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EX-3.(I) - AMENDED AND RESTATED ARTICLES OF INCORPORATION - iCoreConnect Inc. | vmci_ex3i.htm |
EX-99.1 - PRESS RELEASES - iCoreConnect Inc. | vmci_ex991.htm |
8-K - CURRENT REPORT - iCoreConnect Inc. | vmci_8k.htm |
EXHIBIT 3(ii)
iMEDICOR< INC.
AMENDED AND RESTATED BYLAWS
As Amended and Restated on June 30, 2017
ARTICLE I OFFICES
The principal place of business of iMedicor, Inc.,
corporation incorporated under the laws of the State of Nevada (the
“Corporation”),
shall be at such place or places as the directors shall from time
to time determine. The Corporation may also have an office or
offices at such other places within or without the State of Nevada
as the Board of Directors (the “Board”)
may from time to time appoint or the business of the Corporation
may require.
ARTICLE II STOCKHOLDERS
Section
1.
ANNUAL
MEETING. The annual meeting of
stockholders of the
Corporation
shall be held on such date and at such time and place within or
without the State of Nevada, as may be fixed from time to time by
resolution of the Board adopted by a majority of the total number
of authorized directors (whether or not there exists any vacancies
in previously authorized directorships at the time such resolution
is presented to the Board for adoption), for the purpose of
electing directors and for transacting such other business as may
properly be brought before the meeting. The Chairman of the Board
or, in the Chairman’s absence, another person designated by
the Board shall act as the Chairman of all annual meetings of
stockholders.
Section
2. SPECIAL
MEETINGS. A special meeting of
the stockholders, for the purpose of taking any action permitted by
the stockholders under the [Nevada Revised Statutes] (the
“NRS”), and the Corporation’s Articles of
Incorporation (the “Articles of
Incorporation”), may be
called at any time by the Board pursuant to a resolution adopted by
a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the
Board for adoption). Except as may be set forth in the Articles of
Incorporation, no other person or persons are permitted to call a
special meeting. At any special meeting of the stockholders, only
such business shall be conducted or considered as shall have been
properly brought before the special meeting. To be properly brought
before a special meeting, proposals of business must be (i)
specified in the Corporation’s notice of meeting (or any
supplement thereto) given by or at the direction of the Board, or
(ii) otherwise properly brought before the special meeting by or at
the direction of the Board. If the Chairman of the special meeting
determines that business was not properly brought before the
special meeting in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be
transacted.
Section
3. NOTICE
OF MEETINGS. Notice of every
annual and special meeting of stockholders, other than any meeting
the giving of notice of which is otherwise prescribed by law or the
Articles of Incorporation, stating the date, time, place and
purpose thereof, and in the case of special meetings, the name of
the person or persons at whose direction the notice is being
issued, shall be given personally (including by telephone) or sent
by mail, telegraph, cablegram, telex, telecopy, electronic mail or
other means deemed appropriate by the Board at least fifteen (15)
but not more than sixty (60) days before such meeting, to each
stockholder of record entitled to vote thereat and to each
stockholder of record who, by reason of any action proposed at such
meeting would be entitled to have his or her shares appraised if
such action were taken, and the notice shall include a statement of
that purpose and to that effect. If mailed, notice shall be deemed
to have been given when deposited in the mail, directed to the
stockholder at his, her or its address as the same appears on the
record of stockholders of the Corporation or at such address as to
which the stockholder has given notice to the Secretary. Notice of
a meeting need not be given to any stockholder who submits a signed
waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting prior to the conclusion
thereof the lack of notice to him or her.
Section
4. ADJOURNMENTS.
Whether or not a quorum shall be present, any meeting of
stockholders, annual or special, may adjourn from time to time to
reconvene at the same or some other place, and notice need not be
given of any such 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
which might have been transacted at the original meeting. If the
meeting is adjourned for lack of quorum, notice of the new meeting
shall be given to each stockholder of record entitled to vote at
the meeting. If after an 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 on the new record date entitled
to notice in Section 3 of this Article II. The Board may postpone
any meeting of stockholders or cancel any annual or special meeting
of stockholders by public announcement or disclosure prior to the
time scheduled for the meeting.
Section
5. QUORUM.
At all meetings of stockholders, except as otherwise expressly
provided by law or the Articles of Incorporation, there must be
present either in person or by proxy stockholders of record holding
at least a majority of the shares issued and outstanding and
entitled to vote at such meetings in order to constitute a quorum,
but if less than a quorum is present, a majority of those shares
present either in person or by proxy shall have power to adjourn
any meeting until a quorum shall be present. Notwithstanding the
previous sentence, at any meeting of stockholders at which the
holders of any class of stock of the Corporation shall be entitled
to vote separately as a class, the holders of a majority in number
of the total outstanding shares of such class, present in person or
represented by proxy, shall constitute a quorum for purposes of
such class vote unless the representation of a different number of
shares of such class shall be required by law, by the Articles of
Incorporation or by these Bylaws.
Section
6. ORGANIZATION.
The Chief Executive Officer or, at the instance of the Chief
Executive Officer, the Chairman of the Board, shall call all
meetings of the stockholders to order, and shall preside over and
act as chairman of all such meetings. In the absence of the Chief
Executive Officer and the Chairman of the Board, the members of the
Board who are present shall elect a chairman of the meeting. The
Secretary or, in the Secretary's absence, an Assistant Secretary,
or in the absence of both the Secretary and Assistant Secretaries,
a person appointed by the chairman of the meeting shall serve as
secretary of the meeting. In the event that the Secretary presides
at a meeting of the stockholders, an Assistant Secretary shall
record the minutes of the meeting. It shall be the duty of the
Secretary of the Corporation to prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of
stockholders entitled to vote at such meeting, arranged in
alphabetical order and showing the address of each stockholder and
the number of shares registered in the name of each
stockholder.
2
Section
7. CONDUCT
OF MEETINGS. To the maximum
extent permitted by law, the Board shall be entitled to make such
rules or regulations for the conduct of meetings of stockholders as
it shall deem necessary, appropriate or convenient. Subject to such
rules and regulations of the Board, if any, the chairman of the
meeting shall have the right and authority to prescribe such rules,
regulations and procedures and take such action as, in the
discretion of such chairman, are deemed necessary, appropriate or
convenient for the proper conduct of the meeting. Such rules,
regulations and procedures, whether adopted by the Board or
prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) establishing an agenda for the
meeting and the order for the consideration of the items of
business on such agenda; (ii) restricting admission to the time set
for the commencement of the meeting; (iii) limiting attendance at
the meeting to stockholders of record of the Corporation entitled
to vote at the meeting, their duly authorized proxies or other such
persons as the chairman of the meeting may determine; (iv) limiting
participation at the meeting on any matter to stockholders of
record of the Corporation entitled to vote on such matter, their
duly authorized proxies or other such persons as the chairman of
the meeting may determine to recognize and, as a condition to
recognizing any such participant, requiring such participant to
provide the chairman of the meeting with evidence of his or her
name and affiliation, whether he or she is a stockholder or a proxy
for a stockholder, and the class and series and number of shares of
each class and series of capital stock of the Corporation which are
owned beneficially and/or of record by such stockholder; (v)
limiting the time allotted to questions or comments by
participants; (vi) determining when the polls should be opened and
closed for voting; (vii) taking such actions as are necessary or
appropriate to maintain order, decorum, safety and security at the
meeting; (viii) removing any stockholder who refuses to comply with
meeting procedures, rules or guidelines as established by the
chairman of the meeting; (ix) adjourning the meeting to a later
date, time and place announced at the meeting by the chairman; and
(x) complying with any state and local laws and regulations
concerning safety and security. Unless otherwise determined by the
chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
Section
8. VOTING.
At any meeting of stockholders, with respect to a matter for which
a stockholder is entitled to vote, each such stockholder shall be
entitled to one vote for each share it holds, except as otherwise
expressly provided by law or in the Articles of Incorporation. Each
stockholder may exercise such voting right either in person or by
proxy; provided, however, that no proxy shall be valid after the
expiration of eleven months from the date such proxy was authorized
unless otherwise provided in the proxy. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in the law of
the State of Nevada to support an irrevocable power. A stockholder
may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later
date with the Secretary of the Corporation. If a quorum is present,
and except as otherwise expressly provided by law or the Articles
of Incorporation and except with respect to the election of
directors, the affirmative vote of a majority of the shares of
stock represented at the meeting shall be the act of the
stockholders. Subject to the rights of the holders of any series of
preferred stock of the Corporation, directors shall be elected by a
plurality of the votes cast at a meeting of stockholders by the
stockholders entitled to vote in the election.
3
Shares
of the stock of the Corporation belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote
in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes.
Section
9. VOTING
PROCEDURES; INSPECTORS. The
Corporation may, in advance of any meeting of stockholders, appoint
one or more inspectors of election to act at the meeting and make a
written report thereof. Each inspector, before entering upon the
discharge of the duties of inspector, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of such person’s
ability. The inspectors shall (a) ascertain the number of shares
outstanding and the voting power of each; (b) determine the shares
represented at the meeting and the validity of proxies and ballots;
(c) count all votes and ballots; (d) determine and retain for a
reasonable period a record of the disposition of any challenges
made to any determination by them; and (e) certify their
determination of the number of shares represented at the meeting,
and their count of all votes and ballots.
Section
10. CONSENT
OF STOCKHOLDERS IN LIEU OF MEETING. Any action required or permitted to be taken by
the stockholders of the Corporation, or any action which may be
taken at a meeting of the stockholders, may be taken without a
meeting if a consent in writing, setting forth the actions so
taken, is signed by all the stockholders entitled to vote with
respect to the subject matter thereof. Such consent shall have the
same effect as a unanimous vote of stockholders, and may be stated
as such in any articles or documents filed with the Secretary of
the State of Nevada. The consent shall be delivered to the
Corporation by delivery to its registered office in the State of
Nevada, 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
Corporation’s registered office shall be made by hand or by
certified or registered mail, return receipt
requested.
Section
11. FIXING
OF RECORD DATE. For the purpose
of determining the stockholders entitled to notice of and to vote
at any meeting of stockholders, or to express consent to or dissent
from any proposal without a meeting, or for any other action, the
Board may fix a time not more than sixty (60) days prior to the
date of for any such determination of stockholders, nor, in the
case of a meeting of stockholders, less than fifteen (15) days
before the date of such meeting.
Section
12. ADVANCE
NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR
AND OTHER STOCKHOLDER PROPOSALS.
(a)
The
matters to be considered and brought before any meeting
of
stockholders of the Corporation, including the
nomination and election of directors, shall be limited to only
those matters that are brought properly before the meeting in
compliance with the procedures set forth in this
Section
12 of Article
II.
4
(b)
In order to be properly brought before any annual meeting of
stockholders, a matter must be (i) specified in the notice of
annual meeting (or any supplement thereto) given by or at the
direction of the Board, (ii) otherwise brought before the annual
meeting by or at the direction of the Board or (iii) properly and
timely brought before the annual meeting in compliance with the
notice procedures specified in this Section 12
of Article II
by a stockholder who holds of record
stock of the Corporation (or by a person who holds such stock
through a nominee or “street name” holder of record of
such stock and can demonstrate to the Corporation such indirect
ownership), both at the time of giving the notice provided for in
this Section 12
of Article II,
as of the record date for the annual
meeting and at the time of the annual meeting and is entitled to
vote at the meeting on such matter (including any election of
directors). In addition to any other requirements under applicable
law, the Articles of Incorporation and these Bylaws, persons
nominated by stockholders for election as directors of the
Corporation and any other proposals by stockholders shall be
properly brought before an annual meeting of stockholders only if
notice of any such matter to be presented by a stockholder at such
meeting (a “Stockholder
Notice”) is delivered to
the Secretary at the principal executive office of the Corporation
not less than ninety (90) nor more than one hundred and twenty
(120) days prior to the first anniversary date of the annual
meeting for the preceding year. If (and only if) an annual meeting
of stockholders is not scheduled to be held within a period that
commences thirty (30) days before and ends sixty (60) days after
such an anniversary date (an annual meeting date outside such
period being referred to herein as an “Other Meeting
Date”), the Stockholder
Notice shall be given in the manner provided in these Bylaws by the
later of (i) the close of business on the ninetieth (90th) day
prior to such Other Meeting Date or (ii) the close of business on
the tenth (10th) day following the date on which such Other Meeting
Date is first publicly announced or disclosed by the
Corporation.
(c) Any
stockholder who gives a Stockholder Notice of any matter
(including a nomination for director) proposed to be brought
before an annual meeting of stockholders shall deliver, as part of
the Stockholder Notice, the following: (i) the name and address of
such stockholder and any Stockholder Associated Person (as herein
defined); (ii) (A) the class or series and number of shares or
other securities of the Corporation that are, directly or
indirectly, owned of record or beneficially owned by such
stockholder and any Stockholder Associated Person, documentary
evidence of such record or beneficial ownership, and the date or
dates such shares were acquired and the investment intent at the
time such shares were acquired, (B) any option, warrant,
convertible security, stock appreciation right, or other right with
an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of securities
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,
whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of
the Corporation or otherwise (a “Derivative
Instrument”)
directly or indirectly owned beneficially by each such stockholder
or any Stockholder Associated Person and any other direct or
indirect right held by each such stockholder or any Stockholder
Associated Person to profit from, or share in any profit derived
from, any increase or decrease in the value of securities of the
Corporation, (C) any proxy, contract, arrangement, understanding,
or relationship pursuant to which such stockholder or any
Stockholder Associated Person has a right to vote any securities of
the Corporation, (D) any contract, arrangement, relationship or
understanding pursuant to which each such stockholder or any
Stockholder Associated Person has the opportunity, directly or
indirectly, to profit or share in any profit derived from any
decrease in the value of any security issued by the Corporation (a
“Short
Interest”), (E) any
rights to dividends on the shares of the Corporation owned
beneficially by such stockholder or any Stockholder Associated
Person that are separated or separable from the underlying
securities of the Corporation, (F) any proportionate interest in
securities of the Corporation or Derivative Instruments held,
directly or indirectly, by a general or limited partnership in
which such stockholder or any Stockholder Associated Person is a
general partner or, directly or indirectly, beneficially owns an
interest in a general partner, and (G) any performance-related fees
(other than an asset-based fee) that such stockholder or any
Stockholder Associated Person is entitled to based on any increase
or decrease in the value of securities 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 any Stockholder Associated
Person’s immediate family sharing the same household (which
information, in each case, shall be supplemented by such
stockholder and any Stockholder Associated Person not later than
ten (10) calendar days after the record date for the meeting to
disclose such ownership as of the record date); (iii) a description
of all arrangements or understandings between such stockholder
and/or any Stockholder Associated Person and any other person or
persons (naming such person or persons) in connection with the
proposal of such business by such stockholder; (iv) whether and the
extent to which any agreement, arrangement or understanding has
been made, the effect or intent of which is to increase or decrease
the voting power of such stockholder and/or any Stockholder
Associated Person with respect to any securities of the
Corporation, without regard to whether such transaction is required
to be reported on a Schedule 13D or other form in accordance with
Section 13(d) of the U.S. Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), or any successor
provisions thereto and the rules and regulations promulgated
thereunder; and (v) any other information relating to such
stockholder and/or any Stockholder Associated Person that would be
required to be disclosed in a proxy statement or other filing
required to be made in connection with solicitations of proxies or
consents by such stockholder and/or any Stockholder Associated
Person in support of any business or director nominations proposed
to be brought before the meeting pursuant to rules and regulations
promulgated under Section 14(a) of the Exchange Act or any
successor provisions (assuming, for purposes of the Stockholder
Notice, that such rules and regulations were applicable even if
they are not).
5
(d) For purposes of these Bylaws, a
“Stockholder Associated
Person”
shall mean with respect to any stockholder (A) any
person controlling or controlled by, directly or indirectly, under
common control with, or Acting in Concert with, such stockholder,
(B) any beneficial owner of securities of the Corporation owned of
record or beneficially by such stockholder, and (C) any person
controlling, controlled by or under common control with such
Stockholder Associated Person. For purposes of these Bylaws, a
person shall be deemed to be “Acting in
Concert” with another
person if such person knowingly acts (whether or not pursuant to an
express agreement, arrangement or understanding) in concert with,
or towards a common goal relating to the management, governance or
control of the Corporation in parallel with, such other person
where (A) each person is conscious of the other person’s
conduct or intent and this awareness is an element in their
decision-making processes and (B) at least one additional factor
suggests that such persons intend to act in concert or in parallel,
which such additional factors may include, without limitation,
exchanging information (whether publicly or privately and directly
or indirectly, including through counsel), attending meetings,
conducting discussions, or making or soliciting invitations to act
in concert or in parallel; provided, that a person shall not be deemed to be Acting
in Concert with any other person solely as a result of the
solicitation or receipt of revocable proxies from such other person
in response to a solicitation of proxies. A person Acting in
Concert with another person shall be deemed to be Acting in Concert
with any third party who is also Acting in Concert with such other
person.
(e)
Any stockholder who wishes to nominate a person for election as a
director of
the Corporation at an annual meeting of stockholders shall deliver,
as part of the Stockholder Notice, a statement in writing setting
forth (i) the name of each person to be nominated, (ii) the number
and class of all shares of stock of the Corporation each person
owns of record and beneficially, as reported to the stockholder by
the person, (iii) a description of all direct and indirect
agreements, arrangements and understandings between the stockholder
and/or any Stockholder Associated Person and each person being
proposed as a nominee (or any of his or her respective affiliates
and associates) and any other person or persons (naming such person
or persons) pursuant to which the nominations are to be made by the
stockholder, (iv) a description of all direct and indirect
compensation, indemnification and other material agreements,
arrangements, understandings or relationships between or among the
stockholder and/ or any Stockholder Associated Person and each
proposed nominee, his or her respective affiliates and associates
and any other persons (naming such person or persons) with whom
such proposed nominee (or any of his or her respective affiliates
and associates) is Acting in Concert (as herein defined),
including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 under Regulation S-K
(assuming, for purposes of the Stockholder Notice, that such rules
and regulations were applicable even if they are not) if such
stockholder were the “registrant” for purposes of such
rule and the proposed nominee were a director or executive officer
of such registrant, (v) the information regarding the person that
would be required to be included in a proxy statement, by the rules
and regulations of the U.S. Securities and Exchange Commission
(assuming, for purposes of the Stockholder Notice, that such rules
and regulations were applicable even if they are not), for a
nominee for election as a director in an election contest, (vi) the
person’s signed consent to being named in the proxy statement
as a nominee and to serving as a director if elected or re-elected,
as the case may be, as a director of the Corporation, and (vii) a
statement whether such stockholder or Stockholder Associated Person
intends or is part of a group that intends to solicit proxies from
stockholders in support of the election or re-election of such
nominee(s).
6
(f)
Any stockholder who gives a Stockholder Notice of any matter (other
than a
nomination for director) proposed to be brought before an annual
meeting of stockholders shall deliver, as part of the Stockholder
Notice, the following: (i) a description of the business desired to
be brought before the meeting, including the text of the proposal
or business and 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, (ii) a brief written statement of the
reasons why the stockholder favors the proposal, (iii) any material
interest of such stockholder in the matter proposed (other than as
a stockholder), if applicable, (iv) reasonably detailed description
of all agreements, arrangements, understandings and relationships
(A) between or among the stockholder and any Stockholder Associated
Person or (B) between or among the stockholder or any Stockholder
Associated Person and any other person or entity (including their
names) in connection with the proposal of such business by such
stockholder, including without limitation any agreements that would
be required to be disclosed pursuant to Item 5 or Item 6 of a
Schedule 13D that would be filed pursuant to the Exchange Act
(regardless of whether the requirement to file a Schedule 13D is
applicable to the stockholder or any Stockholder Associated Person
or other person or entity), and (v) a representation whether such
stockholder or any Stockholder Associated Person intends or is part
of a group that intends (A) to deliver a proxy statement and/or
form of proxy to the holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve
or adopt the proposal or (B) otherwise to solicit proxies from
stockholders in support of such proposal.
(g) As used in these Bylaws, shares
“beneficially
owned” shall mean all
shares which
a person is deemed to beneficially own pursuant to Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall in all
events be deemed to beneficially own any shares of any class or
series of the Corporation as to which such person has a right to
acquire beneficial ownership at any time in the
future.
(h)
If a stockholder is entitled to vote only for a specific class or
category of directors
at an annual or special meeting of stockholders, the
stockholder’s right to nominate a person for election as a
director at the meeting shall be limited to such class or category
of directors.
(i) Notwithstanding any provision of this
Section
12 of Article II
to the contrary,
in the event that the number of directors to be elected to the
Board at the next annual meeting of stockholders is increased by
virtue of an increase in the size of the Board and either all of
the nominees for director at the next annual meeting of
stockholders or the size of the increased Board is not publicly
announced or disclosed by the Corporation at least one hundred
(100) days prior to the first anniversary of the preceding
year’s annual meeting, a Stockholder Notice shall also be
considered timely hereunder, but only with respect to nominees to
stand for election at the next annual meeting as the result of any
new positions created by such increase, if it is delivered to the
Secretary at the principal place of business of the Corporation not
later than the close of business on the tenth (10th) day following
the first day on which all such nominees or the size of the
increased Board shall have been publicly announced or disclosed by
the Corporation.
7
(j)
Except as provided in the immediately following sentence, no matter
shall be properly brought before a special meeting of
stockholders unless the matter shall have been brought before the
meeting pursuant to the Corporation’s notice of such meeting.
In the event the Corporation calls a special meeting of
stockholders for the purpose of electing a director to the Board,
any stockholder entitled to vote for the election of such director
at such meeting may nominate a person for election to such position
as is specified in the notice of such meeting, but only if the
Stockholder Notice required by this Section 12
of Article II
shall be delivered to the Secretary of
the Corporation at the principal place of business of the
Corporation not later than the close of business on the tenth
(10th) day following the first day on which the date of the special
meeting and either the names of all nominees proposed by the Board
to be elected at such meeting or the number of directors to be
elected shall have been publicly announced or
disclosed.
(k)
A stockholder providing notice of any business proposed to be
conducted, or the nomination of one or more candidates for
election to the Board for consideration, at a meeting shall further
update and supplement such notice, if necessary, from time to time,
so that the information provided or required to be provided in such
notice pursuant to this Section 12
of Article II
shall be true and correct in all
material respects, and such update and supplement shall be received
by the Secretary of the Corporation not later than five (5)
Business days following the occurrence of any event, development or
occurrence which would cause the information provided to be not
true and correct in all material respects.
(l) If the information submitted pursuant to
this Section 12
of Article II
by any stockholder proposing business for consideration
at an annual or special meeting shall be or become inaccurate to
any material extent, such information may be deemed not to have
been provided in accordance with this Section 12
of Article
II. Upon written request by the
Secretary, the Board or any committee thereof, any stockholder
proposing business for consideration at an annual or special
meeting shall provide, within seven (7) business days of delivery
of such request (or such other period as may be specified in such
request), written verification, satisfactory in the discretion of
the Board, any committee thereof or any authorized officer of the
Corporation, to demonstrate the accuracy of any information
submitted by the stockholder pursuant to this Section 12
of Article
II. If a stockholder fails to
provide such written verification within such period, the
information as to which written verification was requested may be
deemed not to have been provided in accordance with this
Section
12 of Article
II.
(m) For purposes of this Section 12
of Article
II, a matter shall be deemed
to have
been “publicly announced or disclosed” if the matter is
disclosed in a press release reported by the (i) Dow Jones News
Service, the Associated Press or a comparable U.S. national news
service or (ii) in a document publicly filed by the Corporation
with the U.S. Securities and Exchange Commission.
(n)
In no event shall the adjournment of an annual meeting or a special
meeting of stockholders, or any announcement thereof,
commence a new period for the giving of notice as provided in
this Section 12
of Article II.
This Section 12
of Article II
shall not apply to any nomination of a
director in an election in which only the holders of a particular
class of stock of the Corporation (the holders of which may vote by
written consent under the Articles of Incorporation), or a series
thereof, are entitled to vote (unless otherwise provided in the
terms of such stock).
8
(o)
The chairman of any meeting of stockholders, 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 notice of nominees and other matters proposed to
be brought before a meeting have been duly given in the manner
provided in this Section 12
of Article II
and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall
not be considered.
(p) Notwithstanding the foregoing provisions of
this Section 12
of Article
II, unless otherwise required by law, if the
stockholder (or a qualified representative of the stockholder) does
not appear at the annual or special meeting of stockholders of the
Corporation to present a nomination or proposed business, such
nomination shall be disregarded and such proposed business shall
not be considered, notwithstanding that proxies in respect of such
vote may have been received by the Corporation. For purposes of
this Section 12
of Article
II, to be considered a
qualified representative of the stockholder, a person must be
authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
ARTICLE III DIRECTORS
Section
1. NUMBER
AND TERM OF OFFICE. The
affairs, business and property of the Corporation shall be managed
by a Board to consist of such number of directors as shall be fixed
from time to time by a resolution passed by a majority of the
entire Board. Except as otherwise provided by law or in
Section
3 of this Article
III, the directors of the
Corporation shall be elected at each annual meeting of
stockholders, to replace those directors whose terms expire at such
annual meeting. Except as otherwise provided in Section 1
of this Article
III, each Director shall be
elected to serve until the third succeeding annual meeting of
stockholders and until his or her successor shall have been duly
elected and qualified, except in the event of his or her death,
resignation, removal or the earlier termination of his or her term
of office. No decrease in the number of directors shall shorten the
term of any incumbent director. The directors need not be residents
of the State of Nevada or stockholders of the Corporation.
Corporations may, to the extent permitted by law, be elected or
appointed directors.
Section
2. REMOVAL.
Any or all of the directors may be removed, with cause, by the
affirmative vote of holders of eighty percent (80%) of the voting
power of all the outstanding shares of stock of the Corporation
entitled to vote generally in the election of directors, considered
for this purpose as a single class. Notwithstanding the previous
sentence, whenever any director shall have been elected by the
holders of any class of stock of the Corporation voting separately
as a class under the provisions of the Articles of Incorporation,
such director may be removed and the vacancy filled only by the
holders of eighty percent (80%) of the voting power of that class
of stock voting separately as a class. Except as provided in the
Articles of Incorporation, vacancies caused by any such removal or
any vacancy caused by the death or resignation of any director or
for any other reason, and any newly-created directorship resulting
from any increase in the authorized number of directors, may be
filled by, and only by, the affirmative vote of a majority of the
directors then in office, although less than a quorum, and any
director so elected to fill any such vacancy or newly created
directorship shall hold office until the director’s successor
is elected and qualified or until the director’s earlier
resignation or removal. No director may be removed without cause by
either the stockholders or the Board.
9
Section
3. VACANCIES.
Vacancies in the Board occurring by death, resignation, creation of
new directorship, failure of the stockholders to elect the whole
class of directors required to be elected at any annual election of
directors or for any other reason, including removal of directors
for cause, shall be filled only by the affirmative vote of a
majority of the remaining directors then in office, although less
than a quorum, at any special meeting called for that purpose or at
any regular meeting of the Board.
Section
4.
REGULAR
MEETINGS. Regular meetings of
the Board may be held at such time and place, within or without the
Marshall Islands, as may be determined by resolution of the Board.
No notice shall be required for any regular meeting. Except as
otherwise provided by law, any business may be transacted at any
regular meeting of the Board.
Section
5.
SPECIAL
MEETING. Special meetings of
the Board may be called from time
to time by the Chairman, the President, or any officer of the
Corporation who is also a director. The President or the Secretary
shall call a special meeting of the Board upon written request
directed to either of them by any two directors stating the time,
place and purpose of such special meeting. Special meetings of the
Board shall be held on a date and at such time and at such place,
within or without the Marshall Islands, as may be designated in the
notice thereof by the officer calling the meeting.
Section
6.
NOTICE
OF MEETINGS. Notice of the
date, time and place of each meeting of the Board shall be given to
each Director at least forty-eight (48) hours prior to such
meeting, unless the notice is given orally or delivered in person,
in which case it shall be given at least twenty-four (24) hours
prior to such meeting. For the purpose of this section, notice
shall be deemed to be duly given to a Director if given to him or
her personally (including by telephone) or if such notice be
delivered to such Director by mail, telecopy, electronic mail or
other electronic means to his or her last known address. Notice of
a meeting need not be given to any Director who submits a signed
waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior to the conclusion
thereof, the lack of notice to him or her.
Section
7. QUORUM.
Subject to the provisions of Section 3
of this Article
III, a majority of the
directors at the time in office (but, unless the Board shall
consist solely of one director, in no case less than one-third of
total number of directors nor less than two directors), present in
person or by proxy or communications equipment, shall constitute a
quorum for the transaction of business.
Section
8. ORGANIZATION.
The Chairman of the Board or, in the absence of the Chairman of the
Board, the Chief Executive Officer shall preside at all meetings of
the Board. In the absence of the Chairman of the Board and the
Chief Executive Officer, a Chairman shall be elected from among the
Directors present. The Secretary of the Corporation shall act as
secretary of all meetings of the directors. In the absence of the
Secretary of the Corporation, the Chairman may appoint any person
to act as secretary of the meeting.
10
Section
9.
INTERESTED
DIRECTORS. No contract or
transaction between the Corporation
and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or
other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the
meeting of the Board or committee thereof which authorizes the
contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (i) the material facts as
to his or her relationship or interest and as to the contract or
transaction are disclosed or are known to the Board or the
committee and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of
the disinterested directors, or, if the votes of the disinterested
directors are insufficient to constitute an act of the Board, by
unanimous vote of the disinterested directors; or (ii) the material
facts as to his or her relationship or interest and as to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or
ratified, by the Board, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee
which authorizes the contract or transaction.
Section
10.
VOTING.
The vote of the majority of the directors, present in person or by
proxy or by means of communications equipment, at a meeting at
which a quorum is present shall be the act of the directors. Unless
otherwise restricted by the Articles of Incorporation or by these
Bylaws, any action required or permitted to be taken at any meeting
of the Board, or of any committee thereof, may be taken without a
meeting if all members of the Board, as the case may be, consent
thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may
be.
Section 11.
COMPENSATION
OF
DIRECTORS AND
MEMBERS
OF
COMMITTEES.
Directors shall receive such compensation for their services as
directors and such reimbursement for their expenses of attendance
at meetings of the Board and its committees as may be determined
from time to time by resolution of the Board. Nothing herein
contained shall be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefore.
11
ARTICLE IV
COMMITTEES
The
Board may, by resolution or resolutions passed by a majority of the
entire Board, designate from among its members an executive
committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in said resolution or
resolutions, or in these Bylaws, shall have and may exercise, to
the extent permitted by law, the powers of the Board in the
management of the business and affairs of the Corporation, and may
have power to authorize the seal of the Corporation to be affixed
to all papers which may require it; provided, however, that no
committee shall have the power or authority to (i) submit to
stockholders of any action that requires stockholders’
approval by law, (ii) fill a vacancy in the Board or in a committee
thereof, (iii) fix compensation of the directors for serving on the
Board any other committee, (iv) amend or repeal any bylaw or adopt
any new bylaw, or (v) amend or repeal any resolution of the entire
Board which by its terms shall not be so amendable or repealable.
In addition, the Board may designate from among its members other
committees to consist of one or more of the directors of the
Corporation, each of which shall perform such functions and have
such authority and powers as shall be delegated to such committee
by said resolution or resolutions or as provided for in these
Bylaws subject to the prohibitions on the delegation of power and
authority set forth in the preceding sentence. Members of the
executive committee and any other committee shall hold office for
such period as may be prescribed by the vote of the entire Board,
subject, however, to removal at any time by the vote of the Board.
Vacancies in membership of such committees shall be filled by vote
of the Board. Committees may adopt their own rules of procedures
and may meet at stated times or on such notice as they may
determine. Each committee shall keep a record of its proceedings
and report the same to the Board when required.
ARTICLE V OFFICERS
Section
1. NUMBER
AND DESIGNATION. The officers
of the Corporation shall include a Chief Executive Officer and a
Secretary and may include a Chairman of the Board, one or more Vice
Chairmen of the Board, a President, a Treasurer, a Chief Financial
Officer, one or more Vice-Presidents and such other officers, if
any, as the Board may deem necessary. Officers may be of any
nationality and need not be residents of the Marshall Islands. The
officers shall be elected annually by the Board at its first
meeting following the annual election of directors, but in the
event of the failure of the Board to so elect any officer, such
officer may be elected at any subsequent meeting of the Board. The
salaries of officers and any other compensation paid to them shall
be fixed from time to time by the Board. The Board may at any
meeting elect additional officers. Each Officer shall hold office
at the pleasure of the Board and may hold more than one office. Any
officer may be removed by the Board at any time with or without
cause. Any vacancy in an office may be filled for the unexpired
position of the term of such office by the Board at any regular or
special meeting. In addition to the powers and duties of the
officers of the Corporation as set forth in these Bylaws, the
officers shall have such authority and shall perform such duties as
from time to time may be determined by the
Board.
12
Section
2. CHIEF
EXECUTIVE OFFICER. The Board
shall designate one of the officers of the Corporation to be the
Chief Executive Officer of the Corporation. Subject to the control
of the Board, the Chief Executive Officer shall have general charge
and control of all the business and affairs of the Corporation and
shall have all powers and shall perform all duties incident to the
position of Chief Executive Officer which may be required by law
and such other duties as are required by the Board. The Chief
Executive Officer shall make reports to the Board and to the
stockholders, and shall see that all orders and resolutions of the
Board and of any committee thereof are carried into effect. The
Chief Executive Officer shall have such other powers and perform
such other duties as may from time to time be assigned by these
Bylaws or by the Board.
Section
3. CHIEF
FINANCIAL OFFICER. The Board
may designate one of the officers of the Corporation to be the
Chief Financial Officer of the Corporation. Subject to the control
of the Board and the Chief Executive Officer, the Chief Financial
Officer shall have general charge and control of the financial
affairs of the Corporation and shall have all powers and shall
perform all duties incident to the position of Chief Financial
Officer. The Chief Financial Officer shall act in a general
executive capacity and assist the Chief Executive Officer in the
administration and operation of the Corporation’s financial
affairs. The Chief Financial Officer shall have such other powers
and perform such other duties as may from time to time be assigned
by these Bylaws or by the Board or the Chief Executive
Officer.
Section
4. CHAIRMAN
AND VICE CHAIRMEN OF THE BOARD.
The Board may elect a Chairman of the Board from among its members.
The Chairman of the Board shall preside at all meetings of the
Board and shall have all powers and may perform all duties incident
to the office of Chairman of the Board which shall be required by
law and shall have such other powers and perform such other duties
as shall from time to time be assigned by these Bylaws or by the
Board. The Board also may elect one or more Vice-Chairmen to act in
the place of the Chairman upon his or her absence or inability to
act.
Section
5.
THE
PRESIDENT AND VICE PRESIDENTS.
The Board may elect a President
and one or more Vice Presidents of the Corporation. Subject to the
control of the Board and the Chief Executive Officer, the President
and each Vice President shall have all powers and shall perform all
duties incident to their respective offices which may be required
by law and shall have such other powers and perform such other
duties as may from time to time be assigned by these Bylaws or by
the Board or the Chief Executive Officer.
Section
6.
SECRETARY.
The Board shall elect a Secretary who shall act as
Secretary
of all meetings of the stockholders and of the Board at which he or
she is present, shall have supervision over the giving and serving
of notices of the Corporation, shall be the custodian of the
corporate records of the corporate seal of the Corporation, shall
be empowered to affix the corporate seal to those documents, the
execution of which, on behalf of the Corporation under its seal, is
duly authorized and when so affixed may attest the same, and shall
exercise the powers and perform such other duties as may be
assigned to him or her by the Board or the President.
13
Section
7.
TREASURER.
The Board may elect a Treasurer who shall have general supervision
over the care and custody of the funds, securities, and other
valuable effects of the Corporation and shall deposit the same or
cause the same to be deposited in the name of the Corporation in
such depositories as the Board may designate, shall disburse the
funds of the Corporation as may be ordered by the Board, shall have
supervision over the accounts of all receipts and disbursements of
the Corporation, shall, whenever required by the Board, render or
cause to be rendered financial statements of the Corporation, shall
have the power and perform the duties usually incident to the
office of Treasurer, and shall have such powers and perform other
duties as may be assigned to him or her by the Board or
President.
Section
8. OTHER
OFFICERS. The Board may elect
other officers of the Corporation who may exercise such powers and
perform such duties as may be assigned to them by the Board or the
Chief Executive Officer.
Section
9. BOND.
The Board shall have power to the extent permitted by law to
require any officer, agent or employee of the Corporation to give
bond for the faithful discharge of his or her duties in such form
and with such surety as the Board may deem
advisable.
ARTICLE VI CERTIFICATES FOR SHARES
Section
1. FORM
AND ISSUANCE. The shares of the
Corporation shall be represented by certificates in form meeting
the requirements of law, and not inconsistent with the Articles of
Incorporation, and approved by the Board, unless the Board
provides, by resolution, that some or all shares of any or all
classes or series of stock shall be uncertificated. Certificates
shall be signed by the Chairman of the Board, the President or
Chief Executive Officer or a Vice President and by the Secretary or
any Assistant Secretary or the Treasurer or any Assistant
Treasurer. These signatures may be facsimiles if the certificate is
countersigned by a transfer agent or registered by a registrar
other than the Corporation itself or its
employee.
Section
2. TRANSFER.
The Board shall have power and authority to make such rules and
regulations as they may deem expedient concerning the issuance,
registration and transfer of certificates representing shares of
the Corporation’s stock, and may appoint transfer agents and
registrars thereof.
Section
3. LOSS
OF STOCK CERTIFICATES. The
Board may direct a new certificate of stock to be issued in place
of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate
of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board may, in its discretion
and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his
or her legal representative, to advertise the same in such manner
as it shall require and/or give the Corporation a bond in such sum
as it may direct indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to
have been lost or destroyed.
14
ARTICLE VII DIVIDENDS
Section
1. DECLARATION
AND FORM. Subject to the
provisions of the Articles of Incorporation, dividends may be
declared in conformity with applicable law by, and at the
discretion of, the Board at any regular or special meeting.
Dividends may be declared and paid in cash, stock or other property
of the Corporation.
Section
2. RECORD
DATE. The Board may fix a time
not exceeding sixty (60) days preceding the date fixed for the
payment of any dividend, the making of any distribution, the
allotment of any rights or the taking of any other action, as a
record time for the determination of the stockholders entitled to
receive any such dividend, distribution, or allotment or for the
purpose of such other action.
ARTICLE VIII INDEMNIFICATION
Section
1.
INDEMNIFICATION OF DIRECTORS AND OFFICERS IN THIRD
PARTY
PROCEEDINGS. Subject to the
other provisions of this Article
VIII, the Corporation shall
indemnify and hold harmless, to the fullest extent permitted by the
MBCA, as the same exists now or as it may be hereinafter amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to
provide prior to such amendment) any person (and the heirs,
executors, administrators and estate of such person) who was or is
a party or is threatened to be made a party to, or otherwise
becomes involved in, a Proceeding (as hereinafter defined), other
than an action by or in the right of the Corporation, by reason of
the fact that the person is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, partner,
manager, trustee or in any other capacity for another corporation,
partnership, joint venture, limited liability company, trust,
employee benefit plan or other enterprise, including service with
respect to employee benefit plans maintained or sponsored by the
Corporation (each, an “Other
Enterprise”), or by
reason of any action alleged to have been taken or omitted in such
capacity (hereinafter, each of the foregoing persons, a
“Covered Person”)
against any and all Expenses (as defined in Section 17
of this Article VIII)
actually and reasonably incurred by
such person or on his or her behalf in connection with such
Proceeding and any appeal therefrom, if the person acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
Section
2. INDEMNIFICATION
OF DIRECTORS AND OFFICERS IN ACTIONS
BY OR IN THE RIGHT OF THE CORPORATION. Subject to the other provisions of this
Article
VIII, the Corporation shall
indemnify and hold harmless, to the fullest extent permitted by the
NRS, any Covered Person who was or is a party or is threatened to
be made a party to, or otherwise becomes involved in, any
Proceeding, by or in the right of the Corporation to procure
judgment in its favor, against any and all Expenses (including
attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such
Proceeding, and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only
to the extent that the courts of the Marshall Islands or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the courts
of the Marshall Islands or such other court shall deem
proper.
15
Section
3. SUCCESSFUL
DEFENSE. To the extent that a
Covered Person has been successful on the merits or otherwise in
defense of any Proceeding described in Section 1
or Section 2
of this Article
VIII, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against Expenses (as defined in Section 17
of this Article
VIII) (including
attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
Section
4.
INDEMNIFICATION
OF EMPLOYEES AND AGENTS.
The
Corporation may, to the extent authorized from
time to time by the Board, provide rights to indemnification and to
the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article VIII
to directors and officers of the
Corporation to the extent not prohibited by the NRS or other
applicable law. The Board shall have the power to delegate the
determination of whether employees or agents shall be indemnified
to such person or persons as the Board
determines.
Section
5.
ADVANCE
PAYMENT OF EXPENSES.
(a)
Expenses (including attorneys’ fees) incurred by any Covered
Person in defending any Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding.
Such advances shall be paid by the Corporation within ten (10)
calendar days after the receipt by the Corporation of a statement
or statements from the claimant requesting such advance or advances
from time to time; provided, that if applicable law requires, the payment of
such expenses incurred by a Covered Person in his or her capacity
as a director or officer shall be made only upon delivery to the
Corporation of an undertaking in writing (the
“Undertaking”)
by or on behalf of such Covered Person to repay all amounts so
advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal (a
“final disposition”)
that such Covered Person is not entitled to be indemnified for such
expenses under this bylaw or otherwise. The Covered Person’s
undertaking to repay the Corporation any amounts advanced for
Expenses shall not be required to be secured and shall not bear
interest.
(b) Except as otherwise provided in the NRS or
this Section
5, the
Corporation shall
not impose on the Covered Person additional conditions to the
advancement of Expenses or require from the Covered Person
additional undertakings regarding repayment. Advancements of
Expenses shall be made without regard to the Covered Person’s
ability to repay the Expenses.
(c)
Advancements of Expenses pursuant to this subsection shall not
require approval of the Board or the stockholders of the
Corporation, or of any other person or body. The Secretary shall
promptly advise the Board in writing of the request for advancement
of Expenses, of the amount and other details of the request and of
the undertaking to make repayment provided pursuant to this
Section
5.
(d)
Advancements of Expenses to a Covered Person shall include any and
all reasonable
Expenses incurred pursuing an action to enforce this right of
advancement, including Expenses incurred preparing and forwarding
statements to the Corporation to support the advancements
claimed.
16
(e)
The right to advancement of Expenses shall not apply to (1) any
action, suit or proceeding against an agent brought by the
Corporation and approved by a majority of the authorized members of
the Board which alleges willful misappropriation of corporate
assets by such agent, wrongful disclosure of confidential
information, or any other willful and deliberate breach in bad
faith of such agent’s duty to the Corporation or its
stockholders, or (2) any claim for which indemnification is
excluded pursuant to these Bylaws including, but not limited
to, Section 6
hereof.
Section
6. LIMITATIONS
ON INDEMNIFICATION. Subject to
the requirements in Section 3
of this Article VIII
and the NRS, the Corporation shall not
be obligated to indemnify any person pursuant to this
Article
VIII in connection with any
Proceeding (or any part of any Proceeding):
(a)
for which payment has actually been made to or on behalf of such
person under
any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount
paid;
(b)
initiated by such person against the Corporation or its directors,
officers, employees, agents or other indemnitees, unless (1)
the Board authorized the Proceeding (or the relevant part of the
Proceeding) prior to its initiation, (2) the Corporation provides
the indemnification, in its sole discretion, pursuant to the powers
vested in the Corporation under applicable law, (3) otherwise
required to be made under Section 7
of this Article VIII
or (d) otherwise required by
applicable law; or
(c) if prohibited by applicable law;
provided,
however, that if any provision
or provisions of this Article VIII
shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of
this Article VIII
(including, without limitation, each
portion of any paragraph or clause containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent
possible, the provisions of this Article VIII
(including, without limitation, each
such portion of any paragraph or clause containing any such
provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or
unenforceable.
Section
7.
INDEMNIFICATION
CLAIMS; DETERMINATION.
(a) To obtain indemnification under this
Article
VIII, a Covered Person
shall submit to the Corporation a written request,
including therein or therewith such documentation and information
as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification, a determination (the “Determination”),
if required by applicable law, with respect to the claimant’s
entitlement thereto shall be made as follows: (i) by the Board by
majority vote of a quorum consisting of Disinterested Directors (as
defined in Section 17
of this Article
VIII); (ii) if such a quorum of
Disinterested Directors cannot be obtained, by majority vote of a
committee duly designated by the Board (in which all directors,
whether or not Disinterested Directors, may participate) consisting
solely of two or more Disinterested Directors; (iii) if such a
committee cannot be designated, by any Independent Counsel (as
defined in Section 17
of this Article
VIII) selected by the Board
prescribed in (i) above or by the committee of the Board prescribed
in (ii) above, in a written opinion to the Board, a copy of which
shall be delivered to the claimant; or if a quorum of the Board
cannot be obtained for (a) above and the committee cannot be
designated under (b) above, selected by majority vote of the full
Board (in which directors who are parties may participate); or (iv)
if such Independent Legal Counsel determination cannot be obtained,
by majority vote of a quorum consisting of stockholders who are not
parties to such Proceeding, or if no such quorum is obtainable, by
a majority vote of stockholders who are not parties to the
Proceeding. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within ten
(10) calendar days after such determination.
17
(b) If a claim for indemnification under this
Article
VIII is not paid in full
by the Corporation within thirty (30) calendar days
after a written claim pursuant to Section 7(a)
above has been received by the
Corporation, or (ii) if a request for advancement of Expenses under
this Article VIII
is not paid in full by the Corporation
within ten (10) calendar days after a statement pursuant to
Section
5 above and the required
Undertaking, if any, have been received by the Corporation, the
claimant may at any time thereafter bring suit against the
Corporation in a court of competent jurisdiction to recover the
unpaid amount of the claim for indemnification or request for
advancement of Expenses and, if successful in whole or in part, the
claimant shall be entitled to be paid also any and all Expenses
incurred in connection with prosecuting such claim. In any such
suit, the Corporation shall, to the fullest extent not prohibited
by law, have the burden of proving that the claimant is not
entitled to the requested indemnification or advancement of
Expenses. It shall be a defense to any such action that, under the
MBCA or other applicable law, the claimant has not met the standard
of conduct which makes it permissible for the Corporation to
indemnify the claimant for the amount claimed or that the claimant
is not entitled to the requested advancement of Expenses, but
(except where the required Undertaking, if any, has not been
tendered to the Corporation) the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Disinterested Directors, Independent Counsel or
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 under the MBCA or other
applicable law, nor an actual determination by the Corporation
(including its Disinterested Directors, Independent Counsel or
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.
(c)
The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause
to believe that the person’s conduct was
unlawful.
(d) If a Determination shall have been made pursuant
to Section 7(a)
above that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial
proceeding commenced pursuant to Section 7(b)
above.
(e)
The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to
Section
7(b) above that the procedures
and presumptions of this Bylaw are not valid, binding and
enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this
Bylaw.
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Section
8. PROCEDURES
FOR THE DETERMINATION OF WHETHER STANDARDS
HAVE BEEN SATISFIED.
(a) Costs.
All costs of making the Determination shall be borne solely by the
Corporation, including, but not limited to, the costs of legal
counsel, proxy solicitations and judicial determinations. The
Corporation shall also be solely responsible for paying (i) all
reasonable Expenses incurred by the indemnified person to enforce
the indemnification rights provided pursuant to this
Article
Eight, including, but not
limited to, the costs incurred by the indemnified person to obtain
court-ordered indemnification pursuant to Section 7
hereof regardless of the outcome of
any such application or Proceeding, and (ii) all costs of defending
any suits or Proceedings challenging payments to the indemnified
person under these Bylaws.
(b) Timing of the
Determination. The Corporation
shall use its best efforts to make the Determination contemplated by
Section
7 hereof
promptly.
(1) if
the Determination is to be made by the Board or a committee
thereof, such Determination shall be made not
later than fifteen (15) business days after a written request for a
Determination (a “Request”)
is delivered to the Corporation by the
Indemnitee;
(2) if
the Determination is to be made by Independent Counsel, such
Determination shall be made not later than thirty (30) days after a
Request is delivered to the Corporation by the indemnified person;
and
(3) if
the Determination is to be made by the stockholders of the
Corporation, such Determination shall be made not later than ninety
(90) days after a Request is delivered to the Corporation by the
indemnified person.
Section
9. CONTRACT
RIGHTS. All of the rights
conferred in this Article
VIII, as to indemnification,
advancement of Expenses and otherwise, shall be contract rights
between the Corporation and each indemnified person to whom such
rights are extended that vest at the commencement of such
indemnified person’s service to or at the request of the
Corporation and any repeal or modification thereof shall not affect
any right or obligation then existing with respect to any state of
facts then or previously existing or any action, suit, or
proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a contract
right may not be modified retroactively without the consent of such
indemnified person.
Section
10. NON-EXCLUSIVITY
OF RIGHTS. The rights to
indemnification and advancement of expenses provided by this
Article
VIII shall not be deemed
exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, insurance policy, vote of stockholders or
disinterested directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holding such office, and shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the
heirs, executors, administrators and estate of such a person. The
Corporation is specifically authorized to enter into an agreement
with any of its directors, officers, employees or agents providing
for indemnification and advancement of expenses, including
attorneys’ fees, that may change, enhance, qualify or limit
any right to indemnification or advancement of expenses created by
this Article
VIII, to the fullest extent not
prohibited by the MBCA or other applicable law.
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Section
11. SEVERABILITY.
If this Article VIII
or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each present or
former director or officer as to costs, charges and expenses
(including attorneys’ fees), judgment, fines and amounts paid
in settlement with respect to any Proceeding, including an action
by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Article VIII
that shall not have been invalidated
and to the fullest extent permitted by applicable
law.
Section
12. SUBROGATION.
In the event of payment of indemnification to a person described in
Section 1 of this Article
VIII, the Corporation shall be
subrogated to the extent of such payment to any right of recovery
such person may have and such person, as a condition of receiving
indemnification from the Corporation, shall execute all documents
and do all things that the Corporation may deem necessary or
desirable to perfect such right of recovery, including the
execution of such documents necessary to enable the Corporation
effectively to enforce any such recovery.
Section
13. NO
DUPLICATION OF PAYMENTS. The
Corporation shall not be liable under this Article VIII
to make any payment in connection with
any claim made against a person described in Section 1 of
this Article VIII
to the extent such person has
otherwise received payment (under any insurance policy, bylaw,
agreement or otherwise) of the amounts otherwise payable as
indemnity hereunder.
Section
14. INSURANCE.
The Corporation shall have the power to purchase and maintain, at
its expense, insurance to protect itself and any person who is or
was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, partner, member, manager, trustee, employee, agent or
other representative of an Other Enterprise against any expense,
liability or loss asserted against such person and incurred by such
person in any such capacity or arising out of such person’s
status as such whether or not the Corporation would have the power
to indemnify such person against such liability under applicable
law or under the provisions of these Bylaws. To the extent that the
Corporation maintains any policy or policies providing such
insurance, each such current or former director or officer, and
each such agent or employee to which rights to indemnification have
been granted as provided in this Article
VIII, shall be covered by such
policy or policies in accordance with its or their terms to the
maximum extent of the coverage thereunder for any such current or
former director, officer, employee or agent. The Corporation may
create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to insure the
payment of such sums as may become necessary to effect
indemnification as provided herein.
Section
15. NO
IMPUTATION. The knowledge
and/or actions, or failure to act, of any other officer, director,
employee or agent of the Corporation or an Other Enterprise shall
not be imputed to an indemnified person for purposes of determining
the right to indemnification under this Article
VIII.
Section
16. RELIANCE.
Persons who after the date of the adoption of Article VIII
serve or continue to serve the
Corporation in an Official Capacity or who, while serving in an
Official Capacity, serve or continue to serve in an Official
Capacity for an Other Enterprise, shall be conclusively presumed to
have relied on the rights to indemnification and advancement of
Expenses contained in this Article
VIII.
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Section 17. CERTAIN
DEFINITIONS.
(a) The term “agent”
includes a volunteer.
(b) The term “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, employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions
of this Article VIII
with respect to the resulting or
surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had
continued.
(c) The term “Disinterested
Director” means a
director of the Corporation who is
not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(d) The term “Expenses”
shall be broadly construed and shall include, without
limitation, all direct and indirect losses,
liabilities, expenses, including fees and expenses of attorneys,
fees and expenses of accountants, fees and expenses of public
relations consultants and other advisors, court costs, transcript
costs, fees and expenses of experts, witness fees and expenses,
travel expenses, printing and binding costs, telephone charges,
delivery service fees, the premium, security for, and other costs
relating to any bond (including cost bonds, appraisal bonds, or
their equivalents), judgments, fines (including excise taxes
assessed on a person with respect to an employee benefit plan) and
amounts paid in settlement and all other disbursements or expenses
of the types customarily incurred in connection with (i) the
investigation, prosecution, defense, appeal or settlement of a
Proceeding, (ii) serving as an actual or prospective witness, or
preparing to be a witness in a Proceeding, or other participation
in, or other preparation for, any Proceeding, (iii) any voluntary
or required interviews or depositions related to a Proceeding, and
(iv) responding to, or objecting to, a request to provide discovery
in any Proceeding. Expenses shall also include any federal, state,
local and foreign taxes imposed on such person as a result of the
actual or deemed receipt of any payments under this
Article
VIII.
(e) The term “Independent
Counsel” means a law
firm, a member of a law firm, or an independent practitioner, that is
experienced in matters of corporation law and shall include any
person who, under the applicable standards of professional conduct
then prevailing, would not have a conflict of interest in
representing either the corporation or the claimant in an action to
determine the claimant’s rights under this
Article
VIII.
(f) The term “Official
Capacity” shall mean
service as a director or officer of the
Corporation or service, at the request of the Corporation while
serving in an Official Capacity for the Corporation, as a director,
officer, partner, member, manager, trustee, employee, agent or
other representative of an Other Enterprise.
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(g) The term “Proceeding”
shall be broadly construed and shall include,
without
limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony
in, any threatened, pending or completed action, suit,
investigation, inquiry, hearing, arbitration, other alternative
dispute mechanism or any other proceeding, whether civil, criminal,
administrative, investigative, legislative or otherwise and whether
formal or informal.
(h)
The term “serving at the request of the Corporation”
includes any service as a
director, officer, employee, or agent of the Corporation that
imposes duties on such persons, including duties relating to an
employee benefit plan and its participants or
beneficiaries.
(i)
The term “not opposed to the best interest of the
Corporation” describes the actions
of a person who acts in good faith and in a manner he reasonably
believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
Section
18.
NOTICES.
Any notice, request or other communication required or permitted to
be given to the Corporation under this Article VIII
shall be in writing and either
delivered in person or sent by mail or other method of delivery, or
by e-mail or other electronic transmission, to the Secretary of the
Corporation and shall be effective only upon receipt by the
Secretary.
ARTICLE IX CORPORATE SEAL
Section
1.
FORM.
The Seal of the Corporation, if any, shall be circular in form,
with the name of the Corporation in the circumference and such
other appropriate legend as the Board may from time to time
determine.
ARTICLE X FISCAL YEAR
Section
1. FISCAL
YEAR. The fiscal year of the
Corporation shall be such period of twelve consecutive months as
the Board may by resolution designate from time to
time.
ARTICLE XI MISCELLANEOUS PROVISIONS
Section
1. CHECKS,
NOTES, ETC. All checks, drafts,
bills of exchange, acceptances, notes or other obligations or
orders for the payment of money shall be signed and, if so required
by the Board, countersigned by such officers of the Corporation and
other persons as the Board from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes, obligations
and orders for the payment of money made payable to the Corporation
may be endorsed for deposit to the credit of the Corporation with a
duly authorized depository by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Secretary, the Controller, any Assistant Controller and such other
officers or persons, if any, as the Board from time to time may
designate.
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Section
2. LOANS.
No loans and no renewals of any loans shall be contracted on behalf
of the Corporation except as authorized by the Board. When
authorized so to do, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust
company or other institution or from any firm, corporation or
individual, and for such loans and advances may make, execute and
deliver promissory notes, bonds or other evidences of indebtedness
of the Corporation. When authorized so to do, any officer or agent
of the Corporation may pledge, hypothecate or transfer, as security
for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and
other personal property at any time held by the Corporation, and to
that end may endorse, assign and deliver the same. Such authority
may be general or confined to specific
instances.
Section
3. CONTRACTS.
Except as otherwise provided by law or in these Bylaws or as
otherwise directed by the Board, the Chairman of the Board, the
President, any Vice President or the Treasurer shall be authorized
to execute and deliver, in the name and on behalf of the
Corporation, all agreements, bonds, contracts, deeds, mortgages,
security agreements and other instruments, either for the
Corporation’s own account or in a fiduciary or other
capacity, and the seal of the Corporation, if appropriate, shall be
affixed thereto by any of such officers or the Secretary or an
Assistant Secretary. The Board, the Chairman of the Board, any Vice
Chairman, the President or any Vice President designated by the
Board may authorize any other officer, employee or agent to execute
and deliver, in the name and on behalf of the Corporation,
agreements, bonds, contracts, deeds, mortgages, security agreements
and other instruments, either for the Corporation’s own
account or in a fiduciary or other capacity, and, if appropriate,
to affix the seal of the Corporation thereto. The grant of such
authority by the Board or any such officer may be general or
confined to specific instances.
Section
4. WAIVERS
OF NOTICE. Whenever any notice
whatever is required to be given by law, by the Articles of
Incorporation or by these Bylaws to any person or persons, a waiver
thereof in writing or by electronic transmission by the person
entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE XII AMENDMENTS
These Bylaws and any amendment thereof may be
altered, amended or repealed, or new bylaws may be adopted by (i)
the Board by resolution adopted by a majority of the total number
of authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time such resolution
is presented to the Board for adoption) acting at any special or
regular meeting of the Board if, in addition to any other notice
required by these Bylaws and other applicable requirements
contained herein, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting, which
notice shall also include, without limitation, the text of any such
proposed amendment and/or any resolution calling for any such
amendment, alteration or repeal, or (ii) the holders of two-thirds
(66 2/3%) or more of the outstanding stock of the Corporation
entitled to vote at any annual meeting or at any special
meeting, provided, in the case of any special meeting only, in
addition to any other notice required by these Bylaws and other
applicable requirements contained herein, notice of such amendment,
alteration or repeal is contained in the notice or waiver of notice
of such meeting, which notice shall also include, without
limitation, the text of any such proposed amendment and/or any
resolution calling for any such amendment, alteration or
repeal.
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