BYLAWS
OF
RADNET,
INC.,
a
Delaware corporation
ARTICLE
I
STOCKHOLDERS
Section
1.
Location of Meetings; Remote
Communication.
Meetings
of stockholders may be held at such place, either within or without the State of
Delaware, as determined by the Board of Directors. The Board of
Directors may, in its sole discretion, determine that the meeting shall not be
held at any place, but may instead be held solely by means of remote
communication.
If
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxy holders not physically present at a meeting of stockholders may, by means
of remote communication: (1) participate in a meeting of stockholders; and (2)
be deemed present in person and vote at a meeting of stockholders, whether such
meeting is to be held at a designated place or solely by means of remote
communication,
provided
that
(A) the Corporation shall implement reasonable measures to verify that each
person deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxy holder, (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and
(C) if any stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the Corporation.
Section
2.
Annual
Meeting.
Unless
directors are elected by written consent in lieu of an annual meeting, the Board
of Directors shall fix a date for the annual meeting of stockholders for the
election of directors on a date and at a time designated by or in the manner
provided in these Bylaws,
provided
that the
date of the annual meeting shall be within thirteen (13) months following the
date of the last annual meeting or the last action by written consent to elect
directors in lieu of an annual meeting (or if no such meeting has been held or
if no such consent has been signed, within thirteen (13) months of the date of
incorporation). Stockholders may, unless the Certificate of
Incorporation otherwise provides, act by written consent to elect directors;
provided
,
however
, that, if
such consent is less than unanimous, such action by written consent may be in
lieu of holding an annual meeting only if all of the directorships to which
directors could be elected at an annual meeting held at the effective time of
such action are vacant and are filled by such action. At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting in accordance with the terms and
conditions of Section 12(A) of this ARTICLE I.
Section
3.
Special
Meetings.
Special
meetings of the stockholders may be called by (i) a majority of the members
of the Board of Directors, or (ii) a committee of the Board of Directors
that has been duly designated by the Board of Directors and whose power and
authority, as provided in a resolution by the Board of Directors or in the
Certificate of Incorporation of the Corporation or in these Bylaws, includes the
power to call such meetings and shall be held at such place, on such date, and
at such time as they or he or she shall fix. At a special meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting in accordance with the terms and conditions
of Section 12(B) of this ARTICLE I.
Section
4.
Notice of Meetings and
Adjourned Meetings.
Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which shall state the place, if
any, date and hour of the meeting, the means of remote communications, if any,
by which stockholders and proxy holders may be deemed to be present in person
and vote at such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
Unless
otherwise required by the Delaware General Corporation Law (the “
DGCL
”), the written
notice of any meeting 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.
When a
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time, place, if any, thereof, 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 such adjourned meeting 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
5.
Voting, Quorum and Required
Vote.
Unless
otherwise provided in the Certificate of Incorporation and subject
to ARTICLE V, Section 9, each stockholder shall be entitled to one vote for
each share of capital stock held by such stockholder. If the Certificate of
Incorporation provides for more or less than one vote for any share, on any
matter, every reference in these Bylaws to a majority or other proportion of
stock, voting stock or shares shall refer to such majority or other proportion
of the votes of such stock, voting stock or shares.
Subject
to the DGCL in respect of the vote that shall be required for a specified
action:
(1) a
majority of the shares entitled to vote, present in person or represented by
proxy, shall constitute a quorum at a meeting of stockholders;
(2) in
all matters other than the election of directors, the affirmative vote of the
majority of shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the
stockholders;
(3) 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; and
(4) where
a separate vote by a class or series or classes or series is required, a
majority of the outstanding shares of such class or series 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 the affirmative vote of
the majority of shares of such class or series or classes or series present in
person or represented by proxy at the meeting shall be the act of such class or
series or classes or series.
Elections
of directors need not be by written ballot. Unless otherwise provided
by the Board of Directors, any requirement of a written ballot shall be
satisfied by a ballot submitted by electronic transmission,
provided
that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorized by the stockholder or proxy holder.
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 a majority of shares
present in person or represented by proxy at the meeting, but no other business
shall be transacted at such meeting.
Section
6.
Proxies.
Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, the following shall constitute a
valid means by which a stockholder may grant such authority: (1) a stockholder
may execute a writing authorizing another person or persons to act for such
stockholder as proxy (execution may be accomplished by the stockholder or such
stockholder’s authorized officer, director, employee or agent signing such
writing or causing such person’s signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile signature); or (2)
a stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission,
provided
that any
such telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be determined that
the telegram, cablegram or other electronic transmission was authorized by the
stockholder (if it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied). Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to the preceding sentence may be substituted or used in lieu of
the original writing or transmission for any and all purposes for which the
original writing or transmission could be used,
provided
that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
Section
7.
Voting Rights of
Fiduciaries, Pledgors, and Joint Owners of Stock.
Persons
holding stock in a fiduciary capacity shall be entitled to vote the shares so
held. Persons whose stock is pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books of the Corporation such person has
expressly empowered the pledgee to vote thereon, in which case only the pledgee,
or such pledgee’s proxy, may represent such stock and vote thereon.
If shares
or other securities having voting power stand of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares, unless
the Secretary of the Corporation 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: (1) if only one votes, such person’s act binds
all; (2) if more than one vote, the act of the majority so voting binds
all; (3) if more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any, may
apply to the Court of Chancery or such other court as may have jurisdiction to
appoint an additional person to act with the persons so voting the shares, which
shall then be voted as determined by a majority of such persons and the person
appointed by the Court. If the instrument so filed shows that any such tenancy
is held in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
Section
8.
Organization and Conduct of
Business at Stockholder Meetings.
At every
meeting of stockholders, the Chairman of the Board of Directors, or in the
absence of the Chairman of the Board of Directors, the Chief Executive Officer,
or in the absence of the Chief Executive Officer, the President, or in the
absence of the President, a chairman of the meeting chosen by a majority of the
shares present in person, shall preside over the meeting. The Secretary, or in
the absence of the Secretary, an Assistant Secretary, or in the absence of an
Assistant Secretary, a secretary of the meeting chosen by a majority of the
shares present in person, shall act as secretary of the meeting and take the
minutes thereof.
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 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.
Section
9.
Voting Procedures and
Inspectors.
If the
Corporation has a class of voting stock that is: (1) listed on a national
securities exchange; (2) authorized for quotation on an interdealer quotation
system of a registered national securities association; or (3) held of record by
more than 2,000 stockholders, the procedures set forth in this Section 9 shall
apply to any meeting of stockholders:
The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of the
duties of inspector, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of such
inspector’s ability.
The
inspectors shall: (1) ascertain the number of shares outstanding and the voting
power of each; (2) determine the shares represented at a meeting and the
validity of proxies and ballots; (3) count all votes and ballots; (4) determine
and retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors; and (5) certify their determination
of the number of shares represented at the meeting, and their count of all votes
and ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
The date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes thereto, shall
be accepted by the inspectors after the closing of the polls unless the Court of
Chancery upon application by a stockholder shall determine
otherwise.
Section
10.
List of Stockholders
Entitled to Vote.
The
officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least 10 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. The Corporation is not required to
include electronic mail addresses or other electronic contact information on
such list. Such list shall be open to the examination of any
stockholder for any purpose germane to the meeting for a period of at least 10
days prior to the meeting: (1) on a reasonably accessible electronic network,
provided
that
the information required to gain access to such list is provided with the notice
of the meeting, or (2) during ordinary business hours, at the principal place of
business of the Corporation. In the event that the Corporation determines to
make the list available on an electronic network, the Corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a
place, then the list shall be produced and kept at the time and place of the
meeting during the whole time thereof and may be inspected by any stockholder
who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
The stock
ledger shall be the only evidence considered in determining which stockholders
are entitled to examine the list of stockholders or to vote in person or by
proxy at any meeting of stockholders.
Section
11.
Consent of Stockholders in
Lieu of Meeting.
Unless
otherwise provided in the Certificate of Incorporation, any action required by
the DGCL to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its principal
place of business or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are
recorded.
Every
written consent shall bear the date of signature of each stockholder who signs
the consent, and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated consent
delivered in the manner required by this Section 11 to the Corporation, written
consents signed by a sufficient number of holders or members to take action are
delivered to the Corporation by delivery to 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 or members are recorded.
A
telegram, cablegram or other electronic transmission consenting to an action to
be taken and transmitted by a stockholder or proxy holder, or by a person or
persons authorized to act for a stockholder or proxy holder, shall be deemed to
be written, signed and dated for the purposes of this Section 11,
provided
that any
such telegram, cablegram or other electronic transmission sets forth or is
delivered with information from which the Corporation can determine (A) that the
telegram, cablegram or other electronic transmission was transmitted by the
stockholder or proxy holder or by a person or persons authorized to act for the
stockholder or proxy holder and (B) the date on which such stockholder or proxy
holder or authorized person or persons transmitted such telegram, cablegram or
electronic transmission. The date on which such telegram, cablegram or
electronic transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by telegram, cablegram or other
electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered
to the Corporation by delivery to its principal place of business or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders or members are recorded. Notwithstanding the foregoing
limitations on delivery, consents given by telegram, cablegram or other
electronic transmission, may be otherwise delivered to the principal place of
business of the Corporation or to an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders or members
are recorded if, to the extent and in the manner provided by resolution of the
Board of Directors or governing body of the Corporation.
Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used,
provided
that such
copy, facsimile or other reproduction shall be a complete reproduction of the
entire original writing.
Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of holders
to take the action were delivered to the Corporation as provided in this Section
11.
Section
12.
Notice of Stockholder
Business and Nominations.
(A)
Annual
Meeting.
Nominations of persons for election to the Board of
Directors of the Corporation, and the proposal of other business to be
considered by the stockholders, at an annual meeting of stockholders of the
Corporation may be made only (a) pursuant to the Corporation’s notice of
meeting (or any supplement thereto), (b) by or at the direction of the
Board of Directors (or any authorized committee thereof), or (c) by any
stockholder of the Corporation who (i) is a stockholder of record of the
Corporation at the time the notice required by this Section 12 is delivered to
the Secretary of the Corporation, (ii) is entitled to vote at the meeting
and upon such election or other business, and (iii) complies with the notice
procedures and other applicable requirements set forth in this Section
12. For any nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) next above, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation and complying with subsection (C) next below and any such
proposed business (other than the nomination of persons for election to the
Board of Directors) must constitute a proper matter for stockholder action
pursuant to the DGCL. To be timely, a stockholder’s notice must be
delivered to the Secretary of the Corporation at the principal executive offices
of the Corporation (if delivered by electronic mail, facsimile or other
electronic transmission, the stockholder’s notice shall be directed to the
Secretary at the electronic mail address, facsimile number of other appropriate
electronic address, as the case may be, specified in the Corporation’s most
recent definitive proxy statement filed with the SEC) not later than the close
of business on the ninetieth (90th) day, nor earlier than the close of business
on the one hundred twentieth (120th) day, prior to the first anniversary of the
preceding year’s annual meeting of stockholders;
provided
,
however
, that in the
event that the date of the annual meeting is more than thirty (30) days before
or more than sixty (60) days after such anniversary date, notice by the
stockholder must be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such annual meeting and not later
than the close of business on the later of (i) the ninetieth (90th) day
prior to such annual meeting, and (ii) the tenth (10th) day following the
day on which public announcement of the date of such annual meeting is first
made by the Corporation; and
provided
,
further
, that in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased effective at the annual meeting and there is no
public announcement by the Corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of
the preceding year’s annual meeting, a stockholder’s notice required by this
Section 12 shall also be considered timely, but only with respect to nominees
for the additional directorships, if it is delivered to the Secretary of the
Corporation as aforesaid not later than the close of business on the tenth
(10th) day following the day on which such public announcement is first made by
the Corporation. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described
above.
(B)
Special
Meeting.
Only the proposed business set forth in the
Corporation’s notice of meeting (or any supplement thereto) may be considered by
the stockholders at a special meeting of stockholders of the
Corporation. Nominations of persons for election to the Board of
Directors of the Corporation at a special meeting of stockholders of the
Corporation at which directors are to be elected pursuant to the Corporation’s
notice of meeting (or any supplement thereto) may be made only (a) by or at
the direction of the Board of Directors (or any authorized committee thereof),
or (b) by any stockholder of the Corporation who (i) is a stockholder of
record of the Corporation at the time the notice required by this Section 12 is
delivered to the Secretary of the Corporation, (ii) is entitled to vote at
the meeting and upon such election, and (iii) complies with the notice
procedures and other applicable requirements set forth in this Section
12. In the event the Corporation calls a special meeting
stockholders
for the purpose of electing one or more directors to the Board of Directors of
the Corporation, for any nominations to be properly brought before such special
meeting by a stockholder, the stockholder must have given timely notice in
writing to the Secretary of the Corporation of the person or persons being
nominated for election to such position or positions and otherwise complying
with subsection (C) next below. To be timely, a stockholder’s
notice must be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation (if delivered by electronic mail, facsimile
or other electronic transmission, the stockholder’s notice shall be directed to
the Secretary at the electronic mail address, facsimile number of other
appropriate electronic address, as the case may be, specified in the
Corporation’s most recent definitive proxy statement filed with the SEC) not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of (i) the ninetieth (90th) day prior to such special meeting, and
(ii) the tenth (10th) day following the day on which public announcement is
first made of the date of such special meeting and of the nominees proposed by
the Board of Directors (or any authorized committee thereof) to be elected at
such special meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described
above.
(C)
Stockholder’s
Notice.
To be effective, a stockholder’s notice pursuant to
subsection (A) or subsection (B) next above must set
forth:
(1) as
to each person whom the stockholder proposes to nominate for election as a
director: (i) all material relationships and all agreements,
arrangements and understandings, including financial transactions and
compensation, existing in the five-year period prior to the date of the notice
between any nominee or any immediate family member of such nominee or any entity
in which such nominee or any such family member has a direct or indirect
material interest, on the one hand, and such stockholder or the beneficial
owner, if any, on whose behalf the nomination is being made, any of their
respective affiliates or associates, or any others acting in concert with any of
the foregoing, on the other hand, (ii) all other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in a contested election, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), and
(iii) such nominee’s written consent to being named in the proxy statement
as a nominee and to serve as a director if elected,
(2) as
to any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a
proposal to amend these Bylaws, the language of the proposed amendment), the
reasons for conducting such business at the meeting, and any material interest
in such business of such stockholder or the beneficial owner, if any, on whose
behalf the proposal is made, any of their respective affiliates or associates,
or any others acting in concert with any of the foregoing; and
(3) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation’s books, and of such beneficial
owner, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) a description of any agreement,
arrangement or understanding with respect to the nomination or proposal between
or among such stockholder and such beneficial owner, any of their
respective
affiliates or associates, and any others acting in concert with any of the
foregoing, (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, stock appreciation or similar rights, hedging transactions,
and borrowed or loaned shares, or any agreement, arrangement or understanding to
enter into any such transaction) that has been entered into, made or reached on
or prior to the date of the stockholder’s notice by, or on behalf of, such
stockholder and such beneficial owners, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes for, or increase
or decrease the voting power of, such stockholder and such beneficial owner,
with respect to shares of stock of the Corporation, (v) 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 propose such business or nomination, and (vi) a representation
whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends (A) to deliver a proxy statement and/or form of proxy
to holders of at least the percentage of the Corporation’s outstanding capital
stock required to approve or adopt the proposal or elect the nominee, and/or
(B) otherwise to solicit proxies from stockholders in support of such
proposal or nomination.
The
foregoing notice requirements of this Section 12 shall be deemed satisfied by a
stockholder with respect to business other than a nomination of a person for
election to the Board of Directors of the Corporation if the stockholder has
notified the Corporation of his, her or its intention to present a proposal at
an annual meeting in compliance with Rule 14a-8 promulgated under the Exchange
Act and such stockholder’s proposal has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such annual
meeting. The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as a director of the Corporation, including
completion of a questionnaire in the form provided by the Corporation (which
questionnaire shall be deemed reasonable if substantially in the form provided
by the Corporation to nominees being nominated by the Corporation for election
to the Board of Directors of the Corporation), and the failure of any proposed
nominee to furnish such other information in a timely fashion (as reasonably
requested by the Corporation, subject to any extension of time granted by the
Corporation in its discretion) shall constitute an abandonment of the nomination
of such person for election as a director of the Corporation (and such person
shall thereafter not be eligible to be elected at the applicable meeting to
serve as a director of the Corporation).
(D)
Business at
Meeting.
Only those persons who are nominated in accordance
with the procedures set forth in this Section 12 shall be eligible to be elected
at an annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 12. Except as otherwise provided by law,
the chairman of the meeting shall have the power and duty (a) to determine
whether a nomination or any business proposed to be brought before the meeting
by a stockholder was made or proposed, as the case may be, in accordance with
the procedures set forth in this Section 12 (including whether the stockholder
or beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholder’s nominee or proposal in
compliance with such stockholder’s representation as required by clause (v)
of subsection (C)(3) next above), and (b) if any proposed nomination or
business was not made or proposed in compliance with this Section 12, to declare
that such nomination shall be disregarded or that such proposed business shall
not be transacted. Notwithstanding
the
foregoing provisions of this Section 12, unless otherwise required by law, if
the stockholder (or a qualified representative of the stockholder) does not
appear at the annual or special meeting of stockholders of the Corporation to
present a nomination or proposed business, such nomination shall be disregarded
and such proposed business shall not be transacted, notwithstanding that proxies
in respect of such vote may have been received by the
Corporation. For purposes of this Section 12, to be considered a
qualified representative of the stockholder, a person must be a duly authorized
officer, manager or partner of such stockholder (if an entity) or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such representative must produce such writing
or electronic transmission, or a reliable reproduction of the writing or
electronic transmission, at the meeting of stockholders.
(E)
“Public
Announcement”
. For purposes of this Section 12, “
public announcement
”
shall include disclosure in a press release reported by the Dow Jones News
Service, Associated Press or other 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.
(F)
Proxy
Rules
. Notwithstanding the foregoing provisions of this
Section 12, a stockholder must also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 12;
provided
,
however
, that any
references in these Bylaws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit any requirements applicable
to nominations or proposals as to any other business to be considered pursuant
to this Section 12 (including either clause (c) of subsection (A) or
subsection (B) next above), and compliance with subsection (A) or
subsection (B) next above, as applicable, shall be the exclusive means for
a stockholder to make nominations or submit other business (other than, as
provided in the penultimate paragraph of subsection (C) next above, matters
brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as
may be amended from time to time). Nothing in this Section 12 shall
be deemed to affect any rights (a) of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to applicable rules and
regulations promulgated under the Exchange Act, or (b) of the holders of
any series of Preferred Stock of the Corporation to elect directors pursuant to
any applicable provisions of the Certificate of Incorporation.
ARTICLE
II
BOARD
OF DIRECTORS
Section
1.
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
2.
Number and Term of
Office.
Subject
to any limitations imposed by the Certificate of Incorporation, the authorized
number of Directors of the Corporation shall be not be less than three nor more
than fifteen, as may be designated from time to time by the Board of Directors
by a resolution duly adopted by the Board of Directors. Each director
shall hold office until such director’s successor is elected and qualified or
until such director’s earlier resignation or removal. Directors need
not be stockholders of the Corporation.
Whenever
the authorized number of directors is increased between annual meetings of the
stockholders, a majority of the directors then in office shall have the power to
elect such new directors for the balance of a term and until their successors
are elected and qualified. Any decrease in the authorized number of
directors shall not become effective until the expiration of the term of the
directors then in office unless, at the time of such decrease, there shall be
vacancies on the board which are being eliminated by the decrease. No
person entitled to vote at an election for directors may cumulate
votes.
Section
3.
Vacancies.
Unless
otherwise provided in the Certificate of Incorporation: (1) vacancies and newly
created directorships resulting from any increase in the authorized number of
directors elected by all of the stockholders having the right to vote as a
single class may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director; and (2) whenever
the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the Certificate of Incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by
a majority of the directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected.
If at any
time, by reason of death or resignation or other cause, the Corporation should
have no directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other fiduciary
entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the Certificate of
Incorporation or the Bylaws, or may apply to the Court of Chancery for a decree
summarily ordering an election as provided in Section 211 of the
DGCL.
If, at
the time of filling any vacancy or any newly created directorship, the directors
then in office shall constitute less than a majority of the whole Board of
Directors (as constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders holding at
least ten percent (10%) of the voting stock at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill
any such vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office as aforesaid, which election shall be
governed by Section 211 of the DGCL as far as applicable.
Unless
otherwise provided in the Certificate of Incorporation, 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 as provided in this Section 3 in the
filling of other vacancies.
Section
4.
Resignation.
Any
director may resign at any time upon notice given in writing or by electronic
transmission to the Corporation.
Section
5.
Removal.
Any
director or the entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an election
of directors, except as follows: (1) unless the Certificate of
Incorporation otherwise provides, if the Corporation has a classified board as
provided in Section 141(d) of the DGCL, stockholders may effect such removal
only for cause; or (2) in the case of the Corporation having cumulative
voting, if less than the entire Board of Directors is to be removed, no director
may be removed without cause if the votes cast against such director’s removal
would be sufficient to elect such director if then cumulatively voted at an
election of the entire Board of Directors, or, if there be classes of directors,
at an election of the class of directors of which such director is a
part.
Whenever
the holders of any class or series are entitled to elect one or more directors
by the Certificate of Incorporation, this provision shall apply in respect to
the removal without cause of a director or directors so elected, to the vote of
the holders of the outstanding shares of that class or series and not to the
vote of the outstanding shares as a whole.
Section
6.
Location of Meetings;
Participation by Conference Telephone or Electronic Video Screen
Communication.
The Board
of Directors of the Corporation may hold its meetings, and have an office or
offices, within or without the State of Delaware. Members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of Board of Directors or such
committee by means of conference telephone or electronic video screen
communication or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 6 shall constitute presence in person at the
meeting.
Section
7.
Regular
Meetings.
Regular
meetings of the Board of Directors shall be held at such place or places, on
such date or dates, and at such time or times as shall have been established by
the Board of Directors and publicized among all directors. A notice
of each regular meeting shall not be required.
Section
8.
Special
Meetings.
Special
meetings of the Board of Directors may be called by one-third (⅓) of the
directors then in office (rounded up to the nearest whole number) or by the
Chief Executive Officer and shall be held at such place, on such date, and at
such time as they or he or she shall fix. Written notice of the
place, date, and time of each such special meeting shall be given to each
director by whom it is not waived (1) by mailing written notice not less
than three (3) days before the meeting, or (2) by electronic transmission
of the same not less than one (1) day before the meeting. In the
event of an emergency which, in the judgment of the Chairman of the Board or
President, requires immediate action, a special meeting may be convened without
notice, if a quorum of directors are immediately available to participate
personally or by conference telephone. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special
meeting. A director shall be deemed to waive notice of a special
meeting if that director attends the meeting without protesting, prior thereto
or at its commencement, the lack of notice to that director.
Section
9.
Quorum.
A
majority of the total number of directors shall constitute a quorum for the
transaction of business. The 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. If a quorum shall fail to attend any meeting a majority
of those present may adjourn the meeting to another place, date, or time,
without further notice or waiver thereof.
Section
10.
Action by Unanimous Written
Consent.
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 the writing or writings or
electronic 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
11.
Organization.
At every
meeting of the directors, the Chairman of the Board of Directors, or in the
absence of the Chairman of the Board of Directors, a chairman of the meeting
chosen by a majority of the directors present, shall preside over the meeting.
The Secretary, or in the absence of the Secretary, an Assistant Secretary, or in
the absence of an Assistant Secretary, a secretary of the meeting chosen by the
chairman of the meeting, shall act as secretary of the meeting and take the
minutes thereof
To
promote the free exchange of ideas and candid discussions, only directors are
entitled to be present at meetings of the Board of Directors,
provided
that the
Board of Directors may invite non-directors to attend such
meetings. Any non-director shall be excluded from a meeting of the
Board of Directors at any time by a majority vote of the directors present at
the meeting.
Section
12.
Compensation of
Directors.
The Board
of Directors shall have the authority to fix the compensation of
directors. Directors, as such, may receive, pursuant to resolution of
the Board of Directors, fixed fees and other compensation for their services as
directors, including their services as members of committees of the Board of
Directors.
ARTICLE
III
COMMITTEES
Section
1.
Committees of the Board of
Directors.
The Board
of Directors may designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. 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. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members 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. Any such committee, to the extent
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, 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 the following
matter: (1) approving or adopting, or recommending to the stockholders, any
action or matter (other than the election or removal of directors) expressly
required by the DGCL to be submitted to stockholders for approval, or
(2) adopting, amending or repealing these Bylaws.
A
committee may create one or more subcommittees, each subcommittee to consist of
one or more members of the committee, and delegate to a subcommittee any or all
of the powers and authority of the committee.
Section
2.
Organization.
Each
committee may determine the procedural rules for meeting and conducting its
business and shall act in accordance therewith, except as otherwise provided
herein or required by law. Adequate provision shall be made for
notice to members of all meetings; one-third (⅓) of the members shall
constitute a quorum unless the committee shall consist of one (1) or
two (2) members, in which event one (1) member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
To
promote the free exchange of ideas and candid discussions, only committee
members are entitled to be present at committee meetings,
provided
that the
committee may invite non-committee members to attend such
meetings. Any non-committee member shall be excluded from a meeting
of the committee at any time by a majority vote of the committee members present
at the meeting.
ARTICLE
IV
OFFICERS
Section
1.
Generally.
The
officers of the Corporation shall consist of a Chief Executive Officer, a
President, a Secretary, and a Chief Financial Officer. The Board of
Directors may also appoint one or more Vice Presidents, Assistant Secretaries,
Assistant Financial Officers, and such other officers and agents with such
powers and duties as it shall deem necessary. Officers shall be
elected by the Board of Directors, which shall consider that subject at its
first meeting after every annual meeting of stockholders. Each
officer shall hold office until his or her successor is elected and qualified or
until his or her earlier resignation or removal. Any number of
offices may be held by the same person.
Section
2.
Chief Executive
Officer.
The Chief
Executive Officer shall, subject to the direction of the Board of Directors,
have general and active control of the affairs and business of the corporation
and general supervision of its officers, officials, employees and agents. If
there is no Chairman of the Board, the Chief Executive Officer shall preside at
all meetings of the shareholders and at all meetings of the Board of Directors
and any committee thereof of which he is a member, unless the Board of Directors
or such committee shall have chosen another chairman. He shall see that all
orders and resolutions of the Board of Directors are carried into effect, and in
addition he shall have all the powers and perform all the duties generally
appertaining to the office of the Chief Executive Officer of a corporation. The
Chief Executive Officer shall designate the person or persons who shall exercise
his powers and perform his duties in his absence or disability and the absence
or disability of the President.
Section
3.
Chairman of the
Board.
The
Chairman of the Board shall have the power to preside at all meetings of the
Board of Directors and shall have such other powers and duties as the Board of
Directors may from time to time prescribe.
Section
4.
President.
The
President shall be the Chief Executive Officer of the Corporation unless the
Board of Directors shall have designated another officer as the Chief Executive
Officer of the Corporation. Subject to the provisions of these Bylaws
and to the direction of the Board of Directors, and subject to the supervisory
powers of the Chief Executive Officer (if the Chief Executive Officer is an
officer other than the President), he or she shall have the responsibility for
the general management and control of the business and affairs of the
Corporation and the general supervision and direction of all of the officers,
employees and agents of the Corporation (other than the Chief Executive Officer,
if the Chief Executive Officer is an officer other than the President) and shall
perform all duties and have all powers that are commonly incident to the office
of President or that are delegated to the President by the Board of
Directors.
Section
5.
Vice
President.
Each Vice
President shall have such powers and duties as may be delegated to him or her by
the Board of Directors. One Vice President shall be designated
by the Board to perform the duties and exercise the powers of the President in
the event of the President’s absence or disability.
Section
6.
Chief Financial
Officer.
The Chief
Financial Officer shall have the responsibility for maintaining the financial
records of the Corporation. He or she shall make such disbursements
of the funds of the Corporation as are authorized and shall render from time to
time an account of all such transactions and of the financial condition of the
Corporation. The Chief Financial Officer shall also perform such
other duties as the Board of Directors may from time to time
prescribe. The Chief Financial Officer shall be deemed to perform all
of the functions of the “Treasurer” contemplated by the DGCL.
Section
7.
Secretary.
The
Secretary shall issue all authorized notices for, and shall keep minutes of, all
meetings of the stockholders and the Board of Directors. He or she
shall have charge of the corporate books and shall perform such other duties as
the Board of Directors may from time to time prescribe.
Section
8.
Delegation of
Authority.
The Board
of Directors may from time to time delegate the powers or duties of any officer
to any other officers or agents, notwithstanding any provision
hereof
Section
9.
Removal.
Any
officer of the Corporation may be removed at any time, with or without cause, by
the Board of Directors.
Section
10.
Action with Respect to
Securities of Other Corporations
.
Unless
otherwise directed by the Board of Directors, the Chief Executive Officer or any
officer of the Corporation authorized by the Chief Executive Officer shall have
power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of Stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE
V
STOCK
Section
1.
Stock
Certificates.
Certificates
for the shares of stock of the Corporation shall be issued (upon initial
issuance, transfer or otherwise) only to the extent as may be required by
applicable law or as otherwise authorized by the Secretary or an Assistant
Secretary, and if so issued shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock
represented by certificates 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 a Vice-President, and by the Chief Financial Officer, or the
Secretary or an Assistant Secretary of the Corporation representing the number
of shares registered in certificate form. Any or all the signatures on the
certificate may be a facsimile. 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 by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue. The Corporation shall not have power to issue a certificate in bearer
form.
If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock,
provided
that, except
as otherwise provided in Section 5 of this ARTICLE V, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Within a
reasonable time after the issuance or transfer of uncertificated shares, the
Corporation shall send or cause to be sent to the registered owner thereof a
written notice containing the information required to be set forth or stated on
certificates pursuant to Section 4, Section 5 and Section 6 of this ARTICLE V,
and with respect to this Section 1 a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section
2.
Consideration for
Stock.
Shares of
stock with par value may be issued for such consideration, having a value not
less than the par value thereof, as determined from time to time by the Board of
Directors. Shares of stock without par value may be issued for such
consideration as is determined from time to time by the Board of
Directors. Treasury shares may be disposed of by the Corporation for
such consideration as may be determined from time to time by the Board of
Directors.
Section
3.
Issuance of Stock; Lawful
Consideration.
Subject
to Section 2 of this ARTICLE V, the consideration for subscriptions to, or the
purchase of, the capital stock to be issued by the Corporation shall be paid in
such form and in such manner as the Board of Directors shall determine. The
Board of Directors may authorize capital stock to be issued for consideration
consisting of cash, any tangible or intangible property or any benefit to the
Corporation, or any combination thereof. In the absence of actual
fraud in the transaction, the judgment of the directors as to the value of such
consideration shall be conclusive. The capital stock so issued shall be deemed
to be fully paid and nonassessable stock upon receipt by the Corporation of such
consideration;
provided
,
however
, nothing
contained herein shall prevent the Board of Directors from issuing partly paid
shares under in accordance with Section 4 of this ARTICLE V.
Section
4.
Partly Paid
Stock.
The
Corporation may issue the whole or any part of its shares as partly paid and
subject to call for the remainder of the consideration to be paid therefor. Upon
the face or back of each stock certificate issued to represent any such partly
paid shares, or upon the books and records of the Corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the Corporation shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
Section
5.
Restrictions on Transfer and
Ownership of Securities.
A written
restriction or restrictions on the transfer or registration of transfer of a
security of the Corporation, or on the amount of the Corporation’s securities
that may be owned by any person or group of persons, if permitted by the DGCL
and noted conspicuously on the certificate or certificates representing the
security or securities so restricted or, in the case of uncertificated shares,
contained in the notice or notices sent pursuant to Section 1 of this ARTICLE V,
may be enforced against the holder of the restricted security or securities or
any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the
person or estate of the holder. Unless noted conspicuously on the certificate or
certificates representing the security or securities so restricted or, in the
case of uncertificated shares, contained in the notice or notices sent pursuant
to Section 1 of this ARTICLE V, a restriction, even though permitted by this
Section 5, is ineffective except against a person with actual knowledge of the
restriction.
Section
6.
Voting Trusts and Voting
Agreements.
One
stockholder or two or more stockholders may by agreement in writing deposit
capital stock of an original issue with or transfer capital stock to any person
or persons, or entity or entities authorized to act as trustee, for the purpose
of vesting in such person or persons, entity or entities, who may be designated
voting trustee, or voting trustees, the right to vote thereon for any period of
time determined by such agreement, upon the terms and conditions stated in such
agreement.
The
agreement may contain any other lawful provisions not inconsistent with such
purpose. After the filing of a copy of the agreement in the registered office of
the Corporation in the State of Delaware, which copy shall be open to the
inspection of any stockholder of the Corporation or any beneficiary of the trust
under the agreement daily during business hours, certificates of stock or
uncertificated stock shall be issued to the voting trustee or trustees to
represent any stock of an original issue so deposited with such voting trustee
or trustees, and any certificates of stock or uncertificated stock so
transferred to the voting trustee or trustees shall be surrendered and cancelled
and new certificates or uncertificated stock shall be issued therefore to the
voting trustee or trustees. In the certificate so issued, if any, it shall be
stated that it is issued pursuant to such agreement, and that fact shall also be
stated in the stock ledger of the Corporation.
The
voting trustee or trustees may vote the stock so issued or transferred during
the period specified in the agreement. Stock standing in the name of the voting
trustee or trustees may be voted either in person or by proxy, and in voting the
stock, the voting trustee or trustees shall incur no responsibility as
stockholder, trustee or otherwise, except for their own individual malfeasance.
In any case where two or more persons or entities are designated as voting
trustees, and the right and method of voting any stock standing in their names
at any meeting of the Corporation are not fixed by the agreement appointing the
trustees, the right to vote the stock and the manner of voting it at the meeting
shall be determined by a majority of the trustees, or if they be equally divided
as to the right and manner of voting the stock in any particular case, the vote
of the stock in such case shall be divided equally among the
trustees.
Section
7.
Transfers of
Stock.
Transfers
of stock shall be made only upon the transfer books of the Corporation kept at
an office of the Corporation or by transfer agents designated to transfer shares
of the stock of the Corporation, in person or by attorney duly authorized, and
with regard to certificated shares, upon the surrender of a certificate or
certificates for a like number of shares (subject to Section 8 of this ARTICLE
V), properly endorsed or accompanied by properly executed stock powers and
otherwise in proper form for transfer. The issue, transfer,
conversion and registration of certificates of stock shall be governed by such
other regulations as the Board of Directors may establish.
Section
8.
Lost, Stolen or Destroyed
Certificates.
The
Corporation shall issue (or cause its transfer agent to issue) uncertificated
shares (or, to the extent provided in Section 1 of this ARTICLE V, certificated
shares) in place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or such owner’s legal representative, to
give the Corporation a bond sufficient to indemnify it against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such uncertificated shares or new
certificate.
Section
9.
Fixing Date for
Determination of Stockholders of Record.
In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix 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.
In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
the DGCL, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal
place of business or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
the DGCL, 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.
In order
that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE
VI
NOTICES
Section
1.
Notices in
Writing.
Except as
otherwise specifically provided herein or required by the DGCL, all notices
required to be given under these Bylaws shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
electronic transmission.
Section
2.
Notice by Hand Delivery;
Notice by Mail.
Notice
given by hand delivery will be deemed given when actually received by the
recipient. Notice given by mail shall be deemed given when deposited
in the United States mail, postage prepaid, directed to the recipient at such
recipient’s address as it appears on the records of the
Corporation.
Section
3.
Notice by Electronic
Transmission.
Notice
may also be given by a form of electronic transmission consented to by the
recipient to whom the notice is given; and any such consent shall be revoked if
(1) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent and
(2) such inability becomes known to the Secretary or an Assistant Secretary of
the Corporation or to the transfer agent, or other person responsible for the
giving of notice;
provided
,
however
, the
inadvertent failure to treat such inability as a revocation shall not invalidate
any meeting or other action. Notice given pursuant to the preceding
sentence shall be deemed given: (1) if by facsimile telecommunication, when
directed to a number at which the recipient has consented to receive notice; (2)
if by electronic mail, when directed to an electronic mail address at which the
recipient has consented to receive notice; (3) if by a posting on an electronic
network together with separate notice to the recipient of such specific posting,
upon the later of (A) such posting and (B) the giving of such separate notice;
and (4) if by any other form of electronic transmission, when directed to the
recipient. An affidavit of the Secretary or an Assistant Secretary or
of the transfer agent or other agent of the Corporation that the notice has been
given by a form of electronic transmission shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
Section
4.
Definition of Electronic
Transmission.
For
purposes of these Bylaws, “
electronic
transmission
” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
Section
5.
Notice to Stockholders
Sharing an Address.
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under any
provision of the DGCL, the Certificate of Incorporation, or these Bylaws shall
be effective if given by a single written notice to stockholders who share an
address if consented to by the stockholders at that address to whom such notice
is given. Any such consent shall be revocable by the stockholder by written
notice to the Corporation. Any stockholder who fails to object in
writing to the Corporation, within 60 days of having been given written notice
by the Corporation of its intention to send the single notice described in the
preceding sentence, shall be deemed to have consented to receiving such single
written notice.
Section
6.
Waivers of
Notice.
Whenever
notice is required to be given under any provision of the DGCL or the
Certificate of Incorporation or these Bylaws, a written waiver, signed by the
person entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any written waiver of
notice or any waiver by electronic transmission unless so required by the
Certificate of Incorporation or these Bylaws.
ARTICLE
VII
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES
AND
OTHER AGENTS
Section
1.
Indemnification – Third
Party Proceedings.
The
Corporation shall indemnify any person (the “
Indemnitee
”) who is
or was a party or is threatened to be made a party to any proceeding (other than
an action by or in the right of the Corporation to procure a judgment in its
favor) by reason of the fact that Indemnitee is or was a Director or officer of
the Corporation, or any subsidiary of the Corporation, and the Corporation may
indemnify a person who is or was a party or is threatened to be made a party to
any proceeding (other than an action by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that such person is or
was an employee or other agent of the Corporation (the “
Indemnitee Agent
”) by
reason of any action or inaction on the part of Indemnitee or Indemnitee Agent
while an officer, director or agent or by reason of the fact that Indemnitee or
Indemnitee Agent is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including, subject to
Section 19 of this ARTICLE VII, attorneys’ fees and any expenses of establishing
a right to indemnification pursuant to this ARTICLE VII or under the DGCL),
judgments, fines, settlements (if such settlement is approved in advance by the
Corporation, which approval shall not be unreasonably withheld) and other
amounts actually and reasonably incurred by Indemnitee or Indemnitee Agent in
connection with such proceeding if Indemnitee or Indemnitee Agent acted in good
faith and in a manner Indemnitee or Indemnitee Agent reasonably believed to be
in or not opposed to the best interests of the Corporation, or to the fullest
extent permitted by the DGCL. The termination of any proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that Indemnitee or
Indemnitee Agent did not act in good faith and in a manner which Indemnitee or
Indemnitee Agent reasonably believed to be in or not opposed to the best
interests of the Corporation.
Section
2.
Indemnification –
Proceedings by or in the Right of the Corporation.
The
Corporation shall indemnify Indemnitee and may indemnify Indemnitee Agent if
Indemnitee, or Indemnitee Agent, as the case may be, was or is a party or is
threatened to be made a party to any threatened, pending or completed action by
or in the right of the Corporation or any subsidiary of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee or
Indemnitee Agent is or was a director, officer, employee or other agent of the
Corporation, or any subsidiary of the Corporation, by reason of any action or
inaction on the part of Indemnitee or Indemnitee Agent while an officer,
director or agent or by reason of the fact that Indemnitee or Indemnitee Agent
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including, subject to Section 19 of this
ARTICLE VII, attorneys’ fees and any expenses of establishing a right to
indemnification pursuant to this ARTICLE VII or under the DGCL) and, to the
fullest extent permitted by law, amounts paid in settlement, in each case to the
extent actually and reasonably incurred by Indemnitee or Indemnitee Agent in
connection with the defense or settlement of the proceeding if Indemnitee or
Indemnitee Agent acted in good faith and in a manner Indemnitee or Indemnitee
Agent believed to be in or not opposed to the best interests of the Corporation
and its stockholders, except that no indemnification shall be made with respect
to any claim, issue or matter to which Indemnitee or Indemnitee Agent shall have
been adjudged to have been liable to the Corporation in the performance of
Indemnitee’s or Indemnitee Agent’s duty to the Corporation and its stockholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, Indemnitee or Indemnitee Agent is fairly and reasonably entitled to
indemnity for expenses and then only to the extent that the court shall
determine.
Section
3.
Successful Defense on
Merits.
To the
extent that Indemnitee or Indemnitee Agent without limitation has been
successful on the merits in defense of any proceeding referred to in Section 1
or Section 2 of this ARTICLE VII, or in defense of any claim, issue or matter
therein, the Corporation shall indemnify Indemnitee or Indemnitee Agent against
expenses (including attorneys’ fees) actually and reasonably incurred by
Indemnitee or Indemnitee Agent in connection therewith.
Section
4.
Certain Terms
Defined.
For
purposes of this ARTICLE VII, references to “
other enterprises
”
shall include employee benefit plans, references to “
fines
” shall include
any excise taxes assessed on Indemnitee or Indemnitee Agent with respect to an
employee benefit plan, and references to “
proceeding
” shall
include any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative. References to
“
Corporation
”
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation, so that any person who is or was
a director, officer, employee, or other agent of such a constituent corporation
or who, being or having been such a director, officer, employee or other agent
of another corporation, partnership, joint venture, trust or other enterprise
shall stand in the same position under the provisions of this ARTICLE VII with
respect to the resulting or surviving corporation as such person would if he or
she had served the resulting or surviving corporation in the same
capacity.
Section
5.
Advancement of
Expenses.
The
Corporation shall advance all expenses incurred by Indemnitee and may advance
all or any expenses incurred by Indemnitee Agent in connection with the
investigation, defense, settlement (excluding amounts actually paid in
settlement of any action, suit or proceeding) or appeal of any civil or criminal
action, suit or proceeding referenced in Section 1 or Section 2 of this ARTICLE
VII;
provided
,
however
, that,
to the extent required by law, such advancement of expenses shall be made only
upon receipt of an undertaking by the Indemnitee or Indemnitee Agent to repay
all amounts advanced if, and to the extent that, it shall be determined
ultimately that Indemnitee or Indemnitee Agent is not entitled to be indemnified
by the Corporation as authorized hereby. The advances to be made
hereunder shall be paid by the Corporation (i) to Indemnitee within 30 days
following delivery of a written request therefor by Indemnitee to the
Corporation; and (ii) to Indemnitee Agent within 30 days following the
later of a written request therefor by Indemnitee Agent to the Corporation and
determination by the Corporation to advance expenses to Indemnitee Agent
pursuant to the Corporation’s discretionary authority hereunder.
Section
6.
Notice of
Claim.
Indemnitee
shall, as a condition precedent to his or her right to be indemnified under this
ARTICLE VII, and Indemnitee Agent shall, as a condition precedent to his or her
ability to be indemnified under this ARTICLE VII, give the Corporation notice in
writing as soon as practicable of any claim made against Indemnitee or
Indemnitee Agent, as the case may be, for which indemnification will or could be
sought under this ARTICLE VII. Notice to the Corporation shall be
given by hand delivery or by mail and shall be directed to the Secretary of the
Corporation at the principal business office of the Corporation (or such other
address as the Corporation shall designate in writing to
Indemnitee). In addition, Indemnitee or Indemnitee Agent shall give
the Corporation such information and cooperation as it may reasonably require
and as shall be within Indemnitee’s or Indemnitee Agent’s power.
Section
7.
Enforcement
Rights.
Any
indemnification provided for in Section 1, Section 2 or Section 3 of this
ARTICLE VII shall be made no later than 60 days after receipt of the written
request of Indemnitee. If a claim or request under this ARTICLE VII,
under any statute, or under any provision of the Certificate of Incorporation
providing for indemnification is not paid by the Corporation, or on its behalf,
within 60 days after written request for payment thereof has been received by
the Corporation, Indemnitee may, but need not, at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim or request,
and subject to Section 19 of this ARTICLE VII, Indemnitee shall also be entitled
to be paid for the expenses (including attorneys’ fees) of bringing such
action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
action, suit or proceeding in advance of its final disposition) that Indemnitee
has not met the standards of conduct which make it permissible under applicable
law for the Corporation to indemnify Indemnitee for the amount claimed, but the
burden of proving such defense shall be on the Corporation, and Indemnitee shall
be entitled to receive interim payments of expenses pursuant to Section 5 of
this ARTICLE VII, unless and until such defense may be finally adjudicated by
court order or judgment for which no further right of appeal
exists. The parties hereto intend that if the Corporation contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be a decision for the court, and no presumption regarding
whether the applicable standard has been met will arise based on any
determination or lack of determination of such by the Corporation (including its
Board or any subgroup thereof, independent legal counsel or its
stockholders). The Board of Directors may, in its discretion, provide
by resolution for similar or identical enforcement rights for any Indemnitee
Agent.
Section
8.
Assumption of
Defense.
In the
event the Corporation shall be obligated to pay the expenses of any proceeding
against the Indemnitee or Indemnitee Agent, as the case may be, the Corporation,
if appropriate, shall be entitled to assume the defense of such proceeding with
counsel approved by Indemnitee or Indemnitee Agent, which approval shall not be
unreasonably withheld, upon the delivery to Indemnitee or Indemnitee Agent of
written notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee or Indemnitee Agent and the
retention of such counsel by the Corporation, the Corporation will not be liable
to Indemnitee or Indemnitee Agent under this ARTICLE VII for any fees of counsel
subsequently incurred by Indemnitee or Indemnitee Agent with respect to the same
proceeding, unless (1) the employment of counsel by Indemnitee or
Indemnitee Agent is authorized by the Corporation, (2) Indemnitee or
Indemnitee Agent shall have reasonably concluded that there may be a conflict of
interest of such counsel retained by the Corporation between the Corporation and
Indemnitee or Indemnitee Agent in the conduct of such defense, or (3) the
Corporation ceases or terminates the employment of such counsel with respect to
the defense of such proceeding, in any of which events then the fees and
expenses of Indemnitee’s or Indemnitee Agent’s counsel shall be at the expense
of the Corporation. At all times, Indemnitee or Indemnitee Agent
shall have the right to employ other counsel in any such proceeding at
Indemnitee’s or Indemnitee Agent’s expense.
Section
9.
Approval of
Expenses.
No
expenses for which indemnity shall be sought under this ARTICLE VII, other than
those in respect of judgments and verdicts actually rendered, shall be incurred
without the prior consent of the Corporation, which consent shall not be
unreasonably withheld.
Section
10.
Subrogration.
In the
event of payment under this ARTICLE VII, the Corporation shall be subrogated to
the extent of such payment to all of the rights of recovery of the Indemnitee or
Indemnitee Agent, who shall do all things that may be necessary to secure such
rights, including the execution of such documents necessary to enable the
Corporation effectively to bring suit to enforce such rights.
Section
11.
Exceptions.
Notwithstanding
any other provision herein to the contrary, the Corporation shall not be
obligated pursuant to this ARTICLE VII:
(A)
Excluded
Acts.
To indemnify Indemnitee (i) as to circumstances in
which indemnity is expressly prohibited pursuant to the DGCL, or (ii) for
any acts or omissions or transactions from which a director may not be relieved
of liability pursuant to the DGCL; or
(B)
Claims Initiated by
Indemnitee.
To indemnify or advance expenses to Indemnitee
with respect to proceedings or claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except with respect to proceedings brought
to establish or enforce a right to indemnification under this ARTICLE VII or any
other statute or law or as otherwise required under the DGCL, but such
indemnification or advancement of expenses may be provided by the Corporation in
specific cases if the Board of Directors has approved the initiation or bringing
of such suit; or
(C)
Lack of Good
Faith.
To indemnify Indemnitee for any expenses incurred by
the Indemnitee with respect to any proceeding instituted by Indemnitee to
enforce or interpret this ARTICLE VII, if a court of competent jurisdiction
determines that such proceeding was not made in good faith or was frivolous;
or
(D)
Insured
Claims.
To indemnify Indemnitee for expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) which have been paid
directly to Indemnitee by an insurance carrier under a policy of officers’ and
directors’ liability insurance maintained by the Corporation; or
(E)
Claims Under
Section 16(b).
To indemnify Indemnitee for expenses and
the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended, or any similar successor statute.
Section
12.
Partial
Indemnification.
If
Indemnitee is entitled under any provision of this ARTICLE VII to
indemnification by the Corporation for some or a portion of the expenses,
judgments, fines or penalties actually or reasonably incurred by the Indemnitee
in the investigation, defense, appeal or settlement of any civil or criminal
action, suit or proceeding, but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is
entitled.
Section
13.
Coverage.
This
ARTICLE VII shall, to the extent permitted by law, apply to acts or omissions of
(1) Indemnitee which occurred prior to the adoption of this ARTICLE VII if
Indemnitee was a director or officer of the Corporation or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, at the time such act or
omission occurred; and (2) Indemnitee Agent which occurred prior to the
adoption of this ARTICLE VII if Indemnitee Agent was an employee or other agent
of the Corporation or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise at the time such act or omission occurred. All
rights to indemnification under this ARTICLE VII shall be deemed to be provided
by a contract between the Corporation and the Indemnitee in which the
Corporation hereby agrees to indemnify Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the Certificate of Incorporation, these Bylaws or by
statute. Any repeal or modification of these Bylaws, the DGCL, or any
other applicable law shall not affect any rights or obligations then existing
under this ARTICLE VII. The provisions of this ARTICLE VII shall
continue as to Indemnitee and Indemnitee Agent for any action taken or not taken
while serving in an indemnified capacity even though the Indemnitee or
Indemnitee Agent may have ceased to serve in such capacity at the time of any
action, suit or other covered proceeding. This ARTICLE VII shall be
binding upon the Corporation and its successors and assigns and shall inure to
the benefit of Indemnitee and Indemnitee Agent and Indemnitee’s and Indemnitee
Agent’s estate, heirs, legal representatives and assigns.
Section
14.
Non-Exclusivity.
Nothing
herein shall be deemed to diminish or otherwise restrict any rights to which
Indemnitee or Indemnitee Agent may be entitled under the Certificate of
Incorporation, these Bylaws, any agreement, any vote of stockholders or
disinterested directors, or under the laws of the State of
Delaware.
Section
15.
Severability.
Nothing
in this ARTICLE VII is intended to require or shall be construed as requiring
the Corporation to do or fail to do any act in violation of applicable
law. If this ARTICLE VII or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify Indemnitee or Indemnitee Agent to the fullest extent
permitted by any applicable portion of this ARTICLE VII that shall not have been
invalidated.
Section
16.
Mutual
Acknowledgement.
Both the
Corporation and Indemnitee acknowledge that in certain instances, federal law or
applicable public policy may prohibit the Corporation from indemnifying its
directors and officers under this ARTICLE VII or otherwise. Indemnitee
understands and acknowledges that the Corporation has undertaken or may be
required in the future to undertake with the Securities and Exchange Commission
to submit the question of indemnification to a court in certain circumstances
for a determination of the Corporation’s right under public policy to indemnify
Indemnitee.
Section
17.
Officer and Director
Liability Insurance.
The
Corporation shall, from time to time, make the good faith determination whether
or not it is practicable for the Corporation to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Corporation with coverage for losses from wrongful acts, or
to ensure the Corporation’s performance of its indemnification obligations under
this ARTICLE VII. Among other considerations, the Corporation will
weigh the costs of obtaining such insurance coverage against the protection
afforded by such coverage. Notwithstanding the foregoing, the
Corporation shall have no obligation to obtain or maintain such insurance if the
Corporation determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit, or if Indemnitee
is covered by similar insurance maintained by a subsidiary or parent of the
Corporation.
Section
18.
Notice to
Insurers.
If, at
the time of the receipt of a notice of a claim pursuant to Section 6 of this
ARTICLE VII, the Corporation has director and officer liability insurance in
effect, the Corporation shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Corporation shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
Section
19.
Attorneys’
Fees.
In the
event that any action is instituted by Indemnitee under this ARTICLE VII to
enforce or interpret any of the terms hereof, Indemnitee shall be entitled to be
paid all court costs and expenses, including reasonable attorneys’ fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that the action was not
instituted in good faith or was frivolous. In the event of an action
instituted by or in the name of the Corporation under this ARTICLE VII, or to
enforce or interpret any of the terms of this ARTICLE VII, Indemnitee shall be
entitled to be paid all court costs and expenses, including attorneys’ fees,
incurred by Indemnitee in defense of such action (including with respect to
Indemnitee’s counterclaims and cross-claims made in such action), unless as a
part of such action the court determines that Indemnitee’s defenses to such
action were not made in good faith or were frivolous. The Board of
Directors may, in its discretion, provide by resolution for payment of such
attorneys’ fees to any Indemnitee Agent.
ARTICLE
VIII
MISCELLANEOUS
Section
1.
Form of
Records.
Any
records maintained by the Corporation in the regular course of its business,
including its stock ledger, books of account, and minute books, may be kept on,
or by means of, or be in the form of, any information storage device or method,
provided
that
the records so kept can be converted into clearly legible paper form within a
reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect such records under the
DGCL.
Section
2.
Reliance upon Books, Reports
and Records.
A member
of the Board of Directors, or a member of any committee designated by the Board
of Directors, shall, in the performance of such member’s duties, be fully
protected in relying in good faith upon the records of the Corporation and upon
such information, opinions, reports or statements presented to the Corporation
by any of the Corporation’s officers or employees, or committees of the Board of
Directors, or by any other person as to matters the member reasonably believes
are within such other person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the
Corporation.
Section
3.
Facsimile
Signatures.
In
addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section
4.
Corporate
Seal.
The Board
of Directors may provide a suitable seal, containing the name of the
Corporation, which seal shall be in the charge of the Secretary. If
and when so directed by the Board of Directors or a committee thereof,
duplicates of the seal may be kept and used by the Chief Financial Officer or by
an Assistant Secretary or Assistant Financial Officer.
Section
5.
Fiscal
Year.
The
fiscal year of the Corporation shall begin on the first of January and end on
the thirty-first of December of every year.
Section
6.
Time
Periods.
In
applying any provision of these Bylaws which requires that an act be done or not
be done a specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event, calendar days
shall be used, the day of the doing of the act shall be excluded, and the day of
the event shall be included.
Section
7.
Amendments.
These
Bylaws may be amended or repealed by the Board of Directors at any meeting or by
the stockholders at any meeting.
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