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STOCKHOLDERS
MEETINGS
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| 1. |
Time
and Place of Meetings.
All meetings of the stockholders for the election of the members
of the
Board of Directors (the “Directors”)
or for any other purpose will be held at such time and place, within
or
without the State of Delaware, as may be designated by the Board
of
Directors of the Company (the “Board”)
or, in the absence of a designation by the Board, the Chairman of
the
Board (the “Chairman”),
the Chief Executive Officer, the President or the Secretary, and
stated in
the notice of meeting. Notwithstanding the foregoing, the Board may,
in
its sole discretion, determine that meetings of the stockholders
shall not
be held at any place, but may instead be held by means of remote
communications, subject to such guidelines and procedures as the
Board may
adopt from time to time. The Board may postpone and reschedule any
previously scheduled annual or special meeting of the
stockholders.
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| 2. |
Annual
Meeting.
An annual meeting of the stockholders will be held at such date and
time
as may be designated from time to time by the Board, at which meeting
the
stockholders will elect by a plurality vote the Directors, and will
transact such other business as may properly be brought before the
meeting
in accordance with Bylaw 8.
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| 3. |
Special
Meetings.
Special meetings of the stockholders may be called only by (i) the
Chairman, (ii) the President or (iii) the Secretary within 10 calendar
days after receipt of the written request of a majority of the total
number of Directors that the Company would have if there were no
vacancies
(the “Whole
Board”).
Any such request by a majority of the Whole Board must be sent to
the
Chairman and the Secretary and must state the purpose or purposes
of the
proposed meeting. Special meetings of holders of the outstanding
Preferred
Stock of the Company (the “Preferred
Stock”),
if any, may be called in the manner and for the purposes provided
in the
applicable Preferred Stock Designation (as defined in the certificate
of
incorporation of the Company, as amended from time to time (the
“Certificate
of Incorporation”)).
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| 4. |
Notice
of Meetings.
Written notice of every meeting of the stockholders, stating the
place, if
any, date and time thereof, the means of remote communications, if
any, by
which stockholders and proxy holders may be deemed to be present
in person
and vote at such meeting, and, in the case of a special meeting,
the
purpose or purposes for which the meeting is called, will be given
not
less than 10 nor more than 60 calendar days before the date of the
meeting
to each stockholder of record entitled to vote at such meeting, except
as
otherwise provided herein or by law. When a meeting is adjourned
to
another place, date, or time, written notice need not be given of
the
adjourned meeting if the place, if any, date and time 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;
provided,
however,
that if the adjournment is for more than 30 calendar days, or if
after the
adjournment a new record date is fixed for the adjourned
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meeting,
written notice of the place, if any, date and time 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
must be given in conformity herewith. At any adjourned meeting, any
business may be transacted which properly could have been transacted
at
the original meeting.
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| 5. |
Inspectors
for Stockholder Meetings.
The Board may appoint one or more inspectors of election to act as
judges
of the voting and to determine those entitled to vote at any meeting
of
the stockholders, or any adjournment thereof, in advance of such
meeting.
The Board may designate one or more persons as alternate inspectors
to
replace any inspector who fails to act. If no inspector or alternate
is
able to act at a meeting of stockholders, the presiding officer of
the
meeting may appoint one or more substitute
inspectors.
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| 6. |
Quorum.
Except as otherwise provided by law or in a Preferred Stock Designation,
the holders of a majority of the stock issued and outstanding and
entitled
to vote thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the stockholders for the
transaction of business thereat. If, however, such quorum is not
present
or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy,
will
have the power to adjourn the meeting from time to time, without
notice
other than announcement at the meeting, until a quorum is present
or
represented.
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| 7. |
Voting;
Proxies.
Except as otherwise provided by law, by the Company’s Certificate of
Incorporation, or in a Preferred Stock Designation, each stockholder
will
be entitled at every meeting of the stockholders to one vote for
each
share of stock having voting power standing in the name of such
stockholder on the books of the Company on the record date for the
meeting
and such votes may be cast either in person or by proxy. Every proxy
must
be authorized in a manner permitted by Section 212 of the Delaware
General
Corporation Law (or any successor provision). Without affecting any
vote
previously taken, a stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person, by revoking
the
proxy by giving notice to the Secretary of the Company, or by a later
appointment of a proxy. The vote upon any question brought before
a
meeting of the stockholders may be by voice vote, unless otherwise
required by the Certificate of Incorporation or these Bylaws or unless
the
Chairman or the holders of a majority of the outstanding shares of
all
classes of stock entitled to vote thereon present in person or by
proxy at
such meeting otherwise determine. Every vote taken by written ballot
will
be counted by the inspectors of election. When a quorum is present
at any
meeting, the affirmative vote of the holders of a majority of the
stock
present in person or represented by proxy at the meeting and entitled
to
vote on the subject matter and which has actually been voted (the
“Voting
Stock”)
will be the act of the stockholders, except in the election of Directors
or as otherwise provided in these Bylaws, the Certificate of
Incorporation, a Preferred Stock Designation, or by
law.
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| 8. |
Order
of Business.
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(a)
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The
Chairman, or such other officer of the Company designated by a majority
of
the Whole Board, will call meetings of the stockholders to order
and will
act as presiding officer thereof. Unless otherwise determined by
the Board
prior to the meeting, the presiding officer of the meeting of the
stockholders will also determine the order of business and have the
authority in his or her sole discretion to regulate the conduct of
any
such meeting, including without limitation by imposing restrictions
on the
persons (other than stockholders of the Company or their duly appointed
proxies) that may attend any such stockholders’ meeting, by ascertaining
whether any stockholder or his proxy may be excluded from any meeting
of
the stockholders based upon any determination by the presiding officer,
in
his sole discretion, that any such person has disrupted or is likely
to
disrupt the proceedings thereat, and by determining the circumstances
in
which any person may make a statement or ask questions at any meeting
of
the stockholders.
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| (b) |
At
an annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the annual
meeting.
To be properly brought before an annual meeting, business must be
(i)
specified in the notice of the annual meeting (or any supplement
thereto)
given by or at the direction of the Board in accordance with Bylaw
4,
(ii) otherwise properly brought before the annual meeting by the
presiding
officer or by or at the direction of a majority of the Whole Board,
or
(iii) otherwise properly requested to be brought before the annual
meeting
by a stockholder of the Company in accordance with Bylaw
8(c).
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| (c) |
For
business to be properly requested by a stockholder to be brought
before an
annual meeting, (i) the stockholder must be a stockholder of the
Company
of record at the time of the giving of the notice for such annual
meeting
provided for in these Bylaws, (ii) the stockholder must be entitled
to
vote at such meeting, (iii) the stockholder must have given timely
notice
thereof in writing to the Secretary and (iv) if the stockholder,
or the
beneficial owner on whose behalf any business is brought before the
meeting, has provided the Company with a Proposal Solicitation Notice,
as
that term is defined in this Bylaw
8(c),
such stockholder or beneficial owner must have delivered a proxy
statement
and form of proxy to the holders of at the least the percentage of
shares
of the Company entitled to vote required to approve such business
that the
stockholder proposes to bring before the annual meeting and included
in
such materials. To be timely, a stockholder’s notice must be delivered to
or mailed and received at the principal executive offices of the
Company
not less than 60 nor more than 90 calendar days prior to the first
anniversary of the date on which the Company first mailed its proxy
materials for the preceding year’s annual meeting of stockholders;
provided,
however,
that if the date of the annual meeting is advanced more than 30 calendar
days prior to or
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delayed
by more than 30 calendar days after the anniversary of the preceding
year’s annual meeting, notice by the stockholder to be timely must be
so
delivered not later than the close of business on the later of the
90th
calendar day prior to such annual meeting or the 10th calendar day
following the day on which public disclosure of the date of such
meeting
is first made. In no event shall the public disclosure of an adjournment
of an annual meeting commence a new time period for the giving of
a
stockholder’s notice as described above. A stockholder’s notice to the
Secretary must set forth as to each matter the stockholder proposes
to
bring before the annual meeting (A) a description in reasonable detail
of
the business desired to 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 Company’s books, of the stockholder
proposing such business and the beneficial owner, if any, on whose
behalf
the proposal is made, (C) the class and series and number of shares
of
capital stock of the Company that are owned beneficially and of record
by
the stockholder proposing such business and by the beneficial owner,
if
any, on whose behalf the proposal is made, (D) a description of all
arrangements or understandings among such stockholder and any other
person
or persons (including their names) in connection with the proposal
of such
business by such stockholder and any material interest of such stockholder
in such business, (E) whether either such stockholder or beneficial
owner
intends to deliver a proxy statement and form of proxy to holders
of at
least the percentage of shares of the Company entitled to vote required
to
approve the proposal (an affirmative statement of such intent, a
“Proposal
Solicitation Notice”),
and (F) a representation that such stockholder intends to appear
in person
or by proxy at the annual meeting to bring such business before the
annual
meeting. Notwithstanding the foregoing provisions of this Bylaw
8(c),
a stockholder must also comply with all applicable requirements of
the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(the “Exchange
Act”)
with respect to matters set forth in this Bylaw
8(c).
For purposes of this Bylaw
8
and Bylaw 14,“public
disclosure”
means disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or
in a
document filed by the Company with the Securities and Exchange Commission
pursuant to the Exchange Act or furnished by the Company to stockholders.
Nothing in this Bylaw
8(c)
will be deemed to affect any rights of stockholders to request inclusion
of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
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| (d) |
At
a special meeting of stockholders, only such business may be conducted
or
considered as is properly brought before the meeting. To be properly
brought before a special meeting, business must be (i) specified
in the
notice of the meeting (or any supplement thereto) given by or at
the
direction of the Chairman, the President or a majority of the Whole
Board
in accordance with Bylaw 4
or (ii) otherwise properly brought before the
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meeting
by the presiding officer or by or at the direction of a majority
of the
Whole Board.
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| (e) |
The
determination of whether any business sought to be brought before
any
annual or special meeting of the stockholders is properly brought
before
such meeting in accordance with this Bylaw 8
will be made by the presiding officer of such meeting. If the presiding
officer determines that any business is not properly brought before
such
meeting, he or she will so declare to the meeting and any such business
will not be conducted or
considered.
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CONSENTS
OF STOCKHOLDERS
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| 9. |
Consent
of Stockholders in Lieu of Meeting.
Subject to the requirements of Bylaw 32 and unless otherwise provided
in the Certificate of Incorporation, any corporate action required
to be
taken at a meeting of the stockholders, or any other corporate action
which may be taken at a meeting of the stockholders, may be taken
without
a meeting, if a consent or consents in writing setting forth the
corporate
action to be so taken shall be signed by the holders of outstanding
stock
having not less than the minimum number of votes that would be necessary
to authorize or take such corporate action at a meeting at which
all
shares entitled to vote thereon were present and voted, and delivered
to
the Company’s registered office in the State of Delaware, to its principal
place of business or to any officer or agent of the Company having
custody
of the book in which proceedings of stockholders meetings are recorded,
in
each case addressed to the attention of the Secretary. Delivery shall
be
by hand or by certified or registered mail, return receipt requested.
The
Company shall give prompt notice of the taking of corporate action
without
a meeting by less than unanimous written consent to stockholders
who have
not consented in writing and who, if the corporate action had been
taken
at a meeting, would have been entitled to notice of the meeting if
the
record date for such meeting had been the date that written consents
signed by a sufficient number of stockholders to take the corporate
action
were delivered to the Company in the manner provided herein and in
the
Delaware General Corporation Law.
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| 10. |
Inspectors
for Consent of Stockholders in Lieu of Meeting.
The Board may appoint one or more inspectors of elections to perform
a
ministerial review, or act as judges, of the validity of written
consents
delivered in accordance with Bylaw 9 and any revocations thereof. No
corporate action by written consent without a meeting shall be effective
until such date as the inspectors certify to the Company that the
signed
written consents delivered to the Company in accordance with Bylaw 9
represent at least the minimum number of votes that would be necessary
to
authorize or take such corporate action at a meeting at which all
shares
entitled to vote thereon were present and
voted.
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DIRECTORS
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| 11. |
Function.
The business and affairs of the Company will be managed under the
direction of its Board.
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| 12. |
Number,
Election and Terms.
Subject to the rights, if any, of any series of Preferred Stock to
elect
additional Directors under circumstances specified in a Preferred
Stock
Designation, and to any minimum and maximum number of authorized
Directors
provided in the Certificate of Incorporation, the authorized number
of
Directors may be determined from time to time only by a vote of a
majority
of the Whole Board, but such number shall be no fewer than three
nor more
than nine.
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| 13. |
Vacancies
and Newly Created Directorships.
Subject to the rights, if any, of the holders of any series of Preferred
Stock to elect additional Directors under circumstances specified
in a
Preferred Stock Designation, newly created directorships resulting
from
any increase in the number of Directors and any vacancies on the
Board
resulting from death, resignation, disqualification, removal, or
other
cause will be filled solely by the affirmative vote of a majority
of the
remaining Directors then in office, even though less than a quorum
of the
Board, or by a sole remaining Director. Any Director elected in accordance
with the preceding sentence will hold office for the remainder of
the full
term of the class of Directors in which the new directorship was
created
or the vacancy occurred and until such Director’s successor is elected and
qualified. No decrease in the number of Directors constituting the
Board
will shorten the term of an incumbent
Director.
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| 14. |
Nominations
of Directors; Election.
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(a)
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Subject
to the rights, if any, of the holders of any series of Preferred
Stock to
elect additional Directors under circumstances specified
in a Preferred Stock Designation, only persons who are nominated
in
accordance with this Bylaw 14
will be eligible for election at a meeting of stockholders as Directors
of
the Company.
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| (b) |
Nominations
of persons for election as Directors of the Company may be made only
at an
annual meeting of stockholders (i) by or at the direction of the
Board or
a committee thereof or (ii) by any stockholder that is a stockholder
of
record at the time of giving of notice provided for in this Bylaw 14,
who is entitled to vote for the election of Directors at such annual
meeting, and who complies with the procedures set forth in this
Bylaw 14.
If a stockholder, or a beneficial owner on whose behalf any such
nomination is made, has provided the Company with a Nomination
Solicitation Notice, as that term is defined in this Bylaw
14
below, such stockholder or beneficial owner must have delivered a
proxy
statement and form of proxy to the holders of at least the percentage
of
shares of the Company entitled to vote required to approve such nomination
and
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included
in such materials the Nomination Solicitation Notice. All nominations
by
stockholders must be made pursuant to timely notice in proper written
form
to the Secretary.
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| (c) |
To
be timely, a stockholder’s notice must be delivered to or mailed and
received at the principal executive offices of the Company not less
than
60 nor more than 90 calendar days prior to the first anniversary
of the
date on which the Company first mailed its proxy materials for the
preceding year’s annual meeting of stockholders; provided,
however,
that if the date of the annual meeting is advanced more than 30 calendar
days prior to or delayed by more than 30 calendar days after the
anniversary of the preceding year’s annual meeting, notice by the
stockholder to be timely must be so delivered not later than the
close of
business on the later of the 90th calendar day prior to such annual
meeting or the 10th calendar day following the day on which public
disclosure of the date of such meeting is first made. In no event
shall
the public disclosure of an adjournment of an annual meeting commence
a
new time period for the giving of a stockholder’s notice as described
above. To be in proper written form, such stockholder’s notice must set
forth or include (i) the
name and address, as they appear on the Company’s books, of the
stockholder giving the notice and of the beneficial owner, if any,
on
whose behalf the nomination is made; (ii) a
representation that the stockholder giving the notice is a holder
of
record of stock of the Company entitled to vote at such annual meeting
and
intends to appear in person or by proxy at the annual meeting to
nominate
the person or persons specified in the notice; (iii) the
class and number of shares of stock of the Company owned beneficially
and
of record by the stockholder giving the notice and by the beneficial
owner, if any, on whose behalf the nomination is made; (iv)
a
description of all arrangements or understandings between or among
any of
(A) the
stockholder giving the notice, (B) the
beneficial owner on whose behalf the notice is given, (C)
each
nominee, and (D) any
other person or persons (naming such person or persons) pursuant
to which
the nomination or nominations are to be made by the stockholder giving
the
notice; (v) such
other information regarding each nominee proposed by the stockholder
giving the notice as would be required to be included in a proxy
statement
filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated,
by
the Board; (vi) the
signed consent of each nominee to serve as a Director of the Company
if so
elected; (vii) whether
either such stockholder or beneficial owner intends to deliver a
proxy
statement and form of proxy to holders of at least the percentage
of
shares of the Company entitled to vote required to elect such nominee
or
nominees (an affirmative statement of such intent, a “Nomination
Solicitation Notice”);
and (viii) a
representation that such stockholder intends to appear in person
or by
proxy at the meeting to nominate the persons named in the notice.
At the
request of the Board, any person nominated by the Board for election
as a
Director must furnish to the Secretary that information
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required
to be set forth in a stockholder’s notice of nomination that pertains to
the nominee. The presiding officer of any annual meeting will, if
the
facts warrant, determine that a nomination was not made in accordance
with
the procedures prescribed by this Bylaw
14,
and if he or she should so determine, he or she will so declare to
the
meeting and the defective nomination will be disregarded. Notwithstanding
the foregoing provisions of this Bylaw
14,
a stockholder must also comply with all applicable requirements of
the
Exchange Act with respect to the matters set forth in this
Bylaw 14.
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| 15. |
Resignation.
Any Director may resign at any time by giving notice in writing or
by
electronic transmission of his or her resignation to the Chairman
or the
Secretary. Any resignation will be effective upon actual receipt
by any
such person or, if later, as of the date and time specified in such
written notice.
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| 16. |
Regular
Meetings.
Regular meetings of the Board may be held immediately after the annual
meeting of the stockholders and at such other time and place either
within
or without the State of Delaware as may from time to time be determined
by
the Board. Notice of regular meetings of the Board need not be
given.
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| 17. |
Special
Meetings.
Special meetings of the Board may be called by the Chairman or the
President on one day’s notice to each Director by whom such notice is not
waived, given either personally or by mail, courier, telephone, facsimile,
or similar medium of communication, and will be called by the Chairman
or
the President, in like manner and on like notice, on the written
request
of a majority of the Whole Board. Special meetings of the Board may
be
held at such time and place either within or without the State of
Delaware
as is determined by the Board or specified in the notice of any such
meeting.
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| 18. |
Quorum.
At all meetings of the Board, a majority of the Whole Board will
constitute a quorum for the transaction of business. Except for the
designation of committees as hereinafter provided and except for
actions
required by these Bylaws or the Certificate of Incorporation to be
taken
by a majority of the Whole Board, the act of a majority of the Directors
present at any meeting at which there is a quorum will be the act
of the
Board. If a quorum is not present at any meeting of the Board, the
Directors present thereat may adjourn the meeting from time to time
to
another place, time, or date, without notice other than announcement
at
the meeting, until a quorum is
present.
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| 19. |
Participation
in Meetings by Remote Communications.
Members of the Board or any committee designated by the Board may
participate in a meeting of the Board or any such committee, as the
case
may be, by means of telephone conference or other means by which
all
persons participating in the meeting can hear each other, and such
participation in a meeting will constitute presence in person at
the
meeting.
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| 20. |
Committees.
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(a)
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The
Board, by resolution passed by a majority of the Whole Board, may
designate one or more committees. Each such committee will consist
of one
or more Directors and will have such lawfully delegable powers and
duties
as the Board may confer; provided,
however,
that no committee shall exercise any power or duty expressly required
by
the Delaware General Corporation Law, as it may be amended from time
to
time, to be acted upon by the Board. Any such committee designated
by the
Board will have such name as may be determined from time to time
by
resolution adopted by the Board.
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| (b) |
The
members of each committee of the Board will serve in such capacity
at the
pleasure of the Board or as may be specified in any resolution from
time
to time adopted by the Board. The Board may designate one or more
Directors as alternate members of any such committee, who may replace
any
absent or disqualified member at any meeting of such committee. In
lieu of
such designation by the Board, in the absence or disqualification
of any
member of a committee of the Board, the members thereof present at
any
such meeting of such committee and not disqualified from voting,
whether
or not they 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.
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| (c) |
Except
as otherwise provided in these Bylaws, by law or in any resolution
from
time to time adopted by the Board, any committee of the Board will
have
and may exercise all the powers and authority of the Board in the
direction of the management of the business and affairs of the Company.
Any such committee designated by the Board will have such name as
may be
determined from time to time by resolution adopted by the Board.
Unless
otherwise prescribed by the Board, meetings of any committee of the
Board
may be held in the same manner as provided in Bylaw
19
or by unanimous written consent in lieu of a meeting, a majority
of the
members of any such committee will constitute a quorum for the transaction
of business, and the act of a majority of the members present at
a meeting
at which there is a quorum will be the act of such committee. Each
committee of the Board may prescribe its own rules for calling and
holding
meetings and its method of procedure, subject to any rules prescribed
by
the Board, will keep minutes of its proceedings and all actions taken
by
it, and will report its proceedings to the Board when required or
when
requested by a Director to do so.
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| 21. |
Compensation.
The Board may establish the compensation for, and reimbursement of
the
expenses of, Directors for membership on the Board and on committees
of
the Board, attendance at meetings of the Board or committees of the
Board,
and for other services by Directors to the Company or any of its
majority-owned subsidiaries.
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| 22. |
Rules.
The Board may adopt rules and regulations for the conduct of meetings
and
the oversight of the management of the affairs of the
Company.
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NOTICES
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| 23. |
Generally.
Except as otherwise provided by law, these Bylaws, or the Certificate
of
Incorporation, whenever by law or under the provisions of the Certificate
of Incorporation or these Bylaws notice is required to be given to
any
Director or stockholder, it will not be construed to require personal
notice, but such notice may be given in writing, by mail or courier
service, addressed to such Director or stockholder, at the address
of such
Director or stockholder as it appears on the records of the Company,
with
postage thereon prepaid, and such notice will be deemed to be given
at the
time when the same is deposited in the United States mail. Notice
to
Directors may also be given by telephone, facsimile, electronic
transmission or similar medium of communication or as otherwise may
be
permitted by these Bylaws.
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| 24. |
Waivers.
Whenever any notice is required to be given by law or under the provisions
of the Certificate of Incorporation or these Bylaws, a waiver thereof
in
writing, signed by the person or persons entitled to such notice,
or a
waiver by electronic transmission by the person or persons entitled
to
such notice, whether before or after the time of the event for which
notice is to be given, will be deemed equivalent to such notice.
Attendance of a person at a meeting will 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.
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OFFICERS
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| 25. |
Generally.
The officers of the Company will be elected by the Board and will
consist
of a Chairman, a President, a Secretary and a Treasurer. The Board
may
also choose any or all of the following: one or more Vice Chairmen,
one or
more Assistants to the Chairman, one or more Vice Presidents (who
may be
given particular designations with respect to authority, function,
or
seniority), one or more Assistant Secretaries, one or more Assistant
Treasurers and such other officers as the Board may from time to
time
determine. Notwithstanding the foregoing, by specific action the
Board may
authorize the Chairman to appoint any person to any office
other than Chairman, Chief Executive Officer, President, Secretary
or
Treasurer. Any number of offices may be held by the same person.
Any of
the offices may be left vacant from time to time as the Board may
determine. In the case of the absence or disability of any officer
of the
Company or for any other reason deemed sufficient by a majority of
the
Board, the Board may delegate the absent or disabled officer’s powers or
duties to any other officer or to any
Director.
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| 26. |
Compensation.
The compensation of all officers and agents of the Company who are
also
Directors of the Company will be fixed by the Board or by a committee
of
the Board. The Board may fix, or delegate the power to fix, the
compensation of other officers and agents of the Company to an officer
of
the Company.
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| 27. |
Succession.
The officers of the Company will hold office until their successors
are
elected and qualified. Any officer may be removed at any time by
the
affirmative vote of a majority of the Whole Board. Any vacancy occurring
in any office of the Company may be filled by the Board or by the
Chairman
as provided in Bylaw
23.
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| 28. |
Authority
and Duties.
Each of the officers of the Company will have such authority and
will
perform such duties as are customarily incident to their respective
offices or as may be specified from time to time by the
Board.
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STOCK
|
| 29. |
Certificates.
Certificates representing shares of stock of the Company will be
in such
form as is determined by the Board, subject to applicable legal
requirements. Each such certificate will be numbered and its issuance
recorded in the books of the Company, and such certificate will exhibit
the holder’s name and the number of shares and will be mechanically signed
with a facsimile of the signature of the President or a Vice President,
and a facsimile of the signature of the Secretary or an Assistant
Secretary, and shall also be signed by, or bear the facsimile signature
of, a duly authorized officer or agent of any properly designated
transfer
agent of the Company. Any or all of the signatures and the seal of
the
Company, if any, upon such certificates may be facsimiles, engraved,
or
printed. Such certificates may be issued and delivered notwithstanding
that the person whose facsimile signature appears thereon may have
ceased
to be such officer at the time the certificates are issued and
delivered.
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| 30. |
Classes
of Stock.
The designations, powers, preferences and relative participating,
optional
or other special rights of the various classes of stock or series
thereof,
and the qualifications, limitations or restrictions thereof, will
be set
forth in full or summarized on the face or back of the certificates
which
the Company issues to represent its stock or, in lieu thereof, such
certificates will set forth the office of the Company from which
the
holders of certificates may obtain a copy of such information at
no
charge.
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| 31. |
Lost,
Stolen or Destroyed Certificates.
An executive officer or the Secretary may direct a new certificate
or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Company alleged to have been lost, stolen
or
destroyed, upon the making of an affidavit of that fact, satisfactory
to
such executive officer or the Secretary, by the person claiming
the
certificate of stock to be lost, stolen or destroyed. As a condition
precedent to the issuance of a new certificate or certificates,
such
executive officer or the Secretary may require
the owners of such lost, stolen or destroyed certificate or certificates
to advertise the
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|
alleged
loss, theft or destruction in such a manner as such executive officer
or
the Secretary may require, and/or to give the Company a bond in such
sum
and with such surety or sureties as such executive officer or the
Secretary may direct as indemnity against any claims that may be
made
against the Company with respect to the certificate alleged to have
been
lost, stolen or destroyed or the issuance of the new
certificate.
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| 32. |
Record
Dates.
|
| (a) |
In
order that the Company may determine the stockholders entitled to
notice
of or to vote at any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which will not be more than 60 nor
less
than 10 calendar days before the date of such meeting. If no record
date
is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders will
be at
the close of business on the calendar day next preceding the day
on which
notice is given, or, if notice is waived, at the close of business
on the
calendar day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled
to
notice of or to vote at a meeting of the stockholders will apply
to any
adjournment of the meeting; provided, however, that the Board may
fix a
new record date for the adjourned
meeting.
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| (b) |
In
order that the Company may determine the stockholders entitled to
consent
to corporate action in writing without a meeting, the Board may fix
a
record date, which record date shall not precede the date upon which
the
resolution fixing the record date is adopted by the Board, and which
date
shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board. Any stockholder of
record
seeking to have the stockholders authorize or take corporate action
by
written consent shall, by written notice to the Company, request
that the
Board fix a record date. Any such written notice shall be delivered
to the
Company in the same manner as signed written consents are required
to be
delivered pursuant to Bylaw 9. The Board shall promptly, but in all
events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has
been
fixed by the Board within 10 days of the date on which such a request
is
received, the record date for determining stockholders entitled to
consent
to corporate action in writing without a meeting, when no prior action
by
the Board is required by applicable law, shall be the first date
on which
a signed written consent setting forth the action taken or proposed
to be
taken is delivered to the Company in accordance with Bylaw 9. If no
record date has been fixed by the Board and prior action by the Board
is
required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting
shall
be at the close of business on the date on which the Board adopts
the
resolution taking such prior
action.
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| (c) |
In
order that the Company may determine the stockholders entitled to
receive
payment of any dividend or other distribution or allotment of any
rights
or the stockholders entitled to exercise any rights in respect of
any
change, conversion or exchange of stock, or for the purpose of any
other
lawful action, the Board may fix a record date, which record date
will not
be more than 60 calendar days prior to such action. If no record
date is
fixed, the record date for determining stockholders for any such
purpose
will be at the close of business on the calendar day on which the
Board
adopts the resolution relating
thereto.
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| (d) |
The
Company will be entitled to treat the person in whose name any share
of
its stock is registered as the owner thereof for all purposes, and
will
not be bound to recognize any equitable or other claim to, or interest
in,
such share on the part of any other person, whether or not the Company
has
notice thereof, except as expressly provided by applicable law. In
addition, subject to applicable legal requirements, the Company may
(by
action of the Whole Board) establish procedures for the verification
that
depositary or other holders of shares beneficially owned by others
have
been properly instructed with respect to the voting of such shares
and in
respect of the effect of changes in beneficial ownership on the validity
of proxies or consents.
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|
GENERAL
|
| 33. |
Contracts,
Checks, Etc.
All contracts, agreements, checks, drafts, notes, bonds, bills of
exchange
and orders for the payment of money shall be signed or endorsed by
the
persons whom the Board of Directors prescribes
therefor.
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| 34. |
Fiscal
Year.
The fiscal year of the Company shall commence on October 1 of each
year
and shall end the following September
30.
|
| 35. |
Seal.
The Board may adopt a corporate seal and use the same by causing
it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
|
| 36. |
Reliance
Upon Books, Reports and Records.
Each Director, each member of a committee designated by the Board,
and
each officer of the Company will, in the performance of his or her
duties,
be fully protected in relying in good faith upon the records of the
Company and upon such information, opinions, reports, or statements
presented to the Company by any of the Company’s officers or employees, or
committees of the Board, or by any other person or entity as
to matters the Director, committee member, or officer believes are
within
such other person’s professional or expert competence and who has been
selected with reasonable care by or on behalf of the
Company.
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| 37. |
Time
Periods.
In applying any provision of these Bylaws that requires that an
act be
performed or not be performed a specified number of days prior
to an event
or that an act be performed during a period of a specified number
of days
prior to an
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|
an
event, calendar days will be used unless otherwise specified, the
day of
the doing of the act will be excluded, and the day of the event will
be
included.
|
| 38. |
Amendments.
Except as otherwise provided by law or by the Certificate of Incorporation
or these Bylaws, these Bylaws or any of them may be amended in any
respect
or repealed at any time, either (i) at
any meeting of stockholders, provided that any amendment or supplement
proposed to be acted upon at any such meeting has been described
or
referred to in the notice of such meeting, or (ii) at
any meeting of the Board, provided that no amendment adopted by the
Board
may vary or conflict with any amendment adopted by the stockholders
in
accordance with the Certificate of Incorporation and these Bylaws.
Notwithstanding the foregoing and anything contained in these Bylaws
to
the contrary, Bylaws 1,
3,
8, 9,
10,
12,
13,
14,
32(b)
and 38
may not be amended or repealed by the stockholders, and no provision
inconsistent therewith may be adopted by the stockholders, without
the
affirmative vote of the holders of at least a majority of all classes
of
voting stock issued and
outstanding.
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| 39. |
Insurance.
The Company shall purchase and maintain insurance on behalf of any
person
who is a director or officer of the Company, or is a director or
officer
of the Company serving at the request of the Company as a director,
officer, employee
or agent of another company or of a partnership, joint venture, trust
or
other enterprise, against any expense, liability and loss asserted
against
and incurred or suffered by such person or on such person’s behalf in any
such capacity, or arising out of such person’s status as such, whether or
not the Company would have the power to indemnify such against such
liability under the provisions of the Certificate of Incorporation
or
applicable law, provided that such insurance is available on reasonably
acceptable terms as determined by (i) the executive officer(s) responsible
for purchasing or maintaining such insurance; or (ii) a vote of a
majority
of the Whole Board.
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| 40. |
Certificate
of Incorporation and Applicable Law.
These Bylaws are subject to the provisions of the Certificate of
Incorporation and applicable law.
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