Exhibit
3.1
AMENDED
AND RESTATED
BYLAWS
OF
DARLING
INTERNATIONAL INC
.
A
Delaware Corporation
Adopted
January 16, 2007
TABLE
OF CONTENTS
|
|
OFFICES
|
Page
2
|
1.1
|
|
Registered
Office and Agent
|
2
|
1.2
|
|
Other
Offices
|
2
|
Article
2
|
|
MEETINGS
OF STOCKHOLDERS
|
2
|
2.1
|
|
Annual
Meeting
|
2
|
2.2
|
|
Special
Meeting
|
2
|
2.3
|
|
Place
of Meetings
|
3
|
2.4
|
|
Notice
|
3
|
2.5
|
|
Notice
by Electronic Transmission
|
4
|
2.6
|
|
Exceptions
from Notice Requirement
|
4
|
2.7
|
|
Voting
List
|
5
|
2.8
|
|
Quorum
|
5
|
2.9
|
|
Required
Vote; Withdrawal of Quorum
|
5
|
2.10
|
|
Method
of Voting; Proxies
|
6
|
2.11
|
|
Record
Date
|
6
|
2.12
|
|
Conduct
of Meeting
|
7
|
2.13
|
|
Action
without a Meeting
|
7
|
2.14
|
|
Inspectors
|
7
|
Article
3
|
|
DIRECTORS
|
8
|
3.1
|
|
Management
|
8
|
3.2
|
|
Number;
Qualification; Election; Term
|
8
|
3.3
|
|
Change
in Number
|
9
|
3.4
|
|
Vacancies
|
9
|
3.5
|
|
Meetings
of Directors
|
9
|
3.6
|
|
First
Meeting
|
9
|
3.7
|
|
Election
of Officers
|
9
|
3.8
|
|
Regular
Meetings
|
9
|
3.9
|
|
Special
Meetings
|
9
|
3.10
|
|
Notice
|
9
|
3.11
|
|
Quorum;
Majority Vote
|
10
|
ii
TABLE
OF CONTENTS
(continued)
3.12
|
|
Telephone
Meetings
|
10
|
3.13
|
|
Action
Without a Meeting
|
10
|
3.14
|
|
Procedure
|
10
|
3.15
|
|
Presumption
of Assent
|
11
|
3.16
|
|
Compensation
|
11
|
Article
4
|
|
COMMITTEES
|
11
|
4.1
|
|
Designation
|
11
|
4.2
|
|
Number;
Qualification; Term
|
11
|
4.3
|
|
Authority
|
11
|
4.4
|
|
Committee
Changes
|
11
|
4.5
|
|
Alternate
Members of Committees
|
11
|
4.6
|
|
Regular
Meetings
|
12
|
4.7
|
|
Special
Meetings
|
12
|
4.8
|
|
Quorum;
Majority Vote
|
12
|
4.9
|
|
Minutes
|
12
|
4.10
|
|
Compensation
|
12
|
4.11
|
|
Responsibility
|
12
|
Article
5
|
|
NOTICE
|
12
|
5.1
|
|
Method
|
12
|
5.2
|
|
Waiver
|
13
|
Article
6
|
|
OFFICERS
|
13
|
6.1
|
|
Number;
Titles; Term of Office
|
13
|
6.2
|
|
Removal
|
13
|
6.3
|
|
Suspension
|
13
|
6.4
|
|
Vacancies
|
13
|
6.5
|
|
Authority
|
13
|
6.6
|
|
Compensation
|
14
|
6.7
|
|
Chairman
of the Board
|
14
|
6.8
|
|
Chief
Executive Officer
|
14
|
6.9
|
|
President
|
14
|
iii
TABLE OF
CONTENTS
(continued)
6.10
|
|
Chief
Operating Officer
|
14
|
6.11
|
|
Chief
Financial Officer
|
14
|
6.12
|
|
Vice
Presidents
|
15
|
6.13
|
|
Treasurer
|
15
|
6.14
|
|
Assistant
Treasurers
|
15
|
6.15
|
|
Secretary
|
16
|
6.16
|
|
Assistant
Secretaries
|
16
|
Article
7
|
|
CERTIFICATES
AND SHAREHOLDERS
|
16
|
7.1
|
|
Certificates
for Shares
|
16
|
7.2
|
|
Signatures
|
17
|
7.3
|
|
Replacement
of Lost, or Destroyed Certificates
|
17
|
7.4
|
|
Transfer
of Shares
|
17
|
7.5
|
|
Registered
Stockholders
|
17
|
7.6
|
|
Regulations
|
18
|
7.7
|
|
Legends
|
18
|
Article
8
|
|
INDEMNIFICATION
|
18
|
8.1
|
|
Right
of Indemnification
|
18
|
8.2
|
|
Advancement
of Expenses
|
18
|
8.3
|
|
Non-Exclusive
Right
|
18
|
8.4
|
|
Insurance
|
18
|
8.5
|
|
Meaning
of Terms
|
19
|
8.6
|
|
Continuing
Right
|
19
|
8.7
|
|
Other
Indemnification
|
19
|
8.8
|
|
Amendment
or Repeal
|
19
|
Article
9
|
|
MISCELLANEOUS
PROVISIONS
|
20
|
9.1
|
|
Dividends
|
20
|
9.2
|
|
Reserves
|
20
|
9.3
|
|
Books
and Records
|
20
|
9.4
|
|
Fiscal
Year
|
20
|
9.5
|
|
Seal
|
20
|
iv
TABLE OF
CONTENTS
(continued)
9.6
|
|
Resignations
|
20
|
9.7
|
|
Securities
of Other Corporations
|
20
|
9.8
|
|
Transactions
with the Corporation
|
20
|
9.9
|
|
Checks
|
21
|
9.10
|
|
Invalid
Provisions
|
21
|
9.11
|
|
Mortgages,
etc.
|
21
|
9.12
|
|
Headings
|
21
|
9.13
|
|
References
|
21
|
9.14
|
|
Amendments
|
21
|
v
AMENDED
AND RESTATED
BYLAWS
OF
DARLING
INTERNATIONAL INC.
A
Delaware Corporation
PREAMBLE
These
Amended and Restated Bylaws are subject to, and governed by, the General
Corporation Law of the State of Delaware (the “Delaware General Corporation
Law”) and the Certificate of Incorporation, as it may be amended from time to
time (the “Certificate of Incorporation”) of Darling International Inc., a
Delaware corporation (the “Corporation”). In the event of a direct conflict
between the provisions of these Bylaws and the mandatory provisions of the
Delaware General Corporation Law or the provisions of the Certificate of
Incorporation, such provisions of the Delaware General Corporation Law or the
Certificate of Incorporation, as the case may be, will be
controlling.
ARTICLE
1
OFFICES
1.1
Registered
Office and Agent
.
The
registered office and registered agent of the Corporation shall be as designated
from time to time by the appropriate filing by the Corporation in the office
of
the Secretary of State of the State of Delaware.
1.2
Other
Offices
.
The
Corporation 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 as the business of the Corporation may require.
ARTICLE
2
MEETINGS
OF STOCKHOLDERS
2.1
Annual
Meeting
.
An
annual meeting of stockholders of the Corporation shall be held on the second
Monday of May in each calendar year, if not a legal holiday, and otherwise
on
the next regular business day following, at 10:00 a.m., or at such other date
and time as shall be designated from time to time by the board of directors
and
stated in the notice of the meeting or in a duly executed waiver of notice
of
such meeting. At such meeting, the stockholders shall elect directors and
transact such other business as may properly be brought before the
meeting.
2.2
Special
Meeting
.
A
special meeting of the stockholders may be called at any time by the Chairman
of
the Board, the Chief Executive Officer, the President, a majority of the board
2
of
directors, and shall be called by the President, the Secretary or such other
officer as determined by the board of directors at the request in writing of
the
stockholders of record of not less than ten percent of all shares entitled
to
vote at such meeting or as otherwise provided by the Certificate of
Incorporation. A special meeting shall be held on such date and at such time
as
shall be designated in accordance with these Bylaws by the person(s) calling
the
meeting and stated in the notice of the meeting. Only such business shall be
transacted at a special meeting as may be stated or indicated in the notice
of
such meeting.
2.3
Place
of Meetings
.
An
annual meeting of stockholders may be held at any place within or without the
State of Delaware in the continental United States designated by the board
of
directors. A special meeting of stockholders may be held at any place within
or
without the State of Delaware in the continental United States designated in
the
notice of the meeting. Meetings of stockholders shall be held at the principal
office of the Corporation unless another place is designated for meetings in
the
manner provided herein. The board of directors may, in its sole discretion,
determine that the meetings of stockholders shall not be held at any place,
but
may instead be held solely by means of remote communication as authorized by
Section 211(a)(2) of the Delaware General Corporation Law.
2.4
Notice
.
(a)
Written or printed notice stating the place, if any, day, and hour of each
meeting of the stockholders, 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 case of a special meeting, the purpose or purposes
for which the meeting is called shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, either personally, by mail, in
accordance with Section 2.5, or by any other method permitted by law (including,
but not limited to, overnight courier services, telegram or telex), by or at
the
direction of the President, the Secretary, or the officer or person(s) calling
the meeting, to each stockholder of record entitled to vote at such meeting.
If
such notice is to be sent by mail, it shall be directed to such stockholder
at
the stockholder’s address as it appears on the records of the Corporation,
unless the stockholder shall have filed with the Secretary of the Corporation
a
written request that notices to the stockholder be mailed to some other address,
in which case it shall be directed to the stockholder at such other address.
Notice of any meeting of stockholders shall not be required to be given to
any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or
by
proxy. Whenever by statute, the Certificate of Incorporation, or these Bylaws,
notice is required to be given to any stockholder and no provision is made
as to
how such notice shall be given, personal notice shall not be required and any
such notice may be given by mail, in accordance with Section 2.5, or by any
other method permitted by law (including, but not limited to, overnight courier
services, telegram or telex).
(b)
Any
notice required or permitted to be given by mail shall be deemed to be delivered
and given at the time when the same is deposited in the United States mail
as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to
such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram or telex shall be deemed to be delivered
and given at the time transmitted with all charges prepaid and addressed as
aforesaid.
3
2.5
Notice
by Electronic Transmission
.
(a)
Without limiting the manner by which notice otherwise may be given effectively
to stockholders, any notice to stockholders given by the Corporation 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.
(b)
Notice
given pursuant to subsection (a) of this Section shall be deemed given: (i)
if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented
to
receive notice; (iii) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, upon the later
of
(1) such posting and (2) the giving of such separate notice; and (iv) if by
any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent
or
other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
(c)
For
purposes of this Article II, "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.
2.6
Exceptions
from Notice Requirement
.
The
giving of any notice required under any provision of the Delaware General
Corporation Law, the Certificate of Incorporation or these Bylaws shall not
be
required to be given to any stockholder to whom (i) notice of two consecutive
annual meetings, and all notices of meetings or of the taking of action by
written consent without a meeting to such person during the period between
such
two consecutive annual meetings, or (ii) all, and at least two, payments (if
sent by first class mail) of dividends or interest on securities during a
twelve-month period, have been mailed addressed to such person at his address
as
shown on the records
of
the
Corporation and have been returned undeliverable. Any action or meeting which
shall be taken or held without notice to such person shall have the same force
and effect as if such notice had been duly given. If any such stockholders
shall
deliver to the Corporation a written notice setting forth his then current
address, the requirement that notice be given to such stockholder shall be
reinstated. This exception to the requirement that notice be given shall not
apply under subparagraph (i) to this Section 2.6 to any notice returned as
undeliverable if the notice was given by electronic transmission.
2.7
Voting
List
.
At
least ten days before each meeting of stockholders, the Secretary or other
officer of the Corporation who has charge of the Corporation’s stock ledger,
either directly or through another officer appointed by him or through a
transfer agent appointed by the board of directors, shall prepare a complete
list of stockholders entitled to vote thereat, arranged in alphabetical order
and showing the address of each stockholder and number of shares
registered
in the name of each stockholder. For a period of ten days prior to such meeting,
such list shall be (i) made available on a reasonably accessible electronic
network, provided that the information required to gain access to such list
is
provided with the notice of the meeting, or (ii) kept on file at a place within
the city where the meeting is to be held, which place shall be specified in
the
notice of meeting or a duly executed waiver of notice of such meeting or, if
not
so specified, at the place where the meeting is to be held and shall be open
to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall
also
be open to examination of any stockholder during the whole time of the meeting
on a reasonably accessible electronic network, and the information required
to
access such list shall be provided with the notice of the meeting.
2.8
Quorum
.
The
holders of a majority of the outstanding shares of stock entitled to vote on
a
matter, present in person or by proxy, shall constitute a quorum at any meeting
of stockholders, except as otherwise provided by law, the Certificate of
Incorporation, or these Bylaws; provided, that at any meeting of the
stockholders at which the holders of any class of stock of the Corporation
shall
be entitled to vote separately as a class, the holders of a majority of the
total outstanding shares of such class, present in person or by proxy, shall
constitute a quorum for purposes of a class vote except as otherwise provided
by
law, the Certificate of Incorporation, or these Bylaws. If a quorum shall not
be
present, in person or by proxy, at any meeting of stockholders, the stockholders
entitled to vote thereat who are present, in person or by proxy, or, if no
stockholder entitled to vote is present, any officer of the Corporation may
adjourn the meeting from time to time, without notice other than announcement
at
the meeting (unless the board of directors, after such adjournment, fixes a
new
record date for the adjourned meeting), until a quorum shall be present, in
person or by proxy. At any adjourned meeting at which a quorum shall be present,
in person or by proxy, any business may be transacted which may have been
transacted at the original meeting had a quorum been present; provided that,
if
the adjournment is for more than 30 days or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
2.9
Required
Vote; Withdrawal of Quorum
.
When a
quorum is present at any meeting, the vote of the holders of at least a majority
of the outstanding shares entitled to vote who are present, in person or by
proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of statute, the Certificate
of
Incorporation, or these Bylaws, a different vote is required, in which case
such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.10
Method
of Voting; Proxies
.
Except
as otherwise provided in the Certificate of Incorporation or these Bylaws,
each
outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders. Voting at the meeting
of stockholders, on other than the election of directors, need not be by written
ballot unless directed by the presiding officer or upon the demand of any
stockholder. At any meeting of stockholders, every stockholder having the right
to vote may vote either in person or by a proxy
executed
in writing by the stockholder or by his or its duly authorized attorney-in-fact.
Each such proxy shall be filed with the Secretary of the Corporation before
or
at the time of the meeting. No proxy shall be valid after three years from
the
date of its execution, unless otherwise provided in the proxy. If no date is
stated in a proxy, such proxy shall be presumed to have been executed on the
date of the meeting at which it is to be voted. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.11
Record
Date
.
(a) For
the purpose of determining 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 60 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 day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board 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
law or these Bylaws, 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 the State of 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 the Corporation's registered office in the State
of
Delaware, principal place of business, or such officer or agent 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
directors is required by law or these Bylaws, 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 60 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.
2.12
Conduct
of Meeting
.
The
Chairman of the Board, if such office has been filled, and, if not or if the
Chairman of the Board is absent or otherwise unable to act, the Chief Executive
Officer shall preside at all meetings of stockholders, provided, however, if
such office has not been filled or if the Chief Executive Officer is absent
or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer’s duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these Bylaws or by some person
appointed by the meeting.
2.13
Action
without a Meeting
.
Unless
otherwise provided in the Certificate of Incorporation, any action required
by
the Delaware General Corporation Law to be taken at any annual or special
meeting of the stockholders, or any action which may be taken at any annual
or
special meeting of the 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, shall be signed by all of the holders (acting for
themselves or through a proxy) of outstanding stock and shall be delivered
to
the Corporation by delivery to its registered office in the State of 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. Every written consent of stockholders 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 2.13 to the Corporation, written consents signed by all of the holders
to take action are delivered to the Corporation by delivery to its registered
office in the State of 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 the Corporation’s
registered office, principal place of business, or such officer or agent shall
be by hand or by certified or registered mail, return receipt
requested.
2.14
Inspectors
.
(a) The
board of directors 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
board of directors 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 the duties of inspector, shall take and sign
an
oath faithfully to execute the duties of inspector with strict impartiality
and
according to the best of such inspector's 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 of the State of Delaware 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 211(e) or
Section 212(c)(2) of the Delaware General Corporation Law, or any information
provided pursuant to Section 211(a)(2)(B)(i) or (iii) 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 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 subparagraph (b)(v) of this
Section 2.13 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. For purposes of this Section 2.13(d), Sections 211(e), 212(c)(2)
and
211(a)(2)(B)(i) shall include any successor statute addressing the comparable
information.
ARTICLE
3
DIRECTORS
3.1
Management
.
The
business and property of the Corporation shall be managed by the board of
directors. Subject to the restrictions imposed by law, the Certificate of
Incorporation, or these Bylaws, the board of directors may exercise all the
powers of the Corporation.
3.2
Number;
Qualification; Election; Term
.
Except
as otherwise provided in the Certificate of Incorporation, the number of
directors which shall constitute the entire board of directors shall be
determined by resolution of the board of directors. Except as otherwise required
by law, the Certificate of Incorporation, or these Bylaws, the directors shall
be elected at an annual meeting of stockholders at which a quorum is present.
Directors shall be elected by a plurality of the votes of the shares present
in
person or represented by proxy and entitled to vote on the election of
directors. Each director so chosen shall hold office until the first annual
meeting of stockholders held after his election and until his successor is
elected and qualified or, if earlier, until his death, resignation, or removal
from office. None of the directors need be a stockholder of the Corporation
or a
resident of the State of Delaware. Each director must have attained the age
of
majority.
3.3
Change
in Number
.
No
decrease in the number of directors constituting the entire board of directors
shall have the effect of shortening the term of any incumbent
director.
3.4
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, though less than a quorum, or by the sole remaining director, and
each director so chosen shall hold office until the first annual meeting of
stockholders held after his election and until his successor is elected and
qualified or, if earlier, until his death, resignation, or removal from office.
If there are no directors in office, an election of directors may be held in
the
manner provided by statute. Except as otherwise provided in these Bylaws, when
one or more directors shall resign from the board of directors, effective at
a
future date, a majority of the directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in these
Bylaws with respect to the filling of other vacancies.
3.5
Meetings
of Directors
.
The
directors may hold their meetings and may have an office and keep the books
of
the Corporation, except as otherwise provided by statute, in such place or
places within or without the State of Delaware as the board of directors may
from time to time determine or as shall be specified in the notice of such
meeting or duly executed waiver of notice of such meeting.
3.6
First
Meeting
.
Each
newly elected board of directors may hold its first meeting for the purpose
of
organization and the transaction of business, if a quorum is present,
immediately after and at the same place as the annual meeting of stockholders,
and no notice of such meeting shall be necessary.
3.7
Election
of Officers
.
At the
first meeting of the board of directors after each annual meeting of
stockholders at which a quorum shall be present, the board of directors shall
elect the officers of the Corporation.
3.8
Regular
Meetings
.
Regular
meetings of the board of directors shall be held at such times and places as
shall be designated from time to time by resolution of the board of directors.
Notice of such regular meetings shall not be required.
3.9
Special
Meetings
.
Special
meetings of the board of directors shall be held whenever called by the Chairman
of the Board, the Chief Executive Officer, the President, or by written request
of one-third of the directors then in office.
3.10
Notice
.
The
Secretary shall give notice of each special meeting to each director at least
24
hours before the meeting. Notice of any such meeting need not be given to any
director who shall, either before or after the meeting, submit a signed waiver
of notice or who shall attend such meeting without protesting, prior to or
at
its commencement, the lack of notice to him. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting.
3.11
Quorum;
Majority Vote
.
At all
meetings of the board of directors, a majority of the directors fixed in the
manner provided in these Bylaws shall constitute a quorum for the transaction
of
business. If at any meeting of the board of directors there be less than a
quorum present, a majority of those present or any director solely present
may
adjourn the meeting from
time
to time without further notice. Unless the act of a greater number is required
by law, the Certificate of Incorporation, or these Bylaws, the act of a majority
of the directors present at a meeting at which a quorum is in attendance shall
be the act of the board of directors. At any time that the Certificate of
Incorporation provides that directors elected by the holders of a class or
series of stock shall have more or less than one vote per director on any
matter, every reference in these Bylaws to a majority or other proportion of
directors shall refer to a majority or other proportion of the votes of such
directors.
3.12
Telephone
Meetings
.
Members
of the board of directors, or members of a committee of the board of directors,
may participate in and hold a meeting of the board of directors, or committee,
by means of a conference telephone or similar communications equipment by means
of which persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence
in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
3.13
Action
without a Meeting
.
Unless
otherwise restricted by the Certificate of Incorporation or by these Bylaws,
any
action required or permitted to be taken at a meeting of the board of directors,
or of any committee of the board of directors, may be taken without a meeting
if
a consent or consents in writing or by electronic transmission, setting forth
the action so taken, shall be signed by all the directors or all the committee
members, as the case may be, entitled to vote with respect to the subject matter
thereof, and such consent shall have the same force and effect as a vote of
such
directors or committee members, as the case may be, and may be stated as such
in
any certificate or document filed with the Secretary of State of the State
of
Delaware or in any certificate delivered to any person. Such consent or consents
shall be filed with the minutes of proceedings of the board or committee, as
the
case may be.
3.14
Procedure
.
At
meetings of the board of directors, business shall be transacted in such order
as from time to time the board of directors may determine. The board of
directors shall annually elect by a majority vote of the board at which a quorum
shall be present one of its members to be Chairman of the Board and shall fill
any vacancy in the position of the Chairman of the Board at such time as the
board of directors shall determine. The Chairman of the Board may but need
not
be an officer of or employed in an executive or any other capacity by the
Corporation. The Chairman of the Board, if such office has been filled, and,
if
not or if the Chairman of the Board is absent or otherwise unable to act, the
Chief Executive Officer, shall preside at all meetings of the Board; provided,
however, if such office has not been filled or if the Chief Executive Officer
is
absent or otherwise unable to act, the President shall preside at all meetings
of the Board. In the absence or inability to act of either such officer, a
chairman shall be chosen by the board of directors from among the directors
present. The Secretary of the Corporation shall act as the secretary of each
meeting of the board of directors unless the board of directors appoints another
person to act as secretary of the meeting. The board of directors shall keep
regular minutes of its proceedings which shall be placed in the minute book
of
the Corporation.
3.15
Presumption
of Assent
.
A
director of the Corporation who is present at the meeting of the board of
directors at which action on any corporate matter is taken shall be
presumed
to have assented to the action unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as secretary of the meeting before the adjournment
thereof or shall forward any dissent by certified or registered mail to the
Secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of such
action.
3.16
Compensation
.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, the
board of directors shall have the authority to fix the compensation, including
fees and reimbursement of expenses, or a stated salary paid to directors for
attendance at regular or special meetings of the board of directors or any
committee thereof; provided, that nothing contained herein shall be construed
to
preclude any director from serving the Corporation in any other capacity or
receiving compensation therefor.
ARTICLE
4
COMMITTEES
4.1
Designation
.
The
board of directors may, by resolution adopted by a majority of the entire board
of directors, designate one or more committees and shall designate a chairperson
for each committee.
4.2
Number;
Qualification; Term
.
Each
committee shall consist of one or more directors appointed by resolution adopted
by a majority of the entire board of directors. The number of committee members
may be increased or decreased from time to time by resolution adopted by a
majority of the entire board of directors. Each committee member shall serve
as
such until the earliest of (i) the expiration of his term as director, (ii)
his
resignation as a committee member or as a director, or (iii) his removal as
a
committee member or as a director.
4.3
Authority
.
Each
committee, to the extent expressly provided in the resolution establishing
such
committee, shall have and may exercise all of the authority of the board of
directors in the management of the business of the Corporation except to the
extent expressly restricted by law, the Certificate of Incorporation, or these
Bylaws.
4.4
Committee
Changes
.
The
board of directors shall have the power at any time to fill vacancies in, to
change the membership of, and to discharge any committee.
4.5
Alternate
Members of Committees
.
The
board of directors may designate one or more directors as alternate members
of
any committee. Any such alternate member may replace any absent or disqualified
member at any meeting of the committee.
4.6
Regular
Meetings
.
Regular
meetings of any committee may be held without notice at such time and place
as
may be designated from time to time by the committee and communicated to all
members thereof.
4.7
Special
Meetings
.
Special
meetings of any committee may be held whenever called by the chairman thereof.
The committee member calling any special meeting shall cause notice of such
special meeting, including therein the time and place of such special meeting,
to be given to each committee member at least 24 hours before such special
meeting. Neither the
business
to be transacted at, nor the purpose of, any special meeting of any committee
need be specified in the notice or waiver of notice of any special
meeting.
4.8
Quorum;
Majority Vote
.
At
meetings of any committee, a majority of the number of members designated by
the
board of directors shall constitute a quorum for the transaction of business;
provided, however, that any alternative member(s) may be counted in lieu of
an
absent or disqualified member in determining the presence of a quorum. If a
quorum is not present at a meeting of any committee, a majority of the members
present may adjourn the meeting from time to time, without notice other than
an
announcement at the meeting, until a quorum is present. The act of a majority
of
the members present at any meeting at which a quorum is in attendance shall
be
the act of a committee, unless the act of a greater number is required by law,
the Certificate of Incorporation, or these Bylaws.
4.9
Minutes
.
Each
committee shall cause minutes of its proceedings to be prepared and shall report
the same to the board of directors upon the request of the board of directors.
The minutes of the proceedings of each committee shall be delivered to the
Secretary of the Corporation for placement in the minute books of the
Corporation.
4.10
Compensation
.
Committee members may, by resolution of the board of directors, be allowed
a
fixed sum and expenses of attendance, if any, for attending any committee
meetings or a stated salary.
4.11
Responsibility
.
The
designation of any committee and the delegation of authority to it shall not
operate to relieve the board of directors or any director of any responsibility
imposed upon it or such director by law.
ARTICLE
5
NOTICE
5.1
Method
.
Whenever by statute, the Certificate of Incorporation, or these Bylaws, notice
is required to be given to any committee member or director and no provision
is
made as to how such notice shall be given, personal notice shall not be required
and any such notice may be given (a) in writing, by mail, postage prepaid,
addressed to such committee member or director at his or its address as it
appears on the books, or (b) by any other method permitted by law (including
but
not limited to overnight courier service, telegram, telex, telefax, or
electronic transmission). Any notice required or permitted to be given by mail
shall be deemed to be delivered and given at the time when the same is deposited
in the United States mail as aforesaid. Any notice required or permitted to
be
given by overnight courier service shall be deemed to be delivered and given
at
the time delivered to such service with all charges prepaid and addressed as
aforesaid. Any notice required or permitted to be given by telegram, telex,
or
telefax shall be deemed to be delivered and given at the time transmitted with
all charges prepaid and addressed as aforesaid.
5.2
Waiver
.
Whenever any notice is required to be given to any director or committee member
of the Corporation by statute, the Certificate of Incorporation, or these
Bylaws, a waiver thereof in writing signed by the person or persons entitled
to
such notice,
whether
before or after the time stated therein, shall be equivalent to the giving
of
such notice. Attendance of a director, or committee member at a meeting shall
constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on
the
ground that the meeting is not lawfully called or convened.
ARTICLE
6
OFFICERS
6.1
Number;
Titles; Term of Office
.
The
officers of the Corporation shall be such officers as the board of directors
may
from time to time elect or appoint, which may include a Chairman of the Board,
a
Chief Executive Officer, a Chief Operating Officer, a Chief Financial Officer,
President, a Secretary, one or more Vice Presidents (with each Vice President
to
have such descriptive title, if any, as the board of directors shall determine),
and a Treasurer. Each officer shall hold office until his successor shall have
been duly elected and shall have qualified, until his death, or until he shall
resign or shall have been removed in the manner hereinafter provided. Any two
or
more offices may be held by the same person. None of the officers need be a
stockholder or a director of the Corporation or a resident of the State of
Delaware.
6.2
Removal
.
Any
officer or agent elected or appointed by the board of directors may be removed
by the board of directors by the affirmative vote of a majority of the board
of
directors at which a quorum is present or by an authorized committee thereof
whenever in its judgment the best interest of the Corporation will be served
thereby, but such removal shall be without prejudice to the contract rights,
if
any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
6.3
Suspension
.
Subject
to any contractual limitations, the Chief Executive Officer or such other
officer having comparable authority as determined by the board of directors
may
suspend the powers, authority, responsibilities and compensation of any
employee, including elected officer, for a period of time sufficient to permit
the board of directors or appropriate committee of the board of directors a
reasonable opportunity to consider and act upon a resolution relating to the
reinstatement, further suspension, or removal of such person.
6.4
Vacancies
.
Any
vacancy occurring in any office of the Corporation (by death, resignation,
removal, or otherwise) may be filled by the board of directors.
6.5
Authority
.
Officers shall have such authority and perform such duties in the management
of
the Corporation as are provided in these Bylaws or as may be determined by
resolution of the board of directors not inconsistent with these
Bylaws.
6.6
Compensation
.
The
compensation, if any, of officers and agents shall be fixed from time to time
by
the board of directors; provided, however, that the board of directors may
delegate the power to determine the compensation of any officer and agent (other
than the officer to whom such power is delegated) to the Chairman of the Board,
the Chief Executive Officer, the President or such other officers as determined
by the board of directors.
6.7
Chairman
of the Board
.
The
Chairman of the Board, if elected by the board of directors, shall have such
powers and duties as designated in these Bylaws and as may be
prescribed
by the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation. The board of directors
may
also appoint a Vice Chairman or vice chairmen to serve in the absence of the
Chairman.
6.8
Chief
Executive Officer
.
Subject
to the direction and authority of the board of directors, the Chief Executive
Officer shall have general executive charge, management and control of the
properties, business and operations of the Corporation with all such powers
as
may be reasonably incident to such responsibilities; he may agree upon and
execute all leases, contracts, evidences of indebtedness and other obligations
in the name of the Corporation and may sign all certificates for shares of
capital stock of the Corporation. Unless the board of directors otherwise
determines, he shall, in the absence of the Chairman of the Board, preside
at
all meetings of the stockholders and of the board of directors; and he shall
have such powers and duties as designated in accordance with these Bylaws and
as
from time to time be assigned to him by the board of directors. The Chief
Executive Officer may from time to time delegate any of the aforementioned
duties and responsibilities in accordance with these Bylaws to any officer
who
directly or indirectly reports to him.
6.9
President
.
The
President or such other officer as determined by the board of directors shall
have charge of such properties, business, and operations of the Corporation
as
may be assigned to him from time to time in accordance with these Bylaws by
the
Chief Executive Officer, as well as all such powers as may be reasonably
incident to such charge and he shall have the authority to agree upon and
execute all leases, contracts, evidences of indebtedness, and other obligations
in the name of the Corporation. Unless the board of directors otherwise
determines, he shall, in the absence of the Chairman of the Board and the Chief
Executive Officer, preside at all meetings of the stockholders and of the board
of directors; and he shall have such other powers and duties as designated
in
accordance with these Bylaws and as from time to time be assigned to him by
the
board of directors. The President shall report directly to the Chief Executive
Officer or such other officer as determined by the board of
directors.
6.10
Chief
Operating Officer
.
The
Chief Operating Officer or such other officer as determined by the board of
directors shall have charge of such properties, business, and operations of
the
Corporation as may be assigned to him from time to time in accordance with
these
Bylaws by the board of directors, the Chief Executive Officer or such other
officer as determined by the board of directors.
6.11
Chief
Financial Officer
.
The
Chief Financial Officer or such other officer as determined by the board of
directors shall have general charge of the financial affairs of the Corporation,
as well as all such powers as may be reasonably incident to such charge and
he
shall have the authority to agree upon and execute all leases, contracts,
evidences of indebtedness, and other obligations in the name of the Corporation.
He shall render such accounts and reports as may be required by the board of
directors or any committee of the board. The financial records, books and
accounts of the Corporation shall be maintained subject to his direct or
indirect supervision. The Chief Financial Officer shall report directly to
the
Chief Executive Officer or such other officer as determined by the board of
directors.
6.12
Vice
Presidents
.
The
vice presidents shall have charge of such properties, business, and operations
of the Corporation as may be assigned to them from time to time by the board
of
directors, the Chairman of the Board, the Chief Executive Officer, the Chief
Operating Officer or such other officer as determined by the board of directors,
as well as such powers as may be reasonably incident to such charge. A vice
president shall report directly to the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or such other officer as
determined by the board of directors.
6.13
Treasurer
.
The
Treasurer or such other officer as determined by the board of directors shall
have custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies and other valuable effects in the
name
and to the credit of the Corporation in such depositories as may be designated
by the board of directors. He shall disburse the funds of the Corporation as
may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
If
required by the board of directors, he shall give the Corporation a bond, at
the
expense of the Company, in such sum and with such surety or sureties as shall
be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of
his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation. The Treasurer shall perform such
other
duties as may be prescribed by the board of directors, the Chairman of the
Board, the Chief Executive Officer, the President or such other officer as
determined by the board of directors. In the absence of a duly appointed
Treasurer, the Chief Financial Officer of the Corporation or such other officer
as determined by the board of directors shall perform the duties of
Treasurer.
6.14
Assistant
Treasurers
.
The
Assistant Treasurer, or if there shall be more than one, the assistant
treasurers, in the order determined by the board of directors (or if there
be no
such determination, then in the order of their election) shall, in the absence
of the Treasurer or in the event of his inability or refusal to act, perform
the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the board of directors, the Chairman of
the
Board, the Chief Executive Officer, the President or such other officer as
determined by the board of directors may from time to time prescribe. In the
absence of a duly appointed Assistant Treasurer, the Chief Financial Officer
of
the Corporation or such other officer as determined by the board of directors
shall perform the duties of Assistant Treasurer.
6.15
Secretary
.
The
Secretary shall attend all meetings of the board of directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
Corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. When
required to be given, he shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and
shall perform such other duties as may be prescribed by the board of directors
under whose supervision he shall be. He shall have custody of the corporate
seal
of the Corporation and he, or an Assistant Secretary, shall have authority
to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the
signature
of such Assistant Secretary, and he may sign with the Chairman of the Board,
the
Chief Executive Officer or the President, in the name of the Corporation, all
contracts of the Corporation. The board of directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
6.16
Assistant
Secretaries
.
The
Assistant Secretary, or if there be more than one, the assistant secretaries
in
the order determined by the board of directors (or if there be no such
determination, then in the order of their election) shall, in the absence of
the
Secretary or in the event of his inability or refusal to act, or if such powers
shall be delegated him by the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the board of directors, the Chairman of the Board, the Chief Executive
Officer, the President or such other officer as determined by the board of
directors may from time to time prescribe.
ARTICLE
7
CERTIFICATES
AND SHAREHOLDERS
7.1
Certificates
for Shares
.
(a) The
shares of the Corporation shall be represented by a certificate or shall be
uncertificated. Certificates for shares of stock of the Corporation shall be
in
such form as shall be approved by the board of directors. The certificates
shall
be signed by the Chairman or Vice Chairman of the Board, or the President or
a
Vice President and also by the Secretary or an Assistant Secretary or by the
Treasurer or an Assistant Treasurer. Upon the face or back of each stock
certificate issued to represent any partly paid shares, or upon the books and
records of the Corporation in the case of uncertificated partly paid shares,
shall be set forth the number and class of shares and the par value of such
shares or a statement that such shares are without par value.
(b)
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 qualification, 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 which the Corporation shall issue to represent such
class or series of stock, 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.
(c)
Within
a
reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth stated on certificates
pursuant to Section 151, 156, 202(a) or 218(a) of the Delaware General
Corporation Law or 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.
7.2
Signatures
.
Any and
all signatures on the certificate may be a facsimile and may be sealed with
the
seal of the Corporation or a facsimile thereof. If any officer, transfer agent,
or registrar who has signed, or whose facsimile signature has been placed upon,
a certificate has ceased to be such officer, transfer agent, or registrar before
such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if he were such officer, transfer agent, or registrar
at
the date of issue.
7.3
Replacement
of Lost, or Destroyed Certificates
.
The
board of directors may direct a new certificate or certificates to be issued
in
place of a certificate or certificates theretofore issued by the Corporation
and
alleged to have been lost or destroyed, upon the making of an affidavit of
that
fact by the person claiming the certificate or certificates representing shares
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 advertise the
same
in such manner as it shall require and/or to give the Corporation a bond with
a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may
be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.4
Transfer
of Shares
.
Shares
of stock of the Corporation shall be transferable only on the books of the
Corporation by the holders thereof in person or by their duly authorized
attorneys or legal representatives. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, the Corporation or its transfer agent shall issue a
new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books. Upon receipt of proper transfer
instructions from the registered owner of uncertificated shares, the Corporation
or the transfer agent shall cancel such uncertificated shares and shall issue
new equivalent uncertificated shares or certificated shares to the person
entitled thereto, and record the transaction upon its books.
7.5
Registered
Stockholders
.
The
Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and, accordingly, 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 law.
7.6
Regulations
.
The
board of directors shall have the power and authority to make all such rules
and
regulations as they may deem expedient concerning the issue, transfer, and
registration or the replacement of certificates for shares of stock of the
Corporation.
7.7
Legends
.
The
board of directors shall have the power and authority to provide that
certificates representing shares of stock bear such legends as the board of
directors deems
appropriate
to assure that the Corporation does not become liable for violations of federal
or state securities laws or other applicable law.
ARTICLE
8
INDEMNIFICATION
8.1
Right
of Indemnification
.
The
Corporation shall indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, awards and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
to
the fullest extent permitted by the Delaware General Corporation Law as amended
from time to time.
8.2
Advancement
of Expenses
.
Expenses incurred by an officer or director in defending or in preparation
for a
civil, criminal, administrative or investigative action, suit or proceeding,
arbitration, mediation or claim in respect thereof (collectively, “Actions”)
shall be paid by the Corporation in advance of the final disposition of such
Action upon receipt of an undertaking by or on behalf of the 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
VIII. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the board of directors deems appropriate.
As used in this Article VIII, “expenses” shall mean any direct out-of-pocket
costs reasonably related to such Action, including, without limitation,
attorneys’ fees, fees of consultants, advisors and expert witnesses, and related
charges.
8.3
Non-Exclusive
Right
.
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other sections of this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under the Corporation's Certificate of Incorporation or any
Bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
8.4
Insurance
.
The
Corporation shall have the power to purchase and maintain insurance on behalf
of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VIII.
8.5
Meaning
of Terms
.
(a) For
purposes of this Article VIII, references to "the Corporation" shall include,
in
addition to the Corporation or the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or
merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent or another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article VIII with respect to the
Corporation or surviving or resulting corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(b)
For
purposes of this Article VIII, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to
"serving at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person
who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VIII.
8.6
Continuing
Right
.
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article VIII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
8.7
Other
Indemnification
.
If this
Article VIII or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director, officer, employee or agent of the Corporation as to
any
expenses, judgments, fines, awards and amounts paid in settlement with respect
to any Action, including an Action by or in the right of the Corporation, to
the
full extent permitted by an applicable portion of this Article VIII that shall
not have been invalidated and to the full extent permitted by applicable
law.
8.8
Amendment
or Repeal
.
No
amendment, termination or repeal of this Article VIII or of relevant provisions
of the Delaware General Corporation Law or any other applicable law shall affect
or diminish in any way the rights of any director, officer, employee or agent
of
the Corporation to indemnification under the provisions hereof with respect
to
any Actions arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or
repeal.
ARTICLE
9
MISCELLANEOUS
PROVISIONS
9.1
Dividends
.
Subject
to provisions of law and the Certificate of Incorporation, dividends may be
declared by the board of directors at any regular or special meeting and may
be
paid in cash, in property, or in shares of stock of the Corporation. Such
declaration and payment shall be at the discretion of the board of
directors.
9.2
Reserves
.
There
may be created by the board of directors out of funds of the Corporation legally
available therefor such reserve or reserves as the directors from time to time,
in their discretion, consider proper to provide for contingencies, to equalize
dividends, or to repair or maintain any property of the Corporation, or for
such
other purpose as the board of directors shall consider beneficial to the
Corporation, and the board of directors may modify or abolish any such reserve
in the manner in which it was created.
9.3
Books
and Records
.
The
Corporation shall keep correct and complete books and records of account, shall
keep minutes of the proceedings of its stockholders and board of directors
and
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its stockholders, giving
the names and addresses of all stockholders and the number and class of the
shares held by each.
9.4
Fiscal
Year
.
The
fiscal year of the Corporation shall be fixed by resolution of the board of
directors.
9.5
Seal
.
The
seal of the Corporation shall have inscribed thereon the name of the
Corporation, the year of its organization and the words “Corporate Seal,
Delaware.” The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
9.6
Resignations
.
Any
director, committee member, or officer may resign by so stating at any meeting
of the board of directors or by giving written notice to the board of directors,
the Chairman of the Board, the Chief Executive Officer, the President, or the
Secretary. Such resignation shall take effect at the time specified therein
or,
if no time is specified therein, immediately upon its receipt. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to
make it effective.
9.7
Securities
of Other Corporations
.
The
Chief Executive Officer (or any other officer designated by the Board of
Directors) shall have the power and authority to transfer, endorse for transfer,
vote, consent, or take any other action with respect to any securities of
another issuer which may be held or owned by the Corporation and to make,
execute, and deliver any waiver, proxy, or consent with respect to any such
securities.
9.8
Transactions
with the Corporation
.
No
contract or other transaction between the Corporation and one or more of its
directors and officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable, solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the board
of
directors or committee which authorizes the contract or transaction, or solely
because any such director’s or officer’s votes are counted for such purposes if
(i) the material facts as to the director’s or officer’s relationship or
interest and as to the contract or transaction are disclosed or are known to
the
board of directors or the committee, and the board of directors or committee
in
good faith authorizes the contract or transaction by the affirmative votes
of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum, (ii) the material facts as to the director’s or officer’s
relationship or interest and as to the contract or transaction are disclosed
or
are known to the stockholders
entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders, or (iii) the contract or transaction
is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the board of directors, a committee or the stockholders. Common
or
interested directors may be counted in determining the presence of a quorum
at a
meeting of the board of directors or of a committee which authorizes the
contract or transaction.
9.9
Checks
.
All
checks or demands for money and notes of the Corporation shall be signed by
such
officer or officers or such other person or persons as the board of directors
may from time to time designate.
9.10
Invalid
Provisions
.
If any
part of these Bylaws shall be held invalid or inoperative for any reason, the
remaining parts, so far as it is possible and reasonable, shall remain valid
and
operative.
9.11
Mortgages,
etc.
With
respect to any deed, deed of trust, mortgage, or other instrument executed
by
the Corporation through its duly authorized officer or officers, the attestation
to such execution by the Secretary of the Corporation shall not be necessary
to
constitute such deed, deed of trust, mortgage, or other instrument a valid
and
binding obligation against the Corporation unless the resolutions, if any,
of
the board of directors authorizing such execution expressly state that such
attestation is necessary.
9.12
Headings
.
The
headings used in these Bylaws have been inserted for administrative convenience
only and do not constitute matter to be construed in
interpretation.
9.13
References
.
Whenever herein the singular number is used, the same shall include the plural
where appropriate, and words of any gender should include each other gender
where appropriate.
9.14
Amendments
.
These
Bylaws may be altered, amended, or repealed or new Bylaws may be adopted by
the
stockholders or by the board of directors at any regular meeting of the
stockholders or the board of directors or at any special meeting of the
stockholders or the board of directors if notice of such alteration, amendment,
repeal, or adoption of new Bylaws be contained in the notice of such special
meeting.
21
The
undersigned, the Secretary of the Corporation, hereby certifies that the
foregoing Amended and Restated Bylaws were duly adopted by the Board of
Directors of the Corporation as of January 16, 2007.
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Joseph R. Weaver, Secretary
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