Attached files
file | filename |
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S-1/A - JetPay Corp | v208770_s1a.htm |
EX-14 - JetPay Corp | v208770_ex14.htm |
EX-4.4 - JetPay Corp | v208770_ex4-4.htm |
EX-4.1 - JetPay Corp | v208770_ex4-1.htm |
EX-4.2 - JetPay Corp | v208770_ex4-2.htm |
EX-4.3 - JetPay Corp | v208770_ex4-3.htm |
EX-3.1 - JetPay Corp | v208770_ex3-1.htm |
EX-4.5 - JetPay Corp | v208770_ex4-5.htm |
EX-3.2 - JetPay Corp | v208770_ex3-2.htm |
EX-99.1 - JetPay Corp | v208770_ex99-1.htm |
EX-10.5 - JetPay Corp | v208770_ex10-5.htm |
EX-10.8 - JetPay Corp | v208770_ex10-8.htm |
EX-10.3 - JetPay Corp | v208770_ex10-3.htm |
EX-99.2 - JetPay Corp | v208770_ex99-2.htm |
EX-10.7 - JetPay Corp | v208770_ex10-7.htm |
EX-10.4 - JetPay Corp | v208770_ex10-4.htm |
EX-10.2 - JetPay Corp | v208770_ex10-2.htm |
EX-23.1 - JetPay Corp | v208770_ex23-1.htm |
EX-99.3 - JetPay Corp | v208770_ex99-3.htm |
EX-10.6 - JetPay Corp | v208770_ex10-6.htm |
AMENDED
AND RESTATED BYLAWS
OF
UNIVERSAL
BUSINESS PAYMENT SOLUTIONS ACQUISITION CORPORATION
ARTICLE
I.
OFFICES
1.1 Registered
Office. The registered office of Universal Business Payment
Solutions Acquisition Corporation (the “Corporation”) in the State of Delaware
shall be established and maintained at c/o The Corporation Trust Company, 1209
Orange Street, City of Wilmington, County of New Castle, Delaware 19801 and The
Corporation Trust Company shall be the registered agent of the corporation in
charge thereof.
1.2 Other Offices.
The Corporation may also have offices at such other places both within and
without the State of Delaware as the board of directors of the Corporation (the
“Board of Directors”) may from time to time determine or the business of the
Corporation may require.
ARTICLE
II.
MEETINGS OF
STOCKHOLDERS
2.1 Place of
Meetings. All meetings of the stockholders shall be held at such
time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
2.2 Annual
Meetings. The annual meeting of stockholders shall be held on such
date and at such time as may be fixed by the Board of Directors and stated in
the notice of the meeting, for the purpose of electing directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these bylaws (the “Bylaws”).
Written
notice of an annual meeting stating the place, date and hour of the meeting,
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the annual
meeting.
To be
properly brought before the annual meeting, business must be either (i)
specified in the notice of annual meeting (or any supplement or amendment
thereto) given by or at the direction of the Board of Directors, (ii) otherwise
brought before the annual meeting by or at the direction of the Board of
Directors or (iii) otherwise properly brought before the annual meeting by a
stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder’s notice must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than seventy (70) days notice or
prior public disclosure of the date of the annual meeting is given or made to
stockholders, notice by a stockholder, to be timely, must be received no later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made, whichever first occurs. A stockholder’s notice to the
Secretary shall set forth (i) as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting and (b) any material interest of the stockholder
in such business, and (ii) as to the stockholder giving the notice (a) the name
and record address of the stockholder and (b) the class, series and number of
shares of capital stock of the Corporation which are beneficially owned by the
stockholder. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.2. The officer of the Corporation
presiding at an annual meeting shall, if the facts warrant, determine and
declare to the annual meeting that business was not properly brought before the
annual meeting in accordance with the provisions of this Section 2.2, and, if
such officer should so determine, such officer shall so declare to the annual
meeting and any such business not properly brought before the meeting shall not
be transacted.
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2.3 Special
Meetings. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation of the Corporation, as amended and/or restated from time to time
(the “Certificate of Incorporation”), may only be called by a majority of the
entire Board of Directors, or the Chief Executive Officer or the Chairman of the
Board of Directors, and shall be called by the Secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed
meeting.
Unless
otherwise provided by law, written notice of a special meeting of stockholders,
stating the time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than ten (10) or more
than sixty (60) days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
2.4 Quorum. The
holders of a majority of the capital stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the holders of a majority of the
votes entitled to be cast by the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally noticed. 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 entitled to vote at the
meeting.
2.5 Organization.
The Chairman of the Board of Directors shall act as chairman of meetings of the
stockholders. The Board of Directors may designate any other officer or
director of the Corporation to act as chairman of any meeting in the absence of
the Chairman of the Board of Directors, and the Board of Directors may further
provide for determining who shall act as chairman of any stockholders meeting in
the absence of the Chairman of the Board of Directors and such
designee.
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The
Secretary of the Corporation shall act as secretary of all meetings of the
stockholders, but, in the absence of the Secretary, the presiding officer may
appoint any other person to act as secretary of any meeting.
2.6 Voting. Unless
otherwise required by law, the Certificate of Incorporation or these Bylaws, any
question (other than the election of directors) brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. At all meetings of
stockholders for the election of directors, a plurality of the votes cast shall
be sufficient to elect. Each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder, unless otherwise
provided by the Certificate of Incorporation. 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 any person or persons to act
for him, her or it by proxy. All proxies shall be executed in writing and
shall be filed with the Secretary of the Corporation not later than the day on
which exercised. No proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. The
Board of Directors, in its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his or her discretion, may require
that any votes cast at such meeting shall be cast by written
ballot.
2.7 Action of Stockholders
Without Meeting. Unless otherwise provided herein or by the
Certificate of Incorporation, no action required to be taken at any annual or
special meeting of stockholders, and no 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.
2.8 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 the stockholders entitled to vote at the meeting, arranged in
alphabetical order, 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 election, either at a place within the city, town or village where the
election is to be held, which place shall be specified in the notice of the
meeting, or, if not specified, at the place where said meeting is to be held.
The list shall be produced and kept at the time and place of election during the
whole time thereof and may be inspected by any stockholder of the Corporation
who is present.
2.9 Stock Ledger.
The stock ledger of the Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by Section
2.8 or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
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2.10 Adjournment.
Any meeting of the stockholders, including one at which directors are to be
elected, may be adjourned for such periods as the presiding officer of the
meeting or the stockholders present in person or by proxy and entitled to vote
shall direct.
2.11 Ratification.
Any transaction questioned in any stockholders’ derivative suit, or any other
suit to enforce alleged rights of the Corporation or any of its stockholders, on
the ground of lack of authority, defective or irregular execution, adverse
interest of any director, officer or stockholder, nondisclosure, miscomputation
or the application of improper principles or practices of accounting may be
approved, ratified and confirmed before or after judgment by the Board of
Directors or by the holders of common stock and, if so approved, ratified or
confirmed, shall have the same force and effect as if the questioned transaction
had been originally duly authorized, and said approval, ratification or
confirmation shall be binding upon the Corporation and all of its stockholders
and shall constitute a bar to any claim or execution of any judgment in respect
of such questioned transaction.
2.12 Judges. All
votes by ballot at any meeting of stockholders shall be conducted by one or more
judges appointed for that purpose by the directors. The judges shall
decide upon the qualifications of voters, count the votes and declare the
result.
ARTICLE
III.
DIRECTORS
3.1 Powers; Number;
Qualifications. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors, except as may be
otherwise provided by law or in the Certificate of Incorporation. The
number of directors shall be not less than one (1) and nor more than ten
(10). The exact number of directors shall be fixed from time to time,
within the limits specified in this Section 3.1 or in the Certificate of
Incorporation, by the Board of Directors. Directors need not be
stockholders of the Corporation. The directors shall be divided into three
classes, which shall be nearly equal in number as possible: Class A, Class B and
Class C. The directors in Class A shall be elected for a term expiring at
the first annual meeting of the stockholders. The directors in Class B
shall be elected for a term expiring at the second annual meeting of the
stockholders. The directors in Class C shall be elected for a term
expiring at the third annual meeting of the stockholders. At each annual
meeting of the stockholders following the initial classification of the
directors, the respective successors of each class shall serve a term of three
(3) years.
3.2 Election; Term of Office;
Resignation; Removal; Vacancies. Each director shall hold office
until the next annual meeting of stockholders at which his or her Class stands
for election or until such director’s earlier resignation, removal from office,
death or incapacity. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors or from any other cause may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director and each director so chosen shall hold
office until the next annual meeting and until such director’s successor shall
be duly elected and shall qualify, or until such director’s earlier resignation,
removal from office, death or incapacity.
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3.3 Nominations.
Nominations of persons for election to the Board of Directors of the Corporation
at a meeting of stockholders of the Corporation may be made at such meeting by
or at the direction of the Board of Directors, by any committee or persons
appointed by the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 3.3. Such nominations by
any stockholder shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a stockholder’s notice shall
be delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the meeting; provided, however, that in the event that less than seventy (70)
days notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder, to be timely, must be received
no later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. Such stockholder’s notice to
the Secretary shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (a) the name,
age, business address and residence address of the person, (b) the principal
occupation or employment of the person, (c) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the person and
(d) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to the
rules and regulations of the Securities and Exchange Commission under Section 14
of the Securities Exchange Act of 1934, as amended and (ii) as to the
stockholder giving the notice (a) the name and record address of the stockholder
and (b) the class and number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the Corporation to determine the eligibility of such proposed nominee to
serve as a director of the Corporation. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the procedures set forth herein. The officer of the Corporation presiding
at an annual meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the foregoing
procedure, and if he or she should so determine, he or she shall so declare to
the meeting and the defective nomination shall be disregarded.
3.4 Meetings. The
Board of Directors of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware. The first meeting
of each newly elected Board of Directors shall be held immediately after and at
the same place as the meeting of the stockholders at which it is elected and no
notice of such meeting shall be necessary to the newly elected directors in
order to legally constitute the meeting, provided a quorum shall be
present. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be
called by the Chief Executive Officer or a majority of the entire Board of
Directors. Notice thereof stating the place, date and hour of the meeting
shall be given to each director either by mail not less than forty-eight (48)
hours before the date of the meeting, by telephone, facsimile, telegram or
electronic mail on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
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3.5 Quorum. Except
as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, at all meetings of the Board of Directors or any
committee thereof, a majority of the entire Board of Directors or such
committee, as the case may be, shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors or of any
committee thereof, a majority of the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
3.6 Organization of
Meetings. The Board of Directors shall elect one of its members to
be Chairman of the Board of Directors. The Chairman of the Board of
Directors shall lead the Board of Directors in fulfilling its responsibilities
as set forth in these Bylaws, including its responsibility to oversee the
performance of the Corporation, and shall determine the agenda and perform all
other duties and exercise all other powers which are or from time to time may be
delegated to him or her by the Board of Directors.
Meetings
of the Board of Directors shall be presided over by the Chairman of the Board of
Directors, or in his or her absence, by the Chief Executive Officer, or in the
absence of the Chairman of the Board of Directors and the Chief Executive
Officer by such other person as the Board of Directors may designate or the
members present may select.
3.7 Actions of Board of
Directors Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or of
such 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.
3.8 Removal of Directors by
Stockholders. The entire Board of Directors or any individual
director may be removed from office with cause by a majority vote of the holders
of the outstanding shares then entitled to vote at an election of
directors. In case the Board of Directors or any one or more directors be
so removed, new directors may be elected at the same time for the unexpired
portion of the full term of the director or directors so removed.
3.9 Resignations.
Any director may resign at any time by submitting his or her written resignation
to the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect at the time of its receipt by the Corporation
unless another time be fixed in the resignation, in which case it shall become
effective at the time so fixed. The acceptance of a resignation shall not
be required to make it effective.
3.10 Committees. The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. In the absence
or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they 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 by law and
in the resolution of the Board of Directors establishing such committee, 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 Corporation’s 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 expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
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3.11 Compensation.
Unless restricted by the Certificate of Incorporation or these Bylaws, 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 amount (in cash or other form of
consideration) for attendance at each meeting of the Board of Directors or a
stated salary as director, as determined by the Board of Directors from time to
time. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings, as determined by the Board of Directors from time
to time.
3.12 Interested
Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such
purpose, if (i) the material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum, (ii) the material facts as to his, hers or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
3.13 Meetings by Means of
Conference Telephone. Members of the Board of Directors or any
committee designed by the Board of Directors may participate in a meeting of the
Board of Directors or of a committee of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.13 shall constitute presence in person at
such meeting.
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ARTICLE
IV.
OFFICERS
4.1 General. The
officers of the Corporation shall be elected by the Board of Directors and may
consist of: a Chairman of the Board of Directors, Vice Chairman of the Board of
Directors, Chief Executive Officer, Chief Administrative Officer, President,
Secretary and Treasurer. The Board of Directors, in its discretion, may
also elect one or more Vice Presidents (including Executive Vice Presidents and
Senior Vice Presidents), Assistant Secretaries, Assistant Treasurers, a
Controller and such other officers as in the judgment of the Board of Directors
may be necessary or desirable. Any number of offices may be held by the
same person and more than one person may hold the same office, unless otherwise
prohibited by law, the Certificate of Incorporation or these Bylaws. The
officers of the Corporation need not be stockholders of the Corporation, nor
need such officers be directors of the Corporation.
4.2 Election. The
Board of Directors at its first meeting held after each annual meeting of
stockholders shall elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen
and qualified, or until their earlier resignation or removal. Except as
otherwise provided in this Article IV, any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors. The salaries of all
officers who are directors of the Corporation shall be fixed by the Board of
Directors.
4.3 Voting Securities Owned by
the Corporation. Powers of attorney, proxies, waivers of notice of
meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by
the Chief Executive Officer or any Vice President, and any such officer may, in
the name and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present.
The Board of Directors may, by resolution, from time to time confer like powers
upon any other person or persons.
4.4 Chief Executive
Officer. Subject to the provisions of these Bylaws and to the
control of the Board of Directors, the Chief Executive Officer shall have
general supervision, direction and control of the business and the officers of
the Corporation. He or she shall have the general powers and duties of
management usually vested in the chief executive officer of a Corporation,
including general supervision, direction and control of the business and
supervision of other officers of the Corporation, and shall have such other
powers and duties as may be prescribed by the Board of
Directors.
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4.5 Chief Administrative
Officer. The Chief Administrative Officer shall have general
supervision, direction and control of the financial affairs of the Corporation
and shall perform such other duties and exercise such other powers which are or
from time to time may be delegated to him or her by the Board of Directors or
these Bylaws, all in accordance with basic policies as established by and
subject to the oversight of the Board of Directors. In the absence of a
named Treasurer, the Chief Administrative Officer shall also have the powers and
duties of the Treasurer as hereinafter set forth and shall be authorized and
empowered to sign as Treasurer in any case where such officer’s signature is
required.
4.6 Vice Presidents. In
the absence or disability of the President, the Vice Presidents, if any, in
order of their rank as fixed by the board of directors, or, if not ranked, a
vice president designated by the board of directors, shall perform all 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. The Vice Presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively by the Board
of Directors, these Bylaws, the Chief Executive Officer or the Chairman of the
Board of Directors.
4.7 Secretary. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also 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
the Secretary shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, then any Assistant Secretary shall perform
such actions. If there be no Assistant Secretary, then the Board of
Directors or the Chief Executive Officer may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be one,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by the signature of the Secretary or by the
signature of any 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. The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
4.8 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 Chief Executive
Officer 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 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 or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
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4.9 Assistant
Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the Chief Executive Officer, any Vice President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of his or her
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.10 Assistant
Treasurers. Assistant Treasurers, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors, the Chief Executive Officer, any Vice President, if
there be one, or the Treasurer, and in the absence of the Treasurer or in the
event of his or her disability or refusal to act, shall perform the duties of
the Treasurer, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his or her office and
for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
4.11 Controller. The
Controller shall establish and maintain the accounting records of the
Corporation in accordance with generally accepted accounting principles applied
on a consistent basis, maintain proper internal control of the assets of the
Corporation and shall perform such other duties as the Board of Directors, the
Chief Executive Officer or any Vice President of the Corporation may
prescribe.
4.12 Other Officers.
Such other officers as the Board of Directors may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
4.13 Vacancies. The
Board of Directors shall have the power to fill any vacancies in any office
occurring from whatever reason.
4.14 Resignations.
Any officer may resign at any time by submitting his or her written resignation
to the Corporation. Such resignation shall take effect at the time of its
receipt by the Corporation, unless another time be fixed in the resignation, in
which case it shall become effective at the time so fixed. The acceptance
of a resignation shall not be required to make it effective.
4.15 Removal.
Subject to the provisions of any employment agreement approved by the Board of
Directors, any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors.
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ARTICLE
V.
CAPITAL
STOCK
5.1 Form of
Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the
Chief Executive Officer or a Vice President, or by the Chairman of the Board of
Directors and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owned by him, her or it in the Corporation.
5.2 Signatures. Any
or all of the signatures on the certificate may be a facsimile, including, but
not limited to, signatures of officers of the Corporation and countersignatures
of a transfer agent or registrar. In case an 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 he or she were such officer, transfer agent or registrar at
the date of issue.
5.3 Lost
Certificates. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
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, 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 his, her or its legal representative,
to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
5.4 Transfers.
Stock of the Corporation shall be transferable in the manner prescribed by law
and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person or entity named in the certificate or by his, her
or its attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transactions upon its books,
unless the Corporation has a duty to inquire as to adverse claims with respect
to such transfer which has not been discharged. The Corporation shall have
no duty to inquire into adverse claims with respect to such transfer unless (i)
the Corporation has received a written notification of an adverse claim at a
time and in a manner which affords the Corporation a reasonable opportunity to
act on it prior to the issuance of a new, reissued or re-registered share
certificate and the notification identifies the claimant, the registered owner
and the issue of which the share or shares is a part and provides an address for
communications directed to the claimant or (ii) the Corporation has required and
obtained, with respect to a fiduciary, a copy of a will, trust, indenture,
articles of co-partnership, bylaws or other controlling instruments, for a
purpose other than to obtain appropriate evidence of the appointment or
incumbency of the fiduciary, and such documents indicate, upon reasonable
inspection, the existence of an adverse claim. The Corporation may
discharge any duty of inquiry by any reasonable means, including notifying an
adverse claimant by registered or certified mail at the address furnished by
him, her or its, if there be no such address, at his, her or its residence or
regular place of business that the security has been presented for registration
of transfer by a named person, and that the transfer will be registered unless
within thirty days from the date of mailing the notification, either (i) an
appropriate restraining order, injunction or other process issues from a court
of competent jurisdiction or (ii) an indemnity bond, sufficient in the
Corporation’s judgment to protect the Corporation and any transfer agent,
registrar or other agent of the Corporation involved from any loss which it or
they may suffer by complying with the adverse claim, is filed with the
Corporation.
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5.5 Fixing Record
Date. In order that the Corporation may determine the stockholders
entitled to notice or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to 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 is adopted by
the Board of Directors, and which record date shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor more than ten
(10) days after the date upon which the resolution fixing the record date of
action with a meeting is adopted by the Board of Directors, nor more than sixty
(60) days prior to any other action. If no record date is
fixed:
(a) 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;
(b) The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the first date on which a signed written
consent is delivered to the Corporation; or
(c) The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
5.6 Registered
Stockholders. Prior to due presentment for transfer of any share or
shares, the Corporation shall treat the registered owner thereof as the person
exclusively entitled to vote, to receive notifications and to all other benefits
of ownership with respect to such share or shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
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ARTICLE
VI.
NOTICES
6.1 Form of Notice.
Notices to directors and stockholders other than notices to directors of special
meetings of the Board of Directors which may be given by any means stated in
Section 3.4, shall be in writing and delivered personally, mailed to the
directors or stockholders at their addresses appearing on the books of the
corporation, transmitted to the directors or stockholders via electronic mail to
an electronic mail address at which the director or stockholder has consented to
receive notice or transmitted to the directors or stockholders via facsimile to
a number at which the director or stockholder has consented to receive
notice. Notice by mail shall be deemed to be given at the time when the
same shall be mailed. Notice to directors may also be given by
telegram.
6.2 Waiver of
Notice. Whenever any notice is required to be given under the
provisions of law or the Certificate of Incorporation or by these Bylaws, a
written waiver, signed by the person or persons entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular, or special
meeting of the stockholders, directors, or members of a committee of directors
need be specified in any written waiver of notice unless so required by the
Certificate of Incorporation.
ARTICLE
VII.
INDEMNIFICATION OF DIRECTORS
AND OFFICERS
7.1 The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his 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 the person did not
act in good faith and in a manner which he or she 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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7.2 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 he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and 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.
7.3 To
the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 7.1 or 7.2, or in defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by
him or her in connection therewith.
7.4 Any
indemnification under Sections 7.1 or 7.2 (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 he or she has met the applicable standard of conduct set
forth in such section. Such determination shall be made:
(a) By
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, even though less than a
quorum;
(b) By
a committee of such directors designated by majority vote of such directors,
even though less than a quorum;
(c) By
independent legal counsel in a written opinion, if there are no such directors,
or such directors so direct; or
(d) By
the stockholders.
7.5 Expenses
(including attorneys’ fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the Corporation as
authorized in this Section. Such expenses (including attorneys’ fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems
appropriate.
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7.6 The
indemnification and advancement of expenses provided by, or granted pursuant to
the other sections of this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
7.7 The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article.
7.8 For
purposes of this Article, 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, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
Corporation, or is or was serving at the request of such constituent Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving Corporation as he or she
would have with respect to such constituent Corporation of its separate
existence had continued.
7.9 For
purposes of this Article, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any 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, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he or she 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.
7.10 The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
7.11 No
director or officer of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation for monetary damages for
breach of fiduciary duty as a director or officer, provided that this provision
shall not limit the liability of a director or officer (i) for any breach of the
director’s or the officer’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware or (iv) for any transaction
from which the director or officer derived an improper personal
benefit.
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ARTICLE
VIII.
GENERAL
PROVISIONS
8.1 Reliance on Books and
Records. Each director, each member of any committee designated by
the Board of Directors, and each officer of the Corporation, shall, in the
performance of his or her duties, be fully protected in relying in good faith
upon the books of account or other records of the Corporation, including reports
made to the Corporation by any of its officers, by an independent certified
public accountant or by an appraiser selected with reasonable care.
8.2 Maintenance and Inspection
of Records. The Corporation shall, either at its principal
executive office or at such place or places as designated by the Board of
Directors, keep a record of its stockholders listing their names and addresses
and the number and class of shares held by each stockholder, a copy of these
Bylaws, as may be amended to date, minute books, accounting books and other
records.
Any such
records maintained by the Corporation may be kept on, or by means of, or be in
the form of, 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 the provisions of the
General Corporation Law of the State of Delaware. When records are kept in such
manner, a clearly legible paper form produced from or by means of the
information storage device or method shall be admissible in evidence, and
accepted for all other purposes, to the same extent as an original paper form
accurately portrays the record.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation’s
stock ledger, a list of its stockholders and its other books and records and to
make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal executive
office.
8.3 Inspection by
Directors. Any director shall have the right to examine the
Corporation’s stock ledger, a list of its stockholders and its other books and
records for a purpose reasonably related to his or her position as a
director.
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8.4 Dividends.
Subject to the provisions of the Certificate of Incorporation, if any, dividends
upon the capital stock of the Corporation 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. 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 proper as a reserve or reserves 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 interest of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
8.5 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.
8.6 Checks. All
checks or demands for money and notes of the Corporation shall be signed by such
officer or officers or such other persons as the Board of Directors may from
time to time designate.
8.7 Fiscal Year.
The fiscal year of the Corporation shall be as determined by the Board of
Directors. If the Board of Directors shall fail to do so, the Chief
Executive Officer shall fix the fiscal year.
8.8 Seal. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal,
Delaware.” The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced.
8.9 Amendments. The
original or other bylaws may be adopted, amended or repealed by the stockholders
entitled to vote thereon at any regular or special meeting or, if the
Certificate of Incorporation so provides, by the Board of
Directors. The fact that such power has been so conferred upon the
Board of Directors shall not divest the stockholders of the power nor limit
their power to adopt, amend or repeal bylaws.
8.10 Interpretation of
Bylaws. All words, terms and provisions of these Bylaws shall
be interpreted and defined by and in accordance with the General Corporation Law
of the State of Delaware, as amended, and as amended from time to time
hereafter.
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