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8-K - FORM 8-K - CONEXANT SYSTEMS INC | a59333e8vk.htm |
Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
CONEXANT SYSTEMS, INC.
A Delaware Corporation
A Delaware Corporation
(Adopted as of April 19, 2011)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in
the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington, Delaware,
County of New Castle, 19808. The name of the corporations registered agent at such address shall
be Corporation Service Company. The registered office and/or registered agent of the corporation
may be changed from time to time by action of the Board of Directors.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year within one hundred twenty (120) days after the close of the
immediately preceding fiscal year of the corporation for the purpose of electing directors and
conducting such other proper business as may come before the meeting. The date, time and place, if
any, and/or the means of remote communication, of the annual meeting shall be determined by the
Board of Directors. No annual meeting of stockholders need be held if not required by the
corporations certificate of incorporation or by the General Corporation Law of the State of
Delaware.
Section 2. Special Meetings. Special meetings of stockholders may be called
for any purpose and may be held at such time and place, within or without the State of Delaware,
and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by the Board of
Directors, any Super Director (as defined in Article III, Section 2) or the chief executive officer
or president and shall be called by the chief executive officer or president upon the written
request of holders of shares entitled to cast not less than 50 percent of the votes at the meeting,
such written request shall state the purpose or purposes of the meeting and shall be delivered to
the chief executive officer or president. On such written request, the chief executive officer or
president shall fix a date and time for such meeting within 30 days of the date requested for such meeting in such
written request.
Section 3. Place of Meetings. The Board of Directors may designate any
place, either within or without the State of Delaware, and/or by means of remote communication, as
the place of meeting for any annual meeting or for any special meeting called by the Board of
Directors. If no designation is made, or if a special meeting be otherwise called, the place of
meeting shall be the principal executive office of the corporation.
Section 4. Notice. Whenever stockholders are required or permitted to take
any action at a meeting, written or printed notice stating the place, if any, date and hour of the
meeting, the means of remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and, in the case of special meetings, the
purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such
meeting not less than 24 hours nor more than 60 days before the date of the meeting. All such
notices shall be delivered, either personally, by mail, or by a form of electronic transmission
consented to by the stockholder to whom the notice is given, by or at the direction of the Board of
Directors, the chief executive officer, the president or the secretary, and if mailed, such notice
shall be deemed to be delivered when deposited in the United States mail, postage prepaid,
addressed to the stockholder at his, her or its address as the same appears on the records of the
corporation. If given by electronic transmission, such notice shall be deemed to be delivered (i)
if by facsimile telecommunication, when directed to a number at which the stockholder has consented
to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice; (iii) if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon the later of (a)
such posting and (b) the giving of such separate notice; and (iv) if by any other form of
electronic transmission, when directed to the stockholder. Any such consent shall be revocable by
the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if
(1) the corporation is unable to deliver by electronic transmission two consecutive notices given
by the corporation in accordance with such consent and (2) such inability becomes known to the
secretary or an assistant secretary of the corporation or to the transfer agent.
Section 5. Stockholders List. The officer having charge of the stock ledger
of the corporation shall make, at least 24 hours before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at such 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, for a period of at least 24 hours prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the
principal place of business of the corporation. In the event that the corporation determines to
make the list available on an electronic network, the corporation may take reasonable steps to
ensure that such information is available only to stockholders of the corporation. If the meeting
is to be held at a place, then the list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present. If
the meeting is to be held solely by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to access such list shall be provided
with the notice of the meeting.
Section 6. Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or
by the certificate of incorporation. If a quorum is not present, the holders of a majority of the
shares present in person or represented by proxy at the meeting, and entitled to vote at the
meeting, may adjourn the meeting to another time and/or place.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof,
and the means of remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such adjourned meeting 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, or if after the adjournment a new record
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date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders, unless the question is one upon
which by express provisions of an applicable law or of the certificate of incorporation a different
vote is required, in which case such express provision shall govern and control the decision of
such question.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation
or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at
every meeting of the stockholders be entitled to one vote in person or by proxy for each share of
common stock held by such stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for 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.
Section 11. Action by Written Consent. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken and bearing the dates of
signature of the stockholders who signed the consent or consents, 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 to the corporation by delivery to its registered office in
the state of Delaware, or the corporations principal place of business, or an officer or agent of the corporation having
custody of the book or books in which proceedings of meetings of the stockholders are recorded.
Delivery made to the corporations registered office shall be by hand or by certified or registered
mail, return receipt requested. All consents properly delivered in accordance with this section
shall be deemed to be recorded when so delivered. No written consent shall be effective to take
the corporate action referred to therein unless, within 60 days after the earliest dated consent
delivered to the corporation as required by this section, written consents signed by the holders of
a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing. Any action taken pursuant to such
written consent or consents of the stockholders shall have the same force and effect as if taken by
the stockholders at a meeting thereof.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or
used in lieu of the original writing for any and all purposes for which the original writing could
be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction
of the entire original writing.
Section 12. Action by Telegram, Cablegram or Other Electronic Transmission
Consent. A telegram, cablegram or other electronic transmission consenting to an action to be
taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act
for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes
of this section; provided that any such telegram, cablegram or other electronic transmission sets
forth or is delivered with information from which the corporation can determine (i) that the
telegram, cablegram or other electronic
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transmission was transmitted by the stockholder or
proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii)
the date on which such stockholder or proxyholder or authorized person or persons transmitted such
telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or
electronic transmission is transmitted shall be deemed to be the date on which such consent was
signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed
to have been delivered until such consent is reproduced in paper form and until such paper form
shall be delivered to the corporation by delivery to its registered office 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 if, to the extent and in
the manner provided by resolution of the Board of Directors of the corporation.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the Board of Directors.
Section 2. Number, Election and Term of Office. Subject to the provisions
of the certificate of incorporation, the number of directors which shall constitute the Board of
Directors shall be no greater than five (5) and in no event shall it be less than two (2), two (2)
of whom (the Super Directors) shall (in accordance with Section 141(d) of the Delaware General
Corporation Law) possess three (3) votes for all matters presented to the Board of Directors, and
the remainder of whom shall possess (1) vote for all matters presented to the Board of Directors.
Subject to the provisions of the certificate of incorporation, the number of directors shall be
established from time to time by resolution of the board or of the stockholders. The directors
shall be elected by a plurality of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote in the election of directors. Subject to the provisions
of the certificate of incorporation, the directors shall be elected in this manner at the annual
meeting of the stockholders, except as provided in Section 4 of this Article III. Subject to the
provisions of the certificate of incorporation, each director elected shall hold office until a
successor is duly elected and qualified or until his or her earlier death, resignation or removal
as hereinafter provided.
Section 3. Removal and Resignation. Any director or the entire Board of
Directors may be removed at any time, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors. Whenever the holders of any class or
series are entitled to elect one or more directors by the provisions of the corporations
certificate of incorporation, the provisions of this section shall apply, in respect to the removal
without cause of a director or directors so elected, to the vote of the holders of the outstanding
shares of that class or series and not to the vote of the outstanding shares as a whole. Any
director may resign at any time upon notice given in writing or by electronic transmission to the
corporation.
Section 4. Vacancies. Vacancies and newly created directorships (other than
Super Director seats) resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a quorum, or by a sole
remaining director. Each director so chosen shall hold office until a successor is duly elected
and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected Board
of Directors shall be held without notice (other than notice under these by-laws) immediately
after, and at the same place, if any, as the annual meeting of stockholders.
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Section 6. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such time and at such
place, if any, as shall from time to time be determined by resolution of the Board of Directors.
Special meetings of the Board of Directors may be called by or at the request of the chief
executive officer, the president or any director on at least 24 hours notice to each director,
either personally, by telephone, by mail, by electronic mail or by telegraph.
Section 7. Quorum, Required Vote and Adjournment. A majority of the total
number of directors shall constitute a quorum for the transaction of business. The vote of a
majority of directors present at a meeting at which a quorum is present shall be the act of the
Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, 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.
Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the whole board, designate
one or more committees, each committee to consist of one or more of the directors of the
corporation, which to the extent provided in such resolution or these Bylaws shall have and may
exercise the powers of the Board of Directors in the management and affairs of the corporation
except as otherwise limited by law. 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 the committee. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors. Each committee shall
keep regular minutes of its meetings and report the same to the Board of Directors when required.
Section 9. Committee Rules. Each committee of the Board of Directors may
fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the Board of Directors designating such committee. In the
event that a member and that members alternate, if alternates are designated by the Board of
Directors as provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any such absent or disqualified
member.
Section 10. Communications Equipment. Members of the Board of Directors or
any committee thereof may participate in and act at any meeting of such board or committee by means
of conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in the meeting pursuant to this
section shall constitute presence in person at the meeting.
Section 11. Waiver of Notice and Presumption of Assent. Any member of the
Board of Directors or any committee thereof who is present at a meeting shall be conclusively
presumed to have waived notice of such meeting except when such member 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. Such member shall be conclusively presumed to have
assented to any action taken unless his or her dissent shall be entered in the minutes of the
meeting or unless his or her written dissent to such action shall be filed with the person acting
as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered
mail to the secretary of the corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to any member who voted in favor of such action.
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Section 12. Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, 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 or committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or transmissions are filed
with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be elected by the
Board of Directors and shall consist of a chief executive officer or president, a secretary, and
such other officers and assistant officers as may be deemed necessary or desirable by the Board of
Directors. Any number of offices may be held by the same person. In its discretion, the Board of
Directors may choose not to fill any office for any period as it may deem advisable.
Section 2. Election and Term of Office. The officers of the corporation
shall be elected annually by the Board of Directors at its first meeting held after each annual
meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or
new offices created and filled at any meeting of the Board of Directors. Each officer shall hold
office until a successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of Directors
may be removed by the Board of Directors whenever in its judgment the best interests of the
corporation would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for
the unexpired portion of the term by the Board of Directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by the
Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of
his or her also being a director of the corporation.
Section 6. The Chief Executive Officer or President. The chief executive
officer or president shall be the chief executive officer of the corporation; shall preside at all
meetings of the stockholders and Board of Directors at which he or she is present; subject to the
powers of the Board of Directors, shall have general charge of the business, affairs and property
of the corporation, and control over its officers, agents and employees; and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The chief executive
officer or president shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation. The chief executive officer
or president shall have such other powers and perform such other duties as may be prescribed by the
Board of Directors or as may be provided in these Bylaws.
Section 7. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the Board of Directors, all meetings of the committees thereof and all
meetings of the stockholders and record
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all the proceedings of the meetings in a book or books to
be kept for that purpose. Under the chief executive officers or presidents supervision, the
secretary shall (i) give, or cause to be given, all notices required to be given by these Bylaws or
by law, (ii) have such powers and perform such duties as the Board of Directors, the chief
executive officer, president or these Bylaws may, from time to time, prescribe and (iii) have
custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall
have authority to affix the corporate seal to any instrument requiring it and when so affixed, it
may be attested by his or her signature or by the signature of such assistant secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the corporation
and to attest the affixing by his or her signature. The assistant secretary, or if there be more
than one, the assistant secretaries in the order determined by the Board of Directors, shall, in
the absence or disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the Board of Directors,
the chief executive officer, president, or secretary may, from time to time, prescribe.
Section 8. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are provided for in these
Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by
resolution of the Board of Directors.
Section 9. Absence or Disability of Officers. In the case of the absence or
disability of any officer of the corporation and of any person hereby authorized to act in such
officers place during such officers absence or disability, the Board of Directors may by
resolution delegate the powers and duties of such officer to any other officer or to any director,
or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a proceeding), by reason of the
fact that he or she, is or was a director or officer, of the corporation shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to do so by the
General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended
against all expense, liability and loss (including attorneys fees actually and reasonably incurred
by such person in connection with such proceeding); provided, that, except as provided in Section 2
hereof, the corporation shall indemnify any such person seeking indemnification in connection with
a proceeding initiated by such person only if such proceeding was authorized by the Board of
Directors of the corporation. The corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 1 of this
Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in
any event within 30 days, upon the written request of the director or officer. If a determination
by the corporation that the director or officer is entitled to indemnification pursuant to this
Article V is required, and the corporation fails to respond within 60 days to a written request for
indemnity, the corporation shall be deemed to have approved the request. If the corporation denies
a written request for indemnification or advancing of expenses, in whole or in part, or if payment
in full pursuant to such request is not made within 30 days, the right to indemnification or
advances as granted by this Article V shall be enforceable by the director or officer in any court
of competent jurisdiction. Such persons costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in part, in any such
action shall
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also be indemnified by the corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in defending any proceeding
in advance of its final disposition where the required undertaking, if any, has been tendered to
the corporation) that the claimant has not met the standards of conduct which make it permissible
under the General Corporation Law of the State of Delaware for the corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the corporation.
Neither the failure of the corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of the State of Delaware,
nor an actual determination by the corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article V shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate of incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer, employee,
fiduciary, or agent of the corporation 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, whether or not the corporation would have the power to indemnify such person
against such liability under this Article V.
Section 5. Expenses. Expenses incurred by any person described in Section 1
of this Article V in defending a proceeding shall be paid by the corporation in advance of such
proceedings final disposition upon receipt of an undertaking by or on behalf of the 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. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were
employees or agents of the corporation, or who are or were serving at the request of the
corporation as employees or agents of another corporation, partnership, joint venture, trust or
other enterprise, may be indemnified to the extent authorized at any time or from time to time by
the Board of Directors.
Section 7. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or officer who serves in
any such capacity at any time while this Article V and the relevant provisions of the General
Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or
modification of this Article V or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceeding then existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
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
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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 V with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate existence had continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by the chief executive officer
or a president or vice-president and the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by such holder in the corporation. If such a certificate is
countersigned (i) by a transfer agent or an assistant transfer agent other than the corporation or
its employee or (ii) by a registrar, other than the corporation or its employee, the signature of
any such chief executive officer, president, vice-president, secretary, or assistant secretary may
be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or
signatures have been used on, any such certificate or certificates shall cease to be such officer
or officers of the corporation whether because of death, resignation or otherwise before such
certificate or certificates have been delivered by the corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the corporation. All certificates for shares
shall be consecutively numbered or otherwise identified. The name of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue, shall be entered on
the books of the corporation. Shares of stock of the corporation shall only be transferred on the
books of the corporation by the holder of record thereof or by such holders attorney duly
authorized in writing, upon surrender to the corporation of the certificate or certificates for
such shares endorsed by the appropriate person or persons, with such evidence of the authenticity
of such endorsement, transfer, authorization, and other matters as the corporation may reasonably
require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the
duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or
certificates, and record the transaction on its books. The Board of Directors may appoint a bank
or trust company organized under the laws of the United States or any state thereof to act as its
transfer agent or registrar, or both in connection with the transfer of any class or series of
securities of the corporation.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or certificates previously
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 certificates, 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 certificates, or his or her legal
representative, to give the corporation a bond sufficient to indemnify the corporation against any
claim that may be made against the corporation on account of the loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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 sixty days nor less than 24 hours
before the date of such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to
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notice of or to vote at a meeting of stockholders
shall be the close of business on the next day 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 adjourned meeting.
Section 4. Fixing a Record Date for Action by Written Consent. In order
that the corporation may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 24 hours 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 consent to
corporate action in writing without a meeting, when no prior action by the Board of Directors is
required by statute, 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. Delivery made to the corporations registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by statute, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors adopts the resolution taking
such prior action.
Section 5. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment or any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty 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 6. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock with a request to
record the transfer of such share or shares, the corporation may treat the registered owner as the
person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise
all the rights and powers of an owner.
Section 7. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at such time, or in such
installments and at such times, as shall be determined by the Board of Directors. Any call made by
the Board of Directors for payment on subscriptions shall be uniform as to all shares of the same
class or as to all shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the amount due in the same
manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of
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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 any other purpose
and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders
for the payment of money by or to the corporation and all notes and other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or officers, agent or agents
of the corporation, and in such manner, as shall be determined by resolution of the Board of
Directors or a duly authorized committee thereof.
Section 3. Contracts. The Board of Directors may authorize any officer or officers, or any agent or agents, of the
corporation to enter into any contract or to execute and deliver any instrument in the name of and
on behalf of the corporation, and such authority may be general or confined to specific instances.
Section 4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be
with or without interest, and may be unsecured, or secured in such manner as the Board of Directors
shall approve, including, without limitation, a pledge of shares of stock of the corporation.
Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty
or warranty of the corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
Section 6. Corporate Seal. The Board of Directors shall provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the name of the
corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Voting Securities Owned By Corporation. Voting securities in any
other corporation held by the corporation shall be voted by the chief executive officer or
president, unless the Board of Directors specifically confers authority to vote with respect
thereto, which authority may be general or confined to specific instances, upon some other person
or officer. Any person authorized to vote securities shall have the power to appoint proxies, with
general power of substitution.
Section 8. Inspection of Books and Records. 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
corporations 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 any purpose reasonably related to
such persons interest as a stockholder. In every instance where an attorney or other agent shall
be the person who seeks the right to inspection, the demand under oath shall be accompanied by a
power of attorney or such other writing which 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 the State of Delaware or at its principal place of business.
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Section 9. Section Headings. Section headings in these Bylaws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of
these Bylaws is or becomes inconsistent with any provision of the certificate of incorporation, the
General Corporation Law of the State of Delaware or any other applicable law, the provision of
these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise
be given full force and effect.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended, altered, or repealed and new Bylaws adopted at any meeting of the
Board of Directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal
the Bylaws has been conferred upon the Board of Directors shall not divest the stockholders of the
same powers.
ARTICLE IX
CERTAIN BUSINESS COMBINATIONS
The corporation, by the affirmative vote (in addition to any other vote required by law or the
certificate of incorporation) of its stockholders holding a majority of the shares entitled to
vote, expressly elects not to be governed by §203 of the General Corporation Law of the State of
Delaware.
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