EXHIBIT 3.01
AMENDED AND RESTATED
BYLAWS
OF
BROOKS AUTOMATION, INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS
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Page
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ARTICLE I. Stockholders
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1
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Section 1.1. Annual Meeting
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1
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Section 1.2. Special Meetings
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1
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Section 1.3. Notice of Meeting
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1
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Section 1.4. Quorum
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2
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Section 1.5. Voting and Proxies
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2
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Section 1.6. Action at Meeting
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2
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Section 1.7. Action Without Meeting
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2
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Section 1.8. Voting of Shares of Certain Holders
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2
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Section 1.9. Stockholder Lists
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3
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ARTICLE II. Board of Directors
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3
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Section 2.1. Powers
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3
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Section 2.2. Number of Directors; Qualifications
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4
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Section 2.3. Nomination of Directors
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4
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Section 2.4. Election of Directors
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4
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Section 2.5. Vacancies
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4
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Section 2.6. Changes in Size of the Board
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5
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Section 2.7. Tenure and Resignation
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5
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Section 2.8. Removal
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5
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Section 2.9. Meetings
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5
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Section 2.10. Notice of Meeting
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5
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Section 2.11. Agenda
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6
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Section 2.12. Quorum
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6
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Section 2.13. Action at Meeting
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6
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Section 2.14. Action Without Meeting
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6
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Section 2.15. Committees
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6
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ARTICLE III. Officers
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7
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Section 3.1. Enumeration
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7
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Page
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Section 3.2. Election
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7
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Section 3.3. Qualification
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7
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Section 3.4. Tenure
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7
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Section 3.5. Removal
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7
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Section 3.6. Resignation
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7
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Section 3.7. Vacancies
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7
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Section 3.8. Chairman of the Board
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7
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Section 3.9. President
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7
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Section 3.10. Vice-President(s)
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8
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Section 3.11. Chief Financial Officer, Treasurer and Assistant Treasurers
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8
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Section 3.12. Secretary and Assistant Secretaries
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8
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Section 3.13. Other Powers and Duties
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8
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ARTICLE IV. Capital Stock
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9
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Section 4.1. Shares Represented by Certificates and Uncertificated Shares
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9
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Section 4.2. Transfer of Shares
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9
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Section 4.3. Record Holders
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9
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Section 4.4. Record Date
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10
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Section 4.5. Transfer Agent and Registrar for Shares of Stock of the Corporation
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10
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Section 4.6. Loss of Certificates
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10
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Section 4.7. Restrictions on Transfer
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11
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Section 4.8. Multiple Classes of Stock
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11
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ARTICLE V. Dividends
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11
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Section 5.1. Declaration of Dividends
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11
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Section 5.2. Reserves
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11
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ARTICLE VI. Powers of Officers to Contract With the Corporation
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12
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ARTICLE VII. Indemnification
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12
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Section 7.1. Definitions
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12
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Section 7.2. Right to Indemnification in General
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14
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Section 7.3. Proceedings Other Than Proceedings by or in the Right of the Corporation
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14
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Section 7.4. Proceedings by or in the Right of the Corporation
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14
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Section 7.5. Indemnification of a Party Who is Wholly or Partly Successful
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15
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Section 7.6. Indemnification for Expenses of a Witness
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15
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Section 7.7. Advancement of Expenses
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15
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Section 7.8. Notification and Defense of Claim
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16
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Section 7.9. Procedures.
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17
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Section 7.10. Action by the Corporation
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18
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Section 7.11. Non-Exclusivity
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18
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Section 7.12. Insurance
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18
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Section 7.13. No Duplicative Payment
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18
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Section 7.14. Expenses of Adjudication
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18
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Section 7.15. Severability
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ARTICLE VIII. Miscellaneous Provisions
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Section 8.1. Certificate of Incorporation
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Section 8.2. Fiscal Year
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19
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Section 8.3. Corporate Seal
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Section 8.4. Execution of Instruments
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Section 8.5. Voting of Securities
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Section 8.6. Evidence of Authority
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Section 8.7. Corporate Records
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20
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Section 8.8. Charitable Contributions
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20
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ARTICLE IX. Amendments
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20
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Section 9.1. Amendment by Stockholders
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20
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Section 9.2. Amendment by Board of Directors
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20
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-iii-
AMENDED AND RESTATED
BYLAWS
OF
BROOKS AUTOMATION, INC.
(A Delaware Corporation)
ARTICLE I.
Stockholders
Section 1.1.
Annual Meeting
. The annual meeting of the stockholders of the
corporation shall be held on such date as shall be fixed by the Board of Directors, at such time
and place within or without the State of Delaware as may be designated in the notice of meeting. If
the day fixed for the annual meeting shall fall on a legal holiday, the meeting shall be held on
the next succeeding day not a legal holiday. If the annual meeting is omitted on the day herein
provided, a special meeting may be held in place thereof, and any business transacted at such
special meeting in lieu of annual meeting shall have the same effect as if transacted or held at
the annual meeting.
Section 1.2.
Special Meetings
. Special meetings of the stockholders may be
called at any time by the president or by the board of directors. Special meetings of the
stockholders shall be held at such time, date and place within or outside of the State of Delaware
as may be designated in the notice of such meeting.
Section 1.3.
Notice of Meeting
. A written notice stating the place, date, and
hour of each meeting of the stockholders, and, in the case of a special meeting, the purposes for
which the meeting is called, shall be given to each stockholder entitled to vote at such meeting,
and to each stockholder who, under the Certificate of incorporation or these Bylaws, is entitled to
such notice, by delivering such notice to such person or leaving it at their residence or usual
place of business, or by mailing it, postage prepaid, and addressed to such stockholder at his
address as it appears upon the books of the corporation, at least ten (10) days and not more than
sixty (60) before the meeting. Such notice shall be given by the secretary, an assistant secretary,
or any other officer or person designated either by the secretary or by the person or persons
calling the meeting.
The requirement of notice to any stockholder may be waived (i) by a written waiver of notice,
executed before or after the meeting by the stockholder or his attorney thereunto duly authorized,
and filed with the records of the meeting, (ii) if communication with such stockholder is unlawful,
(iii) by attendance at the meeting without protesting prior thereto or at its commencement the lack
of notice, or (iv) as
otherwise excepted by law. A waiver of notice of any regular or special meeting of the
stockholders need not specify the purposes of the meeting.
If a meeting is adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the adjournment is taken,
except that if the adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.4.
Quorum
. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote at a meeting shall constitute a quorum. Any meeting may be
adjourned from time to time by a majority of the votes properly cast upon the question, whether or
not a quorum is present.
Section 1.5.
Voting and Proxies
. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books of the corporation,
unless otherwise provided by law or by the Certificate of Incorporation. Stockholders may vote
either in person or by written proxy, but no proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. Proxies shall be filed with the
secretary of the meeting, or of any adjournment thereof. Except as otherwise limited therein,
proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting. A
proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to stock held in the name of two or more persons shall be valid if
executed by one of them unless at or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of them.
Section 1.6.
Action at Meeting
. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to such office, and a
majority of the votes properly cast upon any question other than election to an office shall decide
such question, except where a larger vote is required by law, the Certificate of Incorporation or
these by- laws. No ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 1.7.
Action Without Meeting
. All action required or permitted to be
taken by the stockholders must be taken at a meeting duly called and held in accordance with law
and in accordance with the Certificate of Incorporation and these Bylaws. The stockholders cannot
act by written consent.
Section 1.8.
Voting of Shares of Certain Holders
. Shares of stock of the
corporation standing in the name of another corporation, domestic or foreign, may be voted by such
officer, agent, or proxy as the by-laws of such corporation may prescribe, or, in the absence of
such provision, as the board of directors of such corporation may determine.
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Shares of stock of the corporation standing in the name of a deceased person, a minor ward or
an incompetent person, may be voted by his administrator, executor, court-appointed guardian or
conservator without a transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares of capital stock of the corporation standing in the name
of a trustee or fiduciary may be voted by such trustee or fiduciary.
Shares of stock of the corporation standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by such receiver
without the transfer thereof into his name if authority so to do be contained in an appropriate
order of the court by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such shares unless in the
transfer by the pledgor on the books of the corporation he expressly empowered the pledgee to vote
thereon, in which case only the pledgee or its proxy shall be entitled to vote the shares so
transferred.
Shares of its own stock belonging to this corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining the total number of outstanding
shares at any given time, but shares of its own stock held by the corporation in a fiduciary
capacity may be voted and shall be counted in determining the total number of outstanding shares.
Section 1.9.
Stockholder Lists
. The secretary (or the corporation’s transfer
agent or other person authorized by these Bylaws or by law) shall prepare and make, at least ten
days before every 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 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 so specified, at the place where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole time thereof, and may be inspected
for any purpose germane to the meeting by any stockholder who is present.
ARTICLE II.
Board of Directors
Section 2.1.
Powers
. Except as reserved to the stockholders by law, by the
Certificate of Incorporation or by these Bylaws, the business of the corporation shall be managed
under the direction of the board of directors, which shall have and may exercise all of the powers
of the corporation. In particular, and without limiting the foregoing, the board of directors shall
have the power to issue or reserve for issuance from time to time the whole or any part of the
capital stock of the corporation which may be authorized from time to time to such person, for such
consideration and upon such terms and
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conditions as it shall determine, including the granting of options, warrants or conversion or
other rights to stock.
Section 2.2.
Number of Directors; Qualifications
. Except as provided in
Section 2.6 hereof, the board of directors shall consist of such number of directors as shall be
fixed initially by the incorporator (s) and thereafter by the board of directors before each annual
or special meeting of the stockholders. No director need be a stockholder.
Section 2.3.
Nomination of Directors
. Nominations for the election of
directors at an annual meeting of the stockholders, or special meeting in lieu of the annual
meeting, may be made by the board of directors or a committee appointed by the board of directors
or by any stockholder entitled to vote in the election of directors at the meeting. Stockholders
entitled to vote in such election may nominate one or more persons for election as directors only
if written notice of such stockholder’s intent to make such nomination or nominations has been
given either by personal delivery, overnight (receipted) courier or by United States mail, postage
prepaid, to the secretary of the corporation not later than ninety days prior to the anniversary
date of the immediately preceding annual meeting or special meeting in lieu thereof. Such notice
shall set forth: (a) the name and address of the stockholder who intends to make the nomination and
of the persons or person to be nominated; (b) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e) the consent of each
nominee to serve as a director of the corporation if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Section 2.4.
Election of Directors
. The initial board of directors shall be
designated in the certificate of incorporation, or if not so designated, elected by the
incorporator(s) at the first meeting thereof. Thereafter, directors shall be elected by the
stockholders at their annual meeting or at any special meeting the notice of which specifies the
election of directors as an item of business for such meeting.
Section 2.5.
Vacancies
. In the case of any vacancy in the board of directors
from death, resignation, disqualification or other cause, including a vacancy resulting from
enlargement of the board, the election of a director to fill such vacancy shall be by vote of a
majority of the directors then in office, whether or not constituting a quorum. The director thus
elected shall hold office until the election of his successor.
-4-
Section 2.6.
Changes in Size of the Board
. The number of the board of
directors may be changed by vote of a majority of the directors then in office or by the
stockholders by vote of eighty percent (80%) of the shares of voting stock outstanding.
Section 2.7.
Tenure and Resignation
. Except as otherwise provided by law, by
the Certificate of Incorporation or by these Bylaws, directors shall hold office until the next
annual meeting of stockholders and thereafter until their successors are chosen and qualified. Any
director may resign by delivering or mailing postage prepaid a written resignation to the
corporation at its principal office or to the chairman of the board, if any, president, secretary
or assistant secretary, if any. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other event.
Section 2.8.
Removal
. A director may be removed from office only for cause
(a) by vote of the holders of eighty percent (80%) of the voting stock outstanding or (b) by vote
of a majority of the directors then in office, and only after reasonable notice and opportunity to
be heard before the body proposing to remove him.
Section 2.9.
Meetings
. Regular meetings of the board of directors may be held
without call or notice at such times and such places within or without the State of Delaware as the
Board may, from time to time, determine, provided that notice of the first regular meeting
following any such determination shall be given to directors absent from such determination. A
regular meeting of the board of directors shall be held without notice immediately after, and at
the same place as, the annual meeting of the stockholders or the special meeting of the
stockholders held in place of such annual meeting, unless a quorum of the directors is not then
present. Special meetings of the board of directors may be held at any time and at any place
designated in the call of the meeting when called by the chairman of the board, the president, or a
majority of the directors. Members of the board of directors or any committee elected thereby may
participate in a meeting of such board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other at the same time, and participation by such means shall constitute presence in person at the
meeting.
Section 2.10.
Notice of Meeting
. It shall be sufficient notice to a director
to send notice by mail at least seventy-two (72) hours before the meeting addressed to such person
at his usual or last known business or residence address or to give notice to such person in person
or by telephone at least twenty-four (24) hours before the meeting. Notice shall be given by the
secretary, or in his absence or unavailability, may be given by an assistant secretary, if any, or
by the officer or directors calling the meeting. The requirement of notice to any director may be
waived by a written waiver of notice, executed by such person before or after the meeting or
meetings, and filed with the records of the meeting, or by attendance at the meeting without
protesting prior thereto or at its commencement the lack of notice. A notice or waiver of notice of
a directors’ meeting need not specify the purposes of the meeting.
-5-
Section 2.11.
Agenda
. Any lawful business may be transacted at a meeting of
the board of directors, notwithstanding the fact that the nature of the business may not have been
specified in the notice or waiver of notice of the meeting.
Section 2.12.
Quorum
. At any meeting of the board of directors, a majority of
the directors then in office shall constitute a quorum for the transaction of business. Any meeting
may be adjourned by a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
Section 2.13.
Action at Meeting
. Any motion adopted by vote of the majority
of the directors present at a meeting at which a quorum is present shall be the act of the board of
directors, except where a different vote is required by law, by the Certificate of Incorporation or
by these Bylaws. The assent in writing of any director to any vote or action of the directors taken
at any meeting, whether or not a quorum was present and whether or not the director had or waived
notice of the meeting, shall have the same effect as if the director so assenting was present at
such meeting and voted in favor of such vote or action.
Section 2.14.
Action Without Meeting
. Any action by the directors may be
taken without a meeting if all of the directors consent to the action in writing or by electronic
transmission and the consents or electronic transmissions are filed with the records of the
directors’ meetings. Such consent shall be treated for all purposes as a vote of the directors at a
meeting.
Section 2.15.
Committees
. The board of directors may, by the affirmative vote
of a majority of the directors then in office, appoint an executive committee or other committees
consisting of one or more directors and may by vote delegate to any such committee some or all of
their powers except those which by law, the Certificate of incorporation or these Bylaws they may
not delegate. In the absence or disqualification of a member of a committee, the members of the
committee present and not .disqualified, whether or not they constitute a quorum, may by unanimous
vote appoint another member of the board of directors to act at the meeting in place of the absence
or disqualified member. Unless the board of directors shall otherwise provide, any such committee
may make rules for the conduct of its business, but unless otherwise provided by the board of
directors or such rules, its meetings shall be called, notice given or waived, its business
conducted or its action taken as nearly as may be in the same manner as is provided in these Bylaws
with respect to meetings or for the conduct of business or the taking of actions by the board of
directors. The board of directors shall have power at any time to fill vacancies in, change the
membership of, or discharge any such committee at any time. The board of directors shall have power
to rescind any action of any committee, but no such rescission shall have retroactive effect.
-6-
ARTICLE III.
Officers
Section 3.1.
Enumeration
. The officers shall consist of a president, a
treasurer, a secretary and such other officers and agents (including a chairman of the board, one
or more vice-presidents, assistant treasurers and assistant secretaries), as the board of directors
may, in its discretion, determine.
Section 3.2.
Election
. The president, treasurer and secretary shall be
elected annually by the directors at their first meeting following the annual meeting of the
stockholders or any special meeting held in lieu of the annual meeting. Other officers may be
chosen by the directors at such meeting or at any other meeting.
Section 3.3.
Qualification
. An officer may, but need not, be a director or
stockholder. Any two or more offices may be held by the same person. Any officer may be required by
the directors to give bond for the faithful performance of his duties to the corporation in such
amount and with such sureties as the directors may determine. The premiums for such bonds may be
paid by the corporation.
Section 3.4.
Tenure
. Except as otherwise provided by the Certificate of
incorporation or these Bylaws, the term of office of each officer shall be for one year or until
his successor is elected and qualified or until his earlier resignation or removal.
Section 3.5.
Removal
. Any officer may be removed from office, with or without
cause, by the affirmative vote of a majority of the directors then in office; provided, however,
that an officer may be removed for cause only after reasonable notice and opportunity to be heard
by the board of directors prior to action thereon.
Section 3.6.
Resignation
. Any officer may resign by delivering or mailing
postage prepaid a written resignation to the corporation at its principal office or to the
president, secretary, or assistant secretary, if any, and such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the happening of some
event.
Section 3.7.
Vacancies
. A vacancy in any office arising from any cause may be
filled for the unexpired portion of the term by the board of directors.
Section 3.8.
Chairman of the Board
. The board of directors may appoint a
chairman of the board and may designate the chairman of the board as chief executive officer. If
the board of directors appoints a chairman of the board, he shall perform such duties and possess
such powers as are assigned to him by the board of directors.
Section 3.9.
President
. The president shall be the chief executive officer of
the corporation, unless a chairman of the board is so designated, unless a chairman of the board is
so designated or except as otherwise voted by the board of directors, the president shall preside
at all meetings of the stockholders and of the board of directors at which present. The president
shall have such duties and powers as are commonly incident
-7-
to the office and such duties and powers as the board of directors shall from time to time
designate.
Section 3.10.
Vice-President(s)
. The vice-president(s), if any, shall have
such powers and perform such duties as the board of directors may from time to time determine.
Section 3.11.
Chief Financial Officer, Treasurer and Assistant Treasurers
.
The treasurer or if the board of directors so determines, the vice-president, finance or the chief
financial officer, subject to the direction and under the supervision and control of the board of
directors, shall have general charge of the financial affairs of the corporation. The treasurer
shall have custody of all funds, securities and valuable papers of the corporation, except as the
board of directors may otherwise provide. The treasurer shall keep or cause to be kept full and
accurate records of account which shall be the property of the corporation, and which shall be
always open to the inspection of each elected officer and director of the corporation. The
treasurer shall deposit or cause to be deposited all funds of the corporation in such depository or
depositories as may be authorized by the board-of directors. The treasurer shall have the power to
endorse for deposit or collection all notes, checks, drafts, and other negotiable instruments
payable to the corporation. The treasurer shall perform such other duties as are incidental to the
office, and such other duties as may be assigned by the board of directors. All of the duties of
the treasurer may be performed by the vice-president, finance and/or the chief financial officer,
in the discretion of the board of directors.
Assistant treasurers, if any, shall have such powers and perform such duties as the board of
directors may from time to time determine.
Section 3.12.
Secretary and Assistant Secretaries
. The secretary or an
assistant secretary shall record, or cause to be recorded, all proceedings of the meetings of the
stockholders and directors (including committees thereof) in the book of records of this
corporation. The record books shall be open at reasonable times to the inspection of any
stockholder, director, or officer. The secretary or an assistant secretary shall notify the
stockholders and directors, when required by law or by these Bylaws, of their respective meetings,
and shall perform such other duties as the directors and stockholders may from time to time
prescribe. The secretary or an assistant secretary shall have the custody and charge of the
corporate seal, and shall affix the seal of the corporation to all instruments requiring such seal,
and shall certify under the corporate seal the proceedings of the directors and of the
stockholders, when required. In the absence of the secretary or an assistant secretary at any such
meeting, a temporary secretary shall be chosen who shall record the proceedings of the meeting in
the aforesaid books.
Assistant secretaries, if any, shall have such powers and perform such duties as the board of
directors may from time to time designate.
Section 3.13.
Other Powers and Duties
. Subject to these Bylaws and to such
limitations as the board of directors may from time to time prescribe, the officers of the
corporation shall each have such powers and duties as generally pertain to their
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respective offices, as well as such powers and duties as from time to time may be conferred by
the board of directors.
ARTICLE IV.
Capital Stock
Section 4.1.
Shares Represented by Certificates and Uncertificated Shares
. The
board of directors may provide by resolution that some or all of any or all classes and series of
shares shall be uncertificated shares. Unless such a resolution has been adopted, each stockholder
shall be entitled to a certificate representing the number of shares of the capital stock of the
corporation owned by such person in such form as shall, in conformity to law, be prescribed from
time to time by the board of directors. Each certificate shall be signed by the president or
vice-president and treasurer or assistant treasurer or such other officers designated by the board
of directors from time to time as permitted by law, shall bear the seal of the corporation, and
shall express on its face its number, date of issue, class, the number of shares for which, and the
name of the person to whom, it is issued. The corporate seal and any or all of the signatures of
corporation officers may be facsimile if the stock certificate is manually counter-signed by an
authorized person on behalf of a transfer agent or registrar other than the corporation or its
employee.
If an officer, transfer agent or registrar who has signed, or whose facsimile signature has
been placed on, a certificate shall have ceased to be such before the certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer, transfer agent or
registrar at the time of its issue.
Section 4.2.
Transfer of Shares
. Title to a certificate of stock and to the
shares represented thereby shall be transferred only on the books of the corporation by delivery to
the corporation or its transfer agent of the certificate properly endorsed, or by delivery of the
certificate accompanied by a written assignment of the same, or a properly executed written power
of attorney to sell, assign or transfer the same or the shares represented thereby. Upon surrender
of a certificate for the shares being transferred, a new certificate or certificates shall be
issued according to the interests of the parties.
Section 4.3.
Record Holders
. Except as otherwise may be required by law, by
the Certificate of Incorporation or by these Bylaws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to receive notice and to vote with respect
thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares
have been transferred on the books of the corporation in accordance with the requirements of these
Bylaws.
It shall be the duty of each stockholder to notify the corporation of his post office address.
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Section 4.4.
Record Date
. In order that the corporation may determine the
stockholders entitled to receive notice of or to vote at any meeting of stockholders or any
adjournments thereof, 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 of directors may fix,
in advance, a record date, which shall not be more than sixty days prior to the date of such
meeting nor more than sixty days prior to any other action. In such case only stockholders of
record on such record date shall be so entitled notwithstanding any transfer of stock on the books
of the corporation after the record date.
If no record date is fixed: (i) the record date for determining stockholders entitled to
receive 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; and (ii) 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.
Section 4.5.
Transfer Agent and Registrar for Shares of Stock of the
Corporation
. The board of directors may appoint a transfer agent and a registrar of the shares
of stock of the corporation. Any transfer agent so appointed shall maintain, among other records, a
stockholders’ ledger, setting forth the names and addresses of the holders of all issued shares of
stock of the corporation, the number of shares held by each, the certificate numbers representing
such shares, and the date of issue of the certificates representing such shares. Any registrar so
appointed shall maintain, among other records, a share register, setting forth the total number of
shares of each class of shares which the corporation is authorized to issue and the total number of
shares actually issued. The stockholders’ ledger and the share register are hereby identified as
the stock transfer books of the corporation; but as between the stockholders’ ledger and the share
register, the names and addresses of stockholders, as they appear on the stockholders’ ledger
maintained by the transfer agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as they appear upon the
stockholders’ ledger, shall be conclusive evidence of who are the stockholders entitled to receive
notice of the meetings of stockholders, to vote at such meetings, to examine a complete list of the
stockholders entitled to vote at meetings, and to own, enjoy and exercise any other property or
rights deriving from such shares against the corporation. Stockholders, but not the corporation or
its directors, officers, agents or attorneys, shall be responsible for notifying the transfer
agent, in writing, of any changes in their names or addresses from time to time, and failure to do
so will relieve the corporation, its other stockholders, directors, officers, agents and attorneys,
and its transfer agent and registrar, of liability for failure to direct notices or other
documents, or pay over or transfer dividends or other property or rights, to a name or address
other than the name and address appearing in the stockholders’ ledger maintained by the transfer
agent.
Section 4.6.
Loss of Certificates
. In case of the loss, destruction or
mutilation of a certificate of stock, a replacement certificate may be issued in place thereof upon
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such terms as the board of directors may prescribe, including, in the discretion of the board
of directors, a requirement of bond and indemnity to the corporation.
Section 4.7.
Restrictions on Transfer
. Every certificate for shares of stock
which are subject to any restriction on transfer, whether pursuant to the Certificate of
Incorporation, the Bylaws or any agreement to which the corporation is a party, shall have the fact
of the restriction noted conspicuously on the certificate and shall also set forth on the face or
back either the full text of the restriction or a statement that the corporation will furnish a
copy to the holder of such certificate upon written request and without charge.
Section 4.8.
Multiple Classes of Stock
. The amount and classes of the capital
stock and the par value, if any, of the shares, shall be as fixed in the Certificate of
Incorporation. At all times when there are two or more classes of stock, the several classes of
stock shall conform to the description and the terms and have the respective preferences, voting
powers, restrictions and qualifications set forth in the Certificate of Incorporation and these
Bylaws. Every certificate issued when the corporation is authorized to issue more than one class
or series of stock shall set forth on its face or back either (i) the full text of the
preferences, voting powers, qualifications and special and relative rights of the shares of each
class and series authorized to be issued, or (ii) a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the corporation will furnish
a copy thereof to the holder of such certificate upon written request and without charge.
ARTICLE V.
Dividends
Section 5.1.
Declaration of Dividends
. Except as otherwise required by law
or by the Certificate of Incorporation, the board of directors may, in its discretion, declare
what, if any, dividends shall be paid from the surplus or from the net profits of the corporation
for the current or preceding fiscal year, or as otherwise permitted by law. Dividends may be paid
in cash, in property, in shares of the corporation’s stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may designate.
Section 5.2.
Reserves
. Before the payment of any dividend and before making
any distribution of profits, the board of directors, from time to time and in its absolute
discretion, shall have power to set aside out of the surplus or net profits of the corporation
such sum or sums as the board of directors deems proper and sufficient as a reserve fund to meet
contingencies or for such other purpose as the board of directors shall deem to be in the best
interests of the corporation, and the board of directors may modify or abolish any such reserve.
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ARTICLE VI.
Powers of Officers to Contract With the Corporation
Any and all of the directors and officers of the corporation, notwithstanding their official
relations to it, may enter into and perform any contract or agreement of any nature between the
corporation and themselves, or any and all of the individuals from time to time constituting the
board of directors of the corporation, or any firm or corporation in which any such director may be
interested, directly or indirectly, whether such individual, firm or corporation thus contracting
with the corporation shall thereby derive personal or corporate profits or benefits or otherwise;
provided, that (i) the material facts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii) if the material
facts as to such person’s relationship or interest are disclosed or are known to the stockholders
entitled to vote thereon, and the contract is specifically approved in good faith by a vote of the
stockholders; or (iii) the contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee thereof, or the
stockholders. Any director of the corporation who is interested in any transaction as aforesaid may
nevertheless be counted in determining the existence of a quorum at any meeting of the board of
directors which shall authorize or ratify any such transaction. This Article shall not be construed
to invalidate any contract or other transaction which would otherwise be valid under the common or
statutory law applicable thereto.
ARTICLE VII.
Indemnification
Section 7.1.
Definitions
. For purposes of this Article VII the following
terms shall have the meanings indicated:
“Corporate Status”
describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Corporation or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such person is or was serving
at the express written request of the corporation.
“Court”
means the Court of Chancery of the State of Delaware, the court in which the
Proceeding in respect of which indemnification is sought by a Covered Person shall have been
brought or is pending, or another court having subject matter jurisdiction and personal
jurisdiction over the parties.
“Covered Person”
means a person who is a present or former director or officer of the
corporation and shall include such person’s legal representatives, heirs, executors and
administrators.
“Disinterested”
describes any individual, whether or not that individual is a director,
Officer, employee or agent of the corporation, who is not and was not and is not
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threatened to be made a party to the Proceeding in respect of which indemnification,
advancement of Expenses or other action is sought by a Covered Person.
“Expenses”
shall include, without limitation, all reasonable attorneys’ fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating or being or preparing to be a witness in
a Proceeding.
“Good Faith”
shall mean a Covered Person having acted in good faith and in a manner such
Covered Person reasonably believed to be in or not opposed to the best interests of the corporation
or, in the case of an employee benefit plan, the best interests of the participants or
beneficiaries of said plan, as the case may be, and, with respect to any Proceeding which is
criminal in nature, having had no reasonable cause to believe such Covered Person’s conduct was
unlawful.
“Improper Personal Benefit”
shall include, but not be limited to, the personal gain in fact by
reason of a person’s Corporate Status of a financial profit, monies or other advantage not also
accruing to the benefit of the corporation or to the stockholders generally and which is unrelated
to his usual compensation including, but not limited to, such profit, monies or other advantage
gained (i) in exchange for the exercise of influence over the corporation’s affairs, (ii) as a
result of the diversion of corporate opportunity, or (iii) pursuant to the use or communication of
confidential or inside information for the purpose of generating a profit from trading in the
corporation’s securities. Notwithstanding the foregoing, “Improper Personal Benefit” shall not
include any benefit, directly or indirectly, related to actions taken in order to evaluate,
discourage, resist, prevent or negotiate any transaction with or proposal from any person or entity
seeking control of, or a controlling interest in, the corporation.
“Independent Counsel”
means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and may include law firms or members thereof that are regularly retained
by the corporation but not by any other party to the Proceeding giving rise to a claim for
indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not
include any person who, under the standards of professional conduct then prevailing and applicable
to such counsel, would have a conflict of interest in representing either the corporation or
Covered Person in an action to determine the Covered Person’s rights under this Article.
“Officer”
means the chairman of the board, the president, vice presidents, treasurer,
assistant treasurer (s), secretary, assistant secretary and such other executive officers as are
appointed by the board of directors of the corporation and explicitly entitled to indemnification
hereunder.
“Proceeding”
includes any actual, threatened or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation (including any internal corporate investigation),
administrative hearing or any other proceeding, whether civil,
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criminal, administrative or investigative, other than one initiated by the Covered Person,
but including one initiated by a Covered Person for the purpose of enforcing such Covered Person’s
rights under this Article to the extent provided in Section 7.14 of this Article. “Proceeding”
shall not include any counterclaim brought by any Covered Person other than one arising out of the
same transaction or occurrence that is the subject matter of the underlying claim.
Section 7.2.
Right to Indemnification in General
.
(a)
Covered Persons
. The corporation may indemnify, and may advance Expenses, to
each Covered Person who is a party to, was or is threatened to be made a party to, or is otherwise
involved in any Proceeding, as provided in this Article and to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater extent as applicable law may
hereafter from time to time permit.
The indemnification provisions in this Article shall be deemed to be a contract between the
corporation and each Covered Person who serves in any Corporate Status at any time while these
provisions as well as the relevant provisions of the Delaware General Corporation Law are in
effect, and any repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon any such state of
facts. Such a contract right may not be modified retroactively without the consent of such Covered
Person.
(b)
Employees and Agents
. The corporation may, to the extent authorized from time to
time by the board of directors, grant indemnification and the advancement of Expenses to any
employee or agent of the corporation to the fullest extent of the provisions of this Article with
respect to the indemnification and advancement of Expenses of Covered Persons.
Section 7.3.
Proceedings Other Than Proceedings by or in the Right of the
Corporation
. Each Covered Person may be entitled to the rights of indemnification provided in
this Section 7.3 if, by reason of such Covered Person’s Corporate Status, such Covered Person is a
party to, was or is threatened to be made a party to, or is otherwise involved in any Proceeding,
other than a Proceeding by or in the right of the corporation. Each Covered Person may be
indemnified against Expenses, judgments, penalties, fines and amounts paid in settlements,
actually and reasonably incurred by such Covered Person or on such Covered Person’s behalf in
connection with such Proceeding or any claim, issue or matter therein, if such Covered Person
acted in Good Faith and such Covered Person has not been adjudged during the course of such
proceeding to have derived an improper Personal Benefit from the transaction or occurrence
forming the basis of such Proceeding.
Section 7.4.
Proceedings by or in the Right of the Corporation
. Each Covered
Person may be entitled to the rights of indemnification provided in this Section 7.4 if, by reason
of such Covered Person’s Corporate Status, such Covered Person is a party to, or is threatened to
be made a party to, or is otherwise involved in any
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Proceeding brought by or in the right of the corporation to procure a judgment in its favor.
Such Covered Person may be indemnified against Expenses, judgments, penalties, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such Covered Person’s
behalf in connection with such Proceeding if such Covered Person acted in Good Faith and such
Covered Person has not been adjudged during the course of such proceeding to have derived an
Improper Personal Benefit from the transaction or occurrence forming the basis of such Proceeding.
Notwithstanding the foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which such Covered Person shall have been adjudged to be liable
to the corporation if applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification shall nevertheless be made by the corporation in such
event if and only to the extent that the Court which is considering the matter shall so determine.
Section 7.5.
Indemnification of a Party Who is Wholly or Partly Successful
.
Notwithstanding any provision of this Article to the contrary, to the extent that a Covered Person
is, by reason of such Covered Person’s Corporate Status, a party to or is otherwise involved in and
is successful, on the merits or otherwise, in any Proceeding, such Covered Person shall be
indemnified to the maximum extent permitted by law, against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably incurred by such Covered Person or
on such Covered Person’s behalf in connection there with. If such Covered Person is not wholly
successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the corporation shall indemnify such
Covered Person to the maximum extent permitted by law, against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably incurred by such covered Person or
on such Covered Person’s behalf in connection with each successfully resolved claim, issue or
matter. For purposes of this Section 7.5 and without limitation, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be
a successful result as to such claim, issue or matter.
Section 7.6.
Indemnification for Expenses of a Witness
. Notwithstanding any
provision of this Article to the contrary, to the extent that a Covered Person is, by reason of
such Covered Person’s Corporate Status, a witness in any Proceeding, such Covered Person shall be
indemnified against all Expenses actually and reasonably incurred by such Covered Person or on such
Covered Person’s behalf in connection therewith.
Section 7.7.
Advancement of Expenses
. Notwithstanding any provision of this
Article to the contrary, the corporation may advance all reasonable Expenses which, by reason of a
Covered Person’s Corporate Status, were incurred by or on behalf of such Covered Person in
connection with any Proceeding, within thirty (30) days after the receipt by the corporation of a
statement or statements from such Covered Person requesting such advance or advances, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by the Covered Person and shall include or be preceded or
accompanied by an
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undertaking by or on behalf of the Covered Person to repay any Expenses if such Covered Person
shall be adjudged to be not entitled to be indemnified against such Expenses. Any advance and
undertaking to repay pursuant to this Section 7.7 may be unsecured interest-free, as the
corporation sees fit. Advancement of Expenses pursuant to this Section 7.7 shall not require
approval of the board of directors or the stockholders of the corporation, or of any other person
or body. The secretary of the corporation shall promptly advise the Board in writing of the request
for advancement of Expenses, of the amount and other details of the request and of the undertaking
to make repayment provided pursuant to this Section 7.7.
Section 7.8.
Notification and Defense of Claim
. Promptly after receipt by a
Covered Person of notice of the commencement of any Proceeding, such covered Person shall, if a
claim is to be made against the corporation under this Article, notify the corporation of the
commencement of the Proceeding. The failure to notify the corporation will. not relieve the
corporation from any liability which it may have to such Covered Person otherwise than under this
Article. With respect to any such Proceedings to which such Covered Person notifies the
corporation:
(a)
The corporation will be entitled to participate in the defense at its own expense.
(b)
Except as otherwise provided below in this subparagraph (b), the corporation (jointly with
any other indemnifying party similarly notified) will be entitled to assume the defense with
counsel reasonably satisfactory to the Covered Person. After notice from the corporation to the
Covered Person of its election to assume the defense of a suit, the corporation will not be liable
to the Covered Person under this Article for any legal or other expenses subsequently incurred by
the Covered Person in connection with the defense of the Proceeding other than reasonable costs of
investigation or as otherwise provided below in this subparagraph (b). The Covered Person shall
have the right to employ his own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the corporation of its assumption of the defense shall be at the
expense of the Covered Person except as provided in this paragraph. The fees and expenses of
counsel shall be at the expense of the corporation if (i) the employment of counsel by the Covered
Person has been authorized by the corporation, (ii) the Covered Person shall have concluded
reasonably that there may be a conflict of interest between the corporation and the Covered Person
in the conduct of the defense of such action and such conclusion is confirmed in writing by the
corporation’s outside counsel regularly employed by it in connection with corporate matters, or
(iii) the corporation shall not in fact have employed counsel to assume the defense of such
Proceeding. The corporation shall be entitled to participate in, but shall not be entitled to
assume the defense of any Proceeding brought by or in the right of the corporation or as to which
the Covered Person shall have made the conclusion provided for in (ii) above and such conclusion
shall have been so confirmed by the corporation’s said outside counsel.
(c)
Notwithstanding any provision of this Article to the contrary, the corporation shall not
be obligated to indemnify the Covered Person under this Article for any amounts paid in settlement
of any Proceeding effected without its written consent.
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The corporation shall not settle any Proceeding or claim in any manner which would impose any
penalty, limitation or disqualification of the Covered Person for any purpose without such Covered
Person’s written consent. Neither the corporation nor the Covered Person will unreasonably withhold
their consent to any proposed settlement.
(d)
If it is determined that the Covered Person is entitled to indemnification other than as
afforded under subparagraph (b) above, payment to the Covered Person of the additional amounts for
which he is to be indemnified shall be made within ten (10) days after such determination.
Section 7.9.
Procedures
.
(a)
Method of Determination
. A determination (as provided for by this Article or if
required by applicable law in the specific case) with respect to a Covered Person’s entitlement to
indemnification shall be made either (i) by the board of directors by a majority vote of a quorum
consisting of Disinterested directors, or (ii) in the event that a quorum of the board of directors
consisting of Disinterested directors is not obtainable or, even if obtainable, such quorum of
Disinterested directors so directs, by Independent Counsel in a written determination to the board
of directors, a copy of which shall be delivered to the Covered Person seeking indemnification,
(iii) by a special litigation committee of the board of directors appointed by the board, or (iv)
by the vote of the holders of a majority of the corporation’s capital stock outstanding at the time
entitled to vote thereon.
(b)
Initiating Request
. A Covered Person who seeks indemnification under this Article
shall submit a Request for Indemnification, including such documentation and information as is
reasonably available to such Covered Person and is reasonably necessary to determine whether and to
what extent such Covered Person is entitled to indemnification.
(c)
Presumptions
. In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such determination shall not
presume that the Covered Person is or is not entitled to indemnification under this Article.
(d)
Burden of Proof
. Each Covered Person shall bear the burden of going forward and
demonstrating sufficient facts to support his claim for entitlement to indemnification under this
Article. That burden shall be deemed satisfied by the submission of an initial Request for
Indemnification pursuant to Section 7.9(b) above.
(e)
Effect of Other Proceedings
. The termination of any Proceeding or of any claim,
issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of guilty or
of
nolo contendere
or its equivalent, shall not (except as otherwise expressly provided in
this Article) of itself adversely affect the right of a Covered Person to indemnification or create
a presumption that a Covered Person did not act in Good Faith.
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(f)
Actions of Others
. The knowledge, actions, or failure to act, of any director,
officer, employee, agent, trustee or fiduciary of the enterprise for whose daily activities the
Covered Person was actually responsible may be imputed to a Covered Person for purposes of
determining the right to indemnification under this Article.
Section 7.10.
Action by the Corporation
. Any action, payment, advance
determination other than a determination made pursuant to Section 7.9(a) above, authorization,
requirement, grant of indemnification or other action taken by the Corporation pursuant to this
Article shall be effected exclusively through any Disinterested person so authorized by the board
of directors of the corporation, including the president or any vice president of the corporation.
Section 7.11.
Non-Exclusivity
. The rights of indemnification and to receive
advancement of Expenses as provided by this Article shall not be deemed exclusive of any other
rights to which a Covered Person may at any time be entitled under applicable law, the Certificate
of incorporation, these Bylaws, any agreement, a vote of stockholders or a resolution of the board
of directors, or otherwise. No amendment, alteration, rescission or replacement of this Article or
any provision hereof shall be effective as to any Covered Person with respect to any action taken
or omitted by such Covered Person in such Covered Person’s Corporate Status or with respect to any
state of facts then or previously existing or any Proceeding previously or thereafter brought or
threatened based in whole or to the extent based in part upon any such state of facts existing
prior to such amendment, alteration, rescission or replacement.
Section 7.12.
Insurance
. The corporation may maintain, at its expense, an
insurance policy or policies to protect itself and any Covered Person, officer, employee or agent
of the corporation or another enterprise against liability arising out of this Article or
otherwise, whether or not the corporation would have the power to indemnify any such person against
such liability under the Delaware General Corporation Law.
Section 7.13.
No Duplicative Payment
. The corporation shall not be liable
under this Article to make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that a Covered Person has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
Section 7.14.
Expenses of Adjudication
. In the event that any Covered Person
seeks a judicial adjudication, or an award in arbitration, to enforce such Covered Person’s rights
under, or to recover damages for breach of, this Article, the Covered Person shall be entitled to
recover from the corporation, and shall be indemnified by the corporation against, any and all
expenses (of the types described in the definition of Expenses in Section 7.1 of this Article)
actually and reasonably incurred by such Covered Person in seeking such adjudication or
arbitration, but only if such Covered Person prevails therein. If it shall be determined in such
adjudication or arbitration that the Covered Person is entitled to receive part but not all of the
indemnification of expenses sought, the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately prorated.
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Section 7.15.
Severability
. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a)
the validity, legality and enforceability of the remaining provisions of this Article
(including without limitation, each portion of any Section of this Article containing any such
provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and
(b)
to the fullest extent possible, the provisions of this Article (including, without
limitation, each portion of any Section of this Article containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII.
Miscellaneous Provisions
Section 8.1.
Certificate of Incorporation
. All references in these Bylaws to
the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of
the corporation, as amended and in effect from time to time.
Section 8.2.
Fiscal Year
. Except as from time to time otherwise provided by
the board of directors, the fiscal year of the corporation shall end on September 30th of each
year.
Section 8.3.
Corporate Seal
. The board of directors shall have the power to
adopt and alter the seal of the corporation.
Section 8.4.
Execution of Instruments
. All deeds, leases, transfers,
contracts, bonds, notes, and other obligations authorized to be executed by an officer of the
corporation on its behalf shall be signed by the president or the treasurer except as the board of
directors may generally or in particular cases otherwise determine.
Section 8.5.
Voting of Securities
. Unless the board of directors otherwise
provides, the president or the treasurer may waive notice of and act on behalf of this corporation,
or appoint another person or persons to act as proxy or attorney in fact for this corporation with
or without discretionary power and/or power of substitution, at any meeting of stockholders or
shareholders of any other corporation or organization, any of whose securities are held by this
corporation.
Section 8.6.
Evidence of Authority
. A certificate by the secretary or any
assistant secretary as to any action taken by the stockholders, directors or any officer or
representative of the corporation shall, as to all persons who rely thereon in good faith, be
conclusive evidence of such action. The exercise of any power which by law, by the Certificate of
Incorporation, or by these Bylaws, or under any vote of the stockholders or the board of directors,
may be exercised by an officer of the corporation only in the event
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of absence of another officer or any other contingency shall bind the corporation in favor of
anyone relying thereon in good faith, whether or not such absence or contingency existed.
Section 8.7.
Corporate Records
. The original, or attested copies, of the
Certificate of Incorporation, Bylaws, records of all meetings of the incorporators and
stockholders, and the stock transfer books (which shall contain the names of all stockholders and
the record address and the amount of stock held by each) shall be kept in Delaware at the principal
office of the corporation, or at an office of the corporation, or at an office of its transfer
agent or of the secretary or of the assistant secretary, if any. Said copies and records need not
all be kept in the same office. They shall be available at all reasonable times to inspection of
any stockholder for any purpose but not to secure a list of stockholders for the purpose of selling
said list or copies thereof or for using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the corporation.
Section 8.8.
Charitable Contributions
. The board of directors from time to
time may authorize contributions to be made by the corporation in such amounts as it may determine
to be reasonable to corporations, trusts, funds or foundations organized and operated exclusively
for charitable, scientific or educational purposes, no part of the net earning of which inures to
the private benefit of any stockholder or individual.
ARTICLE IX.
Amendments
Section 9.1.
Amendment by Stockholders
. Prior to the issuance of stock, these
Bylaws may be amended, altered or repealed by the incorporator(s) by majority vote. After stock has
been issued, these Bylaws may be amended altered or repealed by the stockholders at any annual or
special meeting by vote of a majority of all shares outstanding and entitled to vote, except that
where the effect of the amendment would be to reduce any voting requirement otherwise required by
law, the Certificate of Incorporation or another provision of these Bylaws, such amendment shall
require the vote that would have been required by law, the Certificate of Incorporation or these
Bylaws or such other provision of these Bylaws. Notice and a copy of any proposal to amend these
Bylaws must be included in the notice of meeting of stockholders at which action is taken upon such
amendment.
Section 9.2.
Amendment by Board of Directors
. These Bylaws may be amended or
altered by the board of directors at a meeting duly called for the purpose by majority vote of the
directors then in office, except that directors shall not amend the Bylaws in a manner which:
(a)
changes the stockholder voting requirements for any action;
(b)
alters or abolishes any preferential right or right of redemption applicable to a class or
series of stock with shares already outstanding;
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(c)
alters the provisions of Article IX hereof; or
(d)
permits the board of directors to take any action which under law, the Certificate of
incorporation, or these Bylaws is required to be taken by the stockholders.
Any amendment of these Bylaws by the board of directors may be altered or repealed by the
stockholders at any annual or special meeting of stockholders.
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