Exhibit 3.2
BYLAWS
OF
CARDICA, INC.
(A DELAWARE CORPORATION)
Table of Contents
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ARTICLE I OFFICES
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1
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Section 1. Registered Office
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1
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Section 2. Other Offices
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1
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ARTICLE II CORPORATE SEAL
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1
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Section 3. Corporate Seal
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1
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ARTICLE III STOCKHOLDERS MEETINGS
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1
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Section 4. Place of Meetings
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1
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Section 5. Annual Meeting
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1
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Section 6. Special Meetings
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2
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Section 7. Notice of Meetings
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3
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Section 8. Quorum
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3
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Section 9. Adjournment and Notice of Adjourned Meetings
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4
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Section 10. Voting Rights
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4
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Section 11. Joint Owners of Stock
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4
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Section 12. List of Stockholders
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5
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Section 13. Action Without Meeting
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5
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Section 14. Organization
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5
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ARTICLE IV DIRECTORS
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5
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Section 15. Number and Term of Office
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5
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Section 16. Powers
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6
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Section 17. Term of Directors
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6
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Section 18. Vacancies
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6
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Section 19. Resignation
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6
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Section 20. Removal
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6
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Section 21. Meetings
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7
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Section 22. Quorum and Voting
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8
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Section 23. Action Without Meeting
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8
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Section 24. Fees and Compensation
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8
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Section 25. Committees
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8
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Section 26. Organization
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10
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Table of Contents
(CONTINUED)
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ARTICLE V OFFICERS
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10
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Section 27. Officers Designated
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10
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Section 28. Tenure and Duties of Officers
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10
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Section 29. Delegation of Authority
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11
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Section 30. Resignations
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12
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Section 31. Removal
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12
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ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF
SECURITIES OWNED BY THE CORPORATION
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12
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Section 32. Execution of Corporate Instruments
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12
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Section 33. Voting of Securities Owned by the Corporation
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12
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ARTICLE VII SHARES OF STOCK
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13
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Section 34. Form and Execution of Certificates
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13
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Section 35. Lost Certificates
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13
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Section 36. Transfers
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13
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Section 37. Fixing Record Dates
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13
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Section 38. Registered Stockholders
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14
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ARTICLE VIII OTHER SECURITIES OF THE CORPORATION
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15
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Section 39. Execution of Other Securities
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15
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ARTICLE IX DIVIDENDS
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15
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Section 40. Declaration of Dividends
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15
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Section 41. Dividend Reserve
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15
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ARTICLE X FISCAL YEAR
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16
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Section 42. Fiscal Year
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16
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ARTICLE XI INDEMNIFICATION
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16
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Section 43. Indemnification of Directors, Executive Officers,
Other Officers, Employees and Other Agents
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16
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ARTICLE XII NOTICES
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19
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Section 44. Notices
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19
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ARTICLE XIII AMENDMENTS
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20
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Section 45. Amendments
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20
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ARTICLE XIV RIGHT OF FIRST REFUSAL
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21
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Table of Contents
(CONTINUED)
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Page
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Section 46. Right of First Refusal
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21
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ARTICLE XV LOANS TO OFFICERS
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23
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Section 47. Loans to Officers
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23
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-iii-
BYLAWS OF CARDICA, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of the corporation in the State of
Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices.
The corporation shall also have and maintain an office or principal
place of business at 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.
ARTICLE II
CORPORATE SEAL
Section 3. 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.
ARTICLE III
STOCKHOLDERS MEETINGS
Section 4. Place of Meetings.
Meetings of the stockholders of the corporation shall be held
at such place, either within or without the State of Delaware, as may be designated from time to
time by the Board of Directors, or, if not so designated, then at the principal office of the
corporation required to be maintained pursuant to Section 2 hereof.
Section 5. Annual Meeting.
(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.
(b)
At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be: (A) specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (B) otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or (C) otherwise properly brought before the meeting by a
stockholder; provided, however, that clause (C) above shall be the exclusive means for a
stockholder to make nominations and submit other business (other than matters properly brought
under Rule 14-8 under the Securities Exchange Act of 1934,
1.
as amended (the 1934 Act) and included in the corporations notice of meeting of
stockholders) before an annual meeting of stockholders. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a stockholders notice must be
delivered to or mailed and received at the principal executive offices of the corporation not later
than the close of business on the sixtieth (60th) day nor earlier than the close of business on the
ninetieth (90th) day prior to the first anniversary of the preceding years annual meeting;
provided, however
, that in the event that no annual meeting was held in the previous year or the
date of the annual meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous years proxy statement, notice by the stockholder to be
timely must be so received not earlier than the close of business on the ninetieth (90th) day prior
to such annual meeting and not later than the close of business on the later of the sixtieth (60th)
day prior to such annual meeting or, in the event public announcement of the date of such annual
meeting is first made by the corporation fewer than seventy (70) days prior to the date of such
annual meeting, the close of business on the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made by the corporation. A stockholders notice
to the Secretary shall set forth as to each matter the stockholder proposes to bring before the
annual meeting: (i) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii) the name and
address, as they appear on the corporations books, of the stockholder proposing such business,
(iii) the class and number of shares of the corporation which are beneficially owned by the
stockholder, (iv) any material interest of the stockholder in such business and (v) any other
information that is required to be provided by the stockholder pursuant to Regulation 14A under the
1934 Act, in his capacity as a proponent to a stockholder proposal. Notwithstanding the foregoing,
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. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph (b). The chairman of the annual meeting shall, if the facts
warrant, determine and declare at the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this paragraph (b), and, if he should so
determine, he shall so declare at the meeting that any such business not properly brought before
the meeting shall not be transacted.
(c)
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 Exchange Act.
Section 6. Special Meetings.
(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, (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)
or (iv) by the holders of shares entitled to cast not less than ten percent (10%) of the votes at
the
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meeting, and shall be held at such place, on such date, and at such time as the Board of
Directors, shall fix.
(b)
If a special meeting is 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 registered mail or by telegraphic or other
facsimile transmission 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. If
the notice is not given within sixty (60) days after the receipt of the request, the person or
persons requesting the meeting may set the time and place of the meeting and give the notice.
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.
Section 7. Notice of Meetings.
Except as otherwise provided by law or the Certificate of
Incorporation, 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,
date and hour and 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 stockholders address as it appears on the records of
the corporation. Notice of the time, place 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 or by proxy, or by remote communication, if applicable, 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 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 law, the Certificate of Incorporation or these Bylaws,
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all action taken by the holders of a majority of the vote cast, including abstentions, at any
meeting at which a quorum is present shall be valid and binding upon the corporation;
provided,
however
, that directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote 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 or represented by proxy,
shall constitute a quorum entitled to take action with respect to that vote on that matter and,
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 the
votes cast, including abstentions, by the holders of shares of such class or classes or series
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 casting votes, excluding abstentions. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned meeting if the time
and place 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 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 General Corporation Law of Delaware, 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.
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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, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not specified, at the place where the meeting is to be held. The list shall be produced and
kept at the time and place of meeting during the whole time thereof and may be inspected by any
stockholder who is present.
Section 13. Action Without Meeting.
No action shall be taken by the stockholders except at an
annual or special meeting of stockholders called in accordance with these Bylaws, and no action
shall be taken by the stockholders by written consent or by electronic transmission.
Section 14. Organization.
(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. 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.
ARTICLE IV
DIRECTORS
Section 15. Number and Term of Office.
The authorized number of directors of the corporation shall be fixed by the Board of Directors
from time to time.
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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. Term 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.
Section 18. Vacancies.
Unless otherwise provided in the Certificate of Incorporation, 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 directors successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Bylaw in the case of the death, removal or
resignation of any director.
Section 19. Resignation.
Any director may resign at any time by delivering notice of his
resignation 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,
the Board of Directors or any individual director may be removed from office at any time (i) with
cause by the affirmative vote of the holders of a majority of the voting power of all the
then-outstanding shares of voting stock of the corporation, entitled to vote at an election of
directors (the Voting Stock) or (ii) 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 Voting Stock.
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Section 21. Meetings.
(a) Annual Meetings.
The annual meeting of the Board of Directors shall be held immediately
before or after the annual meeting of stockholders and at the place where such meeting is held. No
notice of an annual meeting of the Board of Directors shall be necessary and such meeting shall be
held for the purpose of electing officers and transacting such other business as may lawfully come
before it.
(b) Regular Meetings.
Except as hereinafter otherwise provided, regular meetings of the Board
of Directors shall be held in the office of the corporation required to be maintained pursuant to
Section 2 hereof. Unless otherwise restricted by the Certificate of Incorporation, regular
meetings of the Board of Directors may also be held at any place within or without the State of
Delaware which has been designated by resolution of 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.
(c) 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 any two of the
directors.
(d) Telephone Meetings.
Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or similar 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.
(e) Notice of 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, or sent in writing to each director by first
class mail, postage 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.
(f) 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 by electronic transmission. All
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such waivers shall be filed with the corporate records or made a part of the minutes of the
meeting.
Section 22. Quorum and Voting.
(a)
Unless the Certificate of Incorporation requires a greater number and except with respect
to indemnification questions arising under Section 43 hereof, for which a quorum shall be one-third
of the exact number of directors fixed from time to time, 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.
Section 25. Committees.
(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
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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 corporations 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, by resolution passed by a majority of the
whole Board of Directors, 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 such
committee have the powers denied to the Executive Committee in these Bylaws.
(c) Term.
Each member of a committee of the Board of Directors shall serve a term on the
committee coexistent with such members term on the Board of Directors. The Board of Directors,
subject to the provisions of subsections (a) or (b) of this Bylaw 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 written notice to the members of such committee of
the time and place of such special meeting given in the manner provided for the giving of written
notice to members of the Board of Directors of the time and place of special meetings of the Board
of Directors. Notice of any special meeting of any committee may be waived in writing at any time
before or after the meeting and will be
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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. 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, or if the
President is absent, the most senior Vice President, or, in the absence of any such officer, a
chairman of the meeting chosen by a majority of the directors present, shall preside over the
meeting. The Secretary, or in his absence, an Assistant Secretary directed to do so by the
President, shall act as secretary of the meeting.
ARTICLE V
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, 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.
Section 28. Tenure and Duties of Officers.
(a) General.
All officers shall hold office at the pleasure of the Board of Directors and
until their successors shall have been duly elected and qualified, unless sooner removed. Any
officer elected or appointed by the Board of Directors may be removed at any time by the Board of
Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled
by the Board of Directors.
(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 his 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.
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(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 his 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 given him in these Bylaws and other duties
commonly incident to his 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 his
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 his 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 his 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.
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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.
ARTICLE VI
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.
Unless otherwise specifically determined by the Board of Directors or otherwise required by
law, promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock of the corporation, shall be executed, signed or endorsed by the
Chairman of the Board of Directors, or the President or any Vice President, and by the Secretary or
Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be executed as
aforesaid or in such other manner as may be directed by the Board of Directors.
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
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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.
ARTICLE VII
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 his legal representative, to advertise the same 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.
Section 36. Transfers.
(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, in the case of stock
represented by certificate, 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 General Corporation Law of Delaware.
Section 37. Fixing Record Dates.
(a)
In order that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of
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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 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 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 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 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
corporations 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
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claim to or interest in such share or shares on the part of any other person whether or not it
shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
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.
ARTICLE IX
DIVIDENDS
Section 40. Declaration of Dividends.
Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, 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.
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.
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ARTICLE X
FISCAL YEAR
Section 42. Fiscal Year.
The fiscal year of the corporation shall be fixed by resolution of
the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 43. Indemnification of Directors, Executive Officers, Other Officers, Employees and
Other Agents.
(a) Directors and Officers.
The corporation shall indemnify its directors and officers to the
fullest extent not prohibited by the Delaware General Corporation Law;
provided, however
, that the
corporation may modify the extent of such indemnification by individual contracts with its
directors and officers; and,
provided, further
, that the corporation shall not be required to
indemnify any director or 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 Delaware General Corporation Law or (iv) such indemnification is required to
be made under subsection (d).
(b) Employees and Other Agents.
The corporation shall have power to indemnify its employees
and other agents as set forth in the Delaware General Corporation Law.
(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 officer, of the corporation, or is or was serving at the request of the corporation as
a director 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 officer in connection with such proceeding upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this Bylaw,
no advance shall be made by the corporation to an 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 the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
the proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, 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
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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 officers under this Bylaw 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 officer. Any right to indemnification or advances granted by
this Bylaw to a director or 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
Delaware General Corporation Law for the corporation to indemnify the claimant for the amount
claimed. In connection with any claim by an officer of the corporation (except in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
such 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 Delaware General Corporation Law, nor an actual determination
by the corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant 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.
In any suit brought by a director or officer to enforce a right to indemnification or to an
advancement of expenses hereunder, the burden of proving that the director or officer is not
entitled to be indemnified, or to such advancement of expenses, under this Article XI or otherwise
shall be on the corporation.
(e) Non-Exclusivity of Rights.
The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire under any 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 Delaware General
Corporation Law.
(f) Survival of Rights.
The rights conferred on any person by this Bylaw shall continue as to
a person who has ceased to be a director, officer, employee or other agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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(g) Insurance.
To the fullest extent permitted by the Delaware General Corporation 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 Bylaw.
(h) Amendments.
Any repeal or modification of this Bylaw shall only be prospective and shall
not affect the rights under this Bylaw 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 Bylaw 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
Bylaw that shall not have been invalidated, or by any other applicable law.
(j) Certain Definitions.
For the purposes of this Bylaw, the following definitions shall
apply:
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.
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.
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 Bylaw with respect to the resulting or surviving corporation
as he would have with respect to such constituent corporation if its separate existence had
continued.
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.
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
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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 Bylaw.
ARTICLE XII
NOTICES
Section 44. 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 stated in these Bylaws, or by overnight delivery
services, 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, 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) Time Notices Deemed Given.
All notices given by mail, as above provided, shall be deemed
to have been given as at the time of mailing, and all notices given by facsimile, telex or telegram
shall be deemed to have been given as of the sending time recorded at time of transmission.
(e) Methods of Notice.
It shall not be necessary that the same method of giving notice be
employed in respect of all directors, but one permissible method may be employed in respect of any
one or more, and any other permissible method or methods may be employed in respect of any other or
others.
(f) Failure to Receive Notice.
The period or limitation of time within which any stockholder
may exercise any option or right, or enjoy any privilege or benefit, or be required to act, or
within which any director may exercise any power or right, or enjoy any
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privilege, pursuant to any notice sent him in the manner above provided, shall not be affected
or extended in any manner by the failure of such stockholder or such director to receive such
notice.
(g) 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 Delaware General Corporation Law, the certificate shall state, if such is the fact and if
notice is required, that notice was given to all persons entitled to receive notice except such
persons with whom communication is unlawful.
(h) Notice to Person with Undeliverable Address.
Whenever notice is required to be given,
under any provision of law or the Certificate of Incorporation or Bylaws of the corporation, to any
stockholder to whom (i) notice of two consecutive annual meetings, and all notices of meetings or
of the taking of action by written consent without a meeting to such person during the period
between such two consecutive annual meetings, or (ii) all, and at least two, payments (if sent by
first class mail) of dividends or interest on securities during a twelve-month period, have been
mailed addressed to such person at his address as shown on the records of the corporation and have
been returned undeliverable, the giving of such notice to such person shall not be required. Any
action or meeting which shall be taken or held without notice to such person shall have the same
force and effect as if such notice had been duly given. If any such 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. In the event that the action taken by the corporation is
such as to require the filing of a certificate under any provision of the Delaware General
Corporation Law, the certificate need not state that notice was not given to persons to whom notice
was not required to be given pursuant to this paragraph. (Del. Code Ann, tit. 8, § 230)
ARTICLE XIII
AMENDMENTS
Section 45. Amendments.
Subject to paragraph (h) of Section 43 of the Bylaws, these Bylaws
may be amended or repealed and new Bylaws adopted by the stockholders entitled to vote. The Board
of Directors shall also have the power, if such power is conferred upon the Board of Directors by
the Certificate of Incorporation, to adopt, amend, or repeal Bylaws (including, without limitation,
the amendment of any Bylaw setting forth the number of Directors who shall constitute the whole
Board of Directors). (Del. Code Ann., tit. 8, §§ 109(a), 122(6)).
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ARTICLE XIV
RIGHT OF FIRST REFUSAL
Section 46. Right of First Refusal.
No common stockholder shall sell, assign, pledge, or in
any manner transfer any of the shares of stock of the corporation or any right or interest therein,
whether voluntarily or by operation of law, or by gift or otherwise, except by a transfer which
meets the requirements hereinafter set forth in this bylaw:
(a)
If the stockholder desires to sell or otherwise transfer any of his shares of stock, then
the stockholder shall first give written notice thereof to the corporation. The notice shall name
the proposed transferee and state the number of shares to be transferred, the proposed
consideration, and all other terms and conditions of the proposed transfer.
(b)
For thirty (30) days following receipt of such notice, the corporation shall have the
option to purchase all (but not less than all) of the shares specified in the notice at the price
and upon the terms set forth in such notice;
provided, however
, that, with the consent of the
stockholder, the corporation shall have the option to purchase a lesser portion of the shares
specified in said notice at the price and upon the terms set forth therein. In the event of a
gift, property settlement or other transfer in which the proposed transferee is not paying the full
price for the shares, and that is not otherwise exempted from the provisions of this Section 46,
the price shall be deemed to be the fair market value of the stock at such time as determined in
good faith by the Board of Directors. In the event the corporation elects to purchase all of the
shares or, with consent of the stockholder, a lesser portion of the shares, it shall give written
notice to the transferring stockholder of its election and settlement for said shares shall be made
as provided below in paragraph (d).
(c)
The corporation may assign its rights hereunder.
(d)
In the event the corporation and/or its assignee(s) elect to acquire any of the shares of
the transferring stockholder as specified in said transferring stockholders notice, the Secretary
of the corporation shall so notify the transferring stockholder and settlement thereof shall be
made in cash within thirty (30) days after the Secretary of the corporation receives said
transferring stockholders notice; provided that if the terms of payment set forth in said
transferring stockholders notice were other than cash against delivery, the corporation and/or its
assignee(s) shall pay for said shares on the same terms and conditions set forth in said
transferring stockholders notice.
(e)
In the event the corporation and/or its assignees(s) do not elect to acquire all of the
shares specified in the transferring stockholders notice, said transferring stockholder may,
within the sixty-day period following the expiration of the option rights granted to the
corporation and/or its assignees(s) herein, transfer the shares specified in said transferring
stockholders notice which were not acquired by the corporation and/or its assignees(s) as
specified in said transferring stockholders notice. All shares so sold by said transferring
stockholder shall continue to be subject to the provisions of this bylaw in the same manner as
before said transfer.
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(f)
Anything to the contrary contained herein notwithstanding, the following transactions
shall be exempt from the provisions of this bylaw:
(1)
A stockholders transfer of any or all shares held either during such stockholders
lifetime or on death by will or intestacy to such stockholders immediate family or to any
custodian or trustee for the account of such stockholder or such stockholders immediate family.
Immediate family as used herein shall mean spouse, lineal descendant, father, mother, brother, or
sister of the stockholder making such transfer.
(2)
A stockholders bona fide pledge or mortgage of any shares with a commercial lending
institution, provided that any subsequent transfer of said shares by said institution shall be
conducted in the manner set forth in this bylaw.
(3)
A stockholders transfer of any or all of such stockholders shares to the corporation or
to any other stockholder of the corporation.
(4)
A stockholders transfer of any or all of such stockholders shares to a person who, at
the time of such transfer, is an officer or director of the corporation.
(5)
A corporate stockholders transfer of any or all of its shares pursuant to and in
accordance with the terms of any merger, consolidation, reclassification of shares or capital
reorganization of the corporate stockholder, or pursuant to a sale of all or substantially all of
the stock or assets of a corporate stockholder.
(6)
A corporate stockholders transfer of any or all of its shares to any or all of its
stockholders.
(7)
A transfer by a stockholder which is a limited or general partnership to any or all of its
partners or former partners.
In any such case, the transferee, assignee, or other recipient shall receive and hold such
stock subject to the provisions of this bylaw, and there shall be no further transfer of such stock
except in accord with this bylaw.
(g)
The provisions of this bylaw may be waived with respect to any transfer either by the
corporation, upon duly authorized action of its Board of Directors, or by the stockholders, upon
the express written consent of the owners of a majority of the voting power of the corporation
(excluding the votes represented by those shares to be transferred by the transferring
stockholder). This bylaw may be amended or repealed either by a duly authorized action of the
Board of Directors or by the stockholders, upon the express written consent of the owners of a
majority of the voting power of the corporation.
(h)
Any sale or transfer, or purported sale or transfer, of securities of the corporation
shall be null and void unless the terms, conditions, and provisions of this bylaw are strictly
observed and followed.
(i)
The foregoing right of first refusal shall terminate on either of the following dates,
whichever shall first occur:
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(1)
On November 1, 2007, or
(2)
Upon the date securities of the corporation are first offered to the public pursuant to a
registration statement filed with, and declared effective by, the United States Securities and
Exchange Commission under the Securities Act of 1933, as amended.
(j)
The certificates representing shares of stock of the corporation shall bear on their face
the following legend so long as the foregoing right of first refusal remains in effect:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST
REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S), AS PROVIDED IN
THE BYLAWS OF THE CORPORATION.
ARTICLE XV
LOANS TO OFFICERS
Section 47. Loans to Officers.
The corporation may lend money to, or guarantee any obligation
of, or otherwise assist any officer or other employee of the corporation or of its subsidiaries,
including any officer or employee who is a Director of the corporation or its subsidiaries,
whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may
reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be
with or without interest and may be unsecured, or secured in such manner as the Board of Directors
shall approve, including, without limitation, a pledge of shares of stock of the corporation.
Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the corporation at common law or under any statute.
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