AMENDED AND RESTATED
BYLAWS
OF
KINGOLD JEWELRY,
INC.
(a Delaware
corporation)
ARTICLE
I
STOCKHOLDERS
1.1
Place of
Meetings
. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors, the President or the Chief Executive
Officer.
1.2
Annual
Meeting
. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors at the time and place to be fixed by the Board of Directors and stated
in the notice of the meeting.
1.3
Special
Meetings
. Special meetings of stockholders may be called at
any time by the Board of Directors, the Chairman of the Board (if any), the
President
,
the Chief
Executive Officer or the holders of record of not less than 10% of all shares
entitled to cast votes at the meeting, for any purpose or purposes prescribed in
the notice of the meeting and shall be held at such place, on such date and at
such time as the Board may fix. Business transacted at any special
meeting of stockholders shall be confined to the purpose or purposes stated in
the notice of meeting.
1.4
Notice of
Meetings
. Written notice of each meeting of stockholders,
whether annual or special, shall be given not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled
to vote at such meeting, except as otherwise provided herein or as required by
the Certificate of Incorporation or applicable law. The notices of
all meetings shall state the place, date and hour of the meeting. The
notice of a special meeting shall state, in addition, the purpose or purposes
for which the meeting is called. If mailed, notice is 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.
1.5
Voting
List
. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before each meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least 10 days prior
to the meeting, at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time of the meeting, and may be inspected by any stockholder who is
present. This list shall determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by each of
them.
1.6
Quorum
. Except
as otherwise provided by the Certificate of Incorporation, these Bylaws or
applicable law, the holders of a majority of the shares of the capital stock of
the corporation entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business. If a quorum shall fail to attend any meeting, the chairman
of the meeting or the holders of a majority of the shares of stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to another
place, date or time.
1.7
Adjournments
. Any
meeting of stockholders may be adjourned to any other time and to any other
place at which a meeting of stockholders may be held under these Bylaws by the
chairman of the meeting or, in the absence of such person, by any officer
entitled to preside at or to act as Secretary of such meeting, or by the holders
of a majority of the shares of stock present or represented at the meeting and
entitled to vote, although less than a quorum. When a meeting is
adjourned to another place, date or time, written notice need not be given of
the adjourned meeting if the place, date and time thereof are announced at the
meeting at which the adjournment is taken;
provided
,
however
, that if the
date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the place, date, and time of the adjourned
meeting shall be given in conformity herewith. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting.
1.8
Voting and
Proxies
. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided by applicable
law or in the Certificate of Incorporation. Each stockholder of
record entitled to vote at a meeting of stockholders may vote in person or may
authorize any other person or persons to vote or act for such stockholder by
written proxy executed by the stockholder or the stockholder’s authorized agent
or by a transmission permitted by applicable law and delivered to the Secretary
of the corporation. No stockholder may authorize more than one proxy
for the stockholder’s shares. Any copy, facsimile transmission or
other reliable reproduction of the writing or transmission created pursuant to
this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used,
provided
that such
copy, facsimile transmission or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
1.9
Action at
Meeting
. When a quorum is present at any meeting, any election
shall be determined by a plurality of the votes cast by the stockholders
entitled to vote at the election, and all other matters shall be determined by a
majority of the votes cast affirmatively or negatively on the matter (or if
there are two or more classes of stock entitled to vote as separate classes,
then in the case of each such class, a majority of each such class present or
represented and voting affirmatively or negatively on the matter shall decide
such matter), except when a different vote is required by express provision of
law, the Certificate of Incorporation or these Bylaws.
All
voting, including on the election of directors, but excepting where otherwise
required by law or the Certificate of Incorporation, may be by a voice vote;
provided
,
however
, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballot,
each of which shall state the name of the stockholder or proxy voting and such
other information as may be required under the procedure established for the
meeting. Every vote taken by ballot shall be counted by an inspector
or inspectors appointed by the chairman of the meeting. The
corporation may, and to the extent required by law or by the Certificate of
Incorporation, shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as an
alternate inspector to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting may, and to the extent required by law or by the
Certificate of Incorporation, shall, appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of
such inspector’s duties, shall take and sign an oath to faithfully execute the
duties of inspector with strict impartiality and according to the best of such
inspector’s ability.
1.10
Stockholder Action Without
Meeting
. Any action which may be taken at any annual or
special meeting of stockholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the actions so taken, is signed
by the holders of outstanding shares having not less than the minimum number of
votes which would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. All
such consents shall be filed with the Secretary of the corporation and shall be
maintained in the corporate records. Prompt notice of the taking of a
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
An
electronic transmission consenting to an action to be taken and transmitted by a
stockholder, or by a proxy holder or other person authorized to act for a
stockholder, shall be deemed to be written, signed and dated for the purpose of
this Section 1.10,
provided
that such
electronic transmission sets forth or is delivered with information from which
the corporation can determine (i) that the electronic transmission was
transmitted by the stockholder or by a person authorized to act for the
stockholder and (ii) the date on which such stockholder or authorized
person transmitted such electronic transmission. The date on which
such electronic transmission is transmitted shall be deemed to be the date on
which such consent was signed. No consent given by electronic
transmission shall be deemed to have been delivered until such consent is
reproduced in paper form and until such paper form shall be delivered to the
corporation by delivery to its principal place of business or an officer or
agent of the corporation having custody of the books in which proceedings of
meetings of stockholders are recorded.
1.11
Meetings by Remote
Communication
. If authorized by the Board of Directors, and
subject to such guidelines and procedures as the Board may adopt, stockholders
and proxy holders not physically present at a meeting of stockholders may, by
means of remote communication, participate in the meeting and be deemed present
in person and vote at the meeting, 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 proxy holder, (ii) the corporation shall
implement reasonable measures to provide such stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and
(iii) if any stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the corporation.
ARTICLE
II
BOARD
OF DIRECTORS
2.1
General
Powers
. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or by the
Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law or by
the Certificate of Incorporation, may exercise the powers of the full Board
until the vacancy is filled.
2.2
Number and Term of
Office
. The number of directors shall initially be two (2)
and, thereafter, shall be fixed from time to time by the stockholders or by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented
to the Board for adoption). All directors shall hold office until the
next annual meeting of stockholders and until their respective successors are
elected, except in the case of the death, resignation or removal of any
director.
2.3
Vacancies and Newly Created
Directorships
. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification or other cause (other than removal from office by a
vote of the stockholders) may be filled by a majority vote of the directors then
in office, though less than a quorum, or by the sole remaining director,
and directors so chosen
shall hold office for a term expiring at the next annual meeting of
stockholders. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
2.4
Resignation
. Any
director may resign by delivering notice in writing or by electronic
transmission to the Chairman of the Board (if any), the President, the Chief
Executive Officer or the Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
2.5
Removal
. Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
any directors, or the entire Board of Directors, may be removed from office at
any time, with or without cause, by the affirmative vote of the holders of a
majority of the voting power of all of the outstanding shares of capital stock
entitled to vote generally in the election of directors, voting together as a
single class. Vacancies in the Board of Directors resulting from such
removal may be filled by a majority of the directors then in office, though less
than a quorum, by the sole remaining director, or by the stockholders at the
next annual meeting or at a special meeting called in accordance with Section
1.3 above. Directors so chosen shall hold office until the next
annual meeting of stockholders.
2.6
Regular
Meetings
. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided
that
any director who is absent when such a determination is made shall be given
notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.7
Special
Meetings
. Special meetings of the Board of Directors may be
called by the Chairman of the Board (if any), the President, the Chief Executive
Officer or two or more directors and may be held at any time and place, within
or without the State of Delaware.
2.8
Notice of Special
Meetings
. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each
director by whom it is not waived by (i) giving notice to such director in
person or by telephone, electronic transmission or voice message system at least
24 hours in advance of the meeting, (ii) sending a facsimile to the
director’s last known facsimile number, or delivering written notice by hand, to
the director’s last known business or home address at least 24 hours in advance
of the meeting, or (iii) mailing written notice to the director’s last
known business or home address at least three days in advance of the
meeting. A notice or waiver of notice of a meeting of the Board of
Directors need not specify the purposes of the meeting. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
2.9
Participation in Meetings by
Telephone Conference Calls or Other Methods of
Communication
. Directors or any members of any committee
designated by the directors may participate in a meeting of the Board of
Directors or such committee 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 by such means shall constitute
presence in person at such meeting.
2.10
Quorum
. A
majority of the total number of authorized directors shall constitute a quorum
at any meeting of the Board of Directors. In the absence of a quorum
at any such meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice other than announcement at the meeting,
until a quorum shall be present. Interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or at a meeting of a committee which authorizes a particular contract or
transaction.
2.11
Action at
Meeting
. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, by the
Certificate of Incorporation or by these Bylaws.
2.12
Action by Written
Consent
. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent to the action in writing or by electronic transmission, and
the writings or electronic transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
2.13
Committees
. The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the directors of the corporation, with such lawfully
delegated powers and duties as it therefor confers, to serve at the pleasure of
the Board. The Board 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 of the committee present at any
meeting and not disqualified from voting, whether or not such committee members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution
of the Board of Directors and subject to the provisions of the Delaware General
Corporation Law, 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. Each such committee shall keep minutes
and make such reports as the Board of Directors may from time to time
request. Except as the Board of Directors may otherwise determine,
any committee may make rules for the conduct of its business, but unless
otherwise provided by such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these Bylaws for the Board of
Directors.
2.14
Compensation of
Directors
. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the
Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.15
Nomination of Director
Candidates
. Subject to the rights of holders of any class or
series of Preferred Stock then outstanding, nominations for the election of
directors may be made by (i) the Board of Directors or a duly authorized
committee thereof or (ii) any stockholder entitled to vote in the election
of directors.
ARTICLE
III
OFFICERS
3.1
Enumeration
. The
officers of the corporation shall consist of a President, a Chief Executive
Officer, a Chief Operating Officer, a Secretary, a Treasurer and such other
officers with such other titles as the Board of Directors shall determine,
including, at the discretion of the Board of Directors, a Chairman of the Board
and one or more Vice Presidents and Assistant Secretaries. The Board
of Directors may appoint such other officers as it may deem
appropriate.
3.2
Election
. Officers
shall be elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders. Officers may be
appointed by the Board of Directors at any other meeting.
3.3
Qualification
. No
officer need be a stockholder. Any two or more offices may be held by
the same person.
3.4
Tenure
. Except
as otherwise provided by law, by the Certificate of Incorporation or by these
Bylaws, each officer shall hold office until such officer’s successor is elected
and qualified, unless a different term is specified in the vote appointing such
officer, or until such officer’s earlier death, resignation or
removal.
3.5
Resignation and
Removal
. Any officer may resign by delivering a written
resignation to the corporation at its principal office or to the President, the
Chief Executive Officer or the Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event. Any officer elected by the
Board of Directors may be removed at any time, with or without cause, by the
Board of Directors.
3.6
Chairman of the
Board
. The Board of Directors may appoint a Chairman of the
Board. If the Board of Directors appoints a Chairman of the Board,
the Chairman shall perform such duties and possess such powers as are assigned
to such officer by the Board of Directors. Unless otherwise provided
by the Board of Directors, the Chairman shall preside at all meetings of the
stockholders, and, if the Chairman is a director, at all meetings of the Board
of Directors.
3.7
President
. The
President shall, subject to the direction of the Board of Directors, have
responsibility for the general management and control of the business and
affairs of the corporation and shall perform all duties and have all powers
which are commonly incident to the office of President or which are delegated to
such officer by the Board of Directors. Unless otherwise designated
by the Board of Directors, the President shall be the Chief Executive Officer of
the corporation. The President shall, in the absence of or because of
the inability to act of the Chairman of the Board, perform all duties of the
Chairman of the Board and preside at all meetings of the Board of Directors and
of the stockholders. The President shall perform such other duties
and shall have such other powers as the Board of Directors may from time to time
prescribe. The President shall have power to sign stock certificates,
contracts and other instruments of the corporation which are authorized and
shall have general supervision and direction of all of the other officers,
employees and agents of the corporation, other than the Chairman of the
Board.
3.8
Chief Executive
Officer
. The Chief Executive Officer shall, subject to the
direction of the Board of Directors and the President, have responsibility for
the general management and control of the business and affairs of the
corporation and shall perform all duties and have all powers which are commonly
incident to the office of Chief Executive Officer or which are delegated to such
officer by the Board of Directors. The Chief Executive Officer shall
perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe. The Chief Executive
Officer shall have power to sign contracts and other instruments of the
corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the corporation,
other than the Chairman of the Board and the President.
3.9
Vice
Presidents
. Any Vice President shall perform such duties and
possess such powers as the Board of Directors, the President or the Chief
Executive Officer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the President and the Chief
Executive Officer, the Vice President (or if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors) shall perform
the duties of the President and when so performing shall have all the powers of
and be subject to all the restrictions upon the President. The Board
of Directors may assign to any Vice President the title of Executive Vice
President, Senior Vice President or any other title selected by the Board of
Directors.
3.10
Secretary and Assistant
Secretaries
. The Secretary shall perform such duties and shall
have such powers as the Board of Directors, the President or the Chief Executive
Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the Secretary, including, without limitation, the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to keep a record of the proceedings of all meetings of stockholders and the
Board of Directors, to maintain a stock ledger and prepare lists of stockholders
and their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such powers as the
Board of Directors, the President, the Chief Executive Officer or the Secretary
may from time to time prescribe. In the event of the absence,
inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of
the Secretary.
In the
absence of the Secretary or any Assistant Secretary at any meeting of
stockholders or directors, the person presiding at the meeting shall designate a
temporary secretary to keep a record of the meeting.
3.11
Treasurer
. The
Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation, the duty and power to keep
and be responsible for all funds and securities of the corporation, to maintain
the financial records of the corporation, to deposit funds of the corporation in
depositories as authorized, to disburse such funds as authorized, to make proper
accounts of such funds, and to render as required by the Board of Directors
accounts of all such transactions and of the financial condition of the
corporation.
3.12
Salaries
. Officers
of the corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
3.13
Delegation of
Authority
. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
ARTICLE
IV
CAPITAL
STOCK
4.1
Issuance of
Stock
. Subject to the provisions of the Certificate of
Incorporation, the whole or any part of any unissued balance of the authorized
capital stock of the corporation or the whole or any part of any unissued
balance of the authorized capital stock of the corporation held in its treasury
may be issued, sold, transferred or otherwise disposed of by vote of the Board
of Directors in such manner, for such consideration and on such terms as the
Board of Directors may determine.
4.2
Certificates of
Stock
. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and by
the Board of Directors, certifying the number and class of shares owned by such
stockholder in the corporation, unless the Board of Directors approves by
resolution that shares may also be uncertificated consistent with the
DGCL. Each such certificate shall be signed by, or in the name of the
corporation by, the Chairman or Vice Chairman, if any, of the Board of
Directors, or the President or a Vice President, and 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.
Each
certificate for shares of stock which are subject to any restriction on transfer
pursuant to the Certificate of Incorporation, these Bylaws, applicable
securities laws or any agreement among any number of stockholders or among such
holders and the corporation shall have conspicuously noted on the face or back
of the certificate either the full text of the restriction or a statement of the
existence of such restriction.
4.3
Transfers
. Except
as otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law and the Certificate of Incorporation,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the corporation or its transfer agent
may reasonably require. Except as may be otherwise required by law,
by the Certificate of Incorporation or by these Bylaws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the corporation in accordance with the requirements of these
Bylaws.
4.4
Lost, Stolen or Destroyed
Certificates
. The corporation may issue a new certificate of
stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including the presentation of reasonable evidence of such loss,
theft or destruction and the giving of such indemnity as the Board of Directors
may require for the protection of the corporation or any transfer agent or
registrar.
4.5
Record
Date
. The Board of Directors may fix in advance a record date
for the determination of the stockholders entitled to notice of or to vote at
any meeting of stockholders or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change, concession or
exchange of stock, or for the purpose of any other lawful
action. Such record date shall not precede the date on which the
resolution fixing the record date is adopted and shall not be more than 60 nor
less than 10 days before the date of such meeting, nor more than 60 days prior
to any other action to which such record date relates.
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 before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action by
the Board of Directors is necessary, shall be the day on which the first written
consent is expressed. The record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating to such purpose.
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.
ARTICLE
V
GENERAL
PROVISIONS
5.1
Fiscal
Year
. The fiscal year of the corporation shall be as fixed by
the Board of Directors.
5.2
Corporate
Seal
. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3
Waiver of
Notice
. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these Bylaws, a waiver of such
notice either in writing signed by the person entitled to such notice or such
person’s duly authorized attorney, or by electronic transmission or any other
method permitted under the Delaware General Corporation Law, whether before, at
or after the time stated in such waiver, or the appearance of such person or
persons at such meeting in person or by proxy, shall be deemed equivalent to
such notice. 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 attendance for the sole purpose of objecting
to the timeliness of notice.
5.4
Actions with Respect to
Securities of Other Corporations
. Except as the Board of
Directors may otherwise designate, the President or Chief Executive Officer or
any officer of the corporation authorized by the President or Chief Executive
Officer shall have the power to vote and otherwise act on behalf of the
corporation, in person or proxy, and may waive notice of, and act as, or appoint
any person or persons to act as, proxy or attorney-in-fact to this corporation
(with or without power of substitution) at any meeting of stockholders (or with
respect to any action of stockholders) of any other corporation or organization,
the securities of which may be held by this corporation and otherwise to
exercise any and all rights and powers which this corporation may possess by
reason of this corporation’s ownership of securities in such other corporation
or other organization.
5.5
Evidence of
Authority
. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6
Certificate of
Incorporation
. All references in these Bylaws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to
time.
5.7
Severability
. Any
determination that any provision of these Bylaws is for any reason inapplicable,
illegal or ineffective shall not affect or invalidate any other provision of
these Bylaws.
5.8
Pronouns
. All
pronouns used in these Bylaws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or persons
may require.
5.9
Notices
. Except
as otherwise specifically provided herein or required by law or by the
Certificate of Incorporation, all notices required to be given to any
stockholder, director, officer, employee or agent shall be in writing and may in
every instance be effectively given by hand delivery to the recipient thereof,
by depositing such notice in the mails, postage paid, or by sending such notice
by commercial courier service, or by facsimile or other electronic transmission;
provided
that
notice to stockholders by electronic transmission shall be given in the manner
provided in Section 232 of the Delaware General Corporation
Law. Any such notice shall be addressed to such stockholder,
director, officer, employee or agent at such person’s last known address as the
same appears on the books of the corporation. The time when such
notice shall be deemed to be given shall be the time such notice is received by
such stockholder, director, officer, employee or agent, or by any person
accepting such notice on behalf of such person, if delivered by hand, facsimile,
other electronic transmission or commercial courier service, or the time such
notice is dispatched, if delivered through the mails. Without
limiting the manner by which notice otherwise may be given effectively, notice
to any stockholder shall be deemed given: (a) if by facsimile,
when directed to a number at which the stockholder has consented to receive
notice; (b) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (c) if by
a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (i) such posting
and (ii) the giving of such separate notice; (d) if by any other form
of electronic transmission, when directed to the stockholder; and (e) if by
mail, when deposited in the mail, postage prepaid, directed to the stockholder
at such stockholder’s address as it appears on the records of the
corporation.
5.10
Reliance Upon Books, Reports
and Records
. Each director, each member of any committee
designated by the Board of Directors, and each officer of the corporation shall,
in the performance of such person’s duties, be fully protected in relying in
good faith upon the books of account or other records of the corporation,
including reports made to the corporation by any of its officers, by an
independent certified public accountant, or by an appraiser selected with
reasonable care.
5.11
Time
Periods
. In applying any provision of these Bylaws which
require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior
to an event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
5.12
Facsimile
Signatures
. In addition to the provisions for use of facsimile
signatures elsewhere specifically authorized in these Bylaws, facsimile
signatures of any officer or officers of the corporation may be used whenever
and as authorized by the Board of Directors or a committee thereof.
ARTICLE
VI
AMENDMENTS
6.1
By the Board of
Directors
. Except as is otherwise set forth in these Bylaws or
in the Certificate of Incorporation, these Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2
By the
Stockholders
. Except as otherwise set forth in these Bylaws or
in the Certificate of Incorporation, these Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the affirmative vote of the holders of
at least a majority of the voting power of all of the shares of capital stock of
the corporation issued and outstanding and entitled to vote generally in any
election of directors, voting together as a single class. Such vote
may be held at any annual meeting of stockholders, or at any special meeting of
stockholders;
provided
that notice
of such alteration, amendment, repeal or adoption of new Bylaws shall have been
stated in the notice of such special meeting.
ARTICLE
VII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
7.1
Right to
Indemnification
. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(“proceeding”), by reason of the fact that such person is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director or officer of another corporation, or as a controlling
person of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, 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 against
all expenses, liability and loss reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of
such person’s heirs, executors and administrators;
provided
,
however
, that except
as provided in Section 7.2 of this Article VII, the corporation shall
indemnify any such person seeking indemnity in connection with a proceeding (or
part thereof) initiated by such person only if (a) such indemnification is
expressly required to be made by law or by the Certificate of Incorporation,
(b) the proceeding (or part thereof) was authorized by the Board of
Directors of the corporation, (c) such indemnification is provided by the
corporation, in its sole discretion, pursuant to the powers vested in the
corporation under the Delaware General Corporation Law, or (d) the
proceeding (or part thereof) is brought to establish or enforce a right to
indemnification or advancement under an indemnity agreement or any other statute
or law or otherwise as required under Section 145 of the Delaware General
Corporation Law. The rights hereunder shall be contract rights and
shall include the right to be paid expenses incurred in defending any such
proceeding in advance of its final disposition;
provided
,
however
, that the
payment of such expenses incurred by a director or officer of the corporation in
such person’s capacity as a director or officer in advance of the final
disposition of such proceeding, shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined by judicial decision
that such director or officer is not entitled to be indemnified under this
section or otherwise.
7.2
Right of Claimant to Bring
Suit
. If a claim under Section 7.1 is not paid in full by
the corporation within 60 days after a written claim has been received by the
corporation, or 20 days in the case of a claim for advancement of expenses, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if such suit is not frivolous or
brought in bad faith, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to this corporation) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant 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 stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that claimant has not met the
applicable standard of conduct. In any suit brought by 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
judicial decision that the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
7.3
Indemnification of Employees
and Agents
. 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 related expenses, to any employee or agent of the corporation
to the fullest extent of the provisions of this Article with respect to the
indemnification of and advancement of expenses to directors and officers of the
corporation.
7.4
Non-Exclusivity of
Rights
. The rights conferred on any person in this Article VII
shall not be exclusive of any other right which such persons may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
7.5
Indemnification
Contracts
. The Board of Directors is authorized to enter into
a contract with any director, officer, employee or agent of the corporation, or
any person serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including employee benefit plans, providing for
indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this
Article VII.
7.6
Insurance
. The
corporation may maintain insurance to the extent reasonably available, at its
expense, to protect itself and any such director, officer, employee or agent of
the corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such 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.
7.7
Effect of
Amendment
. Any amendment, repeal or modification of any
provision of this Article VII shall not adversely affect any right or
protection of an indemnitee or successor thereto in respect of any act or
omission occurring prior to such amendment, repeal or modification.