the fact that he or she,
or a person for whom he or she is the legal representative, is or was a director
or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered
and expenses (including
attorneys’ fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding
sentence, except for claims for indemnification (following the final disposition
of such Proceeding) or advancement of expenses not paid in full, the Corporation
shall be required to indemnify a Covered Person in connection with a Proceeding
(or part thereof) commenced by such Covered Person only if the commencement of
such Proceeding (or part thereof) by the Covered Person was authorized in the
specific case by the Board of Directors of the Corporation. Any amendment, repeal or modification
of this Section
5.01 shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or modification.
13
Stock
certificates and their transfer
Section
6.01 Certificates
Representing Shares. The shares of stock of the Corporation
shall be represented by certificates; provided that the Board of Directors may provide
by resolution or resolutions that some or all of any class or series shall be
uncertificated shares that may be evidenced by a book-entry system maintained by
the registrar of such stock. If shares are represented by
certificates such certificates shall be in the form approved by the Board of
Directors. The certificates representing shares of stock of each
class shall be signed by, or in the name of, the Corporation by the Chairman of
the Board, the President or any Executive Vice President, and by the Secretary
or the Treasurer. Any or all such signatures may be
facsimiles. Although any officer, transfer agent or registrar whose
manual or facsimile signature is affixed to such a certificate ceases to be such
officer, transfer agent or registrar before such certificate has been issued, it
may nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its
issue.
Section
6.02 Transfers of
Stock. Stock of
the Corporation shall be transferable in the manner prescribed by law and in
these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named as the holder thereof on the stock records
of the Corporation, by such person’s attorney lawfully constituted in writing,
and, in the case of shares represented by a certificate, upon the surrender of
the certificate thereof, which shall be cancelled before a new certificate or
uncertificated shares shall be issued. No transfer of stock shall be
valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred. To the extent designated by the President or any
Executive Vice President or the Treasurer of the Corporation, the Corporation
may recognize the transfer of fractional uncertificated shares, but shall not
otherwise be required to recognize the transfer of fractional
shares.
Section
6.03 Transfer Agents and
Registrars. The
Board of Directors may appoint, or authorize any officer or officers to appoint,
one or more transfer agents and one or more registrars.
Section
6.04 Lost, Stolen or
Destroyed Certificates. The Board of Directors may direct a new
certificate or uncertificated shares to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or uncertificated shares, the Board
of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or the
owner’s legal representative to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of such new certificate or uncertificated shares.
14
General
provisions
Section
7.01 Seal. The seal of the Corporation shall be in
such form as shall be approved by the Board of Directors. The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise, as may be prescribed by law or custom or by the Board
of Directors.
Section
7.02 Fiscal
Year. The fiscal
year of the Corporation shall begin on January 1 and end on December 31 of each year, unless the Board of Directors shall
determine otherwise.
Section
7.03 Checks, Notes,
Drafts, Etc. All
checks, notes, drafts or other orders for the payment of money of the
Corporation shall be signed, endorsed or accepted in the name of the Corporation
by such officer, officers, person or persons as from time to time may be
designated by the Board of Directors or by an officer or officers authorized by
the Board of Directors to make such designation.
Section
7.04 Dividends. Subject to applicable law and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors. Dividends may be paid in cash, in
property or in shares of stock of the Corporation, unless otherwise provided by
applicable law or the Certificate of Incorporation.
Section
7.05 Conflict with
Applicable Law or Certificate of Incorporation. These By-Laws are adopted subject to any
applicable law and the Certificate of Incorporation. Whenever these
By-Laws may conflict with any applicable law or the Certificate of
Incorporation, such conflict shall be resolved in favor of such law or the
Certificate of Incorporation.
15
Amendments
Section
8.01 These By-Laws may be amended, altered,
changed, adopted and repealed, or new By-Laws adopted, by the Board of
Directors. The
stockholders may make additional By-Laws and may alter and repeal any
By-Laws whether such By-Laws were originally adopted by them or
otherwise; provided, however, in the case of amendments by
stockholders, the affirmative vote of the holders of at least 75 percent of the voting power of the then outstanding
voting stock, voting together as a single class,
shall be required in order for the stockholders to alter, amend or repeal any
provision of the By-Laws or to adopt any additional
By-Law.
Dated: February
26, 2010
16