AMENDED
AND RESTATED BYLAWS
OF
JDS
UNIPHASE CORPORATION
(formerly
Uniphase Corporation)
a
Delaware corporation
effective
as of November 15, 2007
ARTICLE
I
Offices
Section
1. Registered Office.
The
registered office of the corporation in the State of Delaware shall be in
the
City of Dover, County of Kent.
Section
2. Other Offices.
The
corporation shall also have and maintain an office or principal place of
business at 430 North McCarthy Boulevard, Milpitas, California 95035, and
may
also have offices at such other places, both within and without the State
of
Delaware as the Board of Directors may from time to time determine or the
business of the corporation may require.
ARTICLE
II
Stockholders'
Meetings
Section
1. Place of Meetings.
(a)
Meetings
of stockholders may be held at such place, either within or without this
State,
as may be designated by or in the manner provided in these Bylaws or, if
not so
designated, as determined by the Board of Directors. The Board of Directors
may,
in its sole discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by paragraph (b) of this Section 1.
(b)
If
authorized by the Board of Directors in its sole discretion, and subject
to such
guidelines and procedures as the Board of Directors may adopt, stockholders
and
proxyholders not physically present at a meeting of stockholders may, by
means
of remote communication:
(1)
Participate in a
meeting of stockholders; and
(2)
Be deemed present
in person and vote at a meeting of stockholders whether such meeting is to
be
held at a designated place or solely by means of remote communication, provided
that (A) the corporation shall implement reasonable measures to verify
1
that
each
person deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxyholder, (B) the corporation shall
implement reasonable measures to provide such stockholders and proxyholders
a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings,
and
(C) if any stockholder or proxyholder votes or takes other action at the
meeting
by means of remote communication, a record of such vote or other action shall
be
maintained by the corporation.
(c)
For
purposes of this Section 1, “remote communication” shall mean electronic mail or
other forms of written or visual electronic communication satisfying the
requirements of Section 11(b).
Section
2. Annual Meetings.
The
annual
meetings of the stockholders of the corporation, commencing with the year
1994,
for the purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such time as may
be
designated from time to time by the Board of Directors.
Section
3. Special Meetings.
Special
Meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by the Chairman of the Board or the Chief Executive Officer
or the
Board of Directors at any time, subject to the rights of the holders of any
stock having a preference over the common stock as to dividends or liquidation.
Stockholders are not permitted to call a special meeting or to require the
Board
of Directors to call a special meeting of stockholders.
Section
4. Notice of Meetings.
(a)
Except as
otherwise provided by law or the Certificate of Incorporation, written notice
of
each meeting of stockholders, specifying the place, if any, date and hour
and
purpose or purposes of the meeting, and the means of remote communication,
if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than ten nor more
than
sixty days before the date of the meeting to each stockholder entitled to
vote
thereat, directed to his address as it appears upon the books of the
corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than
twenty
nor more than sixty days prior to such meeting.
(b)
If at any
meeting action is proposed to be taken which, if taken, would entitle
stockholders fulfilling the requirements of Section 262(d) of the Delaware
General Corporation Law to an appraisal of the fair value of their shares,
the
notice of such meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory section.
2
(c)
When a
meeting is adjourned to another time or place, notice need not be given of
the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communication, if any, by which stockholders and proxyholders 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 unless the adjournment is for more
than thirty days, or unless after the adjournment a new record date is fixed
for
the adjourned meeting, in which event a notice of the adjourned meeting shall
be
given to each stockholder of record entitled to vote at the meeting.
(d)
Notice of
the time, place and purpose of any meeting of stockholders may be waived
in
writing, either before or after such meeting, and, to the extent permitted
by
law, will be waived by any stockholder by his attendance thereat, in person
or
by proxy. Any stockholder so waiving notice of such meeting shall be bound
by
the proceedings of any such meeting in all respects as if due notice thereof
had
been given.
(e)
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any
provision of this chapter, 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; provided, however, the inadvertent
failure
to treat such inability as a revocation shall not invalidate any meeting
or
other action. Notice given pursuant to this subparagraph (e) shall be deemed
given: (1) if by facsimile telecommunication, when directed to a number at
which
the stockholder has consented to receive notice; (2) if by electronic mail,
when
directed to an electronic mail address at which the stockholder has consented
to
receive notice; (3) 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 (4) 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. For purposes of these Bylaws, “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.
Section
5. Quorum and Voting.
(a)
At all
meetings of stockholders, except where otherwise provided by law, the
Certificate of Incorporation, or these Bylaws, the presence, in person or
by
proxy duly authorized, of the holders of a majority of the outstanding shares
of
stock entitled to vote shall constitute a quorum for the transaction of
business. Shares, the voting of which at said meeting have been enjoined,
or
which for any reason cannot be lawfully voted at such meeting, shall not
be
counted to determine a quorum at said meeting. In the absence of a quorum,
any
meeting of
3
stockholders
may be adjourned, from time to time, by vote of the holders of a majority
of the
shares represented thereat, but no other business shall be transacted at
such
meeting. At such adjourned meeting at which a quorum is present or represented
any business may be transacted which might have been transacted at the original
meeting. The stockholders present at a duly called or convened meeting, at
which
a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than
a
quorum.
(b)
Except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all
action taken by the holders of a majority of the voting power represented
at any
meeting at which a quorum is present shall be valid and binding upon the
corporation.
Section
6. Voting Rights.
(a)
Except as
otherwise provided by law, only persons in whose names shares entitled to
vote
stand on the stock records of the corporation on the record date for determining
the stockholders entitled to vote at said meeting shall be entitled to vote
at
such meeting. Shares standing in the names of two or more persons shall be
voted
or represented in accordance with the determination of the majority of such
persons, or, if only one of such persons is present in person or represented
by
proxy, such person shall have the right to vote such shares and such shares
shall be deemed to be represented for the purpose of determining a quorum.
(b)
Every
person entitled to vote or to execute consents shall have the right to do
so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent, which proxy shall be filed with
the
Secretary of the corporation at or before the meeting at which it is to be
used.
Said proxy so appointed need not be a stockholder. No proxy shall be voted
on
after three (3) years from its date unless the proxy provides for a longer
period. Unless and until voted, every proxy shall be revocable at the pleasure
of the person who executed it or of his legal representatives or assigns,
except
in those cases where an irrevocable proxy permitted by statute has been given.
(c)
Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection (b) of this section,
the
following shall constitute a valid means by which a stockholder may grant
such
authority:
(1)
A stockholder may
execute a writing authorizing another person or persons to act for him as
proxy.
Execution may be accomplished by the stockholder or his authorized officer,
director, employee or agent signing such writing or causing his or her signature
to be affixed to such writing by any reasonable means including, but not
limited
to, by facsimile signature.
(2)
A stockholder may
authorize another person or persons to act for him as proxy by transmitting
or
authorizing the transmission of a telephone, telegram, cablegram or other
means
of electronic transmission to the person who will be the holder of the proxy
or
to a proxy solicitation firm, proxy support service organization or like
agent
duly authorized by the person who will be the holder of the proxy to receive
such transmission, provided that any such
4
telephone
transmission, telegram, cablegram or other means of electronic transmission
must
either set forth or be submitted with information from which it can be
determined that the telephone transmission, telegram, cablegram or other
electronic transmission was authorized by the stockholder. Such authorization
can be established by the signature of the stockholder on the proxy, either
in
writing or by a signature stamp or facsimile signature, or by a number or
symbol
from which the identity of the stockholder can be determined, or by any other
procedure deemed appropriate by the inspectors or other persons making the
determination as to due authorization. If it is determined that such telephone
transmissions, telegrams, cablegrams or other electronic transmissions are
valid, the inspectors or, if there are no inspectors, such other persons
making
that determination shall specify the information upon which they relied.
(d)
Any copy,
facsimile telecommunication or other reliable reproduction of the writing
or
transmission created pursuant to subsection (c) of this Section may be
substituted or used in lieu of the original writing or transmission for any
and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction
shall
be a complete reproduction of the entire original writing or transmission.
Section
7. Voting Procedures and Inspectors of Elections.
(a)
The
corporation shall, in advance of any meeting of stockholders, appoint one
or
more inspectors to act at the meeting and make a written report thereof.
The
corporation 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 person presiding at the meeting shall appoint
one
or more inspectors to act at the meeting. Each inspector, before entering
upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best
of
his ability.
(b)
The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition
of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties
of
the inspectors.
(c)
The date
and time of the opening and the closing of the polls for each matter upon
which
the stockholders will vote at a meeting shall be announced at the meeting.
No
ballot, proxies or votes, nor any revocations thereof or changes thereto,
shall
be accepted by the Inspectors after the closing of the polls unless the Court
of
Chancery upon application by a stockholder shall determine otherwise.
(d)
In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
with
those proxies, any information provided in accordance with Section 212(c)(2)
of
the Delaware General Corporation Law, ballots and the regular books and records
of the corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies
5
and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized
by
the record owner to cast or more votes than the stockholder holds of record.
If
the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification
pursuant to subsection (b)(v) of this section shall specify the precise
information considered by them including the person or persons from whom
they
obtained the information, when the information was obtained, the means by
which
the information was obtained and the basis for the inspectors’ belief that such
information is accurate and reliable.
Section
8. List of Stockholders.
The
officer
who has charge of the stock ledger of the corporation shall prepare and make,
at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of and the number of shares registered in the name of
each
stockholder. Such list shall be open to the examination of any stockholder,
for
any purpose germane to the meeting, during ordinary business hours, for a
period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held and which place shall be specified in the
notice
of the meeting, or, if not specified, at the place where said meeting is
to be
held, and the list shall be produced and kept at the time and place of meeting
during the whole time thereof, and may be inspected by any stockholder who
is
present.
Section
9. Stockholder Proposals at Annual Meetings.
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 specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements 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 less than 30 days
nor
more than 60 days prior to the meeting; provided, however, that in the event
that less than 40 days’ notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting
was
mailed or such public disclosure was made. A stockholder’s notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (i) 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, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of the corporation
which are beneficially owned by the stockholder, and (iv) any material interest
of the stockholder in such business.
6
Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at
the
annual meeting except in accordance with the procedures set forth in Section
1
and this Section 9, provided, however, that nothing in this Section 9 shall
be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedure.
The
Chairman
of an annual meeting shall, if the facts warrant, determine and declare to
the
meeting that business was not properly brought before the meeting in accordance
with the provisions of Section 1 and this Section 9, and if he should so
determine he shall so declare to the meeting, and any such business not properly
brought before the meeting shall not be transacted.
Section
10. Nominations of Persons for Election to the Board of Directors.
In
addition
to any other applicable requirements, only persons who are nominated in
accordance with the following procedures 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, by any nominating committee or person appointed by
the
Board of Directors or by any stockholder of the corporation entitled to vote
for
the election of directors at the meeting who complies with the notice procedures
set forth in this Section 10. 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. To be timely, a stockholder’s
notice shall be delivered to or mailed and received at the principal executive
offices of the corporation not less than 30 days nor more than 60 days prior
to
the meeting; provided, however, that in the event that less than 40 days
notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received
not
later than the close of business on the 10th day following the day on which
such
notice of the date of the meeting was mailed or such public disclosure was
made.
Such stockholder’s notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director,
(i)
the name, age, business address and residence address of the person, (ii)
the
principal occupation or employment of the person, (iii) the class and number
of
shares of the corporation which are beneficially owned by the person, and
(iv)
any other information relating to the person that is required to be disclosed
in
solicitations for proxies for election of directors pursuant to Rule 14a
under
the Securities Exchange Act of 1934; and (b) as to the stockholder giving
the
notice, (i) the name and record address of the stockholder, and (ii) the
class
and number of shares of the corporation which are beneficially owned by the
stockholder. The corporation may require any proposed nominee to furnish
such
other information as may reasonably be required by the corporation to determine
the eligibility of such proposed nominee to serve as a director of the
corporation. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth
herein.
These provisions shall not apply to nomination of any persons entitled to
be
separately elected by holders of preferred stock.
The
Chairman
of the meeting shall, if the facts warrant, determine and declare to the
meeting
that a nomination was not made in accordance with the foregoing procedure,
and
if he
7
should
so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Section
11. Action Without Meeting.
(a)
Unless
otherwise provided in the Certificate of Incorporation, any action required
by
statute to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice
and
without a vote, if a consent or consents in writing setting forth the action
so
taken are signed by the holders of outstanding stock having not less than
the
minimum number of votes that would be necessary to authorize or take such
action
at a meeting at which all shares entitled to vote thereon were present and
voted. To be effective, a written consent must be delivered to the corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the corporation having custody of the
book
in which proceedings of meetings of stockholders are recorded. Delivery made
to
a corporation’s registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear the date
of
signature of each stockholder who signs the consent, and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent delivered in the manner required
by this Section to the corporation, written consents signed by a sufficient
number of holders to take action are delivered to the corporation in accordance
with this Section. Prompt notice of the taking of the corporate action without
a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
(b)
A
telegram, cablegram or other electronic transmission consent to an action
to be
taken and transmitted by a stockholder or proxyholder, or by a person or
persons
authorized to act for a stockholder or proxyholder, shall be deemed to be
written, signed and dated for the purposes of this Section, provided that
any
such telegram, cablegram or other electronic transmission sets forth or is
delivered with information from which the corporation can determine (i) that
the
telegram, cablegram or other electronic transmission was transmitted by the
stockholder or proxyholder or by a person or persons authorized to act for
the
stockholder or proxyholder, and (ii) the date on which such stockholder or
proxyholder or authorized person or persons transmitted such telegram, cablegram
or electronic transmission. The date on which such telegram, cablegram or
electronic transmission is transmitted shall be deemed to be the date on
which
such consent was signed. No consent given by telegram, cablegram or other
electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered
to the corporation by delivery to its registered office in this State, its
principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation’s registered office shall be made by
hand or by certified or registered mail, return receipt requested.
Notwithstanding the foregoing limitations on delivery, consents given by
telegram, cablegram or other electronic transmission may be otherwise delivered
to the principal place of business of the corporation or to an officer or
agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded if to the extent and in the manner provided
by
resolution of the Board of Directors of the corporation.
8
(c)
Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes
for
which the original writing could be used, provided that such copy, facsimile
or
other reproduction shall be a complete reproduction of the entire original
writing.
ARTICLE
III
Directors
Section
1. Number and Term of Office.
The
number of
directors which shall constitute the whole of the Board of Directors shall
be
nine (9). With the exception of the first Board of Directors, which shall
be
elected by the incorporators, and except as provided in Section 3 of this
Article III, the directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders annual meeting in
each
year and entitled to vote on the election of directors. Elected directors
shall
hold office until their successors shall be duly elected and qualified.
Directors need not be stockholders. If, for any cause, the Board of Directors
shall not have been elected at an annual meeting, they may be elected as
soon
thereafter as convenient at a special meeting of the stockholders called
for
that purpose in the manner provided in these Bylaws.
Section
2. Powers.
The
powers of
the corporation shall be exercised, its business conducted and its property
controlled by or under the direction of the Board of Directors.
Section
3. Vacancies.
Vacancies
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, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant, and until his successor shall have
been
duly elected and qualified. A vacancy in the Board of Directors shall be
deemed
to exist under this section in the case of the death, removal or resignation
of
any director, or if the stockholders fail at any meeting of stockholders
at
which directors are to be elected (including any meeting referred to in Section
4 below) to elect the number of directors then constituting the whole Board.
Section
4. Resignations and Removals.
(a)
Any
director may resign at any time by delivering his written resignation to
the
Secretary, such resignation to specify whether it will be effective at a
particular time, upon receipt by the Secretary or at the pleasure of the
Board
of Directors. If no such specification is made it shall be deemed effective
at
the pleasure of the Board of Directors. When one or more directors shall
resign
from the Board, 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,
9
the
vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office for the unexpired portion of the term of the director whose place
shall
be vacated and until his successor shall have been duly elected and qualified.
(b)
At a
special meeting of stockholders called for the purpose in the manner hereinabove
provided, the Board of Directors, or any individual director, may be removed
from office, with or without cause, and a new director or directors elected
by a
vote of stockholders holding a majority of the outstanding shares entitled
to
vote at an election of directors.
Section
5. Meetings.
(a)
The
annual meeting of the Board of Directors shall be held immediately after
the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the Chairman at such meeting. No notice of an annual
meeting of the Board of Directors shall be necessary and such meeting shall
be
held for the purpose of electing officers and transacting such other business
as
may lawfully come before it.
(b)
Except as
hereinafter otherwise provided, regular meetings of the Board of Directors
shall
be held in the office of the corporation required to be maintained pursuant
to
Section 2 of Article I hereof. Regular meetings of the Board of Directors
may
also be held at any place within or without the State of Delaware which has
been
designated by resolutions of the Board of Directors or the written consent
of
all directors.
(c)
Special
meetings of the Board of Directors may be held at any time and place within
or
without the State of Delaware whenever called by the Chairman of the Board
or,
if there is no Chairman of the Board, by the President, or by any of the
directors.
(d)
Written
notice of the time and place of all regular and special meetings of the Board
of
Directors shall be delivered personally to each director or sent by telegram
or
facsimile transmission at least 48 hours before the start of the meeting,
or
sent by first class mail at least 120 hours before the start of the meeting.
Notice of any meeting may be waived in writing at any time before or after
the
meeting and will be waived by any director by attendance thereat.
Section
6. Quorum and Voting.
(a)
A quorum
of the Board of Directors shall consist of a majority of the exact number
of
directors fixed from time to time in accordance with Section I of Article
III of
these Bylaws, but not less than one; provided, however, at any meeting whether
a
quorum be present or otherwise, a majority of the directors present may adjourn
from time to time until the time fixed for the next regular meeting of the
Board
of Directors, without notice other than by announcement at the meeting.
(b)
At each
meeting of the Board at which a quorum is present all questions and business
shall be determined by a vote of a majority of the directors present, unless
a
different vote be required by law, the Certificate of Incorporation, or these
Bylaws.
10
(c)
Any member of the
Board of Directors, or of any committee thereof, may participate in a meeting
by
means of conference telephone or similar communication equipment by means
of
which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person
at
such meeting.
(d)
The
transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though
had at
a meeting duly held after regular call and notice, if a quorum be present
and
if, either before or after the meeting, each of the directors not present
shall
sign a written waiver of notice, or a consent to holding such meeting, or
an
approval of the minutes thereof. All such waivers, consents or approvals
shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section
7. Action Without 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 of
Directors or of any committee thereof may be taken without a meeting, if
all
members of the Board or of such committee, as the case may be, consent thereto
in writing, and such writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section
8. Fees and Compensation.
Directors
and
members of committees may receive such compensation, if any, for their services,
and such reimbursement for expenses, as may be fixed or determined by resolution
of the Board of Directors.
Section
9. Committees.
(a)
Executive
Committee: The Board of Directors may, by resolution passed by a majority
of the
whole Board, appoint an Executive Committee of not less than one member,
each of
whom shall be a director. The Executive Committee, to the extent permitted
by
law, shall have and may exercise when the Board of Directors is not in session
all powers of the Board in the management of the business and affairs of
the
corporation, including, without limitation, the power and authority to declare
a
dividend or to authorize the issuance of stock, except such committee shall
not
have the power or authority to amend the Certificate of Incorporation, to
adopt
an agreement or merger or consolidation, to recommend to the stockholders
the
sale, lease or exchange of all or substantially all of the corporation’s
property and assets, to recommend to the stockholders of the Corporation
a
dissolution of the Corporation or a revocation of a dissolution, or to amend
these Bylaws.
(b)
Other
Committees: The Board of Directors may, by resolution passed by a majority
of
the whole Board, from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board of Directors
shall have such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committee, but in no event shall
any
such committee have the powers denied to the Executive Committee in these
Bylaws.
11
(c)
Term: The
members of all committees of the Board of Directors shall serve a term
coexistent with that of the Board of Directors which shall have appointed
such
committee. The Board, subject to the provisions of subsections (a) or (b)
of
this Section 9, may at any time increase or decrease the number of members
of a
committee or terminate the existence of a committee; provided, that no committee
shall consist of less than one member. The membership of a committee member
shall terminate on the date of his death or voluntary resignation, but the
Board
may at any time for any reason remove any individual committee member and
the
Board may fill any committee vacancy created by death, resignation, removal
or
increase in the number of members of the committee. The Board of Directors
may
designate one or more directors as alternate members of any committee, who
may
replace any absent or disqualified member at any meeting of the committee,
and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified
from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of
any such absent or disqualified member.
(d)
Meetings:
Unless the Board of Directors shall otherwise provide, regular meetings of
the
Executive Committee or any other committee appointed pursuant to this Section
9
shall be held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has been given
to
each member of such committee, no further notice of such regular meetings
need
be given thereafter; special meetings of any such committee may be held at
the
principal office of the corporation required to be maintained pursuant to
Section 2 of Article I hereof; or at any place which has been designated
from
time to time by resolution of such committee or by written consent of all
members thereof, and may be called by any director who is a member of such
committee, upon written notice to the members of such committee of the time
and
place of such special meeting given in the manner provided for the giving
of
written notice to members of the Board of Directors of the time and place
of
special meetings of the Board of Directors. Notice of any special meeting
of any
committee may be waived in writing at any time after the meeting and will
be
waived by any director by attendance thereat. A majority of the authorized
number of members of any such committee shall constitute a quorum for the
transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
ARTICLE
IV
Officers
Section
1. Officers Designated.
The
officers
of the corporation shall be a Chairman of the Board of Directors and a
President, each of whom shall be a member of the Board of Directors, and
one or
more Vice-Presidents, a Secretary, and a Treasurer. The order of the seniority
of the Vice Presidents shall be in the order of their nomination, unless
otherwise determined by the Board of Directors. The Board of Directors or
the
Chairman of the Board or the President may also appoint one or more assistant
secretaries, assistant treasurers, and such other officers and agents with
such
powers and
12
duties
as
it or he shall deem necessary. The Board of Directors may assign such additional
titles to one or more of the officers as they shall deem appropriate. Any
one
person may hold any number of offices of the corporation at any one time
unless
specifically prohibited therefrom by law. The salaries and other compensation
of
the officers of the corporation shall be fixed by or in the manner designated
by
the Board of Directors.
Section
2. Tenure and Duties of Officers.
(a)
General:
All officers shall hold office at the pleasure of the Board of Directors
and
until their successors shall have been duly elected and qualified, unless
sooner
removed. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any officer
becomes vacant for any reason, the vacancy may be filled by the Board of
Directors. Nothing in these Bylaws shall be construed as creating any kind
of
contractual right to employment with the corporation.
(b)
Duties of
the Chairman of the Board of Directors: The Chairman of the Board of Directors
(if there be such an officer appointed) shall preside at all meetings of
the
shareholders and the Board of Directors. The Chairman of the Board of Directors
shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(c)
Duties of
President: The President shall be the chief executive officer of the corporation
(unless the Board of Directors shall designate otherwise) and shall preside
at
all meetings of the shareholders and at all meetings of the Board of Directors,
unless the Chairman of the Board of Directors has been appointed and is present.
The President shall perform such other duties and have such other powers
as the
Board of Directors shall designate from time to time.
(d)
Duties of
Vice-Presidents: The Vice-Presidents, in the order of their seniority, may
assume and perform the duties of the President in the absence or disability
of
the President or whenever the office of the President is vacant. The
Vice-President shall perform such other duties and have such other powers
as the
Board of Directors or the President shall designate from time to time.
(e)
Duties of
Secretary: The Secretary shall attend all meetings of the shareholders and
of
the Board of Directors and any committee thereof, and shall record all acts
and
proceedings thereof in the minute book of the corporation. The Secretary
shall
give notice, in conformity with these Bylaws, of all meetings of the
shareholders, and of all meetings of the Board of Directors and any Committee
thereof requiring notice. The Secretary shall perform such other duties and
have
such other powers as the Board of Directors shall designate from time to
time.
The President may direct any Assistant Secretary to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and
each
Assistant Secretary shall perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
(f)
Duties of
Treasurer: The Treasurer shall keep or cause to be kept the books of account
of
the corporation in a thorough and proper manner, and shall render statements
of
the
13
financial
affairs of the corporation in such form and as often as required by the Board
of
Directors or the President. The Treasurer, subject to the order of the Board
of
Directors, shall have the custody of all funds and securities of the
corporation. The Treasurer shall perform all other duties commonly incident
to
his office and shall perform such other duties and have such other powers
as the
Board of Directors or the President shall designate from time to time. The
President may direct any Assistant Treasurer to assume and perform the duties
of
the Treasurer in the absence or disability of the Treasurer, and each Assistant
Treasurer shall perform such other duties and have such other powers as the
Board of Directors or the President shall designate from time to time. At
the
election of the Board of Directors, the duties of Treasurer shall be performed
by a Vice President designated by the Board of Directors to perform financial
functions.
ARTICLE
V
Execution
of Corporate Instruments, and
Voting
of Securities Owned by the Corporation
Section
1. Execution of Corporate Instruments.
(a)
The Board
of Directors may, in its discretion, determine the method and designate the
signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b)
Unless
otherwise specifically determined by the Board of Directors or otherwise
required by law, formal contracts of the corporation, promissory notes, deeds
of
trust, mortgages and other evidences of indebtedness of the corporation,
and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any Assistant Secretary
or
Assistant Treasurer. All other instruments and documents requiring the corporate
signature, but not requiring the corporate seal, may be executed as aforesaid
or
in such other manner as may be directed by the Board of Directors.
(c)
All
checks and drafts drawn on banks or other depositaries on funds to the credit
of
the corporation, or in special accounts of the corporation, shall be signed
by
such person or persons as the Board of Directors shall authorize so to do.
Section
2. Voting of Securities Owned by Corporation.
All
stock and
other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do
by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or
by the
President, or by any Vice-President.
14
ARTICLE
VI
Shares
of Stock
Section
1. Form and Execution of Certificates.
The
shares of capital stock of the corporation shall be represented by a
certificate, unless and until the Board of Directors of the corporation adopts
a
resolution permitting shares to be uncertificated. Notwithstanding the adoption
of any such resolution providing for uncertificated shares, every holder
of
capital stock of the corporation theretofore represented by certificates
and,
upon request, every holder of uncertificated shares, shall be entitled to
have a
certificate for shares of capital stock of the corporation signed by, or
in the
name of the corporation by, the Chairman of the Board (if there be such an
officer appointed), or by the President or any Vice- President and by the
Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the corporation. 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 shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued with
the
same effect as if he were such officer, transfer agent, or registrar at the
date
of issue. Certificates for the shares of stock of the corporation shall be
in
such form as is consistent with the Certificate of Incorporation and applicable
law. If the corporation shall be authorized to issue more than one class
of
stock or more than one series of any class, the powers, designations,
preferences and 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 or otherwise noted in the
case
of an uncertificated share which the corporation shall issue to represent
such
class or series of stock or otherwise noted in the case of an uncertificated
share, provided that, except as otherwise provided in section 202 of the
Delaware General Corporation Law, in lieu of the foregoing requirements,
there
may be set forth on the face or back of the certificate which 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, designations, preferences and 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.
Section
2. Lost Certificates.
The
Board
of Directors may direct a new certificate or certificates to be issued in
place
of any certificate or certificates theretofore issued by the corporation
alleged
to have been lost or destroyed, upon the making of an affidavit of that fact
by
the person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to indemnify the corporation in
such
manner as it shall require and/or to give the corporation a surety bond in
such
form and amount as it may direct as indemnity against any claim that may
be made
against the corporation with respect to the certificate alleged to have been
lost or destroyed.
15
Section
3. Transfers.
Transfers
of stock shall be made on the books of the corporation, and in the case of
certificated shares of stock, only by the holder thereof, in person or by
attorney duly authorized, and upon the surrender of a certificate or
certificates, properly endorsed for transfer and payment of all necessary
transfer taxes; or, in the case of uncertificated shares of stock, upon receipt
of proper transfer instructions from the registered holder of the shares
or by
such person’s attorney lawfully constituted in writing, and upon payment of all
necessary transfer taxes and compliance with appropriate procedures for
transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required
in any case in which the officers of the corporation shall determine to waive
such requirement. With respect to certificated shares of stock, every
certificate exchanged, returned or surrendered to the corporation shall be
marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant
Secretary of the corporation or the transfer agent thereof. No transfer of
stock
shall be valid as against the corporation for any purpose until it shall
have
been entered in the stock records of the corporation by an entry showing
from
and to whom transferred.
Section
4. Fixing Record Dates.
(a)
In order
that the corporation may determine the stockholders entitled to notice of
or to
vote at any meeting of stockholders or any adjournment thereof, the Board
of
Directors may fix a record date, which record date shall not precede the
date
upon which the resolution fixing the record date is adopted by the Board
of
Directors, and which record date shall not be more than sixty nor less than
ten
days before the date of such meeting. If no record date is fixed by the Board
of
Directors, the record date for determining stockholders entitled to 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 date on which the meeting
is
held. A determination of stockholders of record entitled notice of or to
vote at
a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date
for the
adjourned meeting.
(b)
In order
that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may
fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If
no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required
by
the Delaware General Corporation 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 corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders
are
recorded. Delivery made to a corporation’s registered office shall be by hand or
by certified or registered mail, return receipt requested. If no record date
has
been fixed by the Board of Directors and prior action by the Board of
16
Directors
is required by 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 day on which the Board of Directors adopts the resolution
taking such prior action.
(c)
In order
that the corporation 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 of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action.
If
no record date is
fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the
day
on which the Board of Directors adopts the resolution relating thereto.
Section
5. Registered Stockholders.
The
corporation 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, and shall not be bound to recognize any equitable or other
claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE
VII
Other
Securities of the Corporation
All
bonds,
debentures and other corporate securities of the corporation, other than
stock
certificates, may be signed by the Chairman of the Board (if there be such
an
officer appointed), or the President or any Vice- President or such other
person
as may be authorized by the Board of Directors and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Treasurer or
an
Assistant Treasurer; provided, however, that where any such bond, debenture
or
other corporate security shall be authenticated by the manual signature of
a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing
and
attesting the corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer
or an
Assistant Treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon or before the bond, debenture or other corporate security
so signed or attested shall have been delivered, such bond, debenture or
other
corporate security nevertheless may be adopted by the corporation and issued
and
delivered as though the person who signed the same or whose facsimile signature
shall have been used thereon had not ceased to be such officer of the
corporation.
17
ARTICLE
VIII
Corporate
Seal
The
corporate
seal shall consist of a die bearing the name of the corporation and the
state
and date of its incorporation. Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE
IX
Indemnification
of
Officers,
Directors, Employees and Agents
Section
1. Right to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened, pending,
or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereinafter a “Proceeding”), by reason of the fact that he, or
a person of whom he is the legal representative, 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
or
of a partnership, joint venture, trust, or other enterprise, including service
with respect to employee benefit plans, whether the basis of the Proceeding
is
alleged action in an official capacity as a director, officer, employee,
or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an “Agent”), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but,
in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal,
state,
local, or foreign taxes imposed on any Agent as a result of the actual or
deemed
receipt of any payments under this Article) reasonably incurred or suffered
by
such person in connection with investigating, defending, being a witness
in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter “Expenses”); provided, however, that except as
to actions to enforce indemnification rights pursuant to Section 3 of this
Article, the corporation shall indemnify any Agent seeking indemnification
in
connection with a Proceeding (or part thereof) initiated by such person only
if
the Proceeding (or part thereof) was authorized by the Board of Directors
of the
corporation. The right to indemnification conferred in this Article shall
be a
contract right.
Section
2. Authority to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final
disposition of such
18
Proceeding,
provided, however, that if required by
the Delaware General Corporation Law, as amended, such Expenses shall be
advanced only upon delivery to the corporation of an undertaking by or on
behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this Article or otherwise. Expenses incurred by other Agents
of
the corporation (or by the directors or officers not acting in their capacity
as
such, including service with respect to employee benefit plans) may be advanced
upon such terms and conditions as the Board of Directors deems appropriate.
Any
obligation to reimburse the corporation for Expense advances shall be unsecured
and no interest shall be charged thereon.
Section
3. Right of Claimant to Bring Suit.
If
a claim
under Section 1 or 2 of this Article is not paid in full by the corporation
within 120 days after a written claim has been received by the corporation,
the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part,
the claimant shall be entitled to be paid also the expense (including attorneys’
fees) of prosecuting such claim. It shall be a defense to any such action
(other
than an action brought to enforce a claim for expenses incurred in defending
a
Proceeding in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the claimant has not met the
standards of conduct that make it permissible under the Delaware General
Corporation Law for the corporation to indemnify the claimant for the amount
claimed. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of
the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor
an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant had not
met
such applicable standard of conduct, shall be a defense to the action or
create
a presumption that claimant has not met the applicable standard of conduct.
Section
4. Provisions Nonexclusive.
The
rights
conferred on any person by this Article shall not be exclusive of any other
rights that such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such office.
To the
extent that any provision of the Certificate, agreement, or vote of the
stockholders or disinterested directors is inconsistent with these bylaws,
the
provision, agreement, or vote shall take precedence.
Section
5. Authority to Insure.
The
corporation may purchase and maintain insurance to protect itself and any
Agent
against any Expense, whether or not the corporation would have the power
to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
19
Section
6. Survival of Rights.
The
rights
provided by this Article shall continue as to a person who has ceased to
be an
Agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person.
Section
7. Settlement of Claims.
The
corporation shall not be liable to indemnify any Agent under this Article
(a)
for any amounts paid in settlement of any action or claim effected without
the
corporation’s written consent, which consent shall not be unreasonably withheld;
or (b) for any judicial award if the corporation was not given a
reasonable and timely opportunity, at its expense, to participate in the
defense
of such action.
Section
8. Effect of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect
any right or protection of any Agent existing at the time of such amendment,
repeal, or modification.
Section
9. Subrogation.
In
the event
of payment under this Article, the corporation shall be subrogated to the
extent
of such payment to all of the rights of recovery of the Agent, who shall
execute
all papers required and shall do everything that may be necessary to secure
such
rights, including the execution of such documents necessary to enable the
corporation effectively to bring suit to enforce such rights.
Section
10. No Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment in
connection with any claim made against the Agent to the extent the Agent
has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
ARTICLE
X
Notices
Whenever,
under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (1) in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last
known post office address as shown by the stock record of the corporation
or its
transfer agent, or (2) by a means of electronic transmission that satisfies
the
requirements of Section 4(e) of Article II of these Bylaws, and has been
consented to by the stockholder to whom the notice is given. Any notice required
to be given to any director may be given by the method hereinabove stated,
or by
telegram or other means of electronic transmission, except that such notice
other than one which is delivered personally, shall be sent to such address
or
(in the case of facsimile telecommunication)
20
facsimile
telephone number as such director shall have filed in writing with the Secretary
of the corporation, or, in the absence of such filing, to the last known
post
office address of such director. If no address of a stockholder or director
be
known, such notice may be sent to the office of the corporation required
to be
maintained pursuant to Section 2 of Article I hereof. An affidavit of mailing,
executed by a duly authorized and competent employee of the corporation or
its
transfer agent appointed with respect to the class of stock affected, specifying
the name and address or the names and addresses of the stockholder or
stockholders, director or directors, to whom any such notice or notices was
or
were given, and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices given by mail,
as
above provided, shall be deemed to have been given as at the time of mailing
and
all notices given by telegram or other means of electronic transmission shall
be
deemed to have been given as at the sending time recorded by the telegraph
company or other electronic transmission equipment operator transmitting
the
same. It shall not be necessary that the same method of giving be employed
in
respect of all directors, but one permissible method may be employed in respect
of any one or more, and any other permissible method or methods may be employed
in respect of any other or others. The period or limitation of time within
which
any stockholder may exercise any option or right, or enjoy any privilege
or
benefit, or be required to act, or within which any director may exercise
any
power or right, or enjoy any privilege, pursuant to any notice sent him in
the
manner above provided, shall not be affected or extended in any manner by
the
failure of such a stockholder or such director to receive such notice. Whenever
any notice is required to be given under the provisions of the statutes or
of
the Certificate of Incorporation, or of these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to said notice, whether
before
or after the time stated therein, shall be deemed equivalent thereto. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall
not be
required and there shall be no duty to apply to any governmental authority
or
agency for a license or permit to give such notice to such person. Any action
or
meeting which shall be taken or held without notice to any such person with
whom
communication is unlawful shall have the same force and effect as if such
notice
had been duly given. In the event that the action taken by the corporation
is
such as to require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if such is
the
fact and if notice is required, that notice was given to all persons entitled
to
receive notice except such persons with whom communication is unlawful.
ARTICLE
XI
Amendments
These
Bylaws
may be repealed, altered or amended or new Bylaws adopted by written consent
of
stockholders in the manner authorized by Section 8 of Article II, or at any
meeting of the stockholders, either annual or special, by the affirmative
vote
of a majority of the stock entitled to vote at such meeting. The Board of
Directors shall also have the authority to repeal, alter or amend these Bylaws
or adopt new Bylaws (including, without limitation, the amendment of any
Bylaws
setting forth the number of directors who shall constitute the whole Board
of
Directors) by unanimous written consent or at any annual, regular, or special
meeting by the
21