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EX-3.1 - CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION - root9B Holdings, Inc. | rtnb_ex31.htm |
EX-99.1 - PRESS RELEASE - root9B Holdings, Inc. | rtnb_ex991.htm |
8-K - CURRENT REPORT - root9B Holdings, Inc. | rtnb_8k.htm |
Exhibit 3.2
Second Amended and Restated
Bylaws
Of
root9B Holdings, Inc.,
a Delaware corporation
(Effective
as of December 5,
2016)
1.
OFFICES
1.1 Principal Office. The principal office
for the transaction of the business of root9B Holdings, Inc. (the
“Corporation”) shall be fixed by the Board of
Directors, either within or without the State of Delaware, by
formal resolution. The Board of Directors shall have full power and
authority from time to time to change the location of the principal
office of the Corporation.
1.2 Other
Offices. The Corporation may also have offices at such other
places, both within or without the State of Delaware, as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
2.
CERTIFICATE
OF INCORPORATION
2.1 References
Thereto. Any reference herein made to the Certificate of
Incorporation refers to the Corporation’s Certificate of
Incorporation and all amendments thereto as at any given time on
file with the Secretary of State of the State of
Delaware.
2.2 Seniority
Thereof. The Delaware General Corporation Law will in all
respects be considered superior to the Certificate of Incorporation
with any inconsistency resolved in favor of the Delaware General
Corporation Law. The Delaware General Corporation Law and the
Certificate of Incorporation will in all respects be considered
senior and superior to these Bylaws, with any inconsistency to be
resolved in favor of the Delaware General Corporation Law and the
Certificate of Incorporation, and with these Bylaws to be deemed
automatically amended from time to time to eliminate any such
inconsistency which may then exist.
3.
SEAL
3.1 Form
Thereof. The seal of the Corporation will have inscribed
thereon the name of the Corporation and the state and year of its
incorporation.
3.2 Use.
Except to the extent otherwise required by law or these Bylaws, the
seal of the Corporation shall not be required to be affixed to any
document or instrument of the Corporation in order for such
document or instrument to be valid and binding upon the
Corporation.
3.3 Authorization.
In the absence of the Secretary or Assistant Secretary, any officer
authorized by the Board of Directors to do so may affix the seal of
the Corporation to any instrument requiring a seal.
4.
MEETINGS
OF STOCKHOLDERS
4.1 Annual
Meetings.
(a) The annual meeting
of stockholders will be held on such day and at such time and place
as the Board of Directors shall determine.
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(b) The Chairman of the
Board or, in his absence, the President or such other officer as
the Board of Directors shall specify shall preside at the annual
meeting of stockholders.
(c) At each annual
meeting, the stockholders shall elect directors for the class of
directors whose term is then ending and transact such other
business as may be properly brought before them.
4.2 Special
Meetings. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute, may be
called by the Chairman of the Board and shall be called by the
Secretary at the written request, or by resolution adopted by the
affirmative vote, of a majority of the Board of Directors. Such
request shall state the purpose or purposes of the proposed
meeting. The business which may be conducted at any such special
meeting will be confined to the purpose or purposes stated in the
notice thereof and to such additional matters as the chairman of
such meeting may rule to be germane to such purpose or
purposes.
4.3 Action
of Stockholders Without a Meeting. Stockholders shall not
have the power to act by means of a written consent.
4.4 Meeting
by Remote Communication. If authorized by the Board of
Directors, and subject to such guidelines and procedures as the
Board of Directors may adopt, stockholders and proxy holders not
physically present at a meeting of stockholders may, by means of
remote communication, participate in the meeting and be deemed
present in person and vote at the meeting, whether such meeting is
to be held at a designated place or solely by means of remote
communication, provided that (i) the Corporation shall implement
reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication
is a stockholder or proxy holder, (ii) the Corporation shall
implement reasonable measures to provide such stockholders and
proxy holders a reasonable opportunity to participate in the
meeting and to vote on matters submitted to the stockholders,
including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii)
if any stockholder or proxy holder votes or takes other action at
the meeting by means of remote communication, a record of such vote
or other action shall be maintained by the Corporation
4.5 Notice
of Meetings.
(a) Written notice
stating the day, time and place (which may be within or without the
State of Delaware) of any meeting of stockholders and, in the case
of a special meeting, the purpose or purposes for which the meeting
is called shall be delivered not less than ten (10) nor more than
sixty (60) days before the day of the meeting.
(b) The Secretary of
the Corporation at the direction of the person or persons calling
the meeting shall deliver or give such notice by mail or by any
other means permitted by the Delaware General Corporation Law
(including, without limitation, personal delivery and delivery by
means of electronic communication, such as telefacsimile and email)
to each stockholder of record entitled to vote at such
meeting.
(c) 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
address as it appears on the stock transfer books of the
Corporation. If delivered or given by any other permitted means,
such notice shall be deemed delivered when dispatched by any
generally accepted means of electronic communication, addressed to
the stockholder at an address of or for that stockholder that is
appropriate in view of the means of communication used. If by
posting on an electronic network together with separate notice to
the stockholder of such specific posting, upon the later of (i)
such posting and (ii) the giving of such separate notice. Personal
delivery of any such notice to any officer of a corporation or
association or to any member of a partnership shall constitute
delivery of such notice to such corporation, association or
partnership.
(d) Whenever any notice
is required to be given to any stockholder, a waiver thereof in
writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting
unless that person is attending the meeting for the express purpose
of objecting to the transaction of any business because the meeting
is not lawfully called or convened.
4.6 Adjourned
Meetings. When a meeting is adjourned to another time or
place, unless the Bylaws otherwise require, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business that
might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days or, if after the
adjournment, a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
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4.7 Quorum.
One-third of the shares entitled to vote, represented in person or
by proxy, shall constitute a quorum at a meeting of stockholders.
All shares represented and entitled to vote on any single subject
matter that may be brought before the meeting shall be counted for
the purposes of determining a quorum. Only those shares entitled to
vote on a particular subject matter shall be counted for the
purposes of voting on that subject matter. Business may be
conducted once a quorum is present and may continue until
adjournment of the meeting notwithstanding the withdrawal or
temporary absence of sufficient shares to reduce the number present
to less than a quorum.
4.8 Advance
Notice of Stockholder Business (Other than the Election of
Directors).
(a) At any annual or
special meeting of stockholders, only such business (other than
nominations for election of directors, which is governed by Section
5.3 of these Bylaws) shall be conducted or considered as shall have
been properly brought before the meeting. In addition to any other
requirements imposed by or pursuant to law, the Certificate of
Incorporation or these Bylaws, each item of business to be properly
brought before an annual meeting must (i) be specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the Board or the persons calling the meeting pursuant
to the Certificate of Incorporation; (ii) be otherwise properly
brought before the meeting by or at the direction of the Board; or
(iii) be otherwise properly brought before the meeting by a
stockholder who (A) is a stockholder of record (and, with
respect to any beneficial owner, if different, on whose behalf such
business is proposed, only if such beneficial owner is the
beneficial owner of shares of the Corporation) both at the time of
giving the notice provided for in this Section 4.8 and at the time
of the meeting, (B) is entitled to vote at the meeting, and (C) has
complied with the notice procedures set forth in this
Section 4.8 as to such business. For any business to be
properly brought before an annual meeting by a stockholder (other
than nominations for election of directors, which is governed by
Section 5.3 of these Bylaws), it must be a proper matter for
stockholder action under the Delaware General Corporation Law, and
the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. 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 later than 60 days nor earlier than
90 days prior to the first anniversary of the date of the preceding
year’s annual meeting as first specified in the Corporation's
notice of meeting (without regard to any postponements or
adjournments of such meeting after such notice was first sent);
provided, however, that if the date of the annual meeting is
advanced by more than 30 days, or delayed (other than as a result
of adjournment) by more than 30 days from the anniversary of the
previous year’s annual meeting, notice by the stockholder to
be timely must be so received not later than the close of business
on the 60th day prior to such annual meeting or the 10th day
following the day on which such notice of the date of the annual
meeting was mailed or such public announcement was made. For
purposes of these Bylaws, “public announcement” shall
have the meaning set forth in Section 5.3(d). In no event shall the
public announcement of an adjournment or postponement of an annual
meeting commence a new time period (or extend any time period) for
the giving of a stockholder’s notice as described above. Only
such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant
to the Corporation’s notice of meeting.
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(b) A
stockholder’s notice to the Secretary of the Corporation
shall set forth (i) as to each matter the stockholder proposes
to bring before the meeting, a brief description of the business
desired to be brought before the meeting and the text of the
proposal or business, including the text of any resolutions
proposed for consideration and in the event that such business
includes a proposal to amend the Bylaws of the Corporation, the
language of the proposed amendment, and (ii) as to the
stockholder giving the notice and the beneficial owner, if any, on
whose behalf the proposal is being made, and any of their
respective affiliates or associates or others acting in concert
therewith (each, a “Proposing Person”), (A) the
name and address, as they appear on the Corporation’s books,
of the stockholder proposing such business and of any other
Proposing Person, (B) the class or series and number of shares
of the Corporation which are owned beneficially and of record by
the stockholder and any other Proposing Person as of the date of
the notice, and a representation that the stockholder will notify
the Corporation in writing within five (5) business days after the
record date for voting at the meeting of the class or series and
number of shares of the Corporation owned beneficially and of
record by the stockholder and any other Proposing Person as of the
record date for voting at the meeting, (C) a representation
that the stockholder intends to appear in person or by proxy at the
meeting to propose the business specified in the notice,
(D) any material interest of the stockholder and any other
Proposing Person in such business, (E) the following
information regarding the ownership interests of the stockholder
and any other Proposing Person which shall be supplemented in
writing by the stockholder not later than ten (10) days after the
record date for voting at the meeting to disclose such interests as
of such record date: (1) a description of any option, warrant,
convertible security, stock appreciation right, or similar right
with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of
the Corporation or with a value derived in whole or in part from
the value of any class or series of shares of the Corporation,
any derivative or synthetic
arrangement having the characteristics of a long position in any
class or series of shares of the Corporation, or any contract,
derivative, swap or other transaction or series of transactions
designed to produce economic benefits and risks that correspond
substantially to the ownership of any class or series of shares of
the Corporation, including due to the fact that the value of such
contract, derivative, swap or other transaction or series of
transactions is determined by reference to the price, value or
volatility of any class or series of shares of the Corporation,
whether or not such instrument, contract or right shall be subject
to settlement in the underlying class or series of shares of the
Corporation, through the delivery of cash or other property, or
otherwise, and without regard to whether the stockholder of record
or any other Proposing Person may have entered into transactions that hedge or
mitigate the economic effect of such instrument, contract or
right (a “Derivative Instrument”) directly or
indirectly owned beneficially by such stockholder or other
Proposing Person, and any other direct or indirect opportunity to
profit or share in any profit derived from any increase or decrease
in the value of shares of the Corporation; (2) a description
of any proxy, contract, arrangement, understanding, or relationship
pursuant to which such stockholder or other Proposing Person has a
right to vote any shares of any security of the Corporation;
(3) a description of any
agreement, arrangement, understanding, relationship or otherwise,
including any repurchase or similar so-called “stock
borrowing” agreement or arrangement, engaged in, directly or
indirectly, by such stockholder or other Proposing
Person, the purpose or effect of which
is to mitigate loss to, reduce the economic risk (of ownership or
otherwise) of any class or series of the shares of the Corporation
by, manage the risk of share price changes for, or increase or
decrease the voting power of, such stockholder or other
Proposing Person with respect to any
class or series of the shares of the Corporation, or which
provides, directly or indirectly, the opportunity to profit or
share in any profit derived from any decrease in the price or value
of any class or series of the shares of the Corporation
(“Short Interests”); (4) a description of
any rights to dividends on the shares of the Corporation owned
beneficially by such stockholder or other Proposing Person that are
separated or separable from the underlying shares of the
Corporation; (5) a description of any proportionate interest
in shares of the Corporation or Derivative Instruments held,
directly or indirectly, by a general or limited partnership in
which such stockholder or other Proposing Person is a general
partner or, directly or indirectly, beneficially owns an interest
in a general partner; (6) a description of any
performance-related fees (other than an asset-based fee) to which
such stockholder or other Proposing Person is entitled based on any
increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, as of the date of such notice,
including, without limitation, any such interests held by members
of such stockholder’s or other Proposing Person’s
immediate family sharing the same household; (7) a description of any significant equity interests or any Derivative
Instruments or Short Interests in any principal competitor of the
Corporation held by such stockholder or other Proposing
Person; and (8) a
description of any direct or indirect
interest of such stockholder or other Proposing Person
in any contract with the Corporation,
any affiliate of the Corporation or any principal competitor of the
Corporation (including, in any such case, any employment agreement,
collective bargaining agreement or consulting
agreement), and
(F) any other information
relating to such stockholder or other Proposing
Person, if any, that would be required
to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and the rules and regulations promulgated thereunder. The terms
“associate” and “beneficially owned” for
purposes hereof shall have the meanings set forth in Section 5.3(d)
of these Bylaws.
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(c) Unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual meeting or a
special meeting of stockholders to present the proposed business,
such proposed business shall not be transacted, notwithstanding
that proxies in respect of such vote may have been received by the
Corporation. For purposes of this section, to be considered a
qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or
authorized by a writing executed by such stockholder (or a reliable
reproduction or electronic transmission of the writing) delivered
to the Corporation prior to the making of such proposal at such
meeting by such stockholder stating that such person is authorized
to act for such stockholder as proxy at the meeting of
stockholders.
(d) Notwithstanding the
foregoing provisions of this Section 4.8, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set
forth in this Section 4.8; provided however, that any references in
this Section 4.8 to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any
requirements applicable to proposals as to any business to be
considered pursuant to this Section 4.8. Nothing in this Section
4.8 shall be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of
the holders of any series of preferred stock if and to the extent
provided for under law, the Certificate of Incorporation or these
Bylaws.
(e) Notwithstanding any
provisions to the contrary, the notice requirements set forth in
subsections (a) and (b) of this Section 4.8 shall be deemed
satisfied by a stockholder if the stockholder has notified the
Corporation of the stockholder’s intention to present a
proposal at an annual meeting in compliance with applicable rules
and regulations promulgated under the Exchange Act and such
stockholder’s proposal has been included in a proxy statement
that has been prepared by the Corporation to solicit proxies for
such annual meeting.
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4.9 Requisite
Vote.
(a) Except as set forth
in Section 4.9(b) with respect to the election of directors, at any
meeting of stockholders at which a quorum is present, all matters
will be determined by the vote of a majority of the votes cast with
respect to each matter (or if there are two or more classes of
stock entitled to vote as separate classes, then in the case of
each such class, a majority votes cast of the shares of each such
class present in person or represented by proxy and entitled to
vote on the matter will decide such matter), except when a
different vote is required by express provision of law, the
Certificate of Incorporation or these Bylaws. For the purposes of
this Section 4.9(a), a majority of the votes cast means that the
number of shares voted “for” a matter exceeds the
number of votes affirmatively cast “against” that
matter.
(b) At any meeting of
stockholders for the election of one or more directors at which a
quorum is present, each director shall be elected by the vote of a
majority of the votes cast with respect to the director, provided
that if the number of nominees exceeds the number of directors to
be elected, the directors shall be elected by the vote of a
plurality of the votes cast by the stockholders entitled to vote at
the election. For purposes of this Section 4.9(b), a majority of
the votes cast means that the number of shares voted
“for” a director exceeds the number of votes
affirmatively cast “against” that
director.
4.10 Manner
of Voting. Except as otherwise provided by the Certificate
of Incorporation or by the Delaware General Corporation Law, each
share of stock represented at any meeting of the stockholders shall
be entitled to one vote. Except as otherwise herein provided, the
recordholder of each share of stock, as determined by the name
appearing on the Corporation’s books, shall be the person
empowered to cast the vote. Voting will be by ballot on any
question as to which a ballot vote is demanded, prior to the time
the voting begins, by any person entitled to vote on such question;
otherwise, a voice vote will suffice. No ballot or change of vote
will be accepted after the polls have been declared closed
following the end of the announced time for voting. The following
additional provisions shall apply to the voting of
shares:
(a) Treasury Stock. Shares of its own stock
belonging to this Corporation or to another corporation, if a
majority of the shares entitled to vote in the elections of
directors of such other corporation is held by this Corporation,
shall neither be entitled to vote nor counted for quorum purposes.
Nothing in this subparagraph shall be construed as limiting the
right of this Corporation to vote its own stock held by it in a
fiduciary capacity.
(b) Proxies.
(1) A stockholder may
vote either in person or by proxy executed in writing by the
stockholder, by his duly authorized attorney-in-fact, or by an
electronic transmission permitted by law and delivered to the
Secretary of the Corporation. In the event any instrument granting
a proxy shall designate two or more persons to act as proxy, any of
such persons present at the meeting shall have and may exercise all
the powers conferred by such instrument upon all the persons so
designated unless such instrument shall otherwise
provide.
(2) No proxy shall be
valid after eleven (11) months from the date of its execution
unless otherwise provided in the proxy.
(3) A duly executed
proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient
at law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is
coupled is an interest in the share itself or an interest in the
Corporation or other entity generally.
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(4) A proxy is not
revoked by the death or incapacity of the maker unless, before the
vote is counted or quorum is determined, written notice of the
death or incapacity is given to the Secretary of the Corporation. A
proxy may be revoked by an instrument expressly revoking it, a duly
executed proxy bearing a later date, or the attendance of the
person executing the proxy at the meeting and his voting of his
shares personally.
(c) Corporate Stockholders.
(1) Shares standing in
the name of another corporation, a limited liability company, a
partnership or other entity, domestic or foreign, may be voted by
such officer, partner, member, agent or proxy as the bylaws or
other similar instrument of such other corporation or other entity
may prescribe or, in the absence of such provision, as the board of
directors or other body of such other corporation or other entity
may determine.
(2) The Secretary of
the Corporation and the election inspectors may accept the apparent
authority of any officer or other signatory purporting to have
authority, and the Secretary of the Corporation or the election
inspectors shall have the authority (but not the duty) to require
that such documents be filed with the Secretary of the Corporation
in order to verify the authority and power of any such officer,
partner, member, agent or proxy to vote the shares of the
Corporation held by any such other corporation or other
entity.
(d) Shares Held by Fiduciary.
(1) Shares held by an
administrator, executor, guardian, conservator or personal
representative may be voted by him, either in person or by proxy,
without a transfer of such shares into his name.
(2) Shares standing in
the name of a trustee, other than a trustee in bankruptcy, may be
voted by him, either in person or by proxy, but no such trustee
shall be entitled to vote shares held by him without a transfer of
such shares into his name.
(3) Shares standing in
the name of a receiver, trustee in bankruptcy or assignee for the
benefit of creditors may be voted by such representative, either in
person or by proxy, without the transfer thereof into his name if
authority to do so is contained in an appropriate order of the
court by which such receiver or trustee was appointed.
(4) The Secretary of
the Corporation or the election inspectors shall have the authority
(but not the duty) to require that such documents be filed with the
Secretary of the Corporation in order to verify the authority and
power of any such representative or other fiduciary to vote the
shares of the Corporation registered in the name of such other
person.
(e) Pledged Shares. A stockholder whose
shares are pledged shall be entitled to vote such shares until the
shares have been transferred into the name of the pledgee or unless
the pledgee is specifically empowered by such stockholder to vote
the stockholder’s shares.
(f) Joint Owners. If shares stand in the
names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the
entirety or tenants by community property or otherwise, or if two
or more persons have the same fiduciary relationship respecting the
same shares, unless the Corporation is given written notice to the
contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so
provided, their acts with respect to voting shall have the
following effect:
(1) If only one votes,
his acts bind.
(2) If more than one
votes, the act of the majority so voting binds all.
(3) If more than one
votes, but the vote is evenly split on any particular matter, each
faction may vote the shares in question
proportionally.
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4.11 Record
Date for Stockholders.
(a) In order to
determine the stockholders entitled to notice of or to vote at any
meeting of stockholders, or entitled to give their consent to
corporate action in writing without a meeting, the Board of
Directors may fix, in advance, a record date that shall not exceed
sixty (60) days nor be less than ten (10) days preceding the day of
such meeting or other action. In order to determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record
date that shall not be more than sixty (60) days prior to such
action.
(b) The stockholders
entitled to notice of or to vote at a meeting of stockholders will
be determined as of the applicable record date if one has been
fixed; otherwise, if no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at five o’clock in the
evening Eastern time on the fifth day before the day on which
notice is given and, if no other record date is fixed, the record
date for determining stockholders entitled to express consent to
corporate action in writing without a meeting shall be the time of
the day on which the first written consent is
provided.
4.12 Voting
Records. The Secretary of the Corporation shall obtain from
the transfer agent of the Corporation a complete list of the
stockholders entitled to vote at the meeting. The list shall
reflect the stockholders entitled to vote as of the tenth (10th)
day before the meeting date, arranged in alphabetical order for
each class of stock and showing the mailing address of each
stockholder and the number of shares registered in the name of each
stockholder. The Corporation shall not be required to include
electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period
of at least ten (10) days prior to the meeting: (a) 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, (b) during ordinary business hours at the principal
place of business of the Corporation, or (c) in any other manner
provided by law. If the meeting is held at a place, the list shall
be produced and kept at the time and place of the meeting during
the whole time of the meeting, and may be examined by any
stockholder who is present. If the meeting is to be held solely by
means of remote communication, such 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.
4.13 Election
Inspectors.
(a) The Board of
Directors, in advance of any meeting of stockholders, may appoint
an election inspector or inspectors to act at such meeting (and any
adjournment thereof). If an election inspector or inspectors are
not so appointed, the chairman of the meeting shall make such
appointment. If any person appointed as an inspector fails to
appear or to act, the chairman of the meeting may appoint a
substitute.
(b) If appointed, the
election inspector or inspectors (acting through a majority of them
if there be more than one) will determine the number of shares
outstanding, the authenticity, validity and effect of proxies and
the number of shares represented at the meeting in person and by
proxy; they will receive and count votes, ballots and consents and
announce the results thereof; they will hear and determine all
challenges and questions pertaining to proxies and voting; and, in
general, they will perform such acts as may be proper to conduct
elections and voting with complete fairness to all
stockholders.
(c) An election
inspector need not be a stockholder of the
Corporation.
4.14 Organization
and Conduct of Meetings.
(a) Each meeting of
stockholders will be called to order and thereafter chaired by the
Chairman of the Board if there is one; or if there is no Chairman
of the Board or if the Chairman of the Board is absent or so
requests, then by the Chief Executive Officer or the
President.
(b) The Secretary of
the Corporation will act as secretary of each meeting of
stockholders; in his absence the chairman of the meeting may
appoint any person (whether a stockholder or not) to act as
secretary.
(c) After calling a
meeting to order, the chairman thereof may require the registration
of all stockholders intending to vote in person and the filing of
all proxies with the election.
8
(d) Inspector or
inspectors, if one or more have been appointed (or, if not, with
the secretary of the meeting). After the announced time for such
filing of proxies has ended, no further proxies or changes,
substitutions or revocations of proxies will be accepted. If
directors are to be elected, a tabulation of the proxies so filed
will, if any person entitled to vote in such election so requests,
be announced at the meeting (or adjournment thereof).
(e) The chairman shall
also conduct the meeting in an orderly manner, rule on the
precedence of, and procedure on, motions and other procedural
matters, and exercise discretion with respect to such procedural
matters with fairness and good faith toward all those entitled to
take part. Without limiting the foregoing, the chairman may (i)
restrict attendance at any time to bona fide stockholders of record
and their proxies and other persons in attendance at the invitation
of the presiding officer or Board of Directors, (ii) restrict use
of audio or video recording devices at the meeting, and (iii)
impose reasonable limits on the amount of time taken up at the
meeting on discussion in general or on remarks by any one
stockholder. Should any person in attendance become unruly or
obstruct the meeting proceedings, the chairman shall have the power
to have such person removed from the meeting. Notwithstanding
anything in the Bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set
forth in Section 4.8, this Section 4.14 and Section 5.3. The
chairman of the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance
with the provisions of Section 4.8, this Section 4.14 and Section
5.3, and if he should so determine that any proposed nomination or
business is not in compliance with such sections, he shall so
declare to the meeting that such defective nomination or proposal
shall be disregarded.
4.15 Informalities
and Irregularities. All informalities or irregularities in
any call or notice of a meeting or in the areas of credentials,
proxies, quorums, voting and similar matters will be deemed waived
if no objection is made at the meeting.
5.
BOARD
OF DIRECTORS
5.1 Powers.
To the broadest extent permitted by applicable law, all corporate
power shall be exercised by or under the authority of, and the
business and affairs of the Corporation shall be managed by, the
Board of Directors. In addition to any other powers granted by the
Delaware General Corporation Law, the Certificate of Incorporation
and the Bylaws, it is hereby expressly declared that the directors
shall have the following powers:
(a) To select and
remove all the officers, agents and employees of the Corporation,
to prescribe such powers and duties for them as may not be
inconsistent with law, the Certificate of Incorporation or the
Bylaws, and to fix their compensation.
(b) To conduct, manage
and control the affairs and business of the Corporation and to make
such rules and regulations therefor not inconsistent with law, the
Certificate of Incorporation or the Bylaws as they may deem
best.
(c) To designate any
place, within or without the State of Delaware, for the holding of
any meeting or meetings of stockholders, to adopt, make and use a
corporate seal, to prescribe the form of certificate of stock, and
to alter the forms of such seal and such certificates to ensure
that they, at all times, comply with the applicable
law.
(d) To authorize the
issuance of shares of stock of the Corporation from time to time
upon such terms as may be lawful and in consideration of money
paid, labor done or services actually rendered, debts or securities
canceled, or tangible or intangible property actually received, or
in the case of shares issued, as a dividend against amounts
transferred from surplus to stated capital.
(e) To create and issue
(whether or not in connection with the issue and sale of any stock
or other securities of the Corporation) warrants, rights or options
entitling the holders thereof to purchase from the Corporation any
shares of any class or classes or any other securities of the
Corporation for such consideration and to such persons, firms or
corporations as the Board of Directors, in its sole discretion, may
determine, setting aside from the authorized but unissued stock of
the Corporation the requisite number of shares for issuance upon
the exercise of such warrants, rights or options. Such warrants,
rights or options shall be evidenced by such instrument or
instruments as shall be approved by the Board of Directors. The
terms upon which, the time or times (which may be limited or
unlimited in duration) at or within which, and the price or prices
at which any such shares or other securities may be purchased from
the Corporation upon the exercise of any such warrant, right or
option shall be such as shall
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(f) be fixed and stated
in a resolution or resolutions of the Board of Directors providing
for the creation and issue of such warrants, rights or
options.
(g) To borrow money and
incur indebtedness for the purposes of the Corporation and to cause
to be executed and delivered therefor in the corporate name
promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations and other evidences of debt and securities
therefor.
(h) To authorize a
person or persons to sign and endorse all checks, drafts or other
forms for payment of money, notes or other evidences of
indebtedness issued in the name of or payable to the
Corporation.
5.2 Membership.
(a) The business and
affairs of the Corporation shall be managed by its Board of
Directors, consisting of not less than three or more than thirteen.
The Board of Directors will have the power to increase or decrease
its size within such limits; provided, however, that no decrease in
the number of directors shall have the effect of shortening the
term of any incumbent director.
(b) Each director shall
be elected to hold office for a one-year term expiring at the next
annual meeting of stockholders; provided, however, that no terms in
effect prior to the date of these Bylaws shall be
shortened.
(c) Election of
directors shall be conducted as provided in the Certificate of
Incorporation, in these Bylaws or by applicable law. At each annual
meeting, the stockholders shall elect directors to hold office
until the next annual meeting of stockholders. Each director shall
hold office until his successor is elected and qualified or until
his earlier resignation or removal. The directors need not be
stockholders or residents of the state of
incorporation.
5.3 Nominations
of Directors.
(a) Nominations for
election to the Board of Directors of the Corporation at a meeting
of stockholders may be made by the Board of Directors, or on behalf
of the Board of Directors by a nominating committee appointed by
the Board of Directors, or by any stockholder of the Corporation
who is a stockholder of record at the time of giving the notice
provided for in paragraphs (b) and (c) of this Section 5.3, who is
entitled to vote at the meeting and who complies with the
procedures set forth in this Section 5.3.
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(b) All nominations by
stockholders must be made pursuant to timely notice given in
writing to the Secretary of the Corporation. To be timely, a
stockholder’s nomination for a director to be elected at an
annual meeting must be received at the Corporation’s
principal executive offices not later than
45 days nor earlier than 75 days prior to the first anniversary of
the date of the preceding year’s annual meeting as first
specified in the Corporation's notice of meeting (without
regard to any postponements or adjournments of such meeting after
such notice was first sent), provided, however, that if the date of
the annual meeting is advanced by more than 30 days or delayed
(other than as a result of adjournment) by more than 30 days from
the first anniversary of the previous year’s annual meeting,
notice by the stockholder to be timely must be received not later
than the close of business on the later of the 30th day prior to
such annual meeting or the 10th day following the date on which
public announcement of the date of such meeting is first made. Each
such notice shall set forth (i) as to the stockholder and the
beneficial owner, if any, on whose behalf the nomination is being
made, and any of their respective affiliates or associates or
others acting in concert therewith (each, a “Nominating
Person”), (A) the name and address, as they appear on the
Corporation’s books, of the stockholder who intends to make
the nomination and of any other Nominating Person, (B) the class or
series and number of shares of the Corporation which are owned
beneficially and of record by the stockholder and any other
Nominating Person as of the date of the notice, and a
representation that the stockholder will notify the Corporation in
writing within five (5) business days after the record date for
voting at the meeting of the class or series and number of shares
of the Corporation owned beneficially and of record by the
stockholder and any other Nominating Person as of the record date
for voting at the meeting, (C) a representation that the
stockholder intends to appear in person or by proxy at the meeting
to nominate the nominee specified in the notice, (D) the following
information regarding the ownership interests of the stockholder
and any other Nominating Person, which shall be supplemented in
writing by the stockholder not later than ten (10) days after the
record date for notice of the meeting to disclose such interests as
of such record date: (1) a description of any Derivative Instrument
directly or indirectly owned beneficially by such stockholder or
other Nominating Person, and any other direct or indirect
opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the Corporation; (2)
a description of any proxy, contract, arrangement, understanding,
or relationship pursuant to which such stockholder or other
Nominating Person has a right to vote any shares of any security of
the Corporation; (3) a description of any Short Interests in any
securities of the Corporation directly or indirectly owned
beneficially by such stockholder or other Nominating Person; (4) a
description of any rights to dividends on the shares of the
Corporation owned beneficially by such stockholder or other
Nominating Person that are separated or separable from the
underlying shares of the Corporation; (5) a description of any
proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder or other Nominating Person is
a general partner or, directly or indirectly, beneficially owns an
interest in a general partner; (6) a description of any
performance-related fees (other than an asset-based fee) to which
such stockholder or other Nominating Person is entitled based on
any increase or decrease in the value of shares of the Corporation
or Derivative Instruments, if any, as of the date of such notice,
including, without limitation, any such interests held by members
of such stockholder’s or other Nominating Person’s
immediate family sharing the same household; (7) a description of
any significant equity interests or any Derivative Instruments or
Short Interests in any principal competitor of the Corporation held
by such stockholder or other Nominating Person; and (8) a
description of any direct or indirect interest of such stockholder
or other Nominating Person in any contract with the Corporation,
any affiliate of the Corporation or any principal competitor of the
Corporation (including, in any such case, any employment agreement,
collective bargaining agreement or consulting agreement), (E) a
description of all arrangements or understandings between the
stockholder or other Nominating Person and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the
stockholder, (F) a description of all direct and indirect
compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other
material relationships, between or among such stockholder and any
other Nominating Person, on the one hand, and each nominee, and his
respective affiliates and associates, or others acting in concert
therewith, on the other hand, including, without limitation all
information that would be required to be disclosed pursuant to Rule
404 promulgated under Regulation S-K if the stockholder and any
Nominating Person, if any, or any affiliate or associate thereof or
person acting in concert therewith, were the
“registrant” for purposes of such rule and the nominee
were a director or executive officer of such registrant, and (G)
such other information regarding each nominee as would be required
to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission, had the nominee
been nominated, or intended to be nominated, by the Board of
Directors, (iii) the signed consent of each nominee to serve as a
director of the Corporation if so elected, and (iv) a statement
whether such nominee, if elected, intends to tender, promptly
following such person’s election or reelection, an
irrevocable resignation effective upon such person’s failure
to receive the required vote for reelection at the next meeting at
which such person would face reelection and upon acceptance of such
resignation by the Board of Directors. In no event shall the public
announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above.
Notwithstanding the second sentence of this Section 5.3(b), in the
event that the number of directors to be elected at an annual
meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at
least 100 days prior to the one-year anniversary of the date of the
preceding year’s annual meeting as first specified in the
Corporation’s notice of meeting (without regard to any
postponements or adjournments of such meeting after such notice was
first sent), a stockholder’s notice required by this Section
5.3(b) shall also be considered timely, but only with respect to
nominees for the additional directorships, if it shall be delivered
to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made
by the Corporation.
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(c) Nominations of
persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting (i)
by or at the direction of the Board of Directors or a committee
thereof or (ii) by any stockholder who complies with the notice
procedures set forth in this Section 5.3. Nominations by
stockholders may be made at any special meeting called pursuant to
Section 4.2 hereof, if the stockholder’s notice as required
by Section 5.3(b) is delivered to the Secretary at the principal
executive offices of the Corporation not earlier than 30 days prior
to such special meeting and not later than the close of business on
the later of the 30th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall
the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
above.
(d) For purposes of
these Bylaws, “public announcement” shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in
a document publicly filed or furnished by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act. For purposes of this Section 5.3, the
term “associate” shall have the meaning set forth in
Rule 14a-1(a) under the Exchange Act and shares shall be treated as
“beneficially owned” by a person if the person (i)
beneficially owns such shares, directly or indirectly, for purposes
of Section 13(d) of the Exchange Act and Regulations 13D and 13G
thereunder, or (ii) has or shares pursuant to any agreement,
arrangement or understanding (whether or not in writing) (A) the
right to acquire such shares (whether such right is exercisable
immediately or only after the passage of time or the fulfillment of
a condition or both), (B) the right to vote such shares, alone or
in concert with others, and/or (C) investment power with respect to
such shares, including the power to dispose of, or to direct the
disposition of, such shares.
(e) Only those persons
who are nominated in accordance with the procedures set forth in
this section shall be eligible for election as directors at any
meeting of stockholders. The Chairman of the Board of Directors or
Secretary may, if the facts warrant, determine that a notice
received by the Corporation relating to a nomination proposed to be
made does not satisfy the requirements of this Section 5.3
(including if the stockholder does not provide the updated
information required under Section 5.3(b) to the Corporation within
five (5) business days following the record date for the meeting),
and if it be so determined, shall so declare and any such
nomination shall not be introduced at such meeting of stockholders,
notwithstanding that proxies in respect of such vote may have been
received. The chairman of the meeting shall have the power and duty
to determine whether a nomination brought before the meeting was
made in accordance with the procedures set forth in this section,
and, if any nomination is not in compliance with this section
(including if the stockholder does not provide the updated
information required under Section 5.3(b) to the Corporation within
five (5) business days following the record date for the meeting),
to declare that such defective nomination shall be disregarded,
notwithstanding that proxies in respect of such vote may have been
received. Unless otherwise required by law, if the stockholder (or
a qualified representative of the stockholder) does not appear at
the annual meeting or a special meeting of stockholders of the
Corporation to present a nomination, such nomination shall be
disregarded, notwithstanding that proxies in respect of such vote
may have been received by the Corporation. For purposes of this
Section 5.3, to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or
partner of such stockholder or authorized by a writing executed by
such stockholder (or a reliable reproduction or electronic
transmission of the writing) delivered to the Corporation prior to
the making of such nomination at such meeting by such stockholder
stating that such person is authorized to act for such stockholder
as proxy at the meeting of stockholders.
12
(f) Notwithstanding the
foregoing provisions of this Section 5.3, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set
forth in this Section 5.3; provided however, that any references in
this Section 5.3 to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit any requirements
applicable to nominations to be considered pursuant to this Section
5.3. Nothing in this Section 5.3 shall be deemed to affect any
rights of the holders of any series of preferred stock if and to
the extent provided for under law, the Certificate of Incorporation
or these Bylaws.
5.4 Vacancies.
(a) Any vacancy
occurring in the Board of Directors may be filled by the
affirmative vote of a majority of the remaining directors, though
not less than a quorum, or by a sole remaining director. Any
director so chosen shall hold office until the next election of
directors, or the next election of directors of the class of
directors to which that director was elected if the Corporation
shall then have a classified Board of Directors, when his successor
is elected and qualified. Any newly created directorship shall be
deemed a vacancy.
(b) When one or more
directors shall resign from the Board of Directors, effective at a
future time, a majority of the directors then in office, including
those who have so resigned, shall have the power to fill such
vacancy or vacancies. Such vote thereon shall take effect when such
resignation or resignations become effective, and each director so
chosen shall hold office as herein provided in the filling of other
vacancies.
(c) If at any time, by
reason of death or resignation or other cause, the Corporation
should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee, guardian or
personal representative of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a
stockholder, may call a special meeting of
stockholders.
5.5 Removal
of Directors. Except as otherwise provided by the
Certificate of Incorporation, at a meeting of the stockholders
called expressly for that purpose, directors may be removed, with
or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of
directors.
5.6 Meetings.
(a) Annual Meetings. An annual meeting of
the directors shall be held after the adjournment of each annual
meeting of stockholders at the place at which such meeting of
stockholders was held or on such other day and at such other time
and place as the Board of Directors shall determine.
(b) Regular Meetings. Regular meetings
other than annual meetings may be held without notice at regular
intervals at such places, within or without the State of Delaware,
and at such times as the Board of Directors may from time to time
provide.
(c) Special Meetings. Special meetings of
the Board of Directors may be held whenever and wherever (within
the continental United States) called for by the Chairman of the
Board, the President or the number of directors required to
constitute a quorum.
(d) Manner of Participating. Members of the
Board of Directors or any committee thereof may participate in any
meeting, regular or special, by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other. The participation
in a meeting so held shall constitute presence in person at such
meeting.
5.7 Action
by Directors Without a Meeting. Any action required to be
taken at a meeting of the Board of Directors, or any action that
may be taken at a meeting of the Board of Directors or the
Executive Committee or other committee thereof, may be taken
without a meeting if all directors or committee members 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 of Directors 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. Such consent shall have
the same effect as a unanimous vote.
13
5.8 Notice
of Meetings.
(a) Regular Meetings. No notice need be
given of regular meetings of the Board of Directors.
(b) Special Meetings. Written notice of the
day, time and place (but not necessarily the purpose or all of the
purposes) of any special meeting shall be delivered or given to
each director verbally or in writing either personally, by
telephone, by telefacsimile, by mail, email, or by any other
reliable means of communication. Notice to any director of such
special meeting will be deemed delivered sufficiently in advance
when, if mailed, the same is deposited in the United States mail,
postage prepaid, at least five (5) days before the meeting day or,
if by any other permitted means, the same is delivered to the
director at least forty-eight (48) hours prior to the convening of
the meeting.
(c) Waiver of Call or Notice. Any director
may waive call or notice of any meeting (and any adjournment
thereof) at any time before, during which or after it is held.
Attendance of a director at any meeting will automatically evidence
his waiver of call and notice of such meeting (and any adjournment
thereof) unless he is attending the meeting for the express purpose
of objecting to the transaction of business thereat because it has
not been properly called or noticed. No call or notice of a meeting
of the Board of Directors will be necessary if each of them waives
the same in writing or by attendance as aforesaid.
5.9 Adjourned
Meetings. Any meeting, once properly called and noticed (or
as to which call and notice have been waived) and at which a quorum
is formed, may be adjourned to another time and place by a majority
of those in attendance. Notice of the time and place of holding an
adjourned meeting need not be given to absent directors if the time
and place be fixed at the meeting adjourned.
5.10 Quorum.
A majority of the number of directors then serving shall constitute
a quorum for the transaction of business at any meeting or
adjourned meeting of the Board of Directors.
5.11 Voting
Requirements. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act
of the Board of Directors.
5.12 Presumption
of Assent. A director of the Corporation who is present at a
meeting of the Board of Directors or of any committee thereof at
which action is taken on any corporate matter will be presumed to
have assented to the action taken unless his dissent is entered in
the minutes of the meeting, or he files his written dissent to such
action with the person acting as secretary of the meeting before
the adjournment thereof, or he forwards such dissent by registered
mail to the Secretary of the Corporation immediately after the
adjournment of such meeting. A right to dissent shall not be
available to a director who voted in favor of the
action.
14
5.13 Compensation.
By resolution of the Board of Directors, the directors may be paid
their expenses, if any, of attendance at each meeting of the Board
of Directors or of any committee thereof, a fixed sum for
attendance at each such meeting or a stated salary as a director or
committee member, or any combination of the foregoing. Directors
may participate in stock option or other benefit plans of the
Corporation in accordance with the terms and provisions thereof. No
such payment or participation will preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor.
5.14 Director
Conflicts of Interest. No contract or other transaction
between the Corporation and one or more of its directors or any
other business entity in which one or more of its directors is also
a director or officer or is financially interested shall be either
void or voidable because of such relationship or interest or
because such director or directors are present at a meeting of the
Board of Directors or committee thereof which authorizes, approves
or ratifies such contract or transaction or vote for such
authorization, approval or ratification if:
(a) Approval by Disinterested
Directors. The fact of the
relationship or interest is disclosed or known to the Board of
Directors or committee thereof, and the number of
disinterested directors or committee members authorizing,
approving or ratifying such contract or transaction is sufficient
for such authorization, approval or ratification to be granted;
or
(b) Approval by Stockholders. The fact of
the relationship or interest is disclosed to the stockholders
entitled to vote, and they authorize, approve or ratify such
contract or transaction; or
(c) Fair and Reasonable. In light of
circumstances known to those entitled to vote thereon at that time,
the contract or transaction is fair and reasonable to the
Corporation at the time the contract or transaction is authorized,
approved or ratified.
6.
EXECUTIVE
AND OTHER COMMITTEES
6.1 Creation.
The Board of Directors may designate, by resolution adopted by an
absolute majority of the full Board of Directors, two or more of
its members as an Executive Committee, and may designate from among
its members one or more other committees. The designation of the
Executive Committee or any other committee and the delegation
thereto of authority shall not operate to relieve the Board of
Directors or any member thereof of any responsibility imposed by
law.
15
6.2 Powers.
The Executive Committee, when the Board of Directors is not in
session, shall have and may exercise all of the authority of the
Board of Directors in the management of the business affairs of the
Corporation, subject to the limitations as may be included in the
resolution of the Board of Directors and the limitations set forth
below. Neither the Executive Committee nor any other committee
shall have the authority of the Board of Directors in reference to
the following matters:
(a) The submission to
the stockholders of any action that requires stockholders’
authorization or approval.
(b) The filling of
vacancies on the Board of Directors or on any committee of the
Board of Directors.
(c) The amendment or
repeal of the Bylaws or the adoption of new Bylaws.
(d) The fixing of
compensation of directors for serving on the Board of Directors or
on any committee thereof.
6.3 Tenure
and Removal. The members of any committee shall hold office
until the next annual meeting of the Board of Directors and until
their successors are appointed by a new resolution of the Board of
Directors. The Board of Directors, with or without cause, may
dissolve any committee or remove any member thereof at any
time.
6.4 Vacancies.
Any vacancies occurring by reason of death, resignation, removal,
disqualification or otherwise may be filled only by the full Board
of Directors.
6.5 Organization.
The members of the Executive Committee or other committee shall
elect a chairman of the committee, who shall appoint a secretary of
the same, and the committee shall otherwise fix its own rules or
procedures that shall not be inconsistent with these Bylaws. The
Executive Committee or other committee shall meet where and as
provided by its rules.
6.6 Quorum
and Voting. A majority of the members of the Executive
Committee or other committee shall constitute a quorum for the
transaction of business at any meeting thereof; provided, however,
that the affirmative vote of a majority of the members of the
Executive Committee or other committee in all cases shall be
necessary for the adoption of any resolution.
6.7 Minutes.
The Executive Committee and other committees shall keep regular
minutes of their proceedings and the transactions of their meetings
and report the same to the Board of Directors at the next meeting
thereof. Such minutes shall be open to the inspection of any
director upon application at the office of the Corporation during
business hours.
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7.
OFFICERS
7.1 Election;
Qualification; Term. The Board of Directors may, if it so
determines, elect a Chairman from among its members. The Board of
Directors may also elect a Chief Executive Officer, a President, a
Secretary, one or more Vice Presidents, one or more Assistant
Secretaries, a Chief Financial Officer, one or more Assistant
Treasurers and such other officers as it so determines. Any number
of offices may be held by the same person. Each officer shall hold
office until the first meeting of the Board of Directors after the
annual meeting of stockholders next succeeding his or her election,
and until his or her successor is elected and qualified or until
his or her earlier death, resignation or removal
7.2 Resignation;
Removal; Vacancies. Any officer may resign at any time by
giving written notice to the Chairman, if any, the President or the
Secretary. Unless otherwise stated in a notice of resignation, it
shall take effect when received by the officer to whom it is
directed, without any need for its acceptance. The Board of
Directors may remove any officer with or without cause at any time,
but such removal shall be without prejudice to the contractual
rights of such officer, if any, with the Corporation. A vacancy
occurring in any office of the Corporation may be filled for the
unexpired portion of the term thereof by the Board of Directors at
any regular or special meeting.
7.3 Powers
and Duties of Executive Officers. The powers and duties of
the officers of the corporation shall be as provided from time to
time by resolution of the Board of Directors. In the absence of
such resolution, the respective officers shall have the powers and
shall discharge the duties customarily and usually held and
performed by like officers of corporations similar in organization
and business purposes to the Corporation subject to the control of
the Board of Directors.
7.4 Compensation.
The salaries of all officers of the Corporation shall be fixed from
time to time by the Board of Directors and no officer shall be
prevented from receiving such salary by reason of the fact that he
or she is also a director of the Corporation.
7.5 Delegation.
In case any officer is absent, or for any other reason that the
Board of Directors may deem sufficient, the president or the Board
of Directors may delegate for the time being the powers or duties
of such officer to any other officer or to any
director.
7.6 Chairman
of the Board. The Board of Directors may elect a Chairman of
the Board to serve as a general executive officer of the
Corporation and, if specifically designated as such by the Board of
Directors, as the Chief Executive Officer and principal executive
officer of the Corporation. If elected, the Chairman will preside
at all meetings of the Board of Directors and be vested with such
other powers and duties as the Board of Directors may from time to
time delegate to him.
8.
RESIGNATIONS
8.1 Resignations.
Any director, committee member or officer may resign from his
office at any time by written notice delivered or addressed to the
Corporation at its principal place of business. Any such
resignation will be effective upon its receipt by the Corporation
unless some later time is therein fixed, and then from that time.
The acceptance of a resignation will not be required to make it
effective.
9.
BOOKS
AND RECORDS
9.1 Books
and Records. The Corporation shall keep correct and complete
books, records of account and minutes of the proceedings of its
stockholders, Board of Directors and any committees thereof.
Additionally, the Corporation shall keep at its statutory
agent’s office, or at its principal place of business, or at
the office of its transfer agent or registrar, a record of its
stockholders, giving the name and addresses of all stockholders and
the number and class of the shares held by each. Any books, records
and minutes may be in written form or in any other form capable of
being converted into written form within a reasonable
time.
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9.2 Inspection.
Any person who is a holder of record of shares of stock of the
Corporation or of a voting trust beneficial interest therefor, upon
written demand delivered to the Secretary of the Corporation or to
the statutory agent for receipt of service of process, stating the
purpose thereof, shall have the right to examine, in person or by
agent or attorney, at any reasonable time or times, for any proper
purpose, its relevant books and records of accounts, minutes and
record of stockholders and to make copies of or extracts
therefrom.
10.
STOCK
CERTIFICATES
10.1 Form
Thereof. Unless otherwise provided by resolution of the
Board of Directors, each class or series of shares of the
Corporation’s capital stock shall be issued in uncertificated
form pursuant to the customary arrangements for issuing shares in
such form. The name of the holder of record of the shares
represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the
Corporation.
10.2 Transfers.
Transfer of stock on the books of the Corporation may be authorized
only at the direction of the recordholder of such stock or at the
direction of the stockholder’s duly authorized
attorney-in-fact or duly appointed personal representative, and, in
the case of certificated shares, upon surrender of the certificate
or the certificates, duly endorsed to the Secretary or the duly
authorized transfer agent or agents of the Corporation. The
Corporation may treat as the absolute owner of shares of the
Corporation the person or persons in whose name shares are
registered on the books of the Corporation.
10.3 Ownership.
The Corporation will be entitled to treat the registered owner of
any share as the absolute owner thereof and, accordingly, will not
be bound to recognize any beneficial, equitable or other claim to
or interest in such share on the part of any other person, whether
or not he has notice thereof, except as may expressly be provided
by statute.
11.
REPEAL,
ALTERATION OR AMENDMENT
11.1 Repeal,
Alteration or Amendment. These Bylaws may be repealed,
altered or amended, or substituted bylaws may be adopted at any
time, only by resolution duly adopted by a majority of the full
Board of Directors, subject to repeal or change by action of the
stockholders.
12.
MISCELLANEOUS
12.1 Indemnification.
To the broadest extent permitted by Delaware law, the Corporation
shall indemnify and pay the expenses of any person who is or was
made, or threatened to be made, a party to an action or proceeding
(whether civil, criminal, administrative or investigative) by
reason of the fact that he is or was a director, officer, employee,
trustee or agent of or for the Corporation or is or was serving at
the request or with the prior approval of the Corporation as a
director, officer, employee, trustee or agent of another
corporation, trust or enterprise against any liability asserted
against him and incurred by him in any capacity or arising out of
his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions
of these Bylaws.
12.2 Expenses
Payable in Advance. Expenses incurred by a director or
officer in defending any civil, criminal, administrative, or
investigative action, suit, or proceeding shall be paid by the
Corporation in advance of the final disposition of such action,
suit, or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in Section
12.1.
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12.3 Dividends.
Any dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, 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 and the Delaware General Corporation
Law. 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 Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
contingencies, for equalizing dividends, for repairing or
maintaining any property of the Corporation, or for such other
purposes as the Board of Directors shall think conducive to the
interest of the Corporation. The Board of Directors may modify or
abolish any such reserve in the manner in which it was
created.
12.4 Representation
of Shares of Other Corporations. The Chief Executive
Officer, President, or any Vice President of this Corporation is
authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this
Corporation. The authority herein granted to said officers to vote
or represent on behalf of this Corporation any and all shares held
by this Corporation in any other corporation or corporations may be
exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by
said officers, provided that the Board of Directors may from time
to time confer the foregoing authority upon any other person or
persons.
12.5 Construction
and Definitions. Unless the context otherwise requires, the
general provisions, rules of constructing and definitions contained
in the Delaware General Corporation Law shall govern the
construction of these Bylaws. Without limiting the generality of
the foregoing, the masculine gender includes the feminine and
neuter; the singular number includes the plural and the plural
number includes the singular; and the term “person”
includes a corporation as well as a natural person.
12.6 Fiscal
Year. The fiscal year of the Corporation shall be designated
and determined by resolution of the Board of Directors from time to
time.
12.7 Conduct
of Meetings. The Board of Directors may promulgate rules and
regulations and establish the rules of procedure applicable at all
meetings of stockholders and the Board of Directors, or any
committee thereof, and the provisions thereof are incorporated
herein by reference. Absent a specific rule or regulation, the
chairman of any meeting shall determine the order of business and
shall have authority, in his discretion, to regulate the conduct of
such meetings.
12.8 Forum
for Certain Actions. Unless the Corporation consents in
writing to the selection of an alternative forum, the sole and
exclusive forum for (a) any derivative action or proceeding brought
on behalf of the Corporation, (b) any action asserting a claim of
breach of a fiduciary duty owed by any director, officer or other
employee of the Corporation to the Corporation or the
Corporation’s stockholders, (c) any action asserting a claim
against the Corporation arising pursuant to any provision of the
Delaware General Corporation Law or the Corporation’s
Certificate of Incorporation or Bylaws, or (d) any action asserting
a claim against the Corporation governed by the internal affairs
doctrine shall be a state or federal court located within the state
of Delaware, in all cases subject to the court’s having
personal jurisdiction over the indispensable parties named as
defendants. Any person or entity purchasing or otherwise acquiring
any interest in shares of capital stock of the Corporation shall be
deemed to have notice of and consented to the provisions of this
Section 12.8.
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