BYLAWS
OF
PIONEER
POWER SOLUTIONS, INC.
____________________________________________
a
Delaware corporation
ARTICLE
1
|
OFFICES
|
|
1
|
|
|
|
|
|
Section
1.1
|
Registered
Office
|
1
|
|
|
|
|
|
Section
1.2
|
Other
Offices
|
1
|
|
|
|
|
ARTICLE
2
|
STOCKHOLDERS’
MEETINGS
|
1
|
|
|
|
|
|
Section
2.1
|
Place
of Meetings
|
1
|
|
|
|
|
|
Section
2.2
|
Annual
Meetings
|
2
|
|
|
|
|
|
Section
2.3
|
Special
Meetings
|
2
|
|
|
|
|
|
Section
2.4
|
Notice
of Meetings
|
2
|
|
|
|
|
|
Section
2.5
|
Quorum
and Voting
|
3
|
|
|
|
|
|
Section
2.6
|
Voting
Rights
|
4
|
|
|
|
|
|
Section
2.7
|
Voting
Procedures and Inspectors of Elections
|
5
|
|
|
|
|
|
Section
2.8
|
List
of Stockholders
|
6
|
|
|
|
|
|
Section
2.9
|
Action
Without Meeting
|
6
|
|
|
|
|
ARTICLE
3
|
DIRECTORS
|
|
7
|
|
|
|
|
|
Section
3.1
|
Number
and Term of Office
|
7
|
|
|
|
|
|
Section
3.2
|
Powers
|
8
|
|
|
|
|
|
Section
3.3
|
Vacancies
|
8
|
|
|
|
|
|
Section
3.4
|
Resignations
and Removals
|
8
|
|
|
|
|
|
Section
3.5
|
Meetings
|
8
|
|
|
|
|
|
Section
3.6
|
Quorum
and Voting
|
9
|
|
|
|
|
|
Section
3.7
|
Action
Without Meeting
|
9
|
|
|
|
|
|
Section
3.8
|
Fees
and Compensation
|
10
|
|
|
|
|
|
Section
3.9
|
Committees
|
10
|
|
|
|
|
ARTICLE
4
|
OFFICERS
|
|
11
|
|
|
|
|
|
Section
4.1
|
Officers
Designated
|
11
|
|
|
|
|
|
Section
4.2
|
Tenure
and Duties of Officers
|
11
|
|
|
|
|
ARTICLE
5
|
EXECUTION
OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
|
12
|
|
|
|
|
|
Section
5.1
|
Execution
of Corporate Instruments
|
12
|
|
|
|
|
|
Section
5.2
|
Voting
of Securities Owned by Corporation
|
12
|
|
|
|
|
ARTICLE
6
|
SHARES
OF STOCK
|
13
|
|
|
|
|
|
Section
6.1
|
Form
and Execution of Certificates
|
13
|
|
|
|
|
|
Section
6.2
|
Lost
Certificates
|
13
|
|
|
|
|
|
Section
6.3
|
Transfers
|
13
|
|
|
|
|
|
Section
6.4
|
Fixing
Record Dates
|
13
|
|
|
|
|
|
Section
6.5
|
Registered
Stockholders
|
14
|
|
|
|
|
ARTICLE
7
|
OTHER
SECURITIES OF THE CORPORATION
|
15
|
|
|
|
|
ARTICLE
8
|
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
|
15
|
|
|
|
|
|
Section
8.1
|
Right
to Indemnification
|
15
|
|
|
|
|
|
Section
8.2
|
Authority
to Advance Expenses
|
16
|
|
|
|
|
|
Section
8.3
|
Right
of Claimant to Bring Suit
|
16
|
|
|
|
|
|
Section
8.4
|
Provisions
Nonexclusive
|
16
|
|
|
|
|
|
Section
8.5
|
Authority
to Insure
|
17
|
|
|
|
|
|
Section
8.6
|
Survival
of Rights
|
17
|
|
|
|
|
|
Section
8.7
|
Settlement
of Claims
|
17
|
|
|
|
|
|
Section
8.8
|
Effect
of Amendment
|
17
|
|
|
|
|
|
Section
8.9
|
Subrogation
|
17
|
|
|
|
|
|
Section
8.10
|
No
Duplication of Payments
|
17
|
|
|
|
|
ARTICLE
9
|
NOTICES
|
|
18
|
|
|
|
|
ARTICLE
10
|
AMENDMENTS
|
|
19
|
BYLAWS
OF
PIONEER
POWER SOLUTIONS, INC.
ARTICLE
1
OFFICES
Section
1.1
Registered
Office.
The
registered office of PIONEER POWER SOLUTIONS, INC. (hereinafter, the
“corporation”) in the State of Delaware shall be The Corporation Trust Company,
1209 Orange Street, County of Newcastle, State of Delaware,19801.
Section
1.2
Other
Offices.
The
corporation may also have and maintain an office or principal place of business
at such other places, both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the corporation
may require.
ARTICLE
2
STOCKHOLDERS’
MEETINGS
Section
2.1
Place
of Meetings.
(a)
Meetings
of stockholders may be held at such place, either within or without this State,
as may be designated by or in the manner provided in these bylaws or, if not so
designated, as determined by the Board of Directors. The Board of
Directors may, in its sole discretion, determine that the meeting shall not be
held at any place, but may instead be held solely by means of remote
communication as authorized by paragraph (b) of this Section 2.1.
(b)
If
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication:
(1)
Participate
in a meeting of stockholders; and
(2)
Be deemed
present in person and vote at a meeting of stockholders whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (A) the corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder, (B) the corporation shall
implement reasonable measures to provide such stockholders and proxyholders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and
(C) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be
maintained by the corporation.
(c)
For
purposes of this Section 2.1, “remote communication” shall include
(1) telephone or other voice communications and (2) electronic mail or
other form of written or visual electronic communications satisfying the
requirements of Section 2.11(b).
Section
2.2
Annual
Meetings.
The
annual meetings of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors.
Section
2.3
Special
Meetings.
Special
Meetings of the stockholders of the corporation may be called, for any purpose
or purposes, by the Chairman of the Board or the President or the Board of
Directors at any time.
Section
2.4
Notice
of Meetings.
(a)
Except as
otherwise provided by law or the Certificate of Incorporation, written notice of
each meeting of stockholders, specifying the place, if any, date and hour and
purpose or purposes of the meeting, and the means of remote communication, if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of the
corporation; except that where the matter to be acted on is a merger or
consolidation of the Corporation or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than 20 nor
more than 60 days prior to such meeting.
(b)
If at any
meeting action is proposed to be taken which, if taken, would entitle
shareholders fulfilling the requirements of section 262(d) of the Delaware
General Corporation Law to an appraisal of the fair value of their shares, the
notice of such meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c)
When a
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting, are announced at the
meeting at which the adjournment is taken unless the adjournment is for more
than thirty days, or unless after the adjournment a new record date is fixed for
the adjourned meeting, in which event a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting.
(d)
Notice of
the time, place and purpose of any meeting of stockholders may be waived in
writing, either before or after such meeting, and, to the extent permitted by
law, will be waived by any stockholder by his attendance thereat, in person or
by proxy. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
(e)
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any
provision of Delaware General Corporation Law, the certificate of incorporation,
or these bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such
consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (i) the
corporation is unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent, and (ii) such
inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent or other person responsible for the giving
of notice; provided, however, the inadvertent failure to treat such inability as
a revocation shall not invalidate any meeting or other action. Notice
given pursuant to this subparagraph (e) shall be deemed given: (1) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (2) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice; (3) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, upon the later of
(A) such posting and (B) the giving of such separate notice; and (4) if by any
other form of electronic transmission, when directed to the
stockholder. An affidavit of the secretary or an assistant secretary
or of the transfer agent or other agent of the corporation that the notice has
been given by a form of electronic transmission shall, in the absence of fraud,
be prima facie evidence of the facts stated therein. For purposes of
these bylaws, “electronic transmission” means any form of communication, not
directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that
may be directly reproduced in paper form by such a recipient through an
automated process.
Section
2.5
Quorum
and Voting.
(a)
At all
meetings of stockholders except where otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding shares of stock
entitled to vote shall constitute a quorum for the transaction of business.
Shares, the voting of which at said meeting have been enjoined, or which for any
reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by vote of the
holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted which
might have been transacted at the original meeting. The stockholders
present at a duly called or convened meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
(b)
Except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws, all
action taken by the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding upon the
corporation.
Section
2.6
Voting
Rights.
(a)
Except as
otherwise provided by law, only persons in whose names shares entitled to vote
stand on the stock records of the corporation on the record date for determining
the stockholders entitled to vote at said meeting shall be entitled to vote at
such meeting. Shares standing in the names of two or more persons
shall be voted or represented in accordance with the determination of the
majority of such persons, or, if only one of such persons is present in person
or represented by proxy, such person shall have the right to vote such shares
and such shares shall be deemed to be represented for the purpose of determining
a quorum.
(b)
Every
person entitled to vote or to execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent, which proxy shall be filed with the
Secretary of the corporation at or before the meeting at which it is to be
used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three (3) years from
its date unless the proxy provides for a longer period. Unless and
until voted, every proxy shall be revocable at the pleasure of the person who
executed it or of his legal representatives or assigns, except in those cases
where an irrevocable proxy permitted by statute has been given.
(c)
Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection (b) of this section, the
following shall constitute a valid means by which a stockholder may grant such
authority:
(1)
A
stockholder may execute a writing authorizing another person or persons to act
for him as proxy. Execution may be accomplished by the stockholder or
his authorized officer, director, employee or agent signing such writing or
causing his or her signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2)
A
stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telephone, telegram, cablegram
or other means of electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support service organization
or like agent duly authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such telephone, telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telephone,
telegram, cablegram or other electronic transmission was authorized by the
stockholder. Such authorization can be established by the signature
of the stockholder on the proxy, either in writing or by a signature stamp or
facsimile signature, or by a number or symbol from which the identity of the
stockholder can be determined, or by any other procedure deemed appropriate by
the inspectors or other persons making the determination as to due
authorization.
If it is
determined that such telegrams, cablegrams or other electronic transmissions are
valid, the inspectors or, if there are no inspectors, such other persons making
that determination shall specify the information upon which they
relied.
(d)
Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection (c) of 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 telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or
transmission.
Section
2.7
Voting
Procedures and Inspectors of Elections.
(a)
The
corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b)
The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
(c)
The date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless the Court of Chancery upon application by a stockholder shall
determine otherwise.
(d)
In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
those proxies, any information provided in accordance with Sections 211(e) or
212(c)(2) of the Delaware General Corporation Law, or any information provided
pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular
books and records of the corporation, except that the inspectors may consider
other reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds of
record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b)(v) of this section shall specify the
precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors’ belief that
such information is accurate and reliable.
Section
2.8
List
of Stockholders.
The
officer who has charge of the stock ledger of the corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at said meeting, arranged in alphabetical
order, showing the address of and the number of shares registered in the name of
each stockholder. The corporation need not include electronic mail
addresses or other electronic contact information on such list. Such
list shall be open to the examination of any stockholder for any purpose germane
to the meeting for a period of at least 10 days prior to the
meeting: (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours at
the principal place of business of the corporation. In the event that
the corporation determines to make the list available on an electronic network,
the corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is
to be held at a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
Section
2.9
Action
Without Meeting.
(a)
Unless
otherwise provided in the Certificate of Incorporation, any action required by
statute to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing setting forth the action so
taken are signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. To be effective, a written consent must be delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation’s registered office shall be
by hand or by certified or registered mail, return receipt
requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by this
Section to the corporation, written consents signed by a sufficient number of
holders to take action are delivered to the corporation in accordance with this
Section. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
(b)
A
telegram, cablegram or other electronic transmission consent to an action to be
taken and transmitted by a stockholder or proxyholder, or by a person or persons
authorized to act for a stockholder or proxyholder, shall be deemed to be
written, signed and dated for the purposes of this section, provided that any
such telegram, cablegram or other electronic transmission sets forth or is
delivered with information from which the corporation can determine
(i) that the telegram, cablegram or other electronic transmission was
transmitted by the stockholder or proxyholder or by a person or persons
authorized to act for the stockholder or proxyholder, and (ii) the date on
which such stockholder or proxyholder or authorized person or persons
transmitted such telegram, cablegram or electronic transmission. The
date on which such telegram, cablegram or electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. No
consent given by telegram, cablegram or other electronic transmission shall be
deemed to have been delivered until such consent is reproduced in paper form and
until such paper form shall be delivered to the corporation by delivery to its
registered office in this State, its principal place of business or an officer
or agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to a
corporation’s registered office shall be made by hand or by certified or
registered mail, return receipt requested. Notwithstanding the
foregoing limitations on delivery, consents given by telegram, cablegram or
other electronic transmission may be otherwise delivered to the principal place
of business of the corporation or to an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded if to the extent and in the manner provided by resolution of the Board
of Directors of the corporation.
(c)
Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used, provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire original
writing.
ARTICLE
3
DIRECTORS
Section
3.1
Number
and Term of Office.
The
number of directors of the corporation shall not be less than one (1) nor
more than ten (10) until changed by amendment of the Certificate of
Incorporation or by a Bylaw amending this Section 3.1 duly adopted by the vote
or written consent of holders of a majority of the outstanding shares or by the
Board of Directors. The exact number of directors shall be fixed from
time to time, within the limits specified in the Certificate of Incorporation or
in this Section 3.1, by a bylaw or amendment thereof duly adopted by the
vote of a majority of the shares entitled to vote represented at a duly held
meeting at which a quorum is present, or by the written consent of the holders
of a majority of the outstanding shares entitled to vote, or by the Board of
Directors. Subject to the foregoing provisions for changing the
number of directors, the number of directors of the corporation has been fixed
at seven (7).
With the
exception of the first Board of Directors, which shall be elected by the
incorporators, and except as provided in Section 3.3 of this Article III, the
directors shall be elected by a plurality vote of the shares represented in
person or by proxy, at the stockholders annual meeting in each year and entitled
to vote on the election of directors. Elected directors shall hold
office until the next annual meeting
and until their
successors shall be duly elected and qualified. Directors need not be
stockholders. If, for any cause, the Board of Directors shall not
have been elected at an annual meeting, they may be elected as soon thereafter
as convenient at a special meeting of the stockholders called for that purpose
in the manner provided in these Bylaws.
Section
3.2
Powers.
The
powers of the corporation shall be exercised, its business conducted and its
property controlled by or under the direction of the Board of
Directors.
Section
3.3
Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant and until his successor shall have been
duly elected and qualified. A vacancy in the Board of Directors shall
be deemed to exist under this section in the case of the death, removal or
resignation of any director, or if the stockholders fail at any meeting of
stockholders at which directors are to be elected (including any meeting
referred to in Section 3.4 below) to elect the number of directors then
constituting the whole Board.
Section
3.4
Resignations
and Removals.
(a)
Any
director may resign at any time by delivering his resignation to the Secretary
in writing or by electronic transmission, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made
it shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the Board
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office for the
unexpired portion of the term of the director whose place shall be vacated and
until his successor shall have been duly elected and qualified.
(b)
At a
special meeting of stockholders called for the purpose in the manner hereinabove
provided, the Board of Directors or any individual director may be removed from
office, with or without cause, and a new director or directors elected by a vote
of stockholders holding a majority of the outstanding shares entitled to vote at
an election of directors.
Section
3.5
Meetings.
(a)
The
annual meeting of the Board of Directors shall be held immediately after the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the Chairman at such meeting. No notice of an
annual meeting of the Board of Directors shall be necessary, and such meeting
shall be held for the purpose of electing officers and transacting such other
business as may lawfully come before it.
(b)
Except as
hereinafter otherwise provided, regular meetings of the Board of Directors shall
be held in the office of the corporation required to be maintained pursuant to
Section 1.2 of Article I hereof. Regular meetings of the
Board of Directors may also be held at any place, within or without the State of
Delaware, which has been designated by resolutions of the Board of Directors or
the written consent of all directors.
(c)
Special
meetings of the Board of Directors may be held at any time and place within or
without the State of Delaware whenever called by the Chairman of the Board or,
if there is no Chairman of the Board, by the President, or by any of the
directors.
(d)
Written
notice of the time and place of all regular and special meetings of the Board of
Directors shall be delivered personally to each director or sent by telegram or
facsimile transmission or other form of electronic transmission at least
48 hours before the start of the meeting, or sent by first class mail at
least 120 hours before the start of the meeting. Notice of any
meeting may be waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat.
Section
3.6
Quorum
and Voting.
(a)
A quorum
of the Board of Directors shall consist of a majority of the exact number of
directors fixed from time to time in accordance with Section 3.1 of
Article III of these Bylaws, but not less than one; provided, however, at
any meeting whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time fixed for the
next regular meeting of the Board of Directors, without notice other than by
announcement at the meeting.
(b)
At each
meeting of the Board at which a quorum is present, all questions and business
shall be determined by a vote of a majority of the directors present, unless a
different vote be required by law, the Certificate of Incorporation, or these
Bylaws.
(c)
Any
member of the Board of Directors, or of any committee thereof, may participate
in a meeting by means of conference telephone or other communication equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence in person
at such meeting.
(d)
The
transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had at
a meeting duly held after regular call and notice if a quorum be present and if,
either before or after the meeting, each of the directors not present shall sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section
3.7
Action
Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or of such committee, as the case may be, consent thereto
in writing or by electronic transmission, and such writing or writings or
electronic transmission or 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.
Section
3.8
Fees
and Compensation.
Directors
and members of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or determined by
resolution of the Board of Directors.
Section
3.9
Committees.
(a)
Executive
Committee:
The Board of Directors may appoint an Executive
Committee of not less than one member, each of whom shall be a
director. The Executive Committee, to the extent permitted by law,
shall have and may exercise when the Board of Directors is not in session all
powers of the Board in the management of the business and affairs of the
corporation, except such committee shall not have the power or authority to
amend these Bylaws or to approve or recommend to the stockholders any action
which must be submitted to stockholders for approval under the General
Corporation Law.
(b)
Other Committees:
The Board of
Directors may, by resolution passed by a majority of the whole Board, from time
to time appoint such other committees as may be permitted by
law. Such other committees appointed by the Board of Directors shall
have such powers and perform such duties as may be prescribed by the resolution
or resolutions creating such committee, but in no event shall any such committee
have the powers denied to the Executive Committee in these Bylaws.
(c)
Term:
The terms of
members of all committees of the Board of Directors shall expire on the date of
the next annual meeting of the Board of Directors following their appointment;
provided that they shall continue in office until their successors are
appointed. The Board, subject to the provisions of
subsections (a) or (b) of this Section 3.9, may at any time
increase or decrease the number of members of a committee or terminate the
existence of a committee; provided that no committee shall consist of less than
one member. The membership of a committee member shall terminate on
the date of his death or voluntary resignation, but the Board may at any time
for any reason remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee, and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they 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.
(d)
Meetings:
Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this
Section 3.9 shall be held at such times and places as are determined by the
Board of Directors, or by any such committee, and when notice thereof has been
given to each member of such committee, no further notice of such regular
meetings need be given thereafter; special meetings of any such committee may be
held at the principal office of the corporation required to be maintained
pursuant to Section 1.2 of Article I hereof; or at any place which has
been designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who is a
member of such committee upon written notice to the members of such committee of
the time and place of such special meeting given in the manner provided for the
giving of written notice to members of the Board of Directors of the time and
place of special meetings of the Board of Directors. Notice of any
special meeting of any committee may be waived in writing at any time after the
meeting and will be waived by any director by attendance thereat. A
majority of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a majority
of those present at any meeting at which a quorum is present shall be the act of
such committee.
ARTICLE
4
OFFICERS
Section
4.1
Officers
Designated.
The
officers of the corporation shall be a President, a Secretary and a
Treasurer. The Board of Directors or the President may also appoint a
Chairman of the Board, one or more Vice-Presidents, assistant secretaries,
assistant treasurers, and such other officers and agents with such powers and
duties as it or he shall deem necessary. The order of the seniority
of the Vice- Presidents shall be in the order of their nomination unless
otherwise determined by the Board of Directors. The Board of
Directors may assign such additional titles to one or more of the officers as
they shall deem appropriate. Any one person may hold any number of
offices of the corporation at any one time unless specifically prohibited
therefrom by law. The salaries and other compensation of the officers
of the corporation shall be fixed by or in the manner designated by the Board of
Directors.
Section
4.2
Tenure
and Duties of Officers.
(a)
General:
All
officers shall hold office at the pleasure of the Board of Directors and until
their successors shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of Directors
may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. Nothing in these Bylaws shall be construed as
creating any kind of contractual right to employment with the
corporation.
(b)
Duties of the Chairman of the Board
of Directors:
The Chairman of the Board of Directors (if there be such an
officer appointed) when present shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
(c)
Duties of
President:
The President shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors, unless the Chairman
of the Board of Directors has been appointed and is present. The
President shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
(d)
Duties of
Vice-Presidents:
The Vice-Presidents, in the order of their
seniority, may assume and perform the duties of the President in the absence or
disability of the President or whenever the office of the President is
vacant. The Vice-President shall perform such other duties and have
such other powers as the Board of Directors or the President shall designate
from time to time.
(e)
Duties of
Secretary:
The Secretary shall attend all meetings of the
stockholders and of the Board of Directors and any committee thereof, and shall
record all acts and proceedings thereof in the minute book of the corporation,
which may be maintained in either paper or electronic form. The
Secretary shall give notice, in conformity with these Bylaws, of all meetings of
the stockholders and of all meetings of the Board of Directors and any Committee
thereof requiring notice. The Secretary shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time. The President may direct any assistant secretary to
assume and perform the duties of the Secretary in the absence or disability of
the Secretary, and each assistant secretary shall perform such other duties and
have such other powers as the Board of Directors or the President shall
designate from time to time.
(f)
Duties of
Treasurer:
The Treasurer shall keep or cause to be kept the
books of account of the corporation in a thorough and proper manner, and shall
render statements of the financial affairs of the corporation in such form and
as often as required by the Board of Directors or the President. The
Treasurer, subject to the order of the Board of Directors, shall have the
custody of all funds and securities of the corporation. The Treasurer
shall perform all other duties commonly incident to his office and shall perform
such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time. The President may direct
any assistant treasurer to assume and perform the duties of the Treasurer in the
absence or disability of the Treasurer, and each assistant treasurer shall
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
ARTICLE
5
EXECUTION
OF CORPORATE INSTRUMENTS, AND
VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section
5.1
Execution
of Corporate Instruments.
(a)
The Board
of Directors may in its discretion determine the method and designate the
signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b)
Unless
otherwise specifically determined by the Board of Directors or otherwise
required by law, formal contracts of the corporation, promissory notes, deeds of
trust, mortgages and other evidences of indebtedness of the corporation, and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any assistant secretary or
assistant treasurer. All other instruments and documents requiring
the corporate signature but not requiring the corporate seal may be executed as
aforesaid or in such other manner as may be directed by the Board of
Directors.
(c)
All
checks and drafts drawn on banks or other depositaries on funds to the credit of
the corporation or in special accounts of the corporation shall be signed by
such person or persons as the Board of Directors shall authorize so to
do.
(d)
Execution
of any corporate instrument may be effected in such form, either manual,
facsimile or electronic signature, as may be authorized by the Board of
Directors.
Section
5.2
Voting
of Securities Owned by Corporation.
All stock
and other securities of other corporations owned or held by the corporation for
itself or for other parties in any capacity shall be voted, and all proxies with
respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or by the
President, or by any Vice-President.
ARTICLE
6
SHARES
OF STOCK
Section
6.1
Form
and Execution of Certificates.
The
shares 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 its 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 the shares of stock of the corporation
shall be in such form as is consistent with the Certificate of Incorporation and
applicable law. Every holder of stock in the corporation shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the Chairman of the Board (if there be such an officer appointed), or by the
President or any Vice-President and by the Treasurer or assistant treasurer or
the Secretary or assistant secretary, certifying the number of shares owned by
him in the corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent, or registrar at the date of
issue. If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the Delaware General Corporation Law,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
Section
6.2
Lost
Certificates.
The Board
of Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the corporation alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate of stock to be lost or
destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to indemnify the
corporation in such manner as it shall require and/or to give the corporation a
surety bond in such form and amount as it may direct as indemnity against any
claim that may be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
Section
6.3
Transfers.
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and upon
the surrender of a certificate or certificates for a like number of shares,
properly endorsed.
Section
6.4
Fixing
Record Dates.
(a)
In order
that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the date on
which the meeting is held. A determination of stockholders of record
entitled 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.
(b)
In order
that the corporation may determine the stockholders entitled to consent to
corporate action in writing or by electronic transmission without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing or by electronic transmission without a meeting,
when no prior action by the Board of Directors is required by the Delaware
General Corporation Law, shall be the first date on which a signed written
consent or electronic transmission setting forth the action taken or proposed to
be taken is delivered to the corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded; provided that any such electronic transmission shall
satisfy the requirements of Section 2.11(b) and, unless the Board of Directors
otherwise provides by resolution, no such consent 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 registered office in Delaware, its principal place of business or an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made
to a corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors is
required by law, the record date for determining stockholders entitled to
consent to corporate action in writing or by electronic transmission without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c)
In order
that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto.
Section
6.5
Registered
Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE
7
OTHER
SECURITIES OF THE CORPORATION
All
bonds, debentures and other corporate securities of the corporation, other than
stock certificates, may be signed by the Chairman of the Board (if there be such
an officer appointed), or the President or any Vice-President or such other
person as may be authorized by the Board of Directors and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested by
the signature of the Secretary or an assistant secretary, or the Treasurer or an
assistant treasurer; provided, however, that where any such bond, debenture or
other corporate security shall be authenticated by the manual signature of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or
other corporate security, authenticated by a trustee as aforesaid, shall be
signed by the Treasurer or an assistant treasurer of the corporation, or such
other person as may be authorized by the Board of Directors, or bear imprinted
thereon the facsimile signature of such person. In case any officer
who shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon has ceased to be an
officer of the corporation before the bond, debenture or other corporate
security so signed or attested shall have been delivered, such bond, debenture
or other corporate security nevertheless may be adopted by the corporation and
issued and delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer of the
corporation.
ARTICLE
8
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section
8.1
Right
to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereinafter a “Proceeding”), by reason of the fact that he, or
a person of whom he is the legal representative, is or was a director, officer,
employee, or agent 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 employee benefit plans, whether the basis of the 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 (hereafter an “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 or interpreted (but, in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered by
such person in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter “Expenses”);
provided, however
, that
except as to actions to enforce indemnification rights pursuant to
Section 8.3 of this Article, the corporation shall indemnify any Agent
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if the Proceeding (or part thereof) was authorized
by the Board of Directors of the corporation. The right to
indemnification conferred in this Article shall be a contract
right.
Section
8.2
Authority
to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final
disposition of such Proceeding, provided, however, that if required by the
Delaware General Corporation Law, as amended, such Expenses shall be advanced
only upon delivery to the corporation of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized in
this Article or otherwise. Expenses incurred by other Agents of the
corporation (or by the directors or officers not acting in their capacity as
such, including service with respect to employee benefit plans) may be advanced
upon such terms and conditions as the Board of Directors deems
appropriate. Any obligation to reimburse the corporation for Expense
advances shall be unsecured and no interest shall be charged
thereon.
Section
8.3
Right
of Claimant to Bring Suit.
If a
claim under Section 8.1 or 8.2 of this Article is not paid in full by the
corporation within 120 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense
(including attorneys’ fees) 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 a Proceeding in advance of its final disposition
where the required undertaking has been tendered to the corporation) that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed. The burden of proving such a defense shall be
on the corporation. 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 action that
indemnification of the claimant is proper under the circumstances because he 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
claimant had 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.
Section
8.4
Provisions
Nonexclusive.
The
rights conferred on any person by this Article shall not be exclusive of any
other rights that such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Certificate,
agreement, or vote of the stockholders or disinterested directors is
inconsistent with these bylaws, the provision, agreement, or vote shall take
precedence.
Section
8.5
Authority
to Insure.
The
corporation may purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have the power to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
Section
8.6
Survival
of Rights.
The
rights provided by this Article shall continue as to a person who has ceased to
be an Agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section
8.7
Settlement
of Claims.
The
corporation shall not be liable to indemnify any Agent under this Article
(a) for any amounts paid in settlement of any action or claim effected
without the corporation’s written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the corporation was
not given a reasonable and timely opportunity, at its expense, to participate in
the defense of such action.
Section
8.8
Effect
of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect
any right or protection of any Agent existing at the time of such amendment,
repeal, or modification.
Section
8.9
Subrogation.
In the
event of payment under this Article, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of the Agent, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring suit to enforce such
rights.
Section
8.10
No
Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment in
connection with any claim made against the Agent to the extent the Agent has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable
hereunder.
ARTICLE
9
NOTICES
Whenever,
under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (1) in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last known post office address as shown by the stock record of the corporation
or its transfer agent, or (2) by a means of electronic transmission that
satisfies the requirements of Section 2.4(e) of these Bylaws, and has been
consented to by the stockholder to whom the notice is given. Any
notice required to be given to any director may be given by either of the
methods hereinabove stated, except that such notice other than one which is
delivered personally, shall be sent to such address or (in the case of
electronic communication) such e-mail address, facsimile telephone number or
other form of electronic address as such director shall have filed in writing or
by electronic communication with the Secretary of the corporation, or, in the
absence of such filing, to the last known post office address of such
director. If no address of a stockholder or director be known, such
notice may be sent to the office of the corporation required to be maintained
pursuant to Section 1.2 of Article I hereof. An affidavit
of mailing, executed by a duly authorized and competent employee of the
corporation or its transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and addresses of the
stockholder or stockholders, director or directors, to whom any such notice or
notices was or were given, and the time and method of giving the same, shall be
conclusive evidence of the statements therein contained. All notices
given by mail, as above provided, shall be deemed to have been given as at the
time of mailing and all notices given by means of electronic transmission shall
be deemed to have been given as at the sending time recorded by the electronic
transmission equipment operator transmitting the same. It shall not
be necessary that the same method of giving notice be employed in respect of all
directors, but one permissible method may be employed in respect of any one or
more, and any other permissible method or methods may be employed in respect of
any other or others. The period or limitation of time within which
any stockholder may exercise any option or right, or enjoy any privilege or
benefit, or be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such a stockholder or such director to receive such
notice. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation, or of these
Bylaws, a waiver thereof in writing signed by the person or persons entitled to
said 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 thereto. Whenever notice is required to be given, under
any provision of law or of the Certificate of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the giving of
such notice to such person shall not be required and there shall be no duty to
apply to any governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be
taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly
given. In the event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the Delaware General
Corporation Law, the certificate shall state, if such is the fact and if notice
is required, that notice was given to all persons entitled to receive notice
except such persons with whom communication is unlawful.
ARTICLE
10
AMENDMENTS
These
Bylaws may be repealed, altered or amended or new Bylaws adopted by written
consent of stockholders in the manner authorized by Section 2.11 of
Article II, or at any meeting of the stockholders, either annual or
special, by the affirmative vote of a majority of the stock entitled to vote at
such meeting, unless a larger vote is required by these Bylaws or the
Certificate of Incorporation. The Board of Directors shall also have
the authority to repeal, alter or amend these Bylaws or adopt new Bylaws
(including, without limitation, the amendment of any Bylaws setting forth the
number of directors who shall constitute the whole Board of Directors) by
unanimous written consent or at any annual, regular, or special meeting by the
affirmative vote of a majority of the whole number of directors, subject to the
power of the stockholders to change or repeal such Bylaws and provided that the
Board of Directors shall not make or alter any Bylaws fixing the qualifications,
classifications, or term of office of directors.
CERTIFICATE
OF SECRETARY
The
undersigned, Secretary of PIONEER POWER SOLUTIONS, INC., a Delaware corporation,
hereby certifies that the foregoing is a full, true and correct copy of the
Bylaws of said corporation, with all amendments to date of this
Certificate.
WITNESS
the signature of the undersigned this 25th day of November, 2009.
/s/ David
Davis
David
Davis, Secretary