Attached files
Exhibit 3.2
BYLAWS OF LASER PHOTONICS CORPORATION
(A DELAWARE CORPORATION)
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ARTICLE I - CORPORATE OFFICES
1.1
REGISTERED OFFICE.
The
registered office of the Corporation shall be fixed in the
corporation's certificate of incorporation, as the same may be
amended from time to time.
1.2
OTHER OFFICES.
The
corporation's Board of Directors (the "Board") may at any time
establish branch or other offices at any place or places where the
corporation is qualified to do business.
ARTICLE II - MEETINGS OF STOCKHOLDERS
2.1
PLACE OF MEETINGS.
Meetings
of stockholders shall be held at any place, within or outside the
State of Delaware, designated by the Board. The Board may, in its
sole discretion, determine that a meeting of stockholders shall not
be held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211 of the General
Corporation Law of Delaware (the "DGCL"). In the absence of any
such designation or determination, stockholders' meetings shall be
held at the corporation's principal executive office.
2.2
ANNUAL MEETING.
The
annual meeting of stockholders shall be held each year. The Board
shall designate the date and time of the annual meeting. At the
annual meeting, directors shall be elected and any other proper
business may be transacted.
2.3
SPECIAL MEETING.
A
special meeting of the stockholders may be called at any time by
the Board, chairperson of the Board, chief executive officer or
president (in the absence of a chief executive officer), but such
special meetings may not be called by any other person or
persons.
No
business may be transacted at such special meeting other than the
business specified in such notice to stockholders. Nothing
contained in this paragraph of this Section 2.3 shall be construed
as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board may be
held.
2.4
ADVANCE NOTICE PROCEDURES; NOTICE OF STOCKHOLDERS'
MEETINGS.
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(i)
At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business
must be: (A) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors,
(B) otherwise properly brought before the meeting by or at the
direction of the board of directors, or (C) otherwise properly
brought before the meeting by a stockholder. 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 more than one hundred
twenty (120) calendar days nor less than ninety (90) calendar days
before the one year anniversary of the date on which the
corporation first mailed its proxy statement to stockholders in
connection with the previous year's annual meeting of stockholders;
provided, however, that in the event that no annual meeting was
held in the previous year or the date of the annual meeting has
been changed by more than thirty (30) days from the date of the
prior year's meeting, notice by the stockholder to be timely must
be so received not later than the close of business on the later of
one hundred twenty (120) calendar days in advance of such annual
meeting and ten (10) calendar days following the date on which
public announcement of the date of the meeting is first made. A
stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting:
(a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they
appear on the corporation's books, of the stockholder proposing
such business, (c) the class and number of shares of the
corporation that are beneficially owned by the stockholder, (d) any
material interest of the stockholder in such business, and (e) any
other information that is required to be provided by the
stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), in his
capacity as a proponent to a stockholder proposal. Notwithstanding
the foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required
by the regulations promulgated under the Exchange Act.
Notwithstanding anything in these bylaws to the contrary, no
business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this paragraph (i). The
chairman of the annual meeting shall, if the facts warrant,
determine and declare at the meeting that business was not properly
brought before the meeting and in accordance with the provisions of
this paragraph (i), and, if he should so determine, he shall so
declare at the meeting that any such business not properly brought
before the meeting shall not be transacted.
(ii)
Only persons who are nominated in accordance with the procedures
set forth in this paragraph (ii) shall be eligible for election as
directors. Nominations of persons for election to the board of
directors of the corporation may be made at a meeting of
stockholders by or at the direction of the board of directors or by
any stockholder of the corporation entitled to vote in the election
of directors at the meeting who complies with the notice procedures
set forth in this paragraph (ii). Such nominations, other than
those made by or at the direction of the board of directors, shall
be made pursuant to timely notice in writing to the secretary of
the corporation in accordance with the provisions of paragraph (i)
of this Section 2.4. Such stockholder's notice shall set forth (a)
as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director: (A) the name,
age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the class
and number of shares of the corporation that are beneficially owned
by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nominations are to be made by the stockholder, and (E)
any other information relating to such person that is required to
be disclosed in solicitations of proxies for elections of
directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (including without limitation
such person's written consent to being named in the proxy
statement, if any, as a nominee and to serving as a director if
elected); and (b) as to such stockholder giving notice, the
information required to be provided pursuant to paragraph (i) of
this Section 2.4. At the request of the board of directors, any
person nominated by a stockholder for election as a director shall
furnish to the secretary of the corporation that information
required to be set forth in the stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in
accordance with the procedures set forth in this paragraph (ii).
The chairman of the meeting shall, if the facts warrant, determine
and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these bylaws, and if
he should so determine, he shall so declare at the meeting, and the
defective nomination shall be disregarded.
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These
provisions shall not prevent the consideration and approval or
disapproval at an annual meeting of reports of officers, directors
and committees of the board of directors, but in connection
therewith no new business shall be acted upon at any such meeting
unless stated, filed and received as herein provided.
Notwithstanding anything in these bylaws to the contrary, no
business brought before a meeting by a stockholder shall be
conducted at an annual meeting except in accordance with procedures
set forth in this Section 2.4. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with
either Section 2.5 or Section 8.1 of these bylaws not less than 10
nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notice shall
specify the place, if any, date and hour of the meeting, the means
of remote communication, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
2.5
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Notice
of any meeting of stockholders shall be given either (i)
personally, (ii) by private courier, (iii) by first- or third-class
United States mail, (iv) by other written communication, or (v) by
electronic transmission as provided in Section 8.1 or other
wireless means. Notices not personally delivered shall be sent
postage prepaid, directed to the stockholder at his or her address
as it appears on the records of the Corporation or given by the
stockholder to the corporation for the purpose of notice. Notice
shall be deemed to have been given at the time when delivered
personally or by courier or deposited in the mail or sent by other
means of written communication or by electronic transmission or
other wireless means.
An
affidavit of the secretary or an assistant secretary of the
corporation or of the transfer agent or any other agent of the
corporation that the notice has been given by mail or by a form of
electronic transmission, as applicable, shall, in the absence of
fraud, be prima facie evidence of the facts stated
therein.
2.6
QUORUM.
The
holders of a majority of the stock issued and outstanding and
entitled to vote, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings
of the stockholders. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the
chairperson of the meeting, or (ii) the stockholders entitled to
vote at the meeting, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum
is present or represented, any business may be transacted that
might have been transacted at the meeting as originally
noticed.
2.7
ADJOURNED MEETING; NOTICE.
When
a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned
meeting if the time, place if any thereof, and the means of remote
communications, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
If the adjournment is for more than 30 days, or if after the
adjournment a new record 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.
2.8
CONDUCT OF BUSINESS.
The
chairperson of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of
business.
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2.9
VOTING.
The
stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of
these bylaws, subject to Section 217 (relating to voting rights of
fiduciaries, pledgors and joint owners of stock) and Section 218
(relating to voting trusts and other voting agreements) of the
DGCL.
Except
as may be otherwise provided in the certificate of incorporation or
these bylaws, each stockholder shall be entitled to one vote for
each share of capital stock held by such stockholder. Except as
otherwise provided by the DGCL or the certificate of incorporation,
when a quorum is present at any meeting of the stockholders, the
vote of the holders of a majority of the shares having voting power
present in person or represented by proxy shall decide any action
brought to vote before such meeting, other than the election of
directors for which the vote of a plurality of the shares having
voting power present in person or represented by proxy is required.
There shall be no cumulative voting in the election of
directors.
2.10
STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING.
Any
action required or permitted to be taken by the stockholders of the
corporation at a duly called annual or special meeting of
stockholders of the corporation may be effected by a consent in
writing by such stockholders.
2.11
RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING
CONSENTS.
In
order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which record date
shall not precede the date on which the resolution fixing the
record date is adopted and which shall not be more than sixty (60)
calendar days nor less than ten (10) calendar days before the date
of such meeting, nor more than sixty (60) calendar days prior to
any other such action.
If
the Board does not so fix a record date:
(i)
The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(ii)
The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
2.12
PROXIES.
Each
stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder as
proxy by executing an instrument in writing or by authorizing the
transmission of a telegram, cablegram or other means of electronic
transmission (provided that any such telegram, cablegram, or other
means of electronic transmission either sets forth or is submitted
with information from which it can be determined that the telegram,
cablegram, or other means of electronic transmission was authorized
by the person) and filed in accordance with the procedure
established for the meeting, but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy
provides for a longer period. The revocability of a proxy that
states on its face that it is irrevocable shall be governed by the
provisions of Section 212 of the DGCL.
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2.13
LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The
officer who has charge of the stock ledger of the corporation shall
prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the
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) calendar days prior to
the meeting: (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list
is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the corporation's principal executive office. In
the event that the corporation determines to make the list
available on an electronic network, the corporation may take
reasonable steps to ensure that such information is available only
to stockholders of the corporation. If the meeting is to be held at
a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to
be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic
network, and the information required to access such list shall be
provided with the notice of the meeting. Such list shall
presumptively determine the identity of the stockholders entitled
to vote at the meeting and the number of shares held by each of
them.
2.14
INSPECTORS OF ELECTION
Before
any meeting of stockholders, the board of directors shall appoint
an inspector or inspectors of election to act at the meeting or its
adjournment. The number of inspectors shall be either one (1) or
three (3). If any person appointed as inspector fails to appear or
fails or refuses to act, then the chairperson of the meeting may,
and upon the request of any stockholder or a stockholder's proxy
shall, appoint a person to fill that vacancy.
Such
inspectors shall:
(i)
determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect
of proxies;
(ii)
receive votes,
ballots or consents;
(iii)
hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(iv)
count and tabulate all votes or consents;
(v)
determine when the polls shall close;
(vi)
determine the result; and
(vii)
do any other acts that may be proper to conduct the election
or vote with fairness to all stockholders.
The
inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is
practical. If there are three (3) inspectors of election, the
decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. Any report or
certificate made by the inspectors of election is prima facie
evidence of the facts stated therein.
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ARTICLE III - DIRECTORS
3.1
POWERS.
Subject
to the provisions of the DGCL and any limitations in the
certificate of incorporation or these bylaws relating to action
required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the
direction of the Board.
3.2
NUMBER OF DIRECTORS.
The
authorized number of directors shall be determined from time to
time by resolution of the Board, provided the Board shall consist
of at least one member. No reduction of the authorized number of
directors shall have the effect of removing any director before
that director's term of office expires.
3.3
ELECTION, QUALIFICATION AND TERM OF OFFICE OF
DIRECTORS.
Except
as provided in Section 3.4 of these bylaws, each director,
including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until such
director's successor is elected and qualified or until such
director's earlier death, resignation or removal. Directors need
not be stockholders unless so required by the certificate of
incorporation or these bylaws. The certificate of incorporation or
these bylaws may prescribe other qualifications for
directors.
3.4
RESIGNATION AND VACANCIES.
Any
director may resign at any time upon notice given in writing or by
electronic transmission to the corporation. When one or more
directors so resigns and the resignation is effective at a future
date, a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen
shall hold office as provided in this section in the filling of
other vacancies.
Unless
otherwise provided in the certificate of incorporation or these
bylaws, vacancies, including vacancies resulting from the removal
of a director pursuant to Section 3.11 of these bylaws, and newly
created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining
director. If the directors are divided into classes, a person so
elected by the directors then in office to fill a vacancy or newly
created directorship shall hold office until the next election of
the class for which such director shall have been chosen and until
his or her successor shall have been duly elected and
qualified.
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 or guardian
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 in accordance with the provisions
of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an
election as provided in Section 211 of the DGCL.
3.5
PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
The
Board may hold meetings, both regular and special, either within or
outside the State of Delaware.
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, members of the Board, or any committee designated by the
Board, may participate in a meeting of the Board, or any committee,
by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute
presence in person at the meeting.
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3.6
REGULAR MEETINGS.
Regular
meetings of the Board may be held without notice at such time and
at such place as shall from time to time be determined by the
Board.
3.7
SPECIAL MEETINGS; NOTICE.
Special
meetings of the Board for any purpose or purposes may be called at
any time by the chairperson of the Board, the chief executive
officer, the president, the secretary or a majority of the
authorized number of directors.
Notice
of the time and place of special meetings shall be:
(i)
delivered
personally by hand, by courier or by telephone;
(ii)
sent
by United States first-class mail, postage prepaid;
(iii)
sent
by facsimile; or
(iv)
sent
by electronic mail, directed to each director at that director's
address, telephone number, facsimile number or electronic mail
address, as the case may be, as shown on the corporation's
records.
If
the notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail,
it shall be delivered or sent at least 24 hours before the time of
the holding of the meeting. If the notice is sent by United States
mail, it shall be deposited in the United States mail at least four
days before the time of the holding of the meeting. Any oral notice
may be communicated to the director. The notice need not specify
the place of the meeting (if the meeting is to be held at the
corporation's principal executive office) nor the purpose of the
meeting.
3.8
QUORUM.
At
all meetings of the Board, a majority of the authorized number of
directors shall constitute a quorum for the transaction of
business. The vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board,
except as may be otherwise specifically provided by statute, the
certificate of incorporation or these bylaws. If a quorum is not
present at any meeting of the Board, then the directors present
thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is
present.
A
meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required
quorum for that meeting.
3.9
BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting
of the Board, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may
be, consent thereto in writing or by electronic transmission and
the writing or writings or electronic transmission or transmissions
are filed with the minutes of proceedings of the Board or
committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
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3.10
FEES AND COMPENSATION OF DIRECTORS.
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, the Board shall have the authority to fix the compensation
of directors.
3.11
REMOVAL OF DIRECTORS.
Any
director may be removed from office at any special or annual
meeting of the shareholders by a majority of stockholders of the
Corporation.
No
reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such
director's term of office.
ARTICLE IV - COMMITTEES
4.1
COMMITTEES OF DIRECTORS.
The
Board may, by resolution passed by a majority of the authorized
number of directors, designate one or more committees, each
committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence
or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum,
may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the
Board or in these bylaws, shall have and may exercise all the
powers and authority of the Board in the management of the business
and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (i) approve or
adopt, or recommend to the stockholders, any action or matter
expressly required by the DGCL to be submitted to stockholders for
approval, or (ii) adopt, amend or repeal any bylaw of the
corporation.
4.2
COMMITTEE MINUTES.
Each
committee shall keep regular minutes of its meetings and report the
same to the Board when required.
4.3
MEETINGS AND ACTION OF COMMITTEES.
Meetings
and actions of committees shall be governed by, and held and taken
in accordance with, the provisions of:
(i)
Section
3.5 (place of meetings and meetings by telephone);
(ii)
Section
3.6 (regular meetings);
(iii)
Section
3.7 (special meetings and notice);
(iv)
Section
3.8 (quorum);
(v)
Section
3.9 (action without a meeting); and
(v
Section
7.12 (waiver of notice) with such changes in the context of those
bylaws as are necessary to substitute the committee and its members
for the Board and its members; provided, however:
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(i)
the
time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the
committee;
(ii)
special
meetings of committees may also be called by resolution of the
Board; and
(iii)
notice
of special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all meetings
of the committee. The Board may adopt rules for the governance of
any committee not inconsistent with the provisions of these
bylaws.
ARTICLE V - OFFICERS
5.1
OFFICERS.
The
officers of the corporation shall be a president and a secretary.
The corporation may also have, at the discretion of the Board, a
chairperson of the Board, a vice chairperson of the Board, a chief
executive officer, a chief financial officer or treasurer, one or
more vice presidents, one or more assistant vice presidents, one or
more assistant treasurers, one or more assistant secretaries, and
any such other officers as may be appointed in accordance with the
provisions of these bylaws. Any number of offices may be held by
the same person.
5.2
APPOINTMENT OF OFFICERS.
The
Board shall appoint the officers of the corporation, except such
officers as may be appointed in accordance with the provisions of
Sections 5.3 and 5.5 of these bylaws, subject to the rights, if
any, of an officer under any contract of employment.
5.3
SUBORDINATE OFFICERS.
The
Board may appoint, or empower the chief executive officer or, in
the absence of a chief executive officer, the president, to
appoint, such other officers and agents as the business of the
corporation may require. Each of such officers and agents shall
hold office for such period, have such authority, and perform such
duties as are provided in these bylaws or as the Board may from
time to time determine.
5.4
REMOVAL AND RESIGNATION OF OFFICERS.
Subject
to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without
cause, by an affirmative vote of the majority of the Board at any
regular or special meeting of the Board or, except in the case of
an officer chosen by the Board, by any officer upon whom such power
of removal may be conferred by the Board.
Any
officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation,
the acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer is
a party.
5.5
VACANCIES IN OFFICES.
Any
vacancy occurring in any office of the corporation shall be filled
by the Board or as provided in Section 5.2.
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5.6
REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The
chairperson of the Board, the president, any vice president, the
treasurer, the secretary or assistant secretary of this
corporation, or any other person authorized by the Board or the
president or a vice president, 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 granted
herein may be exercised either by such person directly or by any
other person authorized to do so by proxy or power of attorney duly
executed by such person having the authority.
5.7
CHAIRPERSON OF THE BOARD.
The
chairperson of the Board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise
such other powers and perform such other duties as may from time to
time be assigned to him by the board of directors or as may be
prescribed by these bylaws. If there is no chairperson of the
Board, then the chief executive officer of the corporation shall
have the powers and duties prescribed herein.
5.8
CHIEF EXECUTIVE OFFICER.
Subject
to such supervisory powers, if any, as may be given by the Board to
the chairperson of the Board, if there be such an officer, the
chief executive officer of the corporation shall, subject to the
control of the Board, have general supervision, direction and
control of the business and the officers of the corporation. He or
she shall preside at all meetings of the stockholders and, in the
absence or nonexistence of a chairperson of the Board, at all
meetings of the Board.
5.9
PRESIDENT.
Subject
to such supervisory powers, if any, as may be given by the Board to
the chief executive officer, if there be such an officer, the
president of the corporation shall, subject to the control of the
Board, have general supervision over the operations of the
corporation. He or she shall have the general powers and duties of
management usually vested in the office of president of a
corporation and shall have such other powers and perform such other
duties as may be prescribed by the Board or these
bylaws.
5.10
VICE PRESIDENTS.
In
the absence or disability of the president, and if there is no
chairperson of the Board, the vice presidents, if any, in order of
their rank as fixed by the Board or, if not ranked, a vice
president designated by the Board, shall perform all the duties of
the president and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the president. The vice
presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively
by the Board, these bylaws, the president or the chairperson of the
Board.
5.11
SECRETARY.
The
secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the
Board may direct, a book of minutes of all meetings and actions of
the Board, committees of directors and stockholders. The minutes
shall show the time and place of each meeting, whether regular or
special (and, if special, how authorized and the notice given), the
names of those present at directors' meetings or committee
meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The
secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the
corporation's transfer agent or registrar, as determined by
resolution of the Board, a share register or a duplicate share
register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, and, if
certificates have been issued, the number and date of certificates
evidencing such shares and the number and date of cancellation of
every certificate surrendered for cancellation.
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The
secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board required to be given by law or
by these bylaws. He or she shall keep the seal of the corporation,
if one be adopted, in safe custody and shall have such other powers
and perform such other duties as may be prescribed by the Board or
by these bylaws.
5.12
CHIEF FINANCIAL OFFICER.
The
chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings
and shares. The books of account shall at all reasonable times be
open to inspection by any director for a purpose reasonably related
to his position as a director.
The
chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such
depositaries as may be designated by the Board. He or she shall
disburse the funds of the corporation as may be ordered by the
Board, shall render to the president and directors, whenever they
request it, an account of all of his or her transactions as chief
financial officer and of the financial condition of the
corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board or these
bylaws.
5.13
AUTHORITY AND DUTIES OF OFFICERS.
In
addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such
duties in the management of the business of the corporation as may
be designated from time to time by the Board or the stockholders
and, to the extent not so provided, as generally pertain to their
respective offices, subject to the control of the
Board.
ARTICLE VI - RECORDS AND REPORTS
6.1
MAINTENANCE AND INSPECTION OF RECORDS.
The
corporation shall, either at its principal executive office or at
such place or places as designated by the Board, keep a record of
its stockholders listing their names and addresses and the number
and class of shares held by each stockholder, a copy of these
bylaws as amended to date, accounting books, and other
records.
Any
stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof,
have the right during the usual hours for business, at such
stockholder's expense, to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A
proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing that authorizes the attorney or
other agent so to act on behalf of the stockholder. The demand
under oath shall be directed to the corporation at its registered
office in Delaware or at its principal executive
office.
6.2
INSPECTION BY DIRECTORS.
Any
director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records
for a purpose reasonably related to his or her position as a
director. The Court of Chancery is hereby vested with the exclusive
jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the corporation to
permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or
award such other and further relief as the Court may deem just and
proper.
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ARTICLE VII - GENERAL MATTERS
7.1
EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.
The
Board, except as otherwise provided in these bylaws, may authorize
any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of
the corporation; such authority may be general or confined to
specific instances. Unless so authorized or ratified by the Board
or within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the corporation
by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
7.2
STOCK CERTIFICATES; PARTLY PAID SHARES.
The shares of the corporation shall be represented
by certificates, provided that the Board may provide by resolution
or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the
adoption of such a resolution by the Board, every holder of stock
represented by certificates shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairperson or
vice-chairperson of the Board, or the president or vice-president,
and by the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of such corporation representing the number
of shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate has ceased
to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar
at the date of issue. The
corporation also may issue paperless book-entry shares as a
pre-condition for inclusion in the DWAC/FAST and DRS Profile
systems offered by The Depository Trust & Clearing
Corporation.
The
corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to
be paid therefor. Upon the face or back of each stock certificate
issued to represent any such partly paid shares, or upon the books
and records of the corporation in the case of uncertificated partly
paid shares, the total amount of the consideration to be paid
therefor and the amount paid thereon shall be stated. Upon the
declaration of any dividend on fully paid shares, the corporation
shall declare a dividend upon partly paid shares of the same class,
but only upon the basis of the percentage of the consideration
actually paid thereon.
7.3
SPECIAL DESIGNATION ON CERTIFICATES.
If
the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the
designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the
DGCL, in lieu of the foregoing requirements there may be set forth
on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock a statement that
the corporation will furnish without charge to each stockholder who
so requests the powers, the designations, the preferences, and the
relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or
rights.
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7.4
LOST CERTIFICATES.
Except
as provided in this Section 7.4, no new certificates for shares
shall be issued to replace a previously issued certificate unless
the latter is surrendered to the corporation and cancelled at the
same time. The corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and
the corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to
give the corporation a bond sufficient to indemnify it against any
claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of
such new certificate or uncertificated shares.
7.5
CONSTRUCTION; DEFINITIONS.
Unless
the context requires otherwise, the general provisions, rules of
construction, and definitions in the DGCL shall govern the
construction of these bylaws. Without limiting the generality of
this provision, the singular number includes the plural, the plural
number includes the singular, and the term "person" includes both a
business entity and a natural person.
7.6
DIVIDENDS.
The
Board, subject to any restrictions contained in either (i) the
DGCL, or (ii) the certificate of incorporation, may declare and pay
dividends upon the shares of its capital stock. Dividends may be
paid in cash, in property, or in shares of the corporation's
capital stock.
The
Board may set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall
include but not be limited to equalizing dividends, repairing or
maintaining any property of the corporation, and meeting
contingencies.
7.7
FISCAL YEAR.
The
fiscal year of the corporation shall be fixed by resolution of the
Board and may be changed by the Board.
7.8
SEAL.
The
corporation may adopt a corporate seal, which shall be adopted and
which may be altered by the Board. The corporation may use the
corporate seal by causing it or a facsimile thereof to be impressed
or affixed or in any other manner reproduced.
7.9
TRANSFER OF STOCK.
To
the extent that certificates have been issued, upon surrender to
the corporation or the transfer agent of the corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it
shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record
the transaction in its books.
7.10
STOCK TRANSFER AGREEMENTS.
The
corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more
classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned
by such stockholders in any manner not prohibited by the
DGCL.
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7.11
REGISTERED STOCKHOLDERS.
The
corporation:
(i)
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends
and to vote as such owner;
(ii)
shall be entitled to hold liable for calls and assessments the
person registered on its books as the owner of shares;
and
(iii)
shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of another person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
7.12
WAIVER OF NOTICE.
Whenever
notice is required to be given under any provision of the DGCL, the
certificate of incorporation or these bylaws, a written waiver,
signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or
after the time of the event for which notice is to be given, shall
be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any
written waiver of notice or any waiver by electronic transmission
unless so required by the certificate of incorporation or these
bylaws.
7.13
FORUM FOR ADJUDICATING DISPUTES.
(a)
Unless the Corporation consents in writing to the selection of an
alternative forum, to the fullest extent permitted by law, the
Court of Chancery of the State of Delaware (or, if that court lacks
subject matter jurisdiction, another federal or state court
situated in the State of Delaware) shall be the sole and exclusive
forum for any stockholder (including a beneficial owner) to bring
(i) any derivative action or proceeding brought on behalf of the
Corporation, (ii) 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, (iii) any action asserting a claim against the
Corporation, its directors, officers or employees arising pursuant
to any provision of the DGCL, the certificate of incorporation or
these bylaws, or (iv) any action asserting a claim against the
Corporation, its directors, officers or employees governed by the
internal affairs doctrine. 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 7.13.
(b)
Unless the Corporation consents in writing to the selection of an
alternative forum, to the fullest extent permitted by law, the
federal district courts of the United States situated in the State
of Delaware shall be the exclusive forum for the resolution of any
complaint asserting a cause of action under the Securities Act of
1933 and the Securities Exchange Act of 1934. 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 7.13.
(c)
If any action the subject matter of which is within the scope of
Section 7.13(a) above is filed in a court other than a court
located within the State of Delaware (a “Foreign
Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (i) the personal jurisdiction
of the state and/or federal courts (as applicable) located within
the State of Delaware in connection with any action brought in any
such court to enforce Section 7.13(a) above (an “FSC
Enforcement Action”) and (ii) having service of process made
upon such stockholder in any such FSC Enforcement Action by service
upon such stockholder’s counsel in the Foreign Action as
agent for such stockholder.
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(d).
If any provision or provisions of this Section 7.13 shall be held
to be invalid, illegal or unenforceable as applied to any person or
entity or circumstance for any reason whatsoever, then, to the
fullest extent permitted by law, the validity, legality and
enforceability of such provisions in any other circumstance and of
the remaining provisions of this Section 7.13 (including, without
limitation, each portion of any sentence of this Section 7.13
containing any such provision held to be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or
unenforceable) and the application of such provision to other
persons or entities and circumstances shall not in any way be
affected or impaired thereby. 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 713.
ARTICLE VIII - NOTICE BY ELECTRONIC TRANSMISSION
8.1
NOTICE BY ELECTRONIC TRANSMISSION.
Without
limiting the manner by which notice otherwise may be given
effectively to stockholders pursuant to the DGCL, the certificate
of incorporation or these bylaws, any notice to stockholders given
by the corporation under any provision of the DGCL, the certificate
of incorporation or these bylaws shall be effective if given by a
form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the corporation. Any such
consent shall be deemed revoked if:
(i)
the
corporation is unable to deliver by electronic transmission two
consecutive notices given by the corporation in accordance with
such consent; and
(ii)
such
inability becomes known to the secretary or an assistant secretary
of the corporation or to the transfer agent, or other person
responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other
action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(i)
if
by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice;
(ii)
if
by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice;
(iii)
if
by a posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A)
such posting and (B) the giving of such separate notice;
and
(iv)
if
by any other form of electronic transmission, when directed to the
stockholder.
An
affidavit of the secretary or an assistant secretary or of the
transfer agent or other agent of the corporation that the notice
has been given by a form of electronic transmission shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein.
8.2
DEFINITION OF ELECTRONIC TRANSMISSION.
An
"electronic transmission" means any form of communication, not
directly involving the physical transmission of paper, that creates
a record that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper
form by such a recipient through an automated process.
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8.3
INAPPLICABILITY.
Notice
by a form of electronic transmission shall not apply to Sections
164, 296, 311, 312 or 324 of the DGCL.
ARTICLE IX - INDEMNIFICATION
9.1
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The
corporation shall indemnify and hold harmless, to the fullest
extent permitted by the DGCL as it presently exists or may
hereafter be amended, any director or officer of the corporation
who was or is made or is threatened to be made a party or otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding") by
reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation or is or was serving at the
written request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any such
Proceeding. The corporation shall be required to indemnify a person
in connection with a Proceeding initiated by such person only if
the Proceeding was authorized by the Board.
9.2
INDEMNIFICATION OF OTHERS
The
corporation may indemnify and hold harmless, to the extent
permitted by the DGCL as it presently exists or may hereafter be
amended, any employee or agent of the corporation who was or is
made or is threatened to be made a party or otherwise involved in
any Proceeding by reason of the fact that he or she is or was an
employee or agent of the corporation or is or was serving at the
written request of the corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture,
trust or enterprise against expenses actually and reasonably
incurred by such person in connection with any such
Proceeding.
9.3
PREPAYMENT OF EXPENSES
The
corporation shall pay the expenses incurred by any officer or
director of the corporation, and may pay the expenses incurred by
any employee or agent of the corporation, in defending any
Proceeding in advance of its final disposition; provided, however,
that the payment of expenses incurred by a person in advance of the
final disposition of the Proceeding shall be made only upon receipt
of an undertaking by the person to repay all amounts advanced if it
should be determined that the person is not entitled to be
indemnified under this Article IX or otherwise.
9.4
DETERMINATION; CLAIM
If
a claim for indemnification or payment of expenses under this
Article IX is not paid in full within sixty days after a written
claim therefor has been received by the corporation the claimant
may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim.
9.5
NON-EXCLUSIVITY OF RIGHTS
The
rights conferred on any person by this Article IX shall not be
exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the certificate
of incorporation, these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
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9.6
INSURANCE
The
corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify
him or her against such liability under the provisions of the
DGCL.
9.7
OTHER INDEMNIFICATION
The
corporation's obligation, if any, to indemnify any person who was
or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint
venture, trust, enterprise or non-profit entity shall be reduced by
any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or
non-profit enterprise.
9.8
AMENDMENT OR REPEAL
Any
repeal or modification of the foregoing provisions of this Article
IX shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE X - AMENDMENTS
These
bylaws may be adopted, amended or repealed by the board of
directors or a majority of the stockholders entitled to vote
thereon.
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