BYLAWS
OF
SMI
PRODUCTS, INC.
(A
Delaware Corporation)
ARTICLE
I
STOCKHOLDERS
Section 1.1.
Annual
Meetings.
If
required by applicable law, an annual meeting of the holders of Common Stock
shall be held each year during the month of February or such other month as
may
be designated by the board of directors (the “Board of Directors”) on such date
and at such time and place, if any, either within or outside the State of
Delaware, as may be designated by the Board of Directors from time to
time. At such meeting, the holders of the Common Stock shall elect the
Board of Directors and shall transact such other business as may be brought
properly before the meeting. Holders of non-voting stock may be invited,
and to the extent there is a matter on which such holders are entitled to vote,
such holders shall be invited to attend the annual meeting, but shall not vote
except with respect to matters on which their vote is required by the General
Corporation Law of the State of Delaware, as it may be amended (the “DGCL”) or
the certificate of incorporation of the Corporation, as it may be amended (the
“Certificate of Incorporation”).
Section 1.2.
Special
Meetings.
1.2.1.
Special meetings of stockholders entitled to vote at such meeting may be called
at any time by the Chairman of the Board of Directors, the President (if he
is
also a member of the Board of Directors) or the Board of Directors, to be held
at such date, time and place, if any, either within or outside the State of
Delaware as may be determined by such person or persons calling the meeting
and
stated in the notice of the meeting. A special meeting shall be called by the
President or the Secretary upon one or more written demands (which shall state
the purpose or purposes therefore) signed and dated by the holders of shares
representing not less than ten percent of all votes entitled to be cast on
any
issue(s) that may be properly proposed to be considered at the special meeting.
If no place is designated in the notice, the place of the meeting shall be
the
principal office of the Corporation.
1.2.2.
Business transacted at any special meeting of stockholders shall be limited
to
the purpose or purposes stated in the notice of such meeting.
Section 1.3.
Notice
of Meetings.
Whenever stockholders are required or permitted to take any action at a meeting,
a notice of the meeting stating the place, if any, date and hour of the meeting,
and the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting and,
in
the case of a special meeting, the purpose or purposes for which the meeting
is
called, shall be given to each stockholder entitled to vote at such meeting.
Unless otherwise provided by law, the Certificate of Incorporation or these
Bylaws, the notice of any meeting shall be given not less than ten nor more
than
sixty days before the date of the meeting to each stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the
Corporation.
Section 1.4.
Adjournments.
Any meeting of stockholders, annual or special, may be adjourned from time
to
time, to reconvene at the same or some other place, and notice need not be
given
of any such adjourned meeting if the time, place thereof, if any, 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 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice
of
the adjourned meeting shall be given to each stockholder of record entitled
to
vote at the meeting.
Section 1.5.
Quorum.
At
each meeting of stockholders, except where otherwise provided by law or the
Certificate of Incorporation or these Bylaws, the holders of a majority in
voting power of the outstanding shares of stock entitled to vote on a matter
at
the meeting, present in person or represented by proxy, shall constitute a
quorum. Shares entitled to vote as a separate class or series may take action
on
a matter at a meeting only if a quorum of those shares is present. For purposes
of the foregoing, where a separate vote by class or classes or a series or
multiple series is required for any matter, the holders of a majority in voting
power of the outstanding shares of such class or classes or a series or multiple
series, present in person or represented by proxy, shall constitute a quorum
to
take action with respect to that vote on that matter. In the absence of a quorum
of the holders of any class or series of stock entitled to vote on a matter,
the
holders of such class or series so present or represented may, by majority
vote,
adjourn the meeting of such class or series with respect to that matter from
time to time in the manner provided by Section 1.4 of these Bylaws until a
quorum of such class or series shall be so present or represented. Shares of
its
own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled
to
vote in the election of directors of such other corporation is held, directly
or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit
the
right of the Corporation or any subsidiary of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 1.6.
Organization.
1.6.1.
The chairman of the annual or any special meeting of the stockholders shall
be
the Chairman of the Board of Directors, or in the absence of the Chairman,
any
person designated by the Board of Directors. The Secretary, or in the absence
of
the Secretary, an Assistant Secretary, shall act as the secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
1.6.2.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all
such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the adjournment of any meeting, the
establishment of procedures for the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls. The
chairman of the meeting shall have absolute authority over matters of procedure
and there shall be no appeal from the ruling of the chairman.
1.6.3.
If disorder shall arise that prevents continuation of the legitimate business
of
the meeting, the chairman may announce the adjournment of the meeting and quit
the chair and upon the chairman so doing the meeting is immediately
adjourned.
1.6.4.
The chairman may ask or require that anyone who is not a bona fide stockholder
or proxyholder leave the meeting.
Section 1.7.
Inspectors.
Prior to any meeting of stockholders, the Board of Directors may, and shall
if
required by law, appoint one or more inspectors to act at such meeting and
make
a written report thereof and 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 the meeting of stockholders, the person presiding
at
the meeting may, and shall if required by law, appoint one or more inspectors
to
act at the meeting. The inspectors need not be stockholders of the Corporation,
and any director or officer of the Corporation may be an inspector on any matter
other than a vote for or against such director’s or officer’s election to any
position with the Corporation or on any other matter in which such officer
or
director may be directly interested. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented
at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
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 to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall
be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots cast at any meeting of stockholders
of the Corporation, the inspectors may consider such information as is permitted
by applicable law.
Section 1.8.
Voting;
Proxies; Nominations; Stockholder Proposals.
1.8.1.
Unless otherwise provided in the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one vote
for each share of stock held by such stockholder which has voting power upon
the
matter in question. 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. 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, regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with
the
Secretary of the Corporation. Voting at meetings of stockholders need not be
by
written ballot unless the holders of a majority of the outstanding shares of
all
classes of stock entitled to vote thereon present in person or represented
by
proxy at such meeting shall so determine. Except where applicable law, the
Certificate of Incorporation or these Bylaws require a different vote, if a
quorum exists, action on a matter other than the election of directors is
approved if the votes cast favoring the action exceed the votes cast opposing
the action. In an election of directors, a plurality of the votes of the shares
present in person or represented by proxy at a meeting and entitled to vote
for
directors is required in order to elect a director.
1.8.2.
The voting rights of shares of Common Stock shall only be as required by
applicable law or the Certificate of Incorporation.
1.8.3.
Nomination of persons to stand for election to the Board of Directors at any
annual or special stockholders meeting may be made by the holders of the
Corporation’s Common Stock only if written notice of such stockholder’s intent
to make such nomination has been given to the Secretary of the Company not
later
than 30 days prior to the meeting.
1.8.4.
At any meeting of stockholders, a resolution or motion shall be considered
for
vote only if the proposal is brought properly before the meeting, which shall
be
determined by the chairman of the meeting in accordance with the following
provisions:
|
1.8.4.1
|
|
Notice
required by these Bylaws and by all applicable federal or state statutes
or regulations shall have been given to, or waived by, all stockholders
entitled to vote on such proposal. In the event notice periods of
different lengths apply to the same proposed action under different
laws
or regulations, appropriate notice shall be deemed given if there
is
compliance with the greater of all applicable notice
requirements.
|
|
1.8.4.2
|
|
Proposals
may be made by the Board of Directors as to matters affecting holders
of
any class of stock issued by the Corporation. Proposals may also
be made
by the holders of shares of Common Stock.
|
|
|
|
|
|
1.8.4.3
|
|
Any
proposal made by the Board of Directors or the holders of shares
of Common
Stock may be made at any time prior to or at the meeting if only
the
holders of Common Stock are entitled to vote thereon.
|
|
|
|
|
|
1.8.4.4
|
|
Holders
of Common Stock may only make a proposal with respect to which such
holders are entitled to vote. Any proposal on which holders of Common
Stock are entitled to vote and concerning which proxies may be solicited
by the proponent or by management shall be filed with the Secretary
by
such dates as may be required by the federal securities proxy rules
promulgated by the Securities and Exchange Commission.
|
|
|
|
|
|
1.8.4.5
|
|
Any
stockholder who gives notice of any stockholder proposal shall deliver
therewith the text of the proposal to be presented and a brief written
statement of the reasons why such stockholder favors the proposal
and
setting forth such stockholder’s name and address, the number and class of
all shares of each class of stock of the Corporation beneficially
owned by
such stockholder and any financial interest of such stockholder in
the
proposal (other than as a
stockholder).
|
Section 1.9.
Fixing
Date for Determination of Stockholders of Record.
1.9.1.
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 be more
than sixty nor less than ten 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.
1.9.2.
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 be more than ten 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 law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation’s registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record
date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
1.9.3.
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 sixty days prior to such action.
If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board
of
Directors adopts the resolution relating thereto.
Section 1.10.
List
of Stockholders Entitled to Vote.
The officer who has charge of the stock ledger shall prepare and make, at least
ten (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. Such list shall be open to the examination
of
any stockholder, for any purpose germane to the meeting at least ten
(10) days prior to the meeting (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of meeting or (ii) during ordinary
business hours at the principal place of business of the Corporation. The list
of stockholders must also be open to examination at the meeting as required
by
applicable law. Except as otherwise provided by law (a) the stock ledger
shall be the only evidence as to who are the stockholders entitled by this
Section 1.10 to examine the list of stockholders required by this
Section 1.10 or to vote in person or by proxy at any meeting of
stockholders and (b) failure to prepare or make available the list of
stockholders shall not affect the validity of actions taken at the
meeting.
Section 1.11.
Consent
of Stockholders in Lieu of Meeting.
Unless otherwise restricted by the Certificate of Incorporation, any action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without
a
vote, if a consent 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 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 minutes of
proceedings 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. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
unless, within sixty days of the earliest dated consent delivered to the
Corporation in the manner provided by the previous sentence, written consents
signed by a sufficient number of holders to take action are delivered to the
Corporation in the manner provided by the previous sentence. Prompt notice
of
the taking of the corporate action without a meeting by less than unanimous
written consent shall, to the extent required by law, 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.
Section 1.12.
Meeting
by 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
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication: (a) participate in a meeting of stockholders; and
(b) 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 (i) 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
proxyholder, (ii) the Corporation shall implement reasonable measures to
provide such stockholders and proxyholders 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 (iii) if any
stockholder or proxyholder 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.
ARTICLE
II
BOARD
OF
DIRECTORS
Section 2.1.
Powers;
Number; Qualifications.
The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, except as may be otherwise provided by
law
or in the Certificate of Incorporation. The Board of Directors shall consist
of
not less than one member, the number thereof to be determined from time to
time
by resolution of the Board of Directors. Directors must be natural persons
at
least eighteen years of age but need not be stockholders of the
Corporation.
Section 2.2.
Election;
Term of Office; Resignation; Removal; Newly Created Directorships; Vacancies;
Director Emeritus.
2.2.1.
Election;
Term of Office.
The Board of Directors shall be elected at each annual meeting of stockholders
by the holders of the Common Stock. Each director shall hold office until his
or
her successor is elected and qualified or until his or her death, earlier
resignation, removal or disqualification.
2.2.2.
Resignation.
Any director may resign at any time upon notice to the Board of Directors or
to
the President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein,
no
acceptance of such resignation shall be necessary to make it
effective.
2.2.3.
Removal.
Any director or the entire Board of Directors may be removed, with or without
cause, by holders of a majority of the voting power of the outstanding shares
of
the Common Stock. A vacancy on the Board of Directors caused by any such removal
may be filled by a majority of the remaining directors at any time before the
end of the unexpired term.
2.2.4.
Newly
Created Directorships; Vacancies.
Unless otherwise provided in the Certificate of Incorporation or these Bylaws,
newly created directorships resulting from any increase in the authorized number
of directors between annual meetings shall be filled by the affirmative vote
of
a majority of the remaining members of the Board of Directors even if the
remaining directors constitute less than a quorum. A director elected to fill
a
vacancy shall be elected for the unexpired term of such director’s predecessor
in office.
Section 2.3.
Annual
and Regular Meetings.
The Board of Directors shall hold its annual meeting without notice on the
same
day and the same place as, but just following, the annual meeting of the holders
of Common Stock, or at such other date, time and place as may be determined
by
the Board of Directors. Regular meetings of the Board of Directors shall be
held
without notice at such dates, times and places as may be determined by the
Board
of Directors by resolution.
Section 2.4.
Special
Meetings; Notice.
2.4.1.
Special meetings of the Board of Directors may be held, with proper notice,
upon
the call of the Chairman of the Board of Directors or by at least two members
of
the Board of Directors at such time and place as specified in the
notice.
2.4.2.
Notice of the date, time and place of each special meeting of the Board of
Directors shall be given to each director at least 24 hours prior to such
meeting. The notice of a special meeting of the Board of Directors need not
state the purposes of the meeting. Notice to each director of any special
meeting may be given in person; by telephone, telegraph, teletype,
electronically transmitted facsimile, or other means of wire or electronic
transmission; or by mail or private carrier. Oral notice to a director of any
special meeting is effective when communicated. Written notice to a director
of
any special meeting is effective at the earliest of: (i) the date received;
(ii) five days after it is mailed; or (iii) the date shown on the
return receipt if mailed by registered or certified mail, return receipt
requested, if the return receipt is signed by or on behalf of the director
to
whom the notice is addressed.
Section 2.5.
Participation
in Meetings by Conference Telephone Permitted.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
directors or members of any committee designated by the Board of Directors
may
participate in a meeting of the Board of Directors or of such committee, as
the
case may be, by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Bylaw shall constitute presence
in person at such meeting.
Section 2.6.
Quorum;
Vote Required for Action.
At
all meetings of the Board of Directors one-third of the directors then in office
shall constitute a quorum for the transaction of business at such meeting.
The
vote of a majority of the directors present at a meeting at which a quorum
is
present shall be the act of the Board of Directors. In case at any meeting
of
the Board of Directors a quorum shall not be present, a majority of the
directors present may, without notice other than announcement at the meeting,
adjourn the meeting from time to time until a quorum can be
obtained.
Section 2.7.
Organization.
The Board of Directors shall elect a Chairman of the Board of Directors from
among its members. If the Board of Directors deems it necessary, it may elect
a
Vice-Chairman of the Board of Directors from among its members to perform the
duties of the Chairman of the Board of Directors in such chairman’s absence and
such other duties as the Board of Directors may assign. The Chairman of the
Board of Directors or, in his absence, the Vice-Chairman of the Board of
Directors, or in his absence, any director chosen by a majority of the directors
present, shall act as chairperson of the meetings of the Board of Directors.
The
Secretary, any Assistant Secretary, or any other person appointed by the
chairperson shall act as secretary of each meeting of the Board of
Directors.
Section 2.8.
Action
by Directors Without a Meeting.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing or by electronic transmission and the writing or
writings or electronic transmission are filed with the minutes of proceedings
of
the Board of Directors or committee. Such filings 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 2.9.
Compensation
of Directors.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws,
the Board of Directors shall determine and fix the compensation, if any, and
the
reimbursement of expenses which shall be allowed and paid to the directors.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity or any of its subsidiaries in
any
other capacity and receiving proper compensation therefore.
ARTICLE
III
COMMITTEES
Section 3.1.
Committees.
The Board of Directors may, by a vote of the majority of the directors then
in
office, 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 thereof
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 permitted by law and
provided in the resolution of the Board of Directors or in these Bylaws, 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.
Section 3.2.
Committee
Rules.
Unless the Board of Directors otherwise provides, each committee designated
by
the Board of Directors may adopt, amend and repeal rules for the conduct of
its
business. In the absence of a provision by the Board of Directors or a provision
in the rules of such committee to the contrary, a majority of the entire
authorized number of members of such committee shall constitute a quorum for
the
transaction of business, the vote of a majority of the members present at a
meeting at the time of such vote if a quorum is then present shall be the act
of
such committee, and in other respects each committee shall conduct its business
in the same manner as the Board of Directors conducts its business pursuant
to
Article II of these Bylaws. Each committee shall prepare minutes of its
meetings which shall be delivered to the Secretary of the Corporation for
inclusion in the Corporation’s records.
ARTICLE
IV
OFFICERS
Section 4.1.
Officers;
Election.
The Board of Directors shall, annually or at such times as the Board of
Directors may designate, appoint a President, a Secretary and a Treasurer,
and
elect from among its members a Chairman. The Board of Directors may also appoint
one or more Vice Presidents, one or more Assistant Vice Presidents, one or
more
Assistant Secretaries, and one or more Assistant Treasurers and such other
officers as the Board of Directors may deem desirable or appropriate and may
give any of them such further designations or alternate titles as it considers
desirable. The Board of Directors may delegate, by specific resolution, to
an
officer the power to appoint other specified officers or assistant officers.
Any
number of offices may be held by the same person unless the Certificate of
Incorporation or these Bylaws provide otherwise. Each officer shall be a natural
person who is eighteen years of age or older.
Section 4.2.
Term
of Office; Resignation; Removal; Vacancies.
Unless otherwise provided in the resolution of the Board of Directors appointing
any officer, each officer shall hold office until the next annual meeting of
the
Board of Directors at which his or her successor is appointed and qualified
or
until his or her earlier resignation or removal. Any officer may resign at
any
time upon notice given in writing or by electronic transmission to the
Corporation. Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein no acceptance of such resignation shall
be necessary to make it effective. The Board of Directors may remove any officer
with or without cause at any time. Any such removal shall be without prejudice
to the contractual rights of such officer, if any, with the Corporation, but
the
appointment of an officer shall not of itself create contractual rights. The
Board of Directors may also delegate to an officer the power to remove other
specified officers or assistant officers. Any vacancy occurring in any office
of
the Corporation by death, resignation, removal or otherwise may be filled by
the
Board of Directors. An officer appointed to fill a vacancy shall serve for
the
unexpired term of such officer’s predecessor, or until such officer’s earlier
death, resignation or removal.
Section 4.3.
Temporary
Delegation of Duties.
In
the case of the absence of any officer, or his inability to perform his duties,
or for any other reason deemed sufficient by the Board of Directors, the Board
of Directors may delegate the powers and duties of such officer to any other
officer or to any director temporarily, provided that a majority of the
directors then in office concur and that no such delegation shall result in
giving to the same person conflicting duties.
Section 4.4.
Chairman.
The Chairman of the Board of Directors shall preside at all meetings of the
Board of Directors and of the stockholders at which he or she shall be present
and shall have and may exercise such powers as may, from time to time, be
assigned to him or her by the Board of Directors or as may be provided by
law.
Section 4.5.
Chief
Executive Officer.
The Chief Executive Officer (the “CEO”), if one is appointed by the Board of
Directors, shall perform all duties customarily delegated to the chief executive
officer of a corporation and such other duties as may from time to time be
assigned to the CEO by the Board of Directors and these Bylaws.
Section 4.6.
President.
If
there
is no separate CEO, the President shall be the CEO of the Corporation;
otherwise, the President shall be responsible to the CEO for the day-to-day
operations of the Corporation. The President shall have general and active
management of the business of the Corporation; shall see that all orders and
resolutions of the Board of Directors are carried into effect; and shall perform
all duties as may from time to time be assigned by the Board of Directors or
the
CEO.
Section 4.7.
Vice
Presidents.
The Vice President or Vice Presidents shall have such powers and shall perform
such duties as may, from time to time, be assigned to him or her or them by
the
Board of Directors, the CEO or the President or as may be provided by
law.
Section 4.8.
Secretary.
The Secretary shall have the duty to record the proceedings of the meetings
of
the stockholders, the Board of Directors and any committees thereof in a book
to
be kept for that purpose, shall authenticate records of the Corporation, shall
see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law, shall be custodian of the records of the
Corporation, may affix the corporate seal to any document the execution of
which, on behalf of the Corporation, is duly authorized, and when so affixed
may
attest the same, and, in general, shall perform all duties incident to the
office of secretary of a corporation and such other duties as may, from time
to
time, be assigned to him or her by the Board of Directors, the CEO or the
President or as may be provided by law.
Section 4.9.
Treasurer.
The Treasurer shall have charge of and be responsible for all funds, securities,
receipts and disbursements of the Corporation and shall deposit or cause to
be
deposited, in the name of the Corporation, all moneys or other valuable effects
in such banks, trust companies or other depositories as shall, from time to
time, be selected by or under authority of the Board of Directors. If required
by the Board of Directors, the Treasurer shall give a bond for the faithful
discharge of his or her duties, with such surety or sureties as the Board of
Directors may determine. The Treasurer shall keep or cause to be kept full
and
accurate records of all receipts and disbursements in books of the Corporation,
shall maintain books of account and records and exhibit such books of account
and records to any of the directors of the Corporation at any reasonable time,
shall receive and give receipts for monies due and payable to the Corporation
from any source whatsoever, shall render to the CEO, the President and to the
Board of Directors, whenever requested, an account of the financial condition
of
the Corporation, and, if called to do so, make a full financial report at the
annual meeting of the stockholders, and, in general, shall perform all the
duties incident to the office of treasurer of a corporation and such other
duties as may, from time to time, be assigned to him or her by the Board of
Directors, the CEO or the President or as may be provided by law.
Section 4.10.
Assistant
Secretaries and Assistant Treasurers.
The Assistant Secretaries and Assistant Treasurers, if any, shall perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President, the CEO or the Board of Directors. In the
absence or at the request of the Secretary or the Treasurer, the Assistant
Secretaries or Assistant Treasurers, respectively, shall perform the duties
and
exercise the powers of the Secretary or Treasurer, as the case may
be.
Section 4.11.
Other
Officers.
The other officers, if any, of the Corporation shall have such powers and duties
in the management of the Corporation as shall be stated in a resolution of
the
Board of Directors which is not inconsistent with these Bylaws and, to the
extent not so stated, as generally pertain to their respective offices, subject
to the control of the Board of Directors.
Section 4.12.
Compensation
.
The salaries and other compensation of the officers shall be fixed or authorized
from time to time by the Board of Directors. No officer shall be prevented
from
receiving such salary or other compensation by reason of the fact that he is
also a director of the Corporation.
ARTICLE
V
STOCK
Section 5.1.
Stock
Certificates and Uncertificated Shares.
The shares of stock in the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of the Corporation’s stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate theretofore issued until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates, and upon request every holder of uncertificated shares, shall
be
entitled to have a certificate signed by or in the name of the Corporation
by
the Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or
an Assistant Secretary, of the Corporation, representing the number of shares
of
stock registered in certificate form owned by such holder. Any and all the
signatures on the certificate may be by 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.
Section 5.2.
Lost,
Stolen or Destroyed Stock Certificates; Issuance of New
Certificates.
The Corporation may issue a new certificate of stock or uncertificated shares
in
the 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 in such form and amount (not exceeding twice the
value of the stock represented by such certificate) and with such surety and
sureties as the secretary may require in order 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 new certificate or
uncertificated shares.
Section 5.3.
Transfer
of Stock.
Subject to any transfer restrictions set forth or referred to on the stock
certificate or of which the Corporation otherwise has notice, shares of the
Corporation shall be transferable on the books of the Corporation upon
presentation to the Corporation or to the Corporation’s transfer agent of a
stock certificate signed by, or accompanied by an executed assignment form,
the
holder of record thereof, his duly authorized legal representative, or other
appropriate person as permitted by the DGCL. The Corporation may require that
any transfer of shares be accompanied by proper evidence reasonably satisfactory
to the Corporation or to the Corporation’s transfer agent that such endorsement
is genuine and effective. Upon presentation of shares for transfer as provided
above, the payment of all taxes, if any, therefor, and the satisfaction of
any
other requirement of law, including inquiry into and discharge of any adverse
claims of which the Corporation has notice, the Corporation shall issue a new
certificate to the person entitled thereto and cancel the old certificate.
Every
transfer of stock shall be entered on the stock books of the Corporation to
accurately reflect the record ownership of each share. The Board of Directors
also may make such additional rules and regulations as it may deem expedient
concerning the issue, transfer, and registration of certificates for shares
of
the capital stock of the Corporation.
Section 5.4.
Preferred
Stock.
Shares of preferred stock shall be issued by the Corporation only after filing
a
Preferred Stock Designation described in paragraph (c) of the Fourth
Article of the Corporation’s Certificate of Incorporation with the Delaware
Secretary of State and satisfying all other requirements of the Certificate
of
Incorporation and the DGCL with respect thereto.
Section 5.5.
Holders
of Record.
The Corporation shall be entitled to treat the holder of record of any share
of
stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the
part
of any other person, whether or not it shall have express or other notice
thereof, except as may be allowed by these Bylaws or required by the laws of
Delaware.
ARTICLE
VI
EXECUTION
OF INSTRUMENTS; CHECKS AND ENDORSEMENTS; DEPOSITS; ETC.
Section 6.1.
Execution
of Instruments.
Except as otherwise provided by the Board of Directors, the Chairman, the CEO,
the President, any Vice President, the Treasurer or the Secretary shall have
the
power to execute and deliver on behalf of and in the name of the Corporation
any
instrument requiring the signature of an officer of the Corporation. Unless
authorized to do so by these Bylaws or by the Board of Directors, no assistant
officer, agent or employee shall have any power or authority to bind the
Corporation in any way, to pledge its credit or to render it liable pecuniarily
for any purpose or in any amount.
Section 6.2.
Checks
and Endorsements.
All checks, drafts or other orders for the payment of money, obligations, notes
or other evidences of indebtedness issued in the name of the Corporation and
other such instruments shall be signed or endorsed for the Corporation by such
officers or agents of the Corporation as shall from time to time be determined
by resolution of the Board of Directors, which resolution may provide for the
use of facsimile signatures.
Section 6.3.
Deposits.
All funds of the Corporation not otherwise employed shall be deposited from
time
to time to the Corporation’s credit in such banks or other depositories as shall
from time to time be determined by resolution of the Board of Directors, which
resolution may specify the officers or agents of the Corporation who shall
have
the power, and the manner in which such power shall be exercised, to make such
deposits and to endorse, assign and deliver for collection and deposit checks,
drafts and other orders for the payment of money payable to the Corporation
or
its order.
Section 6.4.
Voting
of Securities and Other Entities.
Unless otherwise provided by resolution of the Board of Directors, the Chairman,
Chief Executive Officer, or the President, or any officer designated in writing
by any of them, is authorized to attend in person, or may execute written
instruments appointing a proxy or proxies to represent the Corporation, at
all
meetings of any corporation, partnership, limited liability company,
association, joint venture, or other entity in which the Corporation holds
any
securities or other interests and may execute written waivers of notice with
respect to any such meetings. At all such meetings, any of the foregoing
officers, in person or by proxy as aforesaid and subject to the instructions,
if
any, of the Board of Directors, may vote the securities or interests so held
by
the Corporation, may execute any other instruments with respect to such
securities or interests, and may exercise any and all rights and powers incident
to the ownership of said securities or interests. Any of the foregoing officers
may execute one or more written consents to action taken in lieu of a formal
meeting of such corporation, partnership, limited liability company,
association, joint venture, or other entity.
ARTICLE
VII
DIVIDENDS
AND OTHER DISTRIBUTIONS
Section 7.1.
Dividends
and Other Distributions.
Subject to the provisions of the DGCL, dividends and other distributions may
be
declared by the Board of Directors in such form, frequency and amounts as the
condition of the affairs of the Corporation shall render advisable.
ARTICLE
VIII
MISCELLANEOUS
Section 8.1.
Fiscal
Year.
The fiscal year of the Corporation shall be determined by the Board of
Directors.
Section 8.2.
Seal.
The Corporation may have a corporate seal and shall be in such form as may
be
approved from time to time by the Board of Directors. The corporate seal may
be
used by causing it or a facsimile thereof to be impressed or affixed or in
any
other manner reproduced. The impression of the seal may be made and attested
by
either the Secretary or any Assistant Secretary for the authentication of
contracts or other papers requiring the seal.
Section 8.3.
Waiver
of Notice of Meetings of Stockholders, Directors and
Committees.
Whenever notice is required to be given by law or under any provision of the
Certificate of Incorporation or these Bylaws, a written waiver thereof, 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 (i) in the case 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 and (ii) in the case when the person
attends the meeting for the purpose of objecting to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the notice of the meeting, the person objects to considering the
matter when it is presented. 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.
Section 8.4.
Indemnification
of Directors and Officers.
8.4.1.
Directors
and Officers.
The Corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”), by reason of the fact that he
or she, or a person for whom he or she is the legal representative, is or was
a
director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans (a “Covered Person”), against all liability and loss
suffered and expenses (including attorneys’ fees) reasonably incurred by such
Covered Person. Notwithstanding the preceding sentence, the Corporation shall
be
required to indemnify a Covered Person in connection with a proceeding (or
part
thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized in the
specific case by the Board of Directors.
8.4.2.
Prepayment
of Expenses.
The Corporation shall to the fullest extent not prohibited by applicable law
promptly pay the expenses (including attorneys’ fees) incurred by a Covered
Person in defending any proceeding in advance of its final disposition,
provided, however, that, to the extent required by law, such payment of expenses
in advance of the final disposition of the proceeding shall be made only upon
receipt of an undertaking by such Covered Person to repay all amounts advanced
if it should be ultimately determined that such Covered Person is not entitled
to be indemnified under this Section 8.4 or otherwise.
8.4.3.
Nonexclusivity
of Rights.
The rights conferred on any Covered Person by this Section 8.4 shall not be
exclusive of any other rights which such Covered Person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these
Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise.
8.4.4.
Other
Sources.
The Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or nonprofit entity shall be reduced by any amount such Covered
Person may collect as indemnification or advancement of expenses from such
other
corporation, partnership, joint venture, trust, enterprise or non-profit
enterprise.
8.4.5.
Amendment
or Repeal.
Any repeal or modification of the foregoing provisions of this Section 8.4
shall not adversely affect any right or protection hereunder of any Covered
Person in respect of any act or omission occurring prior to the time of such
repeal or modification.
8.4.6.
Other
Indemnification and Prepayment of Expenses.
This Section 8.4 shall not limit the right of the Corporation, to the
extent and in the manner permitted by law, to indemnify persons other than
Covered Persons and to advance expenses to such other persons when and as
authorized by appropriate corporate action.
8.4.7.
Insurance.
The Corporation may purchase and maintain insurance on behalf of any person
that
the Corporation is permitted to indemnify in accordance with these Bylaws
against any liability asserted against any such person and incurred by such
person whether or not the Corporation would have the power to indemnify such
person against such liability under the DGCL. Any such insurance may be procured
from any insurance company designated by the Board of Directors, whether such
insurance company is formed under the laws of this state or any other
jurisdiction of the United States or elsewhere, including any insurance company
in which the Corporation has an equity interest through stock ownership or
otherwise.
8.4.8.
Selection
of Counsel.
Notwithstanding any other provision of this Section 8.4, the Corporation
may condition the right to indemnification of, and the advancement of expenses
to, a Covered Person on its right to select legal counsel representing such
Covered Person on the terms of this Subsection 8.4.8. The Corporation shall
have
the right to select counsel for any Covered Person in any legal action that
may
give rise to indemnification under this Section 8.4 provided that:
(a) the Corporation consults with the Covered Person seeking
indemnification with respect to the selection of competent legal counsel; and
(b) the Corporation pays all reasonable fees and costs incurred by the
attorney in defending the Covered Person (subject to the Corporation’s right to
recover such fees and costs if it is determined at the conclusion of the action,
suit or proceeding that there is no right of indemnification). Notwithstanding
any other provision of this Section 8.4, the Corporation shall not be
responsible for indemnification of, or the advancement of expenses to, any
Covered Person who declines to use counsel reasonably selected by the
Corporation as provided in this Subsection 8.4.8. Counsel shall be deemed to
be
reasonably selected by the Corporation if such counsel is a competent attorney
who can independently represent the Covered Person consistent with the
applicable ethical standards of the Code of Professional
Responsibility.
Section 8.5.
Interested
Directors; Quorum.
No
contract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be
void
or voidable solely for this reason, or solely because the director or officer
is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because any
such
director’s or officer’s votes are counted for such purpose, if: (1) the
material facts as to the director’s or officer’s relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to the director’s or
officer’s relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 8.6.
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.
Section 8.7.
Record
of Stockholders.
The Secretary shall maintain, or shall cause to be maintained, a record of
the
names and addresses of the Corporation’s stockholders, in a form that permits
preparation of a list of stockholders that is arranged by class of stock
entitled to vote and, within each such class, by series of shares, that is
alphabetical within each class or series, and that shows the address of, and
the
number of shares of each class or series held by, each stockholder.
Section 8.8.
Addresses
of Stockholders.
Each stockholder shall furnish to the Secretary of the Corporation or the
Corporation’s transfer agent an address to which notices from the Corporation,
including notices of meetings, may be directed and if any stockholder shall
fail
so to designate such an address, it shall be sufficient for any such notice
to
be directed to such stockholder at such stockholder’s address last known to the
Secretary or transfer agent.
Section 8.9.
Amendment
of Bylaws.
The Board of Directors is authorized to adopt, amend or repeal these Bylaws
at
any annual meeting of the Board of Directors or any other meeting called for
that purpose. The holders of shares of Common Stock entitled to vote also may
adopt additional Bylaws and may amend or repeal any Bylaw, whether or not
adopted by them, at an annual stockholders meeting or a special meeting called,
wholly or in part, for such purpose. The power of the Board of Directors to
adopt, amend or repeal Bylaws may be limited by an amendment to the Certificate
of Incorporation or an amendment to the Bylaws adopted by the holders of Common
Stock that provides that a particular Bylaw or Bylaws may only be adopted,
amended or repealed by the holders of Common Stock.