BYLAWS
Of
NEPHROS,
INC.
a
Delaware Corporation
(as
of
November 30, 2007)
ARTICLE
I
OFFICES
Section
1.01 REGISTERED OFFICE. The
registered office of NEPHROS, INC. (hereinafter called the "Corporation") shall
be at such place in the State of Delaware as shall be designated by the Board
of
Directors (hereinafter called the "Board").
Section
1.02 PRINCIPAL OFFICE. The
principal office for the transaction of the business of the Corporation shall
be
at such location, within or without the State of Delaware, as shall be
designated by the Board.
Section
1.03 OTHER OFFICES. The
Corporation may also have an office or offices at such other place of places,
either within or without the State of Delaware, as the Board may from time
to
time determine or as the business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
2.01 ANNUAL MEETINGS. Annual
meetings of the stockholders of the Corporation for the purpose of electing
directors and for the transaction of such other proper business as may come
before such meetings may be held at such time, date and place as the Board
shall
determine by resolution.
Section
2.02 SPECIAL MEETINGS.
Special meetings of the stockholders of the Corporation for any purpose or
purposes may be called at any time by the Board, or by a committee of the Board
which, or officer of the corporation who, has been duly designated by the Board
and whose powers and authority, as provided in a resolution of the Board or
in
the Bylaws, include the power to call such meetings, but such special meetings
may not be called by any other person or persons; provided however, that if
and
to the extent that any special meeting of stockholders may be called by any
other person or persons specified in any provisions of the Certificate of
Incorporation or any amendment thereto of any certificate filed under Section
151(g) of the General Corporation Law of the State of Delaware (or its successor
statue as in effect from time to time hereafter), then such special meeting
may
also be called by the person or persons, in the manner, at the time and for
the
purposes so specified.
Section
2.03 PLACE OF MEETINGS. All
meetings of the stockholders shall be held at such places, within or without
the
State of Delaware, as may from time to time be designated by the person or
persons calling the respective meetings and specified in the respective notices
or waivers of notice thereof.
Section
2.04 NOTICE OF MEETINGS.
Except as otherwise required by law, notice of each meeting of the stockholders,
whether annual or special, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder of record
entitled to vote at such
meeting
by delivering a typewritten or printed notice thereof to him personally, or
by
depositing such notice in the United States mail or overnight delivery service,
in a postage prepaid envelope, or by-hand delivery service, charges prepaid,
directed to him at his address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished to the Secretary
his address for such purpose, then at his address last known to the Secretary,
or by transmitting a notice thereof to him at such address by telegraph,
telecopy, cable or wireless. Except as otherwise expressly required by law,
no
publication of any notice of a meeting of the stockholders shall be required.
Every notice of a meeting of the stockholders shall state the place, date and
hour of the meeting, and, in the case of a special meeting shall also state
the
purpose or purposes for which the meeting is called. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting
at
which the adjournment is taken.
Whenever
notice is 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 any 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, the giving of such notice
to such person shall not be required. Any action or meeting which shall have
been 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 person shall deliver
to the Corporation a written notice setting forth his then current address,
the
requirement that notice be given to such person shall be
reinstated.
No
notice need be given to any person
with whom communication is unlawful, nor shall there be any duty to apply far
any permit or license to give notice to any such person.
Section
2.05 QUORUM. Except as
expressly required by law, the holders of record of a majority in voting
interest of the shares of stock of the Corporation entitled to be voted, present
in person or by proxy, shall constitute a quorum for the transaction of business
at any meeting of the stockholders of the Corporation or any adjournment
thereof. The stockholders present at a duly called or held meeting at which
a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. In the
absence of a quorum at any meeting or any adjournment thereof, a majority in
voting interest of the stockholders present in person or by proxy and entitled
to vote thereat or, in the absence therefrom of all the stockholders, any
officer entitled to preside at or to act as secretary of such meeting may
adjourn such meeting from time to time. At any such adjourned meeting at which
a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally called.
Section
2.06 VOTING.
(a)
At each meeting of the
stockholders, each stockholder shall be entitled to vote in person or by proxy
each share or fractional share of the stock of the Corporation which has voting
rights on the matter in question and which shall have been held by him and
registered in his name on the books of the Corporation:
(i)
on the date fixed pursuant to
Section 2.07 of these Bylaws as the record date for the determination of
stockholders entitled to notice of and to vote at such meeting, or
(ii)
if no such record date shall
have been so fixed, then (A) at the close of business on the day next preceding
the day on which notice of the meeting shall be given or (B) if notice of the
meeting shall be waived, at the close of business on the day next preceding
the
day on which the meeting shall be held.
(b)
Shares of its own stock belonging
to the Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors in such other corporation is
held,
directly or indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes. Persons holding stock of the Corporation
in
a fiduciary capacity shall be entitled to vote such stock. Persons whose stock
is pledged shall be entitled to vote, unless in the transfer by the pledgor
on
the books of the Corporation he shall have expressly empowered the pledgee
to
vote thereon, in which case only the pledgee, or his proxy, may represent such
stock and vote thereon. Stock having voting power standing of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or
with
respect to which two or more persons have the same fiduciary relationship,
shall
be voted in accordance with the provisions of the General Corporation Law of
Delaware.
(c)
Any such voting rights may be
exercised by the stockholder entitled thereto in person or by his proxy
appointed by an instrument in writing, subscribed by such stockholder or by
his
attorney thereunto authorized and delivered to the secretary of the meeting;
provided, however, that no proxy shall be voted or acted upon after three years
from its date unless said proxy shall provide for a longer period. The
attendance at any meeting of a stockholder who may theretofore have given a
proxy shall not have the effect of revoking the same unless be shall in writing
so notify the secretary of the meeting prior to the voting of the proxy. At
any
meeting of the stockholders all matters, except as otherwise provided in the
Certificate of Incorporation, in these Bylaws or expressly required by law,
shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon. The stockholders present at a duly called or held meeting at which
a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. The vote
at
any meeting of the stockholders on any question need not be by ballot, unless
so
directed by the chairman of the meeting. On a vote by ballot, each ballot shall
be signed by the stockholder voting, or by his proxy if there be such proxy,
and
it shall state the number of shares voted.
Section
2.07 LIST OF STOCKHOLDERS.
The Secretary of the Corporation shall prepare and make, at least ten (10)
days
before very meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the
address of each stockholder and the number of shares registered in the name
of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
a
period of at least ten (10) days prior to the meeting at the principal place
of
business of the Corporation. The list shall also be produced and kept at the
time and place of the meeting during the entire duration thereof, and may be
inspected by any stockholder who is present.
Section
2.08 STOCK LEDGER. The stock
ledger of the Corporation shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders required by Section
2.07 of this Article II or, to the extent entitled by Section 220 of the General
Corporation Law of the State of Delaware, the books and records of the
Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section
2.09 INSPECTOR OF ELECTION.
The directors, in advance of any meeting, may, but need not, appoint one or
more
inspectors of election to act at the meeting or any adjournment thereof. If
an
inspector or inspectors are not appointed, the person presiding at the meeting
may, but need not, appoint one or more inspectors. In case any person who may
be
appointed as an inspector fails to appear or act, the vacancy may be filled
by
appointment made by the directors in advance of the meeting or at
the
meeting
by the person presiding thereat. Each inspector so appointed shall first
subscribe an oath faithfully to execute the duties of an inspector at such
meeting with strict impartiality and according to the best of his ability.
Such
inspectors shall decide upon the qualification of the voters and shall report
the numbers of shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted respectively for and
against the question. Reports of the inspectors shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation. Inspectors
need not be stockholders of the Corporation, and any officer of the Corporation
may be an inspector on any question other than a vote for or against a proposal
in which he shall have a material interest. No director or candidate for the
office of director shall act as an inspector of an election of
directors.
Section
2.10 STOCKHOLDER ACTION
WITHOUT MEETINGS. Any action required by the General Corporation Law of the
State of Delaware 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 in writing setting forth the action so taken shall
be signed by each holder of outstanding stock entitled to vote
thereon.
Section
2.11 RECORD DATE. In order
that the Corporation may determine the stockholders entitled to notice of or
to
vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board and which record
date:
(i) in the case of determination of stockholders entitled to vote at any meeting
of stockholders or adjournment thereof, shall, unless otherwise required by
law,
not be more than sixty nor less than ten days before the date of such meeting;
(ii) in the case of determination of stockholders entitled to express consent
to
corporate action in writing without a meeting, shall not be more than ten days
from the date upon which the resolution fixing the record date is adopted by
the
Board; and (iii) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (i) the record
date
for determining stockholders entitled to notice of or to vote at a meeting
of
stockholders shall be at the close of business on the day next preceding the
day
on which notice is given, or, if notice is waived, at the close of business
on
the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board is
required by 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 in accordance with applicable law, or, if prior action by the Board
is required by law, shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action; and (iii) the record
date
for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
ARTICLE
III
BOARD
OF DIRECTORS
Section
3.01 GENERAL POWERS. The property, business and affairs of the Corporation
shall
be managed by or under the direction of the Board, which may exercise all of
the
powers of the Corporation, except such as are by the Certificate of
Incorporation, by these Bylaws or expressly required by law conferred upon
or
reserved to the stockholders.
Section
3.02 NUMBER AND TERM. A
director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The number of directors constituting the
whole Board shall be not less than three nor more than fifteen, except that,
where all the shares of stock of the corporation are owned beneficially and
of
record by less than three stockholders, the number of directors may be less
than
three but not less than the number of such stockholders. Subject to the
foregoing limitation, such number may be fixed from time to time by the
Board.
Section
3.03 ELECTION OF DIRECTORS.
Directors shall be divided into three classes and shall be elected to staggered
terms in the manner provided in the Certificate of Incorporation. Any director
may resign at any time upon written notice to the corporation. In the interim
between annual meetings of stockholders or special meetings of stockholders
called for the election of directors and/or for the removal of one or more
directors and for the filling of any vacancies in the Board, including vacancies
resulting from the removal of directors for cause, any vacancy in the Board
may
be filled by the vote of a majority of the remaining directors then in office,
although less than a quorum, or by the sole remaining director.
Section
3.04 RESIGNATION AND REMOVAL.
Any director of the Corporation may resign at any time by giving written notice
to the Board or to the Secretary of the Corporation. Any such resignation shall
take effect at the date specified therein, or, if the time is not specified,
it
shall take effect immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make
it
effective.
Except
as otherwise provided by the
Certificate of Incorporation or expressly required by law, any director or
the
entire board of directors may be removed, but only for cause, by the holders
of
a majority of shares then entitled to vote at an election of
directors.
Section
3.05 VACANCIES. Except as
otherwise provided in the Certificate of Incorporation, any vacancy in the
Board, whether because of death, resignation, disqualification, an increase
in
the number of directors, or any other cause, may be filled by vote of the
majority of the remaining directors, although less than a quorum, or by a sole
remaining director. Each director so chosen to fill a vacancy shall hold office
until his successor shall have been elected and shall quality or until he shall
resign or shall have been removed. No reduction of the authorized number of
directors shall have the effect of removing any director prior to the expiration
of his term of office.
Upon
the resignation of one or more
directors from the Board, 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 hereinabove in the filling of other
vacancies.
Section
3.06 PLACE OF MEETING;
TELEPHONE CONFERENCE MEETING. The Board may hold any of its meetings at such
place or places within or without the State of Delaware as the Board may from
time to time by resolution designate or as shall be designated by the person
or
persons calling the meeting or in the notice or waiver of notice of any such
meeting. Directors may participate in any regular or special meeting by means
of
conference telephone or similar communications equipment pursuant to which
all
persons participating in the meeting of the Board can hear each other, and
such
participation shall constitute presence in person at such meeting.
Section
3.07 FIRST MEETING. The Board
shall meet as soon as practicable after each annual election of directors and
notice of such first meeting shall not be required.
Section
3.08 REGULAR MEETINGS.
Regular meetings of the Board may be held at such times as the Board shall
from
time to time by resolution determine. If any day fixed for a meeting shall
be a
legal holiday at the place where the meeting is to be held, then the meeting
shall be held at the same hour and place on the next succeeding business day
which is not a legal holiday. Except as expressly required by law, notice of
regular meetings need not be given.
Section
3.09 SPECIAL MEETINGS.
Special meetings of the Board may be called at any time by the Chairman of
the
Board, the President, the Secretary or by any two (2) directors, to be held
at
the principal office of the Corporation, or at such other place or places,
within or without the State of Delaware, as the person or persons calling the
meeting may designate.
Notice
of the time and place of
special meetings shall be given to each director either (i) by depositing such
notice in the United States mail of overnight delivery service, in a postage
prepaid envelope, or by-hand delivery service, charges prepaid, addressed to
him
at his address as it is shown upon the records of the Corporation, or if it
is
not so shown on such records or is not readily ascertainable, at the place
in
which the meetings of the directors are regularly held, or by transmitting
a
notice thereof to him at such address by telegraph, telecopy, cable or wireless,
at least forty-eight (48) hours prior to the time of the holding of such
meeting, or (ii) by orally communicating the time and place of the special
meeting to him at least forty-eight (48) hours prior to the time of the holding
of such meeting. Either of the notices as above provided shall be due, legal
and
personal notice to such director.
Section
3.10 QUORUM AND ACTION.
Except as otherwise provided in these Bylaws or expressly required by law,
the
presence of a majority of the authorized number of directors shall be required
to constitute a quorum for the transaction of business at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present,
subject to Section 3.15. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meetings need not be given. The
directors shall act only as a Board, and the individual directors shall have
no
power as such.
Section
3.11 ACTION BY CONSENT. Any
action required or permitted to be taken at any meeting of the Board or of
any
committee thereof may be taken without a meeting if a written consent thereto
is
signed by all members of the Board of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board
or
such committee. Such action by written consent shall have the same force and
effect as the unanimous vote of such directors.
Section
3.12 COMPENSATION. No stated
salary need be paid to directors, as such, for their services but, as fixed
from
time to time by resolution of the Board, the directors may receive directors'
fees, compensation and reimbursement for expenses for attendance at directors'
meetings, for serving on committees and for discharging their duties; provided
that nothing herein contained shall be construed to preclude any director from
serving the Corporation in any outer capacity and receiving compensation
therefor.
Section
3.13 COMMITTEES. The Board
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each committee to consist of one or more of the directors
of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at
any meeting of the committee. In the absence or disqualification of a member
of
the 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 place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and provided in the resolution
of
the
Board, shall have and may exercise all the powers and authority of the Board
in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require
it.
Unless
the Board otherwise provides,
each committee designated by the Board may make, alter and repeal rules for
conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board conducts its business
pursuant to these Bylaws. Any such committee shall keep written minutes of
its
meetings and report the same to the Board when required.
Section
3.14 OFFICES OF THE BOARD. A
Chairman of the Board or a Vice Chairman may be appointed from time to time
by
the Board and shall have such powers and duties as shall be designated by the
Board.
Section
3.15 INTERESTED DIRECTORS. No
contract or transaction between the Corporation and one or more of its directors
or 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
thereof which authorizes the contract or transaction, or solely because any
such
director's or officer's votes are counted for such purpose 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; or (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.
ARTICLE
IV
OFFICERS
Section
4.01 OFFICERS. The officers
of the Corporation shall be a President, a Secretary and a Treasurer. The
Corporation may also have, at the discretion of the Board, a Chairman of the
Board, a Chief Executive Officer, a Chief Financial Officer one or more Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers as may
be
appointed in accordance with the provisions of Section 4.03 of these Bylaws.
One
person may hold two or more offices.
Section
4.02 ELECTION AND TERM. The
officers of the Corporation, except such officers as may be appointed in
accordance with the provisions of Section 4.03 or Section 4.05 of those Bylaws,
shall be chosen annually by the Board, and each shall hold his office until
he
shall resign or shall be removed or otherwise disqualified to serve, or until
his successor shall be elected and qualified.
Section
4.03 SUBORDINATE OFFICERS.
The Board may appoint, or may authorize the Chief Executive Officer to appoint,
such other officers as the business of the Corporation may require, each of
whom
shall have such authority and perform such duties as are provided in these
Bylaws or as the Board or the President from time to time may specify, and
shall
hold office until he shall resign or shall be removed or otherwise disqualified
to serve.
Section
4.04 REMOVAL AND RESIGNATION.
Any officer may be removed, with or without cause, by a majority of the
directors at the time in office, at any regular or special meeting of the Board,
or, except in case of an officer chosen by the Board, by the Chief Executive
Officer upon whom such power of removal may be conferred by the
Board.
Any
officer may resign at any time by
giving written notice to the Corporation. Any such resignation shall take effect
at the date of the receipt of such notice or at any later time specified
therein; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section
4.05 VACANCIES. A vacancy in
any office because of death, resignation, removal, disqualification or any
other
cause shall be filled in the manner prescribed in the Bylaws for the regular
appointments to such office.
Section
4.06 PRESIDENT. The President
of the Corporation shall, subject to the control of the Board, have general
supervision, direction and control of the business and affairs of the
Corporation. He shall preside at all meetings of stockholders and the Board.
He
shall have the general powers and duties of management usually vested in the
chief executive officer of a corporation, and shall have such other powers
and
duties with respect to the administration of the business and affairs of the
Corporation as may from time to time be assigned to him by the Board or as
prescribed by the Bylaws.
Section
4.07 CHAIRMAN OF THE BOARD.
The Chairman of the Board, if any, shall preside at all meetings of the
stockholders and the Board and exercise and perform such other powers and duties
with respect to the administration of the business and affairs of the
Corporation as may from time to time be assigned to him by the Board or is
as
prescribed by the Bylaws.
Section
4.08 CHIEF EXECUTIVE
OFFICER/CHIEF FINANCIAL OFFICER/CHIEF OPERATING OFFICER/ OFFICE OF THE CHIEF
EXECUTIVE. In the event the Board of Directors elects a Chief Executive Officer,
Chief Financial Officer and/or a Chief Operating Officer, or establishes an
Office of the Chief Executive, the person or persons so elected or the members
of such office shall individually or jointly, as the case may be, have general
and active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board. The Chief Executive
Officer, the Chief Financial Officer, the Chief Operating Officer, or members
of
the Office of the Chief Executive, as the case may be, also shall have such
powers and perform such other duties as prescribed from time to time by the
Board of Directors.
Section
4.09 VICE PRESIDENT. The Vice
President(s), if any, shall exercise and perform such powers and duties with
respect to the administration of the business and affairs of the Corporation
as
from time to time may be assigned to each of them by the President, by the
Chairman of the Board, if any, by the Board or as is prescribed by the Bylaws.
In the absence or disability of the President, the Vice Presidents, in order
of
their rank as fixed by the Board, or if not ranked, the Vice President
designated by the Board, shall perform all of the duties of the President and
when so acting shall have all of the powers of and be subject to all the
restrictions upon the President.
Section
4.10 SECRETARY. The Secretary
shall keep, or cause to be kept, a book of minutes at the principal office
for
the transaction of the business of the Corporation or such other place as the
Board may order, of all meetings of directors and stockholders, with the time
and place of holding, whether regular or special, and if special, how authorized
and the notice thereof given, the names of those present at directors' meetings,
the number of shares present or represented at stockholders' meetings and the
proceedings thereof.
The
Secretary shall keep, or cause to
be kept, at the principal office for the transaction of the business of the
Corporation or at the office of the Corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The
Secretary shall give, or cause to
be given, notice of all the meetings of the stockholders and of the Board
required by these Bylaws or expressly required by law to be given, and he shall
keep the seal of the Corporation in sole custody, and shall have such other
powers and perform such other duties as may be prescribed by the Board or these
Bylaws. If for any reason the Secretary shall fail to give notice of any special
meeting of the Board called by one or more of the persons identified in Section
3.09 of these Bylaws, or if he shall fail to give notice of any special meeting
of the stockholders called by one or more of the persons identified in Section
2.02 of these Bylaws, then any such person or persons may give notice of any
such special meeting.
Section
4.11 TREASURER. The Treasurer
shall keep and maintain or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares. Any surplus, including earned surplus,
paid-in surplus and surplus arising from a reduction of capital, shall be
classified according to source and shown in a separate account. The books of
account at all reasonable times shall be open to inspection by any
director.
The
Treasurer shall deposit all
moneys and other valuables in the name and to the credit of the Corporation
with
such depositories as may be designated by the Board. He shall disburse the
funds
of the Corporation as may be ordered by the Board, shall render to the
President, to the Chief Executive Officer and to the directors, whenever they
request it, an account of all of his transactions as Treasurer and of the
financial condition of the Corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board or these
Bylaws.
Section
4.12 ASSISTANT SECRETARIES.
Except as may be otherwise provided in these By-Laws, Assistant Secretaries,
if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any
Vice
President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform
the
duties of the Secretary, and when so acting, shall have all the powers of and
be
subject to all the restrictions upon the Secretary.
Section
4.13 ASSISTANT TREASURERS.
Assistant Treasurers, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the President, any Vice President, if there be one, or the Treasurer, and in
the
absence of the Treasurer or in the event of his disability or refusal to act,
shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond 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.
Section
4.14 OTHER OFFICERS. Such
other officers as the Board of Directors may choose shall perform such duties
and have such powers as from time to time may be assigned to them by
the
Board
of
Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
Section
4.15 COMPENSATION. The
compensation of the officers of the Corporation, if any, shall be fixed from
time to time by the Board.
Section
4.16 VOTING SECURITIES OWNED
BY THE CORPORATION. Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf
of
the Corporation, take all such action as any such officer may deem advisable
to
vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by resolution,
from time to time confer like powers upon any other person or
persons.
ARTICLE
V
SHARES
AND THEIR TRANSFER
Section
5.01 CERTIFICATES FOR STOCK.
The shares of stock
of the Corporation shall be represented by a certificate, provided that the
Board of Directors may provide by resolution or resolutions that some or all
of
any or all classes or series of the stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of any such resolution
providing for uncertificated shares, every owner of stock of the Corporation
theretofore represented by certificates and, upon request, every owner of
uncertificated shares, shall be entitled to have a certificate or certificates,
in such form as the Board shall prescribe, certifying the number and class
of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board, the President or a Vice President and by the Secretary
or
an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or
all
of the signatures on the certificates may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been
placed upon any such certificate shall thereafter have ceased to be such
officer, transfer agent or registrar before such certificate is issued, such
certificate may nevertheless be issued by the Corporation with the same effect
as though the person who signed such certificates, or whose facsimile signature
shall have been placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such certificates,
respectively, and the respective dates thereof, and in the case of cancellation,
the respective dates of cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases provided
for in Section 5.04 of these Bylaws.
Section
5.02 TRANSFER OF
STOCK. Transfer of shares of stock of the Corporation shall be made
only on the books of the Corporation by the registered holder thereof, or by
his
attorney thereunto authorized by power of attorney duly executed and filed
with
the Secretary, or with a transfer clerk or a transfer agent appointed as
provided in Section 5.03 of these Bylaws, and, in the case of stock represented
by a certificate or certificates, upon surrender of the certificate or
certificates for such shares properly endorsed and the payments of all taxes
thereon, and, in the case of uncertificated stock, upon receipt of proper
transfer instructions and compliance with appropriate procedures for
transferring stock in
uncertificated
form (in each case, with such proof of the authenticity of signature as the
Corporation or its transfer agent may reasonably require). The person in whose
name shares of stock stand on the books of the Corporation shall be deemed
the
owner thereof for all purposes as regards the Corporation. Whenever any transfer
of shares shall be made for collateral security, and not absolutely, such fact
shall be stated expressly in the entry of transfer if, when the certificate
or
certificates shall be presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so.
Section
5.03 REGULATIONS. The Board
may make such rules and regulations as it may deem expedient, not inconsistent
with these Bylaws, concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. The Board may appoint,
or authorize any officer or officers to appoint, one or more transfer clerks
or
one or more transfer agents and one or more registrars, and may require all
certificates for stock to bear the signature or signatures of any of
them.
Section
5.04 LOST, STOLEN, DESTROYED
AND MUTILATED CERTIFICATES. In any case of loss, theft, destruction, or
mutilation of any certificate of stock, the Corporation may then issue (i)
a new
certificate or certificates of stock or (ii) uncertificated shares, for the
same
number of shares as the certificate claimed to have been lost, stolen or
destroyed upon proof of such loss, theft, destruction, or mutilation and upon
the giving of a bond of indemnity to the Corporation in such form and in such
sums as the Board may direct; provided, however, that the new shares may be
issued without requiring any bond when, in the judgment of the Board, it is
proper to do so.
ARTICLE
VI
INDEMNIFICATION
Section
6.01 POWER TO INDEMNIFY IN
ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN
THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 6.03 of this
Article VI, 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
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation serving at
the
request of the Corporation as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise, against expenses (including attorneys' fees), judgments,
fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in
a manner he reasonably believed to be in or not opposed to the best interests
of
the Corporation, and, with respect to any criminal action or proceeding, had
no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section
6.02 POWER TO INDEMNIFY IN
ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Subject
to
Section 6.03 of this Article VI, the Corporation shall indemnify any person
who
was or is a party or is threatened to be made party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure
a
judgment in its favor by reason of the fact that he is or was a director or
officer 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, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by
him in connection with the defense or settlement of such action or suit if
he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or
matter
as
to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section
6.03 AUTHORIZATION OF
INDEMNIFICATION. Any indemnification under this Article VI (unless ordered
by a
court) shall be made by the Corporation only as authorized in the specific
case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct
set
forth in Section 6.01 or Section 6.02 of this Article VI, as the case may be.
Such determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the stockholders who were not parties
to such action, suit or proceeding. To the extent, however, that a director
or
officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any
claim, issue or matter therein, reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific
case.
Section
6.04 GOOD FAITH DEFINED. For
purposes of any determination under Section 6.03 of this Article VI, a person
shall be deemed to have acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause
to
believe his conduct was unlawful, if his action is based on the records or
books
of account of the Corporation or another enterprise, or on information supplied
to him by the officers of the Corporation or another enterprise in the course
of
their duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given on reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation
or
another enterprise. The term "another enterprise" as used in this Section 6.04
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent.
The
provisions of this Section 6.04 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Sections 6.01 or 6.02 of this
Article VI, as the case may be.
Section
6.05 INDEMNIFICATION BY A
COURT. Notwithstanding any contrary determination in the specific case under
Section 6.03 of this Article VI, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the
extent otherwise permissible under Sections 6.01 and 6.02 of this Article VI.
The basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Sections 6.01 or 6.02 of this Article VI, as the case may be. Neither a
contrary determination in the specific case under Section 6.03 of this Article
VI nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 6.05 shall be given
to
the Corporation promptly upon the filing of such application. If successful,
in
whole or in part, the director or officer seeking indemnification shall also
be
entitled to be paid the expense of prosecuting such application.
Section
6.06 EXPENSES PAYABLE IN
ADVANCE. Expenses incurred by a director or officer in defending or
investigating a threatened or pending action, suit or proceeding shall be paid
by the
Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to
be
indemnified by the Corporation as authorized in this Article VI.
Section
6.07 NONEXCLUSIVITY OF
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement
of expenses provided by or granted pursuant to this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification
or
advancement of expenses may be entitled under any By-Law, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another capacity
while
holding such office, it being the policy of the Corporation that indemnification
of the person specified in Sections 6.01 and 6.02 of this Article VI shall
be
made to the fullest extent permitted by law. The provisions of this Article
VI
shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 6.01 or 6.02 of this Article VI but whom the Corporation
has the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise.
Section
6.08 INSURANCE. The
Corporation may purchase and maintain insurance on behalf of any person who
is
or was a director or officer 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, employee benefit plan 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 or the obligation to indemnify him against
such
liability under the provisions of this Article VI.
Section
6.09 CERTAIN DEFINITIONS. For
purposes of this Article VI, references to "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 or officers, so that any person who is or was a director
or officer 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, employee benefit plan
or
other enterprise, shall stand in the same position under the provisions of
this
Article VI with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence
had
continued. For purposes of this Article VI, 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 or officer 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 VI.
Section
6.10 SURVIVAL OF
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article VI shall, unless
otherwise provided when authorized or ratified, continues as to a person who
has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section
6.11 LIMITATION ON
INDEMNIFICATION. Notwithstanding anything contained in this Article VI to the
contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 6.05 hereof), the Corporation shall not be
obligated to indemnify any director or
officer
in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by
the
Board of Directors of the Corporation.
Section
6.12 INDEMNIFICATION OF
EMPLOYEES AND AGENTS. The Corporation may, to the extent authorized from time
to
time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar
to
those conferred in this Article VI to directors and officers of the
Corporation.
ARTICLE
VII
MISCELLANEOUS
Section
7.01 SEAL. The Board shall
provide a corporate seal, which shall be in the form of a circle and shall
bear
the name of the Corporation and words and figures showing that the Corporation
was incorporated in the State of Delaware and showing the year of
incorporation.
Section
7.02 WAIVER OF NOTICES.
Whenever notice is required to be given under any provision of these bylaws,
the
Certificate of Incorporation or expressly required by law, a written waiver,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when a
person attends a meeting for the express purpose of objecting at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the
purpose of, any regular or special meeting of the stockholders, directors,
or
members of a committee of directors need be specified in any written waiver
of
notice unless required by the Certificate of Incorporation.
Section
7.03 LOANS AND GUARANTIES.
The Corporation may lend money to, or guarantee any obligation of, and otherwise
assist any officer or other employee of the Corporation or of its subsidiaries,
including any officer who is a director, whenever, in the judgment of the Board,
such loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty, or other assistance may be with or without
interest, and may be unsecured or secured in such manner as the Board shall
approve, including, without limitation, a pledge of shares of stock of the
Corporation.
Section
7.04 GENDER. All personal
pronouns used in these Bylaws shall include the other genders, whether used
in
the masculine, feminine or neuter gender, and the singular shall include the
plural, and vice versa, whenever and as often as may be
appropriate.
Section
7.05 AMENDMENTS. These
Bylaws, or any of them, may be rescinded, altered, amended or repealed, and
new
Bylaws may be made (i) by the Board, by vote of a majority of the number of
directors then in office as directors, acting at any meeting of the Board or
(ii) by the stockholders, by the vote of a majority of the outstanding shares
of
voting stock of the Corporation, at an annual meeting of stockholders, without
previous notice, or at any special meeting of stockholders, provided that notice
of such proposed amendment, modification, repeal or adoption is given in the
notice of special meeting; provided, however, that these Bylaws may not be
amended in a manner that would conflict with the Corporation's Certificate
of
Incorporation. Any Bylaw made or altered by the stockholders may be altered
or
repealed by the Board or may be altered or repealed by the
stockholders.