BYLAWS
OF
BROADVISION,
INC.
(A
DELAWARE CORPORATION)
As
Approved by the Board of Directors on
April
16, 1996
Effective
as of June 21, 1996
And
As
Amended by the Board of Directors on
September
4, 2002
December
16, 2005, and
October
13, 2008
AMENDED
AND RESTATED
BYLAWS
OF
BROADVISION,
INC.
OFFICES
Section
1.
Registered Office.
The registered office of the corporation in the
State of Delaware shall be in the City of Wilmington, County of
Dover.
Section
2.
Other Offices.
The
corporation shall also have and maintain an office or principal place of
business at such place as may be fixed by the Board of Directors, 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.
CORPORATE
SEAL
Section
3.
Corporate Seal.
The Board of Directors may adopt a corporate
seal. The corporate seal shall consist of a die bearing the name of the
corporation and the inscription, “Corporate Seal — Delaware.” Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
STOCKHOLDERS’
MEETINGS
Section
4.
Place Of Meetings.
Meetings of the stockholders of the corporation
may be held at such place, either within or without the State of Delaware, as
may be determined from time to time 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 provided under the Delaware General Corporation Law
(“DGCL”).
(a)
The annual meeting of the stockholders of the corporation, 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.
Nominations
of persons for election to the Board of Directors of the corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders: (i) pursuant to the corporation’s notice
of meeting of stockholders; (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the corporation who was a stockholder
of record at the time of giving the stockholder’s notice provided for in the
following paragraph, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in
Section 5.
(b)
At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. For nominations
or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, (i)
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation, (ii) such other business must be a proper matter
for stockholder action under DGCL, (iii) if the stockholder, or the beneficial
owner on whose behalf any such proposal or nomination is made, has provided the
corporation with a Solicitation Notice (as defined in clause (iii) of the last
sentence of this Section 5(b)), such stockholder or beneficial owner must,
in the case of a proposal, have delivered a proxy statement and form of proxy to
holders of at least the percentage of the corporation’s voting shares required
under applicable law to carry any such proposal, or, in the case of a nomination
or nominations, have delivered a proxy statement and form of proxy to holders of
a percentage of the corporation’s voting shares reasonably believed by such
stockholder or beneficial owner to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must, in either case,
have included in such materials the Solicitation Notice, and (iv) if no
Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such business or
nomination must not have solicited a number of proxies sufficient to have
required the delivery of such a Solicitation Notice under this
Section 5. To be timely, a stockholder’s notice shall be
delivered to the Secretary at the principal executive offices of the corporation
not later than the close of business on the ninetieth (90
th
) day
nor earlier than the close of business on the one hundred twentieth (120
th
) day
prior to the first anniversary of the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced more
than thirty (30) days prior to or delayed by more than thirty (30) days after
the anniversary of the preceding year’s annual meeting, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred twentieth (120
th
) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90
th
) day
prior to such annual meeting or the tenth (10
th
) day
following the day on which public announcement of the date of such meeting is
first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above. Such stockholder’s notice
shall set forth: (A) as to each person whom the stockholder proposed
to nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the “1934 Act”) and Rule 14a-4(d) thereunder (including such person’s
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the corporation’s books, and of
such beneficial owner, (ii) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, and (iii) whether either such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to holders of, in the
case of the proposal, at least the percentage of the corporation’s voting shares
required under applicable law to carry the proposal or, in the case of a
nomination or nominations, a sufficient number of holders of the corporation’s
voting shares to elect such nominee or nominees (an affirmative statement of
such intent, a “Solicitation Notice”).
(c)
Notwithstanding anything in the third sentence of Section 5(b) of
these Bylaws to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the corporation at least one
hundred (100) days prior to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice required by this Section 5 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth (10
th
) day
following the day on which such public announcement is first made by the
corporation.
(d)
Only such persons who are nominated in accordance with the procedures set
forth in this Section 5 shall be eligible to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 5. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in these Bylaws and, if
any proposed nomination or business is not in compliance with these Bylaws, to
declare that such defective proposal or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(e)
Notwithstanding the foregoing provisions of this Section 5, in order
to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholders’ meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934
Act. Nothing in these Bylaws shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the corporation proxy
statement pursuant to Rule 14a-8 under the 1934 Act.
(f)
For purposes of this Section 5, “public announcement” shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the 1934 Act.
(a)
Special meetings of the stockholders of the corporation may be called,
for any purpose or purposes, by (i) the Chairman of the Board of Directors,
(ii) the Chief Executive Officer, or (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption).
(b)
If a special meeting is properly called by any person or persons other
than the Board of Directors, the request shall be in writing, specifying the
general nature of the business proposed to be transacted, and shall be delivered
personally or sent by certified or registered mail, return receipt requested, to
the Chairman of the Board of Directors, the Chief Executive Officer, or the
Secretary of the corporation. No business may be transacted at such
special meeting otherwise than specified in such notice. The Board of
Directors shall determine the time and place of such special meeting, which
shall be held not less than thirty-five (35) nor more than one hundred twenty
(120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 7 of these Bylaws. Nothing
contained in this paragraph (b) shall be construed as limiting, fixing, or
affecting the time when a meeting of stockholders called by action of the Board
of Directors may be held.
(c)
Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the corporation’s notice of meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the corporation who is a
stockholder of record at the time of giving notice provided for in these Bylaws
who shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 6(c). In the event the
corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation’s notice of meeting, if the
stockholder’s notice required by Section 5(b) of these Bylaws shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the one hundred twentieth (120
th
)
day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90
th
) day
prior to such meeting or the tenth (10
th
) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder’s notice as described above.
Section
7.
Notice Of Meetings.
Except as otherwise provided by law, notice,
given in writing or by electronic transmission, of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, if any, date and hour, in the case of special
meetings, the purpose or purposes of the meeting, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at any such meeting. If mailed, notice is
given when deposited in the United
States
mail, postage prepaid, directed to the stockholder at such stockholder’s address
as it appears on the records of the corporation. Notice of the time,
place, if any, and purpose of any meeting of stockholders may be waived in
writing, signed by the person entitled to notice thereof, or by electronic
transmission by such person, either before or after such meeting, and will be
waived by any stockholder by his attendance thereat in person, by remote
communication, if applicable, or by proxy, except when the stockholder attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. 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.
Section
8.
Quorum.
At all meetings of stockholders, except where otherwise
provided by statute or by the Certificate of Incorporation, or by these Bylaws,
the presence, in person, by remote communication, if applicable, 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. In the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, either by the chairman of the meeting or by vote
of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such 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. Except as otherwise provided by
statute or by applicable stock exchange or Nasdaq rules, or by the Certificate
of Incorporation or these Bylaws, in all matters other than the election of
directors, the affirmative vote of the majority of shares present in person, by
remote communication, if applicable, or represented by proxy at the meeting and
entitled to vote generally on the subject matter shall be the act of the
stockholders. Except as otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, directors shall be elected by a plurality of the
votes of the shares present in person, by remote communication, if applicable,
or represented by proxy at the meeting and entitled to vote generally on the
election of directors. Where a separate vote by a class or classes or
series is required, except where otherwise provided by the statute or by the
Certificate of Incorporation or these Bylaws, a majority of the outstanding
shares of such class or classes or series, present in person, by remote
communication, if applicable, or represented by proxy duly authorized, shall
constitute a quorum entitled to take action with respect to that vote on that
matter. Except where otherwise provided by statute or by the Certificate of
Incorporation or these Bylaws, the affirmative vote of the majority (plurality,
in the case of the election of directors) of shares of such class or classes or
series present in person, by remote communication, if applicable, or represented
by proxy at the meeting shall be the act of such class or classes or
series.
Section
9.
Adjournment And Notice Of Adjourned Meetings.
Any meeting of
stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
present in person, by remote communication, if applicable, or represented by
proxy at the meeting. When a meeting is adjourned to another time or
place, if any, notice need not be given of the adjourned meeting if the time and
place, if any, thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than thirty (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.
Section
10.
Voting
Rights.
For the purpose of determining those stockholders entitled
to vote at any meeting of the stockholders, except as otherwise provided by law,
only persons in whose names shares stand on the stock records of the corporation
on the record date, as provided in Section 12 of these Bylaws, shall be
entitled to vote at any meeting of stockholders. Every person entitled to
vote or execute consents shall have the right to do so either in person, by
remote communication, if applicable, or by an agent or agents authorized by a
proxy granted in accordance with Delaware law. An agent so appointed need
not be a stockholder. No proxy shall be voted after three (3) years from
its date of creation unless the proxy provides for a longer period.
Section
11.
Joint
Owners Of Stock.
If shares or other securities having voting power
stand of record in the names of two (2) or more persons, whether fiduciaries,
members of a partnership, joint tenants, tenants in common, tenants by the
entirety, or otherwise, or if two (2) or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect: (a) if
only one (1) votes, his act binds all; (b) if more than one (1) votes, the
act of the majority so voting binds all; (c) if more than one (1) votes,
but the vote is evenly split on any particular matter, each faction may vote the
securities in question proportionally, or may apply to the Delaware Court of
Chancery for relief as provided in the DGCL, Section 217(b). If the
instrument filed with the Secretary shows that any such tenancy is held in
unequal interests, a majority or even-split for the purpose of
subsection (c) shall be a majority or even-split in interest.
Section
12.
List
Of Stockholders.
The Secretary shall prepare and make, at least ten
(10) 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 each stockholder 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, (a) 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 (b)
during ordinary business hours, at the principal place of business of the
corporation. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
corporation. The list shall be open to the examination of any stockholder
during the time of the meeting as provided by law.
Section
13.
Action
Without Meeting.
Unless otherwise provided in the Certificate of
Incorporation, any action required by statute to be taken at any annual or
special meeting of the stockholders, or any action that 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 in writing, or by
electronic transmission setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
(a)
Every written consent or electronic transmission shall bear the date of
signature of each stockholder who signs the consent, and no written consent or
electronic transmission shall be effective to take the corporate action referred
to therein unless, within sixty (60) days of the earliest dated consent
delivered to the corporation in the manner herein required, written consents or
electronic transmissions signed by a sufficient number of stockholders 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 a corporation’s registered
office shall be by hand or by certified or registered mail, return receipt
requested.
(b)
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 or by electronic transmission and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take action were
delivered to the corporation as provided in Section 228 (c) of the DGCL.
If the action that is consented to is such as would have required the filing of
a certificate under any section of the DGCL if such action had been voted on by
stockholders at a meeting thereof, then the certificate filed under such section
shall state, in lieu of any statement required by such section concerning any
vote of stockholders, that written consent has been given in accordance with
Section 228 of the DGCL.
(c)
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 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 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. 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 in
writing.
(a)
At every meeting of stockholders, the Chairman of the Board of Directors,
or, if a Chairman has not been appointed or is absent, the President, or, if the
President is absent, a chairman of the meeting chosen by a majority in interest
of the stockholders entitled to vote, present in person or by proxy, shall act
as chairman. The Secretary, or, in his absence, an Assistant Secretary
directed to do so by the President, shall act as secretary of the
meeting.
(b)
The Board of Directors of the corporation shall be entitled to make such
rules or regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. The date and time of the opening and closing of the polls
for each matter upon which the stockholders will vote at the meeting shall be
announced at the meeting. Unless and to the extent determined by the Board
of Directors or the chairman of the meeting, meetings of stockholders shall not
be required to be held in accordance with rules of parliamentary
procedure.
DIRECTORS
Section
15.
Number
And Term Of Office.
The authorized number of directors of the
corporation shall be fixed in accordance with the Certificate of
Incorporation. Directors need not be stockholders unless so required by
the Certificate of Incorporation. If for any cause, the 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
16.
Powers.
The powers of the corporation shall be exercised, its
business conducted and its property controlled by the Board of Directors, except
as may be otherwise provided by statute or by the Certificate of
Incorporation.
Section
17.
Board
of Directors.
Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances,
directors shall be elected at each annual meeting of stockholders for a term of
one year. Each director shall serve
until his
successor is duly elected and qualified or until his death, resignation or
removal. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(a)
Unless otherwise provided in the Certificate of Incorporation and subject
to the rights of the holders of any series of Preferred Stock, any vacancies on
the Board of Directors resulting from death, resignation, disqualification,
removal or other causes and any newly created directorships resulting from any
increase in the number of directors shall, unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships
shall be filled by stockholders, be filled only by the affirmative vote of a
majority of the directors then in office, even though less than a quorum of the
Board of Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the director
for which the vacancy was created or occurred and until such director’s
successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section 18 in the case of the
death, removal or resignation of any director.
Section
19.
Resignation.
Any director may resign at any time by delivering his
or her notice in writing or by electronic transmission 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 of Directors, effective at a future date, a majority of the directors then
in office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each Director so chosen shall hold
office 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.
Section
20.
Removal.
Subject to the rights of the holders of any series of Preferred
Stock, (a) with cause by the affirmative vote of the holders of a majority of
the voting power of all the then-outstanding shares of capital stock of the
corporation, entitled to vote generally at an election of directors or (b)
without cause by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all the then-outstanding
shares of the capital stock of the corporation entitled to vote generally at an
election of directors.
(a)
Regular Meetings.
Unless otherwise restricted by the Certificate of
Incorporation, regular meetings of the Board of Directors may be held at any
time or date and at any place within or without the State of Delaware which has
been designated by the Board of Directors and publicized among all directors,
either orally or in writing, by telephone, including a voice-messaging system or
other system designed to record and communicate messages, facsimile, telegraph
or telex, or by electronic mail or other electronic means. No further
notice shall be required for regular meetings of the Board of
Directors.
(b)
Special Meetings.
Unless otherwise restricted by the Certificate of
Incorporation, 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, the President or a majority of the authorized number of
directors.
(c)
Meetings by Electronic Communications Equipment.
Any member of the
Board of Directors, or of any committee thereof, may participate in a meeting by
means of conference telephone or other communications 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)
Notice of Special Meetings.
Notice of the time and place of all
special meetings of the Board of Directors shall be orally or in writing, by
telephone, including a voice messaging system or other system or technology
designed to record and communicate messages, facsimile, telegraph or telex, or
by electronic mail or other electronic means, during normal business hours, at
least twenty-four (24) hours before the date and time of the meeting. If notice
is sent by U.S. mail, it shall be sent by first class mail, charges prepaid, at
least three (3) days before the date of the meeting. Notice of any meeting
may be waived in writing, or by electronic transmission, at any time before or
after the meeting and will be waived by any director by attendance thereat,
except when the director attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
(e)
Waiver of Notice.
The transaction of all business at 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 who did not receive notice shall
sign a written waiver of notice or shall waive notice by electronic
transmission. All such waivers shall be filed with the corporate records
or made a part of the minutes of the meeting.
(a)
Unless the Certificate of Incorporation requires a greater number, a
quorum of the Board of Directors shall consist of a majority of the exact number
of directors fixed from time to time by the Board of Directors in accordance
with the Certificate of Incorporation;
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 of Directors at which a quorum is present,
all questions and business shall be determined by the affirmative vote of a
majority of the directors present, unless a different vote be required by law,
the Certificate of Incorporation or these Bylaws.
Section
23.
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 of Directors or committee, as the
case may be, consent thereto in writing or by electronic transmission, and such
writing or writings or transmission or transmissions are filed with the minutes
of proceedings of the Board of Directors or committee. Such filing shall
be in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section
24.
Fees
And Compensation.
Directors shall be entitled to such compensation
for their services as may be approved by the Board of Directors, including, if
so approved, by resolution of the Board of Directors, a fixed sum and expenses
of attendance, if any, for attendance at each regular or special meeting of the
Board of Directors and at any meeting of a committee of the Board of
Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor.
(a)
Executive Committee.
The Board of Directors may by resolution
passed by a majority of the whole Board of Directors appoint an Executive
Committee to consist of one (1) or more members of the Board of Directors.
The Executive Committee, to the extent permitted by law and provided in the
resolution of the Board of Directors shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, including without limitation the power or authority
to declare a dividend, to authorize the issuance of stock and to adopt a
certificate of ownership and merger, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation’s property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws of the
corporation.
(b)
Other Committees.
The Board of Directors may, from time to time,
appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one (1) or more
members of the Board of Directors and shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions creating such
committees, but in no event shall any such committee have the powers denied to
the Executive Committee in these Bylaws.
(c)
Term.
The Board of Directors, subject to any requirements of any
outstanding series of Preferred Stock and the provisions of subsections (a)
or (b) of this Section 25, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of his death or
voluntary resignation from the committee or from the Board of Directors.
The Board of Directors may at any time for any reason remove any individual
committee member and the Board of Directors 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 25 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 any place which has been determined from time to
time by such committee, and may be called by any director who is a member of
such committee, upon notice (written or by electronic transmission) to the
members of such committee of the time and place of such special meeting given in
the manner provided for the giving of notice (written or by electronic
transmission) 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 or by electronic transmission at any
time before or after the meeting and will be waived by any director by
attendance thereat, except when the director attends such special meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Unless otherwise provided by the Board of Directors in the
resolutions authorizing the creation of the committee, 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.
Section
26.
Organization.
At every meeting of the directors, the Chairman of
the Board of Directors, or, if a Chairman has not been appointed or is absent,
the President (if a director), or if the President is absent, the most senior
Vice President (if a director), or, in the absence of any such person, a
chairman of the meeting chosen by a majority of the directors present, shall
preside over the meeting. The Secretary, or in his absence, any Assistant
Secretary directed to do so by the President, shall act as secretary of the
meeting.
OFFICERS
Section
27.
Officers Designated.
The officers of the corporation shall include,
if and when designated by the Board of Directors, the Chairman of the Board of
Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer and the
Controller, all of whom shall be elected at the annual organizational meeting of
the Board of Directors. The Board of Directors may also appoint one or
more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one
or more of the officers as it 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.
(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.
(b)
Duties of Chairman of the Board of Directors.
The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform other duties commonly incident to the office and shall
also perform such other duties and have such other powers, as the Board of
Directors shall designate from time to time. If there is no President,
then the Chairman of the Board of Directors shall also serve as the Chief
Executive Officer of the corporation and shall have the powers and duties
prescribed in paragraph (c) of this Section 28.
(c)
Duties of President.
The President shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present.
Unless some other officer has been elected Chief Executive Officer of the
corporation, the President shall be the chief executive officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
corporation. The President shall perform other duties commonly incident to the
office and shall also 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 may assume and
perform the duties of the President in the absence or disability of the
President or whenever the office of President is vacant. The Vice
Presidents shall perform other duties commonly incident to their office and
shall also 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
stockholders and of the Board of Directors 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
stockholders and of all meetings of the Board of Directors and any committee
thereof requiring notice. The Secretary shall perform all other duties
provided for in these Bylaws and other duties commonly incident to the office
and shall also 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 other duties commonly incident to the office and shall also
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 Chief Financial Officer.
The Chief Financial Officer
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 financial affairs
of the corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the
order of the Board of Directors, shall have the custody of all funds and
securities of the corporation. The Chief Financial Officer shall perform
other duties commonly incident to the office and shall also 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 the Treasurer
or any Assistant Treasurer, or the Controller or any Assistant Controller to
assume and perform the duties of the Chief Financial Officer in the absence or
disability of the Chief Financial Officer, and each Treasurer and Assistant
Treasurer and each Controller and Assistant Controller shall perform other
duties commonly incident to the office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
Section
29.
Delegation Of Authority.
The Board of Directors may from time to
time delegate the powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
Section
30.
Resignations.
Any officer may resign at any time by giving notice
in writing or by electronic transmission to the Board of Directors or to the
President or to the Secretary. Any such resignation shall be effective
when received by the person or persons to whom such notice is given, unless a
later time is specified therein, in which event the resignation shall become
effective at such later time. Unless otherwise specified in such notice,
the acceptance of any such resignation shall not be necessary to make it
effective. Any resignation shall be without prejudice to the rights, if
any, of the corporation under any contract with the resigning
officer.
Section
31.
Removal.
Any officer may be removed from office at any time, either
with or without cause, by the affirmative vote of a majority of the directors in
office at the time, or by the unanimous written consent of the directors in
office at the time, or by any committee or superior officers upon whom such
power of removal may have been conferred by the Board of Directors.
EXECUTION
OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES
OWNED
BY THE CORPORATION
Section
32.
Execution Of Corporate Instruments.
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 on behalf
of the corporation any corporate instrument or document, or to sign on behalf of
the corporation the corporate name without limitation, or to enter into
contracts on behalf of the corporation, except where otherwise provided by law
or these Bylaws, and such execution or signature shall be binding upon the
corporation. 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. Unless authorized or ratified by
the Board of Directors or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
Section
33.
Voting
Of Securities Owned By The 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 of Directors, the Chief Executive Officer, the President,
or any Vice President.
SHARES
OF STOCK
Section
34.
Form
And Execution Of Certificates.
The
shares of the corporation shall be represented by certificates, or shall be
uncertificated. Certificates for the shares of stock, if any, shall
be in such form as is consistent with the Certificate of Incorporation and
applicable law. Every holder of stock represented by certificate in
the corporation shall be entitled to have a certificate signed by or in the name
of the corporation by the Chairman of the Board of Directors, or 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 such
holder in the corporation. Any or all of the signatures on the
certificate may be facsimiles. 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.
Section
35.
Lost
Certificates.
A new certificate or certificates shall be issued in
place of any certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen, or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen,
or destroyed. The corporation may require, as a condition precedent to the
issuance of a new certificate or certificates, the owner of such lost, stolen,
or destroyed certificate or certificates, or the owner’s legal representative,
to agree to indemnify the corporation in such manner as it shall require 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, stolen, or
destroyed.
(a)
Transfers of record of shares of stock of the corporation shall be made
only upon its books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a properly endorsed certificate or
certificates for a like number of shares.
(b)
The corporation shall have power to enter into and perform any agreement
with any number of stockholders of any one or more classes of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes owned by such stockholders in any manner not prohibited
by the DGCL.
(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, in advance, 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, subject to applicable law,
not be more than sixty (60) nor less than ten (10) 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 (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed
by the Board of Directors within ten (10) days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the 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 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, 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, in advance, 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 (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.
Section
38.
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.
OTHER
SECURITIES OF THE CORPORATION
Section
39.
Execution Of Other Securities.
All bonds, debentures and other
corporate securities of the corporation, other than stock certificates (covered
in Section 34), may be signed by the Chairman of the Board of Directors,
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 Chief Financial Officer or Treasurer
or an Assistant Treasurer;
provided, however,
that where
any such bond, debenture or other corporate security shall be authenticated by
the manual signature, or where permissible facsimile signature,
of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signatures 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 on any such interest coupon, shall have ceased to be such
officer 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.
DIVIDENDS
Section
40.
Declaration Of Dividends.
Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation and
applicable law, if any, may be declared by the Board of Directors pursuant to
law at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation and applicable law.
Section
41.
Dividend Reserve.
Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
FISCAL
YEAR
Section
42.
Fiscal
Year.
The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
INDEMNIFICATION
Section
43.
Indemnification Of Directors, Executive Officers, Other Officers, Employees And
Other Agents.
(a)
Directors and Executive Officers.
The corporation shall indemnify its
directors and executive officers (for the purposes of this Article XI,
“executive officers” shall have the meaning defined in Rule 3b-7 promulgated
under the 1934 Act) to the fullest extent not prohibited by the DGCL or any
other applicable law;
provided, however,
that the
corporation may modify the extent of such indemnification by individual
contracts with its directors and executive officers; and,
provided, further,
that the
corporation shall not be required to indemnify any director or executive officer
in connection with any proceeding (or part thereof) initiated by such person
unless (i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board of Directors of the
corporation, (iii) such indemnification is provided by the corporation, in
its sole discretion, pursuant to the powers vested in the corporation under the
DGCL or any other applicable law or (iv) such indemnification is required to be
made under subsection (d).
(b)
Other Officers, Employees and Other Agents.
The corporation shall
have power to indemnify its other officers, employees and other agents as set
forth in the DGCL or any other applicable law. The Board of Directors
shall have the power to delegate the determination of whether indemnification
shall be given to any such person (except executive officers) as the Board of
Directors shall determine.
(c)
Expenses.
The corporation shall advance to 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 or
executive officer of the
corporation, or is or was serving at the request of the corporation as a
director or executive officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
director or
executive officer in
connection with such proceeding provided, however, that if the DGCL requires, an
advancement of expenses incurred by a director or
executive officer
in his or her capacity
as a director or
executive officer
(and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an “undertaking”), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 43 or otherwise.
Notwithstanding
the foregoing, unless otherwise determined pursuant to paragraph (e) of
this Section 43, no advance shall be made by the corporation to an
executive officer of the corporation (except by reason of the fact that such
executive officer is or was a director of the corporation in which event this
paragraph shall not apply) in any action, suit or proceeding,
whether
civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by a majority vote of directors who were
not parties to the proceeding, even if not a quorum, or (ii) by a committee
of such directors designated by a majority vote of such directors, even though
less than a quorum, or (iii) if there are no such directors, or such directors
so direct, by independent legal counsel in a written opinion, that the facts
known to the decision-making party at the time such determination is made
demonstrate clearly and convincingly that such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the best
interests of the corporation.
(d)
Enforcement.
Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and executive
officers under this Section 43 shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between the
corporation and the director or executive officer. Any right to
indemnification or advances granted by this Section 43 to a director or
executive officer shall be enforceable by or on behalf of the person holding
such right in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole
or in part, shall be entitled to be paid also the expense of prosecuting his
claim. In connection with any claim for indemnification, the corporation
shall be entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the DGCL
or any other applicable law for the corporation to indemnify the claimant for
the amount claimed. In connection with any claim by an executive officer
of the corporation (except in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
executive officer is or was a director of the corporation) for advances, the
corporation shall be entitled to raise a defense as to any such action clear and
convincing evidence that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
corporation, or with respect to any criminal action or proceeding that such
person acted without reasonable cause to believe that his conduct was
lawful. 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 in the circumstances because he has met the applicable
standard of conduct set forth in the DGCL or any other applicable law, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant has 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.
(e)
Non-Exclusivity of Rights.
The rights conferred on any person by
this Section 43 shall not be exclusive of any other right which such person may
have or hereafter acquire under any applicable statute, provision of the
Certificate of Incorporation, Bylaws, 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 office. The corporation
is specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent not prohibited by the DGCL, or by any other
applicable law.
(f)
Survival of Rights.
The rights conferred on any person by this
Section 43 shall continue as to a person who has ceased to be a director
or executive officer or officer, employee or other agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(g)
Insurance.
To the fullest extent permitted by the DGCL or any other
applicable law, the corporation, upon approval by the Board of Directors, may
purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Section 43.
(h)
Amendments.
Any repeal or modification of this Section 43
shall only be prospective and shall not affect the rights under this Section 43
in effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the
corporation.
(i)
Saving Clause.
If this Section 43 or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer to
the full extent not prohibited by any applicable portion of this Section 43
that shall not have been invalidated, or by any other applicable law. If
this Section 43 shall be invalid due to the application of the
indemnification provisions of another jurisdiction, then the corporation shall
indemnify each director and executive officer to the full extent under any other
applicable law.
(j)
Certain Definitions.
For the purposes of this Section 43, the
following definitions shall apply:
(1)
The term “proceeding” shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(2)
The term “expenses” shall be broadly construed and shall include, without
limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in
settlement or judgment and any other costs and expenses of any nature or kind
incurred in connection with any proceeding.
(3)
The term the “corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, 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 of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Section 43 with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its separate
existence had continued.
(4)
References to a “director,” “executive officer,” “officer,” “employee,”
or “agent” of the corporation shall include, without limitation, situations
where such person is serving at the request of the corporation as, respectively,
a director, executive officer, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
(5)
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 Section 43.
NOTICES
(a)
Notice To Stockholders.
Written notice to stockholders of stockholder
meetings shall be given as provided in Section 7 herein. Without limiting
the manner by which notice may otherwise be given effectively to stockholders
under any agreement or contract with such stockholder, and except as otherwise
required by law, written notice to stockholders for purposes other than
stockholder meetings may be sent by US mail or nationally recognized overnight
courier, or by facsimile, telegraph or telex or by electronic mail or other
electronic means.
(b)
Notice To Directors.
Any notice required to be given to any
director may be given by the method stated in subsection (a), as otherwise
provided in these Bylaws, or by overnight delivery service, facsimile, telex or
telegram, except that such notice other than one which is delivered personally
shall be sent to such address as such director shall have filed in writing with
the Secretary, or, in the absence of such filing, to the last known post office
address of such director.
(c)
Affidavit Of Mailing.
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, or other agent,
specifying the name and address or the names and addresses of the stockholder or
stockholders, or director or directors, to whom any such notice or notices was
or were given, and the time and method of giving the same, shall in the absence
of fraud, be prima facie evidence of the facts therein contained.
(d)
Methods of Notice.
It shall not be necessary that the same method
of giving notice be employed in respect of all recipients of notice, 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.
(e)
Notice To Person With Whom Communication Is Unlawful.
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 DGCL, 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.
AMENDMENTS
Section
45.
Amendments.
Subject to paragraph (h) of Section 43 of the Bylaws,
the stockholders shall have power to adopt, amend or repeal the Bylaws of the
corporation;
provided,
however,
that, in addition to any vote of the holders of any class or
series of stock of the corporation required by law or by the Certificate of
Incorporation, the affirmative vote of the holders of at least a majority of the
voting power of all of the then-outstanding shares of the capital stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the corporation. The Board of Directors is also
expressly empowered to adopt, amend or repeal the Bylaws of the
corporation.