Amended
and Restated Bylaws
SORL
Auto Parts, Inc.
(a
Delaware corporation)
March 14,
2009
Table
of Contents
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Page
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ARTICLE
I. Offices
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1
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Section 1.
Registered Office
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1
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Section 2.
Other Offices
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1
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ARTICLE
II. Meetings of Stockholders
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1
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Section 1.
Meetings of Stockholders for Election of Directors
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1
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Section 2.
RESERVED
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1
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Section 3.
Special Meetings
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1
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Section 4.
Notice of Meetings
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1
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Section 5.
List of Stockholders
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2
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Section 6.
Quorum
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2
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Section 7.
Organization
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2
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Section 8.
Business and Order of Business
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2
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Section 9.
Voting
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3
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Section 10.
Notice of Stockholder Business and Nominations
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3
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10.1
Annual Meeting
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3
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10.2
Special Meetings
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6
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10.3
Share Ownership Requirement for Stockholder Business and
Nominations
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6
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ARTICLE
III. Board of Directors
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7
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Section 1.
General Powers
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7
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Section 2.
Number, Qualifications, Election and Terms of Office
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7
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Section 3.
Quorum and Manner of Action
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7
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Section 4.
Place of Meeting, etc
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7
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Section 5.
RESERVED
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7
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Section 6.
Regular Meetings
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7
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Section 7.
Special Meetings; Notice
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7
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Section 8.
Organization
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8
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Section 9.
Order of Business
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8
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Section 10.
Resignations
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8
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Section 11.
Removal of Directors
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8
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Section 12.
Vacancies
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8
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Section 13.
Fees
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8
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ARTICLE
IV. Committees
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8
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Section 1.
How Constituted, Powers, Name
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8
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Section 2.
Term of Office and Vacancies
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9
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Section 3.
Organization
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9
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Section 4.
Resignations
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9
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Section 5.
Removal
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9
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Section 6.
Meetings
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9
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Section 7.
Quorum and Manner of Acting
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10
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Section 8.
Fees
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10
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ARTICLE
V. Officers
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10
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Section 1.
Numbers
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10
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Section 2.
Election, Term of Office and Qualifications
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10
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Section 3.
Subordinate Officers
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10
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Section 4.
Removal
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10
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Section 5.
Resignations
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10
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Section 6.
Vacancies
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11
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Section 7.
The Chairman of the Board of Directors
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11
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Section 8.
The Vice Chairman of the Board of Directors
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11
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Section 9.
The President
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11
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Section 10.
Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents
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11
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Page
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Section 11.
The Secretary
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11
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Section 12.
Assistant Secretaries
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12
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Section 13.
The Treasurer
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12
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Section 14.
Assistant Treasurers
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12
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Section 15.
RESERVED
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12
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Section 16.
Indemnification
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12
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ARTICLE
VI. Contracts, Checks, Drafts, Bank Accounts, etc
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14
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Section 1.
Contracts, etc., How Executed
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14
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Section 2.
Loans
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14
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Section 3.
Checks, Drafts, etc
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15
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Section 4.
Deposits
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15
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Section 5.
General and Special Bank Accounts
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15
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Section 6.
Proxies
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15
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ARTICLE
VII. Shares and Their Transfer
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16
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Section 1.
Stock Certificates
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16
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Section 2.
Transfer of Shares
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16
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Section 3.
Addresses of Stockholders
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16
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Section 4.
Lost, Destroyed and Mutilated Certificates
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16
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Section 5.
Transfer Agent and Registrar; Regulations
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17
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Section 6.
Record Date
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17
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Section 7.
Examination of Books by Stockholders
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17
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Section 8.
Treasury Stock
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17
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ARTICLE
VIII. Dividends, Surplus, etc
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18
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ARTICLE
IX. Seal
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18
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ARTICLE
X. Fiscal Year
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18
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ARTICLE
XI. Amendments
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18
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ARTICLE
I.
Offices.
Section 1. Registered
Office
. The registered office of SORL Auto Parts, Inc. (hereinafter
called the Corporation), in the State of Delaware, shall be in the City of
Wilmington, County of New Castle, or at such other location within the State of
Delaware as determined by the Board of Directors of the Corporation. The
Corporation’s registered agent in Delaware shall be Corporation Service Company,
subject to change by the Board of Directors which may by resolution appoint, or
change, the Corporation’s registered agent in Delaware in the manner and to the
extent permitted by Delaware law.
Section 2. Other
Offices.
The Corporation may also have an office or offices at such other
place or places either within or outside the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
requires.
ARTICLE
II.
Meetings
of Stockholders.
Section 1. Meetings of
Stockholders for Election of Directors
. All meetings of the stockholders
for the election of directors of the Corporation shall be held at such date,
time and place, either within or without the State of Delaware, as may be
designated from time to time by resolution of the Board of Directors or any
Committee constituted pursuant to Article IV of these Bylaws that has been
given the power to do so.
Section 2.
RESERVED.
Section 3. Special
Meetings
. Subject to the rights of any series of Preferred Stock, a
special meeting of the stockholders for any purpose or purposes, unless
otherwise proscribed by statute, may be called at any time by the Chairman of
the Board or by the Board of Directors or by a Committee constituted pursuant to
Article IV of these Bylaws that has been given the power to do so. The
Board of Directors may postpone or reschedule any previously scheduled special
meeting.
Section 4. Notice of
Meetings
. Except as otherwise required by law, notice of each meeting of
the stockholders, whether annual or special, shall be given not less than ten
nor more than sixty days before the day on which the meeting is to be held, to
each stockholder of record entitled to vote at such meeting by delivering a
written or printed notice thereof to him or her personally, or by mailing at
least ten days before the day on which such meeting is to be held, postage
prepaid, to his or her address as it appears on the records of the Corporation.
Without limiting the manner by which notice otherwise may be given effectively
to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the Delaware General
Corporation Law. Every such notice shall state the time and place of the meeting
but need not state the purposes thereof except as otherwise required by law, the
Certificate of Incorporation or these Bylaws. A written waiver of any notice,
signed by a stockholder, or waiver by electronic transmission by such person,
whether given before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to such
person. Neither the business nor the purpose of any meeting need be specified in
such a waiver. Attendance at any meeting
shall
constitute waiver of notice except when the person attends for the express
purpose of objecting at the beginning of the meeting because the meeting is not
lawfully called or convened. Notice of any adjourned meeting of the stockholders
shall not be required to be given, except where expressly required by
law.
Section 5. List of
Stockholders
. It shall be the duty of the Secretary or other officer who
shall have charge of the stock ledger either directly or through a Transfer
Agent appointed by the Board of Directors, to prepare and make, at least ten
days before every election, complete lists of the stockholders entitled to vote
thereat, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
For said ten days such lists shall be open to the examination of any stockholder
for any purpose germane to the meeting in the manner provided by law, and shall
also 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 may be present. The
original or a duplicate stock ledger shall be the only evidence as to who are
the stockholders entitled to examine such lists or the books of the Corporation
or to vote in person or by proxy at such election.
Section 6. Quorum.
At each meeting of the stockholders, including any adjourned meeting, the
presence, in person or by proxy, of the holders of record of shares of capital
stock of the Corporation entitling the holders thereof to cast a majority of the
votes entitled to be cast by the holders of shares of capital stock of the
Corporation entitled to vote thereat shall constitute a quorum for the
transaction of business except where otherwise provided by law or by the
Certificate of Incorporation; provided that, in no event shall a quorum consist
of less than such number of votes as may be required under the General
Corporation Law of Delaware. In the absence of a quorum, any officer entitled to
preside or act as Chairman at such meeting shall have the power to adjourn the
meeting from time to time, until stockholders holding the requisite amount of
voting power shall be present or represented. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called. The absence from any
meeting of the number required by law or by the Certificate of Incorporation or
by these Bylaws for action upon any given matter shall not prevent action at
such meetings upon any other matter or matters which may properly come before
the meeting, if the number of stockholders required in respect of such other
matter or matters shall be present.
Section 7.
Organization
. The Chairman of the Board, or in his or her absence, the
Vice Chairman, or in the absence of both, the President, shall call meetings of
the stockholders to order and shall act as Chairman thereof. In the absence of
the Chairman of the Board, Vice Chairman and President, the holders of record of
shares of capital stock of the Corporation representing a majority of the votes
present at the meeting may elect any person present in person to act as Chairman
of the meeting. The Secretary, or, in his or her absence, an Assistant
Secretary, shall act as secretary at all meetings of the stockholders. In the
absence from any such meeting of the Secretary and the assistant secretary or
secretaries, the Chairman may appoint any person present to act as secretary of
the meeting.
Section 8.
Business and Order of Business
. At each meeting of the stockholders such
business may be transacted as may properly be brought before such meeting,
whether or not such business is stated in the notice of such meeting or in a
waiver of notice thereof except as otherwise expressly required in the
Certificate of Incorporation, these
Bylaws or
by law. The order of business at all meetings of the stockholders shall be
determined by the Chairman.
Section 9. Voting
. Each stockholder of the Corporation shall, except as otherwise required by
law, at every meeting of the stockholders be entitled to such number of votes,
in person or by proxy, for each share of the capital stock of the Corporation
registered in his or her name on the books of the Corporation, as provided in
the Certificate of Incorporation. Persons holding in a fiduciary capacity shares
having voting rights shall be entitled to vote the shares so held, and persons
whose shares of stock having voting rights are pledged shall be entitled to
vote, unless the pledgor shall have expressly empowered the pledgee to vote
thereon and so notified the Corporation in writing, in which case only the
pledgee, or his or her proxy, may represent said shares and vote thereon. Any
vote on shares may be given by the stockholder entitled thereto in person or by
his or her proxy appointed by an instrument in writing or by a transmission
permitted by law, subscribed by such stockholder or by his or her attorney
thereunto authorized, and delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted on after three years from its date unless
said proxy provides for a longer period. At every meeting of stockholders duly
called and held at which a quorum is present (i) in all matters other than
the election of directors, a majority of the votes that could be cast at the
meeting upon a given question and (ii) in the case of the election of
directors, a plurality of the votes that could be cast at the meeting upon the
election, by the holders who are present in person or by proxy, shall be
necessary, in addition to any vote or other action that may be expressly
required by law, the Certificate of Incorporation or these Bylaws, to decide the
question or election. Except as otherwise provided by statute, and unless
demanded by a stockholder present in person or by proxy at any meeting, and
entitled to vote thereat, the vote on any question need not be by
ballot.
Section 10. Notice of
Stockholder Business and Nominations
.
10.1
Annual Meeting.
(1) An
annual meeting of the stockholders, for the election of directors to succeed
those whose terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, on such date, and
at such time as the Board of Directors shall each year fix.
(2) Nominations
of persons for election to the Board of Directors and the proposal of business
to be transacted by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation’s proxy materials with respect
to such meeting, (b) by or at the direction of the Board of Directors, or
(c) by any stockholder of record of the Corporation (the “Record
Stockholder”) at the time of the giving of the notice required in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this subsection 10.1. For the avoidance of doubt,
clause (c) above shall be the exclusive means for a stockholder to make
nominations and propose business (other than business included in the
Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (such act, and the rules and regulations
promulgated thereunder, the “Exchange Act”)) before an annual meeting of
stockholders.
(3) For
nominations or business to be properly brought before an annual meeting by a
Record Stockholder pursuant to clause (c) of the foregoing paragraph,
(a) the Record Stockholder must have given timely
notice
thereof in writing to the Secretary of the Corporation, (b) any such
business must be a proper matter for stockholder action under Delaware law, and
(c) the Record Stockholder and the beneficial owner, if any, on whose
behalf any such proposal or nomination is made, must have acted in accordance
with the representations set forth in the Solicitation Statement required by
these Bylaws. To be timely, a Record Stockholder’s notice shall be received by
the Secretary at the principal executive offices of the Corporation not less
than 120 days prior to the first anniversary (the “Anniversary”) of the
date on which the Corporation first mailed its proxy materials for the preceding
year’s annual meeting of stockholders; provided, however, that if the date of
the annual meeting is advanced more than 30 days prior to or delayed by
more than 30 days after the anniversary of the preceding year’s annual
meeting, notice by the Record Stockholder to be timely must be so delivered not
later than the close of business on the later of (i) the 120th day prior to
such annual meeting or (ii) the 10th day following the day on which public
announcement of the date of such meeting is first made.
(4) Such
Record Stockholder’s notice shall set forth:
(a) if
such notice pertains to the nomination of directors, as to each person whom the
Record Stockholder proposes to nominate for election or reelection as a director
all information relating to such person as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Exchange Act, and such person’s written consent
to serve as a director if elected;
(b) as
to any business that the Record Stockholder proposes to bring before the
meeting, a brief description of such business, the reasons for conducting such
business at the meeting and any material interest in such business of such
Record Stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and
(c) as
to (1) the Record Stockholder giving the notice and (2) the beneficial
owner, if any, on whose behalf the nomination or proposal is made (each, a
“party”):
(i) the
name and address of each such party as they appear on the Corporation’s
books;
(ii) (A) the
class, series, and number of shares of the Corporation that are owned, directly
or indirectly, beneficially and of record by each such party, (B) any
option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by each such party, and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation, (C) any proxy,
contract, arrangement, understanding, or relationship pursuant to which either
party has a right to vote, directly or indirectly, any shares of any security of
the Corporation, (D) any short interest in any security of the Corporation
held by each such party (for purposes of this subsection 10.1(4)
,
a person shall be deemed to
have a short interest in a security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
the opportunity to profit
or share
in any profit derived from any decrease in the value of the subject security),
(E) any rights to dividends on the shares of the Corporation owned
beneficially directly or indirectly by each such party that are separated or
separable from the underlying shares of the Corporation, (F) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which
either party is a general partner, or directly or indirectly, beneficially owns
an interest in a general partner and (G) any performance-related fees
(other than an asset-based fee) that each such party is directly or indirectly
entitled to based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of each such
party’s immediate family sharing the same household (which information set forth
in this paragraph shall be supplemented by such stockholder or such beneficial
owner, as the case may be, not later than ten (10) days after the record
date for the meeting to disclose such ownership as of the record
date);
(iii) any
other information relating to each such party that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to
Section 14 of the Exchange Act; and
(iv) a
statement whether or not each such party will deliver a proxy statement and form
of proxy to holders of, in the case of a proposal, at least the percentage of
voting power of all of the shares of capital stock of the Corporation required
under applicable law to carry the proposal or, in the case of a nomination or
nominations, at least the percentage of voting power of all of the shares of
capital stock of the Corporation reasonably believed by such Record Stockholder
or beneficial holder, as the case may be, to be sufficient to elect the nominee
or nominees proposed to be nominated by such Record Stockholder (such statement,
a “Solicitation Statement”).
(5) Notwithstanding
anything in the second sentence of the third paragraph of this subsection 10.1
to the contrary, in the event that the number of directors to be elected to the
Board of Directors is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board of
Directors made by the Corporation at least 130 days prior to the Anniversary, a
Record Stockholder’s notice required by this Bylaw shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(6) A
person shall not be eligible for election or re-election as a director at an
annual meeting unless (i) the person is nominated by a Record Stockholder
in accordance with subsection 10.1(2)(c) or (ii) the person is
nominated by or at the direction of the Board of Directors. Only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
subsection 10.1. The chairman of the meeting shall have the power and the duty
to determine whether a nomination or any business proposed to be brought before
the meeting has been made in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with
these Bylaws, to declare that such defectively proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be
disregarded.
(7) For
purposes of these Bylaws, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(8) Notwithstanding
the foregoing provisions of this subsection 10.1, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to matters set forth in this subsection
10.1. Nothing in this subsection 10.1 shall be deemed to affect any rights or
relieve any requirements of stockholders with respect to inclusion of proposals
in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
10.2
Special Meetings.
(1) Subject
to the rights of any series of Preferred Stock, special meetings of the
stockholders, other than those required by statute, may be called at any time by
the Chairman of the Board or by the Board of Directors or by a Committee
constituted pursuant to Article IV of these Bylaws that has been given the
power to do so.
(2) Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting by or at the direction of the Board of
Directors. The notice of such special meeting shall include the purpose for
which the meeting is called. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected (a) by or at the direction of the Board of Directors or
(b) by any Record Stockholder at the time of giving of notice provided for
in this paragraph, who shall be entitled to vote at the meeting and who complies
with the notice procedures applicable to nominations at annual meetings set
forth in subsection 10.1 of this Article II. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders only if the Record Stockholder’s notice required by the
third paragraph of subsection 10.1 of this Article II shall be received by
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the later of the 120th day prior to such special
meeting or the 10th day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. A person shall not be eligible
for election or reelection as a director at a special meeting unless the person
is nominated (i) by or at the direction of the Board of Directors or
(ii) by a Record Stockholder in accordance with the notice procedures set
forth in subsection 10.1 of Article II.
(3) Notwithstanding
the foregoing provisions of this subsection 10.2, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to matters set forth in this subsection
10.2. Nothing in this subsection 10.2 shall be deemed to affect any rights or
relieve any requirements of stockholders with respect to inclusion of proposals
in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
10.3
Share Ownership Requirement for Stockholder Business and Nominations.
Notwithstanding the forgoing subsections, except in cases in which
Rule 14a-8 under the Exchange Act applies, no proposal for action on any
stockholder business, or nomination of any person for election to the Board of
Directors may be made by any Record Stockholder
who is
not also a beneficial owner of at least $1,000 in current value of shares of the
Corporation entitled to be voted for the election of Directors.
ARTICLE
III.
Board
of Directors.
Section 1. General
Powers
. The property, affairs and business of the Corporation shall be
managed by or under the direction of the Board of Directors.
Section 2. Number,
Qualifications, Election and Terms of Office
. The number of Directors
shall be not less than seven nor more than sixteen, as determined from time to
time by resolution of the Board of Directors. The Directors need not be
stockholders of the corporation. The election of Directors need not be by ballot
except as otherwise provided by law or by these Bylaws.
Section 3. Quorum and
Manner of Action
. Except as otherwise required by law or provided
herein, a majority of the Whole Board shall be required to constitute a quorum
for the transaction of business at any meeting and the affirmative vote of a
majority of the Directors present at any meeting at which a quorum is present
shall be the act of the Board of Directors. For purposes of these Bylaws, the
term “Whole Board” shall mean the total number of directors then serving as
such, whether or not there exist any vacancies in previously authorized
directorships. The Board of Directors may postpone or reschedule any previously
scheduled special meeting. In the absence of a quorum, the majority of the
Directors present may adjourn the meeting from time to time until a quorum be
had. Notice of any adjourned meeting need not be given, other than by
announcement at the meeting being adjourned.
Section 4. Place of
Meeting, etc
. The Board of Directors may hold its meetings, have one or
more offices, and keep the books and records of the Corporation, at such place
or places within or without the State of Delaware as the Board of Directors may
from time to time determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
Section 5.
RESERVED.
Section 6. Regular
Meetings
. Regular meetings of the Board of Directors shall be held
quarterly at such place and at such times as the Board of Directors may from
time to time determine. Notice of the regular meetings need not be
given.
Section 7. Special
Meetings; Notice
. Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board of Directors or by the
President or by any of the directors. Notice of each meeting shall be mailed to
each director, addressed to him or her at his or her residence or usual place of
business, at least forty-eight hours before the time at which the meeting is
being held, or shall be sent to him or her at such place by electronic
transmission, telegraph or telephone, or be delivered personally, not later than
twenty-four hours before the time at which the meeting is to be held. Every such
notice shall state the time and place of the meeting but need not state the
purposes thereof except as otherwise required by these Bylaws or by law. A
written waiver of any notice, signed by a Director, or waiver by electronic
transmission by such person, whether given before or after the time of the event
for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such person. Neither the business nor the purpose of any
meeting need be specified in such a waiver. Attendance at any meeting shall
constitute
waiver of
notice except when the person attends for the express purpose of objecting at
the beginning of the meeting because the meeting is not lawfully called or
convened. Notice of any adjourned meeting of the Board of Directors shall not be
required to be given, except where expressly required by law.
Section 8.
Organization
. At each meeting of the Board of Directors, the Chairman of
the Board of Directors, or, in his or her absence, the President, or in the
absence of both the Chairman of the Board of Directors and the President, a
director chosen by a majority of the directors present shall act as Chairman.
The Secretary, or, in his or her absence, an Assistant Secretary, or, in the
absence of both the Secretary and assistant secretaries, any person appointed by
the Chairman shall act as Secretary of the meeting.
Section 9. Order of
Business
. At all meetings of the Board of Directors business shall be
transacted in the order determined by the Board of Directors.
Section 10.
Resignations
. Any director of the Corporation may resign at any time by
giving notice in writing or by electronic transmission to the Chairman of the
Board of Directors or to the President or to the Secretary of the Corporation.
The resignation of any director shall take effect at the time of the receipt of
such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 11. Removal of
Directors
. Except as otherwise required by law, any director may be
removed either with or without cause, at any time, by the affirmative vote of
the holders of a majority of the voting power entitled to vote at an election of
directors as provided in the Certificate of Incorporation; and the vacancy in
the Board of Directors caused by any such removal may be filled by the
stockholders.
Section 12.
Vacancies
. Any vacancy in the Board of Directors caused by death,
resignation, removal, disqualification, an increase in the number of directors,
or any other cause may be filled by the directors then in office or by the
stockholders of the Corporation at the next annual meeting or any special
meeting called for the purpose and at which a quorum is present, and each
director so elected, shall hold office for a term to expire at the next annual
election of directors, and until his or her successor shall be duly elected and
qualified, or until his or her death or until he or she shall resign or shall
have been removed in the manner herein provided. Except as otherwise required by
law, in case of a vacancy in the Board of Directors, the remaining director or
directors shall retain the full capacity to act as the Board of Directors under
these Bylaws.
Section 13. Fees
.
Each director shall be paid such fees, if any, as shall be fixed by the Board of
Directors and in addition such reasonable transportation and other expenses
actually incurred by him or her in going to the meeting and returning
therefrom.
ARTICLE
IV.
Committees.
Section 1. How
Constituted, Powers, Name
. The Board of Directors may, by resolution or
resolutions, designate one or more committees, each committee to consist of two
or more of the directors of the Corporation, which, to the extent permitted by
law and provided in said resolution or resolutions or in these Bylaws, shall
have and may exercise the powers of the Board of Directors in the management of
the
business
and affairs of the Corporation, and may have power to authorize the seal of the
Corporation to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in these Bylaws or as
may be determined from time to time by resolution adopted by the Board of
Directors. The term “Committee” as used in this Article IV means any
committee constituted pursuant to the Certificate of Incorporation of the
Corporation and these Bylaws. The Board of Directors shall, by resolution,
designate or create any Committee required by the rules of any securities
exchange on which shares of the capital stock of the Corporation are
listed.
Section 2. Term of Office
and Vacancies
. Each member of a Committee shall continue in office until
the first meeting of the Board of Directors following the annual meeting of
stockholders held by the Board of Directors next succeeding his or her election
and until a director to succeed him or her shall have been elected and shall
have qualified, or until his or her death or until he or she shall have resigned
or shall have been removed in the manner hereinafter provided. Any vacancy in a
Committee shall be filled by the Board of Directors at any regular or special
meeting thereof.
Section 3.
Organization
. The Chairman of each Committee shall be designated by the
Board of Directors and the Secretary of the Corporation shall act as Secretary
thereof. In the absence from any meeting of any Committee of its Chairman or its
Secretary such Committee shall appoint a Chairman or Secretary, as the case may
be, of the meeting. Each Committee shall keep a record of its acts and
proceedings and report the same from time to time to the Board of
Directors.
Section 4.
Resignations
. Any member of a Committee may resign from membership on
that Committee by giving notice in writing or by electronic transmission to the
Chairman of the Board of Directors, to the President, or to the Secretary of the
Corporation. Such resignation shall take effect at the time of the receipt of
such notice or at any later time specified therein, and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 5. Removal
. Any member of a Committee may be removed with or without cause at any time by
the affirmative vote of the Board of Directors given at any regular meeting or
at any special meeting.
Section 6.
Meetings
. Regular meetings of each Committee, of which no notice shall
be necessary, shall be held on such days and at such place as may be determined
by the Committee. Special meetings of each Committee may be called by any member
of such Committee. Notice of each special meeting of the Committee shall be
mailed to each member thereof, addressed to him or her at his or her residence
or usual place of business, at least twenty-four hours before the time at which
the meeting is being held, or shall be sent to him or her at such place by
electronic transmission, telegraph or telephone, or be delivered personally, not
later than three hours before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting but need not state the
purposes thereof except as otherwise required by these Bylaws or by law.
Whenever notice is required to be given by law or under 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 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 7. Quorum and
Manner of Acting
. Unless otherwise provided by resolution of the Board
of Directors, a majority of the total number of members of a Committee shall
constitute a quorum for the transaction of business and the act of a majority of
those present at a meeting at which a quorum is present shall be the act of such
Committee. The members of each Committee shall act only as a committee and the
individual members shall have no power as such.
Section 8. Fees
.
Each member of a Committee shall be paid such fees, if any, as shall be fixed by
the Board of Directors and in addition such reasonable transportation and other
expenses actually incurred by him or her in going to the meeting and returning
therefrom.
ARTICLE
V.
Officers.
Section 1. Numbers
. The officers of the Corporation shall be a Chairman of the Board of Directors,
a Vice Chairman of the Board of Directors if the Board so elects, a President if
the Board of Directors so elects, a Treasurer, a Secretary, one or more
Executive Vice Presidents if the Board so elects, one or more Senior Vice
Presidents if the Board so elects, and one or more Vice Presidents, Assistant
Treasurers, Assistant Secretaries, and such other officers as may be appointed
in accordance with the provisions of Section 3 of this Article V. Any
number of offices may be held by the same person.
Section 2. Election, Term
of Office and Qualifications
. The officers shall be elected annually by
the Board of Directors. Each officer, except such officers as may be appointed
in accordance with the provisions of Section 3 of this Article V,
shall hold office until his or her successor shall have been duly elected and
qualified in his or her stead, or until his or her death or until he or she
shall have resigned or shall have been removed in the manner herein provided.
The Chairman of the Board of Directors and the Vice Chairman, if any, shall be
chosen from among the Directors. Other officers herein provided for need not be
members of the Board of Directors.
Section 3. Subordinate
Officers
. The Board of Directors may from time to time appoint such
other officers as it may deem necessary, and the Board of Directors, or the
Chairman of the Board of Directors, or the President may from time to time
appoint such agents and employees of the Corporation as they, or any of them,
may deem proper. Such officers, agents and employees shall hold office for such
period, have such authority, and perform such duties as in these Bylaws provided
or as the Board of Directors or the Chairman of the Board of Directors or the
President may from time to time prescribe. The Board of Directors or the
Chairman of the Board of Directors or the President may from time to time
authorize any officer to appoint and remove agents and employees and to
prescribe the powers and duties thereof.
Section 4. Removal
. An officer may be removed, either with or without cause, by the Board of
Directors or by any superior officer upon whom the power of removal may be
conferred by the Board of Directors or by these Bylaws.
Section 5.
Resignations
. Any officer may resign at any time by giving notice in
writing or by electronic transmission to the Board of
Directors
or to the Chairman of the Board of Directors or to the President or to the
Secretary. Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 6.
Vacancies
. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired
portion of the term in the manner prescribed in these Bylaws for regular
election or appointment to such office.
Section 7. The Chairman
of the Board of Directors
. The Chairman of the Board shall be a director
and shall preside at all meetings of the Board and of the stockholders. He or
she may but need not be the chief executive officer of the Corporation. The
Chairman of the Board shall, subject to the overall supervision of the Board of
Directors, perform all duties incident to the office of the Chairman of the
Board and Chief Executive Officer of the Corporation, and such other duties as
may be assigned to him or her from time to time by the Board of Directors. In
case of the absence or disability of the Chairman, the Board of Directors may
designate the Vice Chairman, President, a Senior Vice President, Vice President
or other person to act in place of the Chairman during his or her absence or
disability, and when so acting such Vice Chairman, President, Senior Vice
President, Vice President or other person shall have all the powers of and be
subject to all the restrictions upon the Chairman, except as may otherwise be
provided in the resolution of the Board of Directors making such
designation.
Section 8. The Vice
Chairman of the Board of Directors
. The Vice Chairman of the Board of
Directors shall be a director and shall perform all duties incident to the
office of the Vice Chairman of the Board and such other duties as may be
assigned to him or her from time to time by the Board of Directors or the
Chairman of the Board. In the absence of the Chairman, he or she shall preside
at all meetings of the Board and of the stockholders.
Section 9. The
President
. The President shall perform all duties incident to the office
of the President and such other duties as may from time to time be assigned to
him or her by the Board of Directors, the Chairman of the Board, or an Executive
Committee constituted pursuant to Article IV of these Bylaws. In the absence or
inability to act of the Chairman or Vice Chairman of the Board, the President
shall preside at meetings of the Board of Directors and of the
stockholders.
Section 10. Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents
. Each
Executive Vice President, each Senior Vice President and each Vice President
shall perform all such duties as may be incident to their respective offices or
as may from time to time be assigned to them, or any of them, by the Board of
Directors, the Chairman of the Board, or an Executive Committee constituted
pursuant to Article IV of these Bylaws.
Section 11. The
Secretary
. The Secretary shall record or cause to be recorded in books
provided for the purpose the minutes of the meetings of the stockholders, of the
Board of Directors and of any Committee constituted pursuant to Article IV
of these Bylaws; shall see that all notices are duly given in accordance with
the provisions of these Bylaws and as required by law; shall be custodian of the
records and of the seal of the Corporation and see that the seal is affixed to
all documents the execution of which on behalf of the Corporation under its seal
is duly authorized in accordance with the provisions of these
Bylaws;
shall keep or cause to be kept a register of the post office address of each
stockholder, and make all proper changes in such register, retaining and filing
his or her authority for all such entries; shall see that the books, reports,
statements, certificates and all other documents and records required by law are
properly kept and filed; and in general, the Secretary shall perform all duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him or her by the Board of Directors, the Chairman of the
Board, or any Committee constituted pursuant to Article IV of these Bylaws
with power for the purpose.
Section 12. Assistant
Secretaries
. At the request of the Secretary or in his or her absence or
disability, the Assistant Secretary designated by him or her shall perform all
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary. The Assistant
Secretaries shall perform such other duties as from time to time may be assigned
to them by the Chairman of the Board of Directors, the President, the Secretary
or the Board of Directors or any Committee constituted pursuant to Article IV of
these Bylaws with power for the purpose.
Section 13. The
Treasurer
. The Treasurer shall give such bond for the faithful
performance of his or her duties as the Board of Directors shall require. He or
she shall have charge and custody of, and be responsible for, all funds and
securities of the Corporation, and deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of these Bylaws; at all reasonable
times exhibit his or her books of account and records, and cause to be exhibited
the books of account and records of any corporation all of whose shares except
directors’ shares are owned by the Corporation, to any of the directors of the
Corporation upon application during business hours at the office of the
Corporation or such other corporation, where such books and records are kept;
render a statement of the condition of the finances of the Corporation at all
regular meetings of the Board of Directors, and a full financial report at the
annual meeting of the stockholders, if called upon to do so; receive, and give
receipts for, moneys due and payable to the Corporation from any source
whatsoever; and in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him or
her by the Board of Directors, the Chairman of the Board, or any Committee
constituted pursuant to Article IV of these Bylaws with power for the
purpose.
Section 14. Assistant
Treasurers
. At the request of the Treasurer or in his or her absence or
disability the Assistant Treasurer designated by him or her shall perform all
the duties of the Treasurer, and when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Treasurer. The Assistant
Treasurers shall perform such other duties as from time to time may be assigned
to them by the Chairman of the Board of Directors, the President, the Treasurer
or the Board of Directors or any Committee constituted pursuant to
Article IV of these Bylaws with power for the purpose.
Section 15.
RESERVED.
Section 16.
Indemnification.
(a) Each
person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a “proceeding”), by reason of the
fact that he or she is or was a director or an officer of the Corporation or is
or was serving at
the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
“indemnitee”), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in paragraph (c) of
this Section 16 with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
(b) The
right to indemnification conferred in paragraph (a) of this Section 16
shall include the right to be paid by the Corporation the expenses (including
attorney’s fees) incurred in defending any such proceeding in advance of its
final disposition (hereinafter an “advancement of expenses”); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a “final
adjudication”) that such indemnitee is not entitled to be indemnified for such
expenses under this paragraph (b) or otherwise. The rights to
indemnification and to the advancement of expenses conferred in paragraphs
(a) and (b) of this Section 16 shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators.
(c) If
a claim under paragraph (a) or (b) of this Section 16 is not paid
in full by the Corporation within 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that the indemnitee has not met any applicable standard
for indemnification set forth in the Delaware General Corporation Law; and in
any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to
recover such expenses upon a final adjudication that the indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation
(including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification
of the indemnitee is proper because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, and in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified, or is
not entitled to such advancement of expenses, under this Section 16 or
otherwise shall be on the Corporation.
(d) The
rights to indemnification and to the advancement of expenses conferred in this
Section 16 shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Corporation’s Certificate of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
(e) The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
(f) The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Section 16 with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
ARTICLE
VI.
Contracts,
Checks, Drafts, Bank Accounts, etc.
Section 1. Contracts,
etc., How Executed
. In addition to the authority that the officers of
the Corporation hold incident to their respective offices, the Board of
Directors, or any Committee constituted pursuant to Article IV of these
Bylaws with power for the purpose, except as in these Bylaws otherwise provided,
may authorize any officer or officers, employees or agents of the Corporation to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances. The power to grant such authority also may be expressly
delegated by the Board of Directors, or by any Committee constituted pursuant to
Article IV of these Bylaws with power for the purpose, to one or more
officers of the Corporation.
Section 2. Loans
.
No loan shall be contracted on behalf of the Corporation, and no negotiable
paper shall be issued in its name, unless authorized by the Board of Directors
or by any Committee constituted pursuant to Article IV of these Bylaws with
power for the purpose. Such authorization may be general or confined to specific
instances. When so authorized, any authorized officer or employee of the
Corporation may effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation
or
individual,
and for such loans and advances may make, execute and deliver promissory notes
or other evidences of indebtedness of the Corporation and, when authorized as
aforesaid, as security for the payment of any and all loans, advances,
indebtedness and liabilities of the Corporation, may mortgage, pledge,
hypothecate or transfer any real or personal property at any time held by the
Corporation and to that end execute instruments of mortgage or pledge or
otherwise transfer such property. Such authority may be general or confined to
specific instances.
Section 3. Checks,
Drafts, etc
. All checks, drafts or other orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
Corporation, shall be signed by such officer or officers, employees or agents of
the Corporation as shall from time to time be determined by resolution of the
Board of Directors or by any Committee constituted pursuant to Article IV
of these Bylaws with power for the purpose. Such authority may be general or
confined to specific instances and the granting of such authority may be
expressly delegated by the Board of Directors, or by any Committee constituted
pursuant to Article IV of these Bylaws with power for the purpose, to one
or more officers of the Corporation.
Section 4.
Deposits
. All funds of the Corporation shall be deposited from time to
time to the credit of the Corporation in such banks, trust companies or other
depositaries as the Board of Directors or any Committee constituted pursuant to
Article IV of these Bylaws with power for the purpose may from time to time
designate, or as may be designated by an officer or officers of the Corporation
to whom such power may be delegated by the Board of Directors, or by such
Committee, and for the purpose of such deposit, the Chairman of the Board of
Directors, or the President, or a Vice President, or the Treasurer, or an
Assistant Treasurer, or the Secretary, or an Assistant Secretary, may endorse,
assign and deliver checks, drafts, and other orders for the payment of money
which are payable to the order of the Corporation.
Section 5. General and
Special Bank Accounts
. The Board of Directors or any Committee
constituted pursuant to Article IV of these Bylaws with power for the
purpose, may from time to time authorize the opening and keeping with such
banks, trust companies or other depositaries as it may designate of general and
special bank accounts, may make such special rules and regulations with respect
thereto, not inconsistent with the provisions of these Bylaws, as it may deem
expedient.
Section 6. Proxies
. Except as otherwise provided in these Bylaws or in the Certificate of
Incorporation of the Corporation, and unless otherwise provided by resolution of
the Board of Directors, or of any Committee constituted pursuant to
Article IV of these Bylaws with power for the purpose, the Chairman of the
Board of Directors or the President may from time to time appoint an attorney or
attorneys or agent or agents, of the Corporation, in the name and on behalf of
the Corporation to cast the votes which the Corporation may be entitled to cast
as a stockholder or otherwise in any other corporation any of whose shares or
other securities may be held by the Corporation, at meetings of the holders of
the shares or other securities of such other corporation, or to consent in
writing to any action by such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as the Chairman of the Board of Directors or the
President may deem necessary or proper in the premises.
ARTICLE
VII.
Shares
and Their Transfer.
Section 1. Stock
Certificates
. The shares of capital stock of 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 stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Certificates for shares of the capital stock of the Corporation
shall be in such form as shall be approved by the Board of Directors or by any
Committee constituted pursuant to Article IV of these Bylaws with power for
the purpose. They shall be numbered, shall certify the number of shares held by
the holder thereof and shall be signed by the Chairman of the Board 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. Any or all of the
signatures on the certificate may be a facsimile. In case any officer or
officers or transfer agent or registrar who shall have signed, or whose
facsimile signature or signatures shall have been used on, any such certificate
or certificates shall cease to be such officer or officers or transfer agent or
registrar of the Corporation, whether because of death, resignation, or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature shall have
been used thereon had not ceased to be such officer or officers of the
Corporation.
Section 2. Transfer of
Shares
. Transfers of shares of the capital stock of the Corporation
shall be made only on the books of the Corporation by the holder thereof, or by
his or her attorney thereunto authorized by a power of attorney duly executed
and filed with the Secretary of the Corporation, or a transfer agent of the
Corporation, if any, and on surrender of the certificate or certificates for
such shares properly endorsed. A person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof as regards to the
Corporation, provided that whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact if known to the Secretary or
to said transfer agent, shall be so expressed in the entry of
transfer.
Section 3. Addresses of
Stockholders
. Each stockholder shall designate to the Secretary of the
Corporation an address at which notices of meetings and all other corporate
notices may be served or mailed to him or her, and if any stockholder shall fail
to designate such address, corporate notices may be served upon him or her by
mail directed to him or her at his or her last known post office
address.
Section 4. Lost,
Destroyed and Mutilated Certificates
. The holder of any certificate
evidencing any share of the Corporation shall immediately notify the Corporation
of any loss, destruction or mutilation of such certificate, and the Board of
Directors or any Committee constituted pursuant to Article IV of these
Bylaws with power for the purpose, may, in its discretion, cause to be issued to
him or her a new certificate or certificates of stock, upon the surrender of the
mutilated certificate or, in case of loss or destruction of the certificate,
upon satisfactory proof of such loss or destruction, and the Board of Directors
or such Committee may, in its discretion, require the owner of the lost or
destroyed certificate or his or her legal representative to give the Corporation
a bond in such sum, and with surety or sureties, as it may direct, to indemnify
the Corporation against any claim that may be made against it on account of the
alleged
loss or
destruction of any such certificate or the issuance of such new
certificate.
Section 5. Transfer Agent
and Registrar; Regulations
. The Corporation shall, if and whenever the
Board of Directors or any Committee constituted pursuant to Article IV of
these Bylaws with power for the purpose shall so determine, maintain one or more
transfer offices or agencies, each in charge of a transfer agent designated by
the Board of Directors or by such Committee, where the shares of the capital
stock of the Corporation shall be directly transferable, and also one or more
registry offices, each in charge of a register designated by the Board of
Directors or by such Committee, where such shares of stock shall be registered,
and no certificate for shares of the capital stock of the Corporation, in
respect of which a registrar and transfer agent shall have been designated,
shall be valid unless countersigned by such transfer agent and registered by
such registrar. The Board of Directors or any such Committee may also 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 6. Record
Date
. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, or to receive
payment of any dividend or other distribution or allotment of any rights or 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, except
as otherwise required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty nor less than ten days before the
date of any meeting of stockholders, nor more than sixty days prior to the time
for such other action as hereinbefore described; provided, however, that 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, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
Section 7. Examination of
Books by Stockholders
. The Board of Directors or any Committee
constituted pursuant to Article IV of these Bylaws with power for the
purpose shall, subject to the laws of the State of Delaware, have power to
determine, from time to time, whether and to what extent and under what
conditions and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any book or document of the Corporation, except
as conferred by the laws of the State of Delaware, unless and until authorized
so to do by resolution of the Board of Directors or any Committee constituted
pursuant to Article IV of these Bylaws with power for the purpose or of the
stockholders of the Corporation.
Section 8. Treasury
Stock
. The Treasurer of the Corporation may be authorized by the Board
of Directors from time to time to purchase out of surplus any outstanding fully
paid shares of the Corporation, together with any rights, privileges and
benefits appurtenant thereto, the same to be held in the treasury of the
Corporation until and unless disposed of as hereinafter set forth. The price at
which the same may
be
purchased and placed in the treasury shall not exceed such sum as the Board of
Directors may determine from time to time. Any shares so purchased and placed in
the treasury of the Corporation may be sold in such manner and on such terms as
the Board of Directors may determine from time to time.
ARTICLE
VIII.
Dividends,
Surplus, etc.
Subject
to the provisions of the Certificate of Incorporation and any restrictions
imposed by statute, the Board of Directors may declare dividends from the
surplus of the Corporation or from the net profits arising from its business,
whenever, and in such amounts as, in its opinion, the condition of the affairs
of the Corporation shall render advisable. If the date appointed for the payment
of any dividend shall in any year fall on a legal holiday then the dividend
payable on such date shall be payable on the next succeeding business day. The
Board of Directors in its discretion may from time to time set aside from such
surplus or net profits such sum or sums as it, in its absolute discretion, may
think proper as a working capital or as a reserve fund to meet contingencies, or
for the purpose of maintaining or increasing the property or business of the
Corporation, or for any other purpose it may think conducive to the best
interests of the Corporation. All such surplus or net profits, until actually
declared in dividends, or used and applied as aforesaid, shall be deemed to have
been so set aside by the Board for one or more of said purposes.
ARTICLE
IX.
Seal.
The
corporate seal of the Corporation shall consist of a metallic stamp, circular in
form, bearing in its center the figures and word “1982, Delaware”, and at the
outer edge the name of the Corporation.
ARTICLE
X.
Fiscal
Year.
The
fiscal year of the Corporation shall begin on the first day of January in each
year.
ARTICLE
XI.
Amendments.
All
Bylaws of the Corporation shall be subject to alteration or repeal, and new
Bylaws not inconsistent with any provision of the Certificate of Incorporation
of the Corporation or any provision of law, may be made, either by the
affirmative vote of the holders of record of shares representing in the
aggregate a majority of the total voting power of the Corporation entitled to
vote in respect thereof, given at an annual meeting or at any special meeting or
by the Board of Directors at any regular or special meeting.