BYLAWS
OF
ZOOM TELEPHONICS, INC.
(A Delaware corporation)
_______
As amended and restated through May 7, 2020
_______
ARTICLE I
STOCKHOLDERS
Section
1.1
Annual
Meeting.
The annual meeting of the stockholders of the corporation shall
be held on such date
as shall be fixed by the Board of Directors, at such time and place
within or without the State of Delaware as may be designated in the
notice of meeting. If the day fixed for the annual meeting shall
fall on a legal holiday, the meeting shall be held on the next
succeeding day not a legal holiday. If the annual meeting is
omitted on the day herein provided, a special meeting may be held
in place thereof, and any business transacted at such special
meeting in lieu of annual meeting shall have the same effect as if
transacted or held at the annual meeting. At the discretion of the
Board of Directors, the meeting may be conducted partially or
solely by remote communication to the extent permitted by
law.
Section
1.2
Special
Meetings.
Special meetings of the stockholders may be called at any time by
the chairman of the board of directors or by the board of
directors. Special meetings of the stockholders shall be held at
such time, date and place within or outside of the State of
Delaware as may be designated in the notice of such meeting. At the
discretion of the Board of Directors, the meeting may be conducted
partially or solely by remote communication to the extent permitted
by law.
Section
1.3
Notice of
Meeting.
(a) A
written notice stating the place, if any, date, and hour of each
meeting of the stockholders, and, in the case of a special meeting,
the purposes for which the meeting is called, shall be given to
each stockholder entitled to vote at such meeting, and to each
stockholder who, under the Certificate of Incorporation or these
Bylaws, is entitled to such notice, by delivering such notice to
such person or leaving it at their residence or usual place of
business, or by mailing it to such stockholder at his address as it
appears upon the books of the corporation at least ten days and not
more than 60 days before the meeting. Such notice shall be given by
the secretary, an assistant secretary, or any other officer or
person designated either by the secretary or by the person or
persons calling the meeting.
(b) The
requirement of notice to any stockholder may be waived (i) by a
written waiver of notice, executed before or after the meeting by
the stockholder or his attorney thereunto duly authorized, and
filed with the records of the meeting, (ii) if communication with
such stockholder is unlawful, (iii) by attendance at the meeting
without protesting prior thereto or at its commencement the lack of
notice, or (iv) as otherwise excepted by law. A waiver of notice of
any regular or special meeting of the stockholders need not specify
the purposes of the meeting.
(c) If
a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place, if any, are
announced at the meeting at which the adjournment is taken, except
that if the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
Section
1.4
Business at Annual or Special Meetings.
(a) At
a meeting of the stockholders, only such nominations of persons for
the election of directors and such other business shall be
conducted as shall have been properly brought before the
meeting. Nominations
for the election of directors or proposals of other business at an
annual meeting of the stockholders, or special meeting in lieu of
the annual meeting, may be made by the Board of Directors or by any
stockholder entitled to vote in the election of directors at the
meeting pursuant to Section 1.4(b) or Section 1.4(c), as
applicable. Stockholders entitled to vote in such election may
nominate one or more persons for the election as directors or
propose other business only if written notice of such
stockholder’s intent to make such nomination or other
business proposal has been given either by personal delivery,
overnight (receipted) courier or by United States mail, postage
prepaid, to the secretary of the Corporation not later than one
hundred twenty days prior to the anniversary date of the
immediately preceding annual meeting or special meeting in lieu
thereof.
(b) For
nominations for the election of directors by a stockholder, such
notice shall set forth: (i) the name and address of the stockholder
who intends to make the nomination and of the persons or person to
be nominated; (ii) a representation that the stockholder is a
holder of record of stock of the Corporation and entitled to vote
at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice;
(iii) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (iv) such other
information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange
Commission; and (v) the consent of each nominee to serve as a
director of the Corporation if so elected. The presiding officer of
the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
(c) For
business proposals other than the nomination for the election of
directors by a stockholder, such notice shall set forth: (i) as to
each matter the stockholder proposes to bring before the annual
meeting: a brief description of the business desired to be brought
before the annual meeting, the text of the proposal, and the
reasons for conducting such business at the annual meeting; and
(ii) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the proposal is being made: the name
and address of such stockholder, as they appear on the
corporation’s books, and of such beneficial owner, the class
and series and number of shares of stock of the corporation that
are, directly or indirectly, owned, beneficially or of record, by
such stockholder and such beneficial owner, and a description of
any material interest of such stockholder or such beneficial owner
and the respective affiliates and associates of, or others acting
in concert with, such stockholder or such beneficial owner in such
business. The presiding officer of the meeting may refuse to
acknowledge or otherwise permit to be brought before the meeting
any proposal not made in compliance with the foregoing
procedure.
Section
1.5
Quorum.
The holders of one third of all stock issued,
outstanding and entitled to vote at a meeting shall constitute a
quorum. Any meeting may be adjourned from time to time by a
majority of the votes properly cast upon the question, whether or
not a quorum is present.
Section
1.6
Voting and Proxies.
Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record
according to the books of the corporation, unless otherwise
provided by law or by the Certificate of Incorporation.
Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. Proxies shall be
filed with the secretary of the meeting, or of any adjournment
thereof. Except as otherwise limited therein, proxies shall entitle
the persons authorized thereby to vote at any adjournment of such
meeting. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to stock held in the name of two
or more persons shall be valid if executed by one of them unless at
or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of
them.
Section
1.7
Action at Meeting.
When a quorum is present at any meeting,
a plurality of the votes properly cast for election to any office
shall elect to such office, and a majority of the votes properly
cast upon any question other than election to an office shall
decide such question, except where a larger vote is required by
law, the Certificate of Incorporation or these Bylaws. No ballot
shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to
vote in the election.
Section
1.8
Action Without
Meeting. All action
required or permitted to be taken by the stockholders must be taken
at a meeting duly called and held in accordance with law and in
accordance with this Certificate of Incorporation and these
Bylaws.
Section
1.9
Voting of Shares of Certain
Holders.
(a) Shares
of stock of the corporation standing in the name of another
corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the Bylaws of such corporation may prescribe,
or, in the absence of such provision, as the board of directors of
such corporation may determine.
(b) Shares
of stock of the corporation standing in the name of a deceased
person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator
without a transfer of such shares into the name of such
administrator, executor, court appointed guardian or conservator.
Shares of capital stock of the corporation standing in the name of
a trustee or fiduciary may be voted by such trustee or
fiduciary.
(c) Shares
of stock of the corporation standing in the name of a receiver may
be voted by such receiver, and shares held by or under the control
of a receiver may be voted by such receiver without the transfer
thereof into his name if authority so to do be contained in an
appropriate order of the court by which such receiver was
appointed.
(d) A
stockholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledgor on the books of the
corporation he expressly empowered the pledgee to vote thereon, in
which case only the pledgee or its proxy shall be entitled to vote
the shares so transferred.
(e) Shares
of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given
time, but shares of its own stock held by the corporation in a
fiduciary capacity may be voted and shall be counted in determining
the total number of outstanding shares.
Section
1.10
Stockholder
Lists. The secretary
(or the corporation’s transfer agent or other person
authorized by these Bylaws or by law) shall prepare and make, at
least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to
the meeting, either at (i) the corporation’s principal place
of business, (ii) at the place where the meeting is to be held, or
(iii) by making it available on an electronic network. The list
shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
ARTICLE II
BOARD OF
DIRECTORS
Section
2.1
Powers.
Except as reserved to the stockholders by law, by the Certificate
of Incorporation or by these Bylaws, the business of the
corporation shall be managed under the direction of the board of
directors, who shall have and may exercise all of the powers of the
corporation. In particular, and without limiting the foregoing, the
board of directors shall have the power to issue or reserve for
issuance from time to time the whole or any part of the capital
stock of the corporation which may be authorized from time to time
to such person, for such consideration and upon such terms and
conditions as they shall determine, including the granting of
options, warrants or conversion or other rights to
stock.
Section
2.2
Number of Directors;
Qualifications.
The board of directors shall consist of such number of directors,
as shall be fixed initially by the incorporator(s) and thereafter
by the board of directors. No director need be a
stockholder.
Section
2.3
Election of
Directors.
The initial board of directors shall be designated in the
certificate of incorporation, or if not so designated, elected by
the incorporator(s) at the first meeting thereof. Thereafter,
directors shall be elected by the stockholders at their annual
meeting or at any special meeting the notice of which specifies the
election of directors as an item of business for such
meeting.
Section
2.4
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, he shall perform such duties and possess
such powers as are assigned to him by the board of directors. The
board of directors may designate the chairman of the board as chief
executive officer.
Section
2.5
Vacancies; Reduction of the
Board.
In the case of any vacancy in the board of directors from death,
resignation, disqualification or other cause, including a vacancy
resulting from enlargement of the board, the election of a director
to fill such vacancy shall be by vote of a majority of the
directors then in office, whether or not constituting a
quorum.
Section
2.6
Enlargement of the
Board.
The board of directors may be enlarged by the stockholders at any
meeting or by vote of a majority of the directors then in
office.
Section
2.7
Tenure and
Resignation.
Except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws, directors shall hold office until
the next annual meeting of stockholders and thereafter until their
successors are chosen and qualified. Any director may resign by
delivering or mailing postage prepaid a written resignation to the
corporation at its principal office or to the chairman of the board
of directors, the president, secretary or assistant secretary, if
any. 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.
Section
2.8
Removal.
A director, whether elected by the stockholders or directors, may
be removed from office with or without cause at any annual or
special meeting of stockholders by vote of a majority of the
stockholders entitled to vote in the election of such directors, or
for cause by a vote of a majority of the directors then in office;
provided, however, that a director may be removed for cause only
after reasonable notice and opportunity to be heard before the body
proposing to remove him.
Section
2.9
Meetings.
Regular meetings of the board of directors may be held without call
or notice at such times and such places within or without the State
of Delaware as the board may, from time to time, determine,
provided that notice of the first regular meeting following any
such determination shall be given to directors absent from such
determination. A regular meeting of the board of directors shall be
held without notice immediately after, and at the same place as,
the annual meeting of the stockholders or the special meeting of
the stockholders held in place of such annual meeting, unless a
quorum of the directors is not then present. Special meetings of
the board of directors may be held at any time and at any place
designated in the call of the meeting when called by the chairman
of the board of directors or two or more directors. Members of the
board of directors or any committee elected thereby may participate
in a meeting of such board or committee by means of a conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the
same time, and participation by such means shall constitute
presence in person at the meeting.
Section
2.10
Notice of
Meeting.
It shall be sufficient notice to a director to send notice (i) by
mail at least 72 hours before the meeting addressed to such person
at his usual or last known business or residence address, or (ii)
in person, by telephone, facsimile transmission or electronic
transmission to the extent provided in Article VIII, at least 24
hours before the meeting. Notice shall be given by the secretary,
or in his absence or unavailability, may be given by an assistant
secretary, if any, or by the officer or directors calling the
meeting. The requirement of notice to any director may be waived by
a written waiver of notice, executed by such person before or after
the meeting or meetings, and filed with the records of the meeting,
or by attendance at the meeting without protesting prior thereto or
at its commencement the lack of notice. A notice or waiver of
notice of a directors’ meeting need not specify the purposes
of the meeting.
Section
2.11
Agenda.
Any lawful business may be transacted at a meeting of the
board of directors, notwithstanding the fact that the nature of the
business may not have been specified in the notice or waiver of
notice of the meeting.
Section
2.12 Quorum.
At any meeting of the board of directors, a majority of the
directors then in office shall constitute a quorum for the
transaction of business. Any meeting may be adjourned by a majority
of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further
notice.
Section
2.13 Action at
Meeting.
Any motion adopted by vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the
board of directors, except where a different vote is required by
law, by the Certificate of Incorporation or by these Bylaws. The
assent in writing of any director to any vote or action of the
directors taken at any meeting, whether or not a quorum was present
and whether or not the director had or waived notice of the
meeting, shall have the same effect as if the director so assenting
was present at such meeting and voted in favor of such vote or
action.
Section
2.14 Action Without
Meeting.
Any action by the directors may be taken without a meeting if all
of the directors consent to the action in writing and the consents
are filed with the records of the directors’ meetings. Such
consent shall be treated for all purposes as a vote of the
directors at a meeting.
Section
2.15 Committees.
The board of directors may, by the affirmative vote of a majority
of the directors then in office, appoint an executive committee or
other committees consisting of one or more directors and may by
vote delegate to any such committee some or all of their powers
except those which by law, the Certificate of Incorporation or
these Bylaws they may not delegate. In the absence or
disqualification of a member of a committee, the members of the
committee present and not disqualified, whether or not they
constitute a quorum, may by unanimous vote appoint another member
of the board of directors to act at the meeting in place of the
absence or disqualified member. Unless the board of directors shall
otherwise provide, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the board
of directors or such rules, its meetings shall be called, notice
given or waived, its business conducted or its action taken as
nearly as may be in the same manner as is provided in these Bylaws
with respect to meetings or for the conduct of business or the
taking of actions by the board of directors. The board of directors
shall have power at any time to fill vacancies in, change the
membership of, or discharge any such committee at any time. The
board of directors shall have power to rescind any action of any
committee, but no such rescission shall have retroactive
effect.
ARTICLE III
OFFICERS
Section
3.1
Enumeration.
The officers shall consist of a president, a treasurer, a secretary
and such other officers and agents (including a chairman of the
board, one or more vice presidents, assistant treasurers and
assistant secretaries), as the board of directors may, in their
discretion, determine.
Section 3.2
Election. The
president, treasurer and secretary shall be elected annually by the
directors at their first meeting following the annual meeting of
the stockholders or any special meeting held in lieu of the annual
meeting. Other officers may be chosen by the directors at such
meeting or at any other meeting.
Section
3.3
Qualification.
An officer may, but need not, be a director or stockholder. Any two
or more offices may be held by the same person. Any officer may be
required by the directors to give bond for the faithful performance
of his duties to the corporation in such amount and with such
sureties as the directors may determine. The premiums for such
bonds may be paid by the corporation.
Section
3.4
Tenure.
Except as otherwise provided by the Certificate of
Incorporation or these Bylaws, the term of office of each officer
shall be for one year or until his successor is elected and
qualified or until his earlier resignation or removal.
Section
3.5 Removal.
Any officer may be removed from office, with or without cause, by
the affirmative vote of a majority of the directors then in office;
provided, however, that an officer may be removed for cause only
after reasonable notice and opportunity to be heard by the board of
directors prior to action thereon.
Section
3.6
Resignation.
Any officer may resign by delivering or mailing postage prepaid a
written resignation to the corporation at its principal office or
to the chairman of the board of directors, president, secretary, or
assistant secretary, if any, and such resignation shall be
effective upon receipt unless it is specified to be effective at
some other time or upon the happening of some event.
Section
3.7 Vacancies.
A vacancy in any office arising from any cause may be filled for
the unexpired portion of the term by the board of
directors.
Section 3.8
Chief Executive
Officer. The board of
directors may designate the chairman
of the board as chief executive officer. If the board of directors
designates the chairman of the board as chief executive officer, he
shall have such duties and powers as are commonly incident to the
office of chief executive officer and such duties and powers as the
board of directors shall from time to time
designate.
Section 3.9
President.
The president shall be the chief executive officer of the
corporation, unless a chairman of the
board is so designated and subject to any executive powers of the
chairman of the board designated by the board of directors. Unless
a chairman of the board is so designated or except as otherwise
voted by the board of directors, the president shall preside at all
meetings of the stockholders and of the board of directors at which
present. The president shall have such duties and powers as are
commonly incident to the office and such duties and powers as the
board of directors shall from time to time
designate.
Section 3.10
Vice
President(s). The
vice president(s), if any, shall have such powers and perform such
duties as the board of directors may from time to time
determine.
Section 3.11
Chief Financial Officer, Treasurer
and Assistant Treasurers.
The treasurer, or if the board of directors so determines, the vice
president, finance or the chief financial officer, subject to the
direction and under the supervision and control of the board of
directors, shall have general charge of the financial affairs of
the corporation. The treasurer shall have custody of all funds,
securities and valuable papers of the corporation, except as the
board of directors may otherwise provide. The treasurer shall keep
or cause to be kept full and accurate records of account which
shall be the property of the corporation, and which shall be always
open to the inspection of each elected officer and director of the
corporation. The treasurer shall deposit or cause to be deposited
all funds of the corporation in such depository or depositories as
may be authorized by the board of directors. The treasurer shall
have the power to endorse for deposit or collection all notes,
checks, drafts, and other negotiable instruments payable to the
corporation. The treasurer shall perform such other duties as are
incidental to the office, and such other duties as may be assigned
by the board of directors. All of the duties of the treasurer may
be performed by the vice president, finance and/or the chief
financial officer, in the discretion of the board of
directors.
Assistant
treasurers, if any, shall have such powers and perform such duties
as the board of directors may from time to time
determine.
Section 3.12
Secretary and Assistant
Secretaries.
The secretary or an assistant secretary shall record, or cause to
be recorded, all proceedings of the meetings of the stockholders
and directors (including committees thereof) in the book of records
of this corporation. The record books shall be open at reasonable
times to the inspection of any stockholder, director, or officer.
The secretary or an assistant secretary shall notify the
stockholders and directors, when required by law or by these
Bylaws, of their respective meetings, and shall perform such other
duties as the directors and stockholders may from time to time
prescribe. The secretary or an assistant secretary shall have the
custody and charge of the corporate seal, and shall affix the seal
of the corporation to all instruments requiring such seal, and
shall certify under the corporate seal the proceedings of the
directors and of the stockholders, when required. In the absence of
the secretary or an assistant secretary at any such meeting, a
temporary secretary shall be chosen who shall record the
proceedings of the meeting in the aforesaid books.
Assistant
secretaries, if any, shall have such powers and perform such duties
as the board of directors may from time to time
designate.
Section
3.13
Other Powers and
Duties.
Subject to these Bylaws and to such limitations as the board of
directors may from time to time prescribe, the officers of the
corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and
duties as from time to time may be conferred by the board of
directors.
ARTICLE IV
CAPITAL
STOCK
Section
4.1
Stock
Certificates.
(a) Each
stockholder shall be entitled to a certificate representing the
number of shares of the capital stock of the corporation owned by
such person in such form as shall, in conformity to law, be
prescribed from time to time by the board of directors. Each
certificate shall be signed by the president or vice president and
treasurer or assistant treasurer or such other officers designated
by the board of directors from time to time as permitted by law,
shall bear the seal of the corporation, and shall express on its
face its number, date of issue, class, the number of shares for
which, and the name of the person to whom, it is issued. The
corporate seal and any or all of the signatures of corporation
officers may be facsimile if the stock certificate is manually
counter-signed by an authorized person on behalf of a transfer
agent or registrar other than the corporation or its
employee.
(b) If
an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have
ceased to be such before the certificate is issued, it may be
issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the time of its
issue.
Section
4.2
Transfer of
Shares.
Title to a certificate of stock and to the shares represented
thereby shall be transferred only on the books of the corporation
by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate
accompanied by a written assignment of the same, or a properly
executed written power of attorney to sell, assign or transfer the
same or the shares represented thereby. Upon surrender of a
certificate for the shares being transferred, a new certificate or
certificates shall be issued according to the interests of the
parties.
Section
4.3
Record
Holders.
Except as otherwise may be 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 thereto, 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. It shall be the
duty of each stockholder to notify the corporation of his post
office address.
Section
4.4
Record Date.
(a) In
order that the corporation may determine the stockholders entitled
to receive notice of or to vote at any meeting of stockholders or
any adjournments thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or
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, in advance, a record
date, which shall not be more than sixty days prior to any other
action. In such case only stockholders of record on such record
date shall be so entitled notwithstanding any transfer of stock on
the books of the corporation after the record date.
(b) If
no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day
on which the meeting is held; and (ii) 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 thereto.
Section
4.5
Transfer Agent and Registrar for
Shares of Corporation.
The board of directors may appoint a transfer agent
and a registrar of the certificates of stock of the corporation.
Any transfer agent so appointed shall maintain, among other
records, a stockholders’ ledger, setting forth the names and
addresses of the holders of all issued shares of stock of the
corporation, the number of shares held by each, the certificate
numbers representing such shares, and the date of issue of the
certificates representing such shares. Any registrar so appointed
shall maintain, among other records, a share register, setting
forth the total number of shares of each class of shares which the
corporation is authorized to issue and the total number of shares
actually issued. The stockholders’ ledger and the share
register are hereby identified as the stock transfer books of the
corporation; but as between the stockholders’ ledger and the
share register, the names and addresses of stockholders, as they
appear on the stockholders’ ledger maintained by the transfer
agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as
they appear upon the stockholders’ ledger, shall be
conclusive evidence of who are the stockholders entitled to receive
notice of the meetings of stockholders, to vote at such meetings,
to examine a complete list of the stockholders entitled to vote at
meetings, and to own, enjoy and exercise any other property or
rights deriving from such shares against the corporation.
Stockholders, but not the corporation, its directors, officers,
agents or attorneys, shall be responsible for notifying the
transfer agent, in writing, of any changes in their names or
addresses from time to time, and failure to do so will relieve the
corporation, its other stockholders, directors, officers, agents
and attorneys, and its transfer agent and registrar, of liability
for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or
address other than the name and address appearing in the
stockholders’ ledger maintained by the transfer
agent.
Section
4.6
Loss of
Certificates.
In case of the loss,
destruction or mutilation of a certificate of stock, a replacement
certificate may be issued in place thereof upon such terms as the
board of directors may prescribe, including, in the discretion of
the board of directors, a requirement of bond and indemnity to the
corporation.
Section
4.7
Restrictions on
Transfer.
Every certificate for shares of stock which are subject to any
restriction on transfer, whether pursuant to the Certificate of
Incorporation, the Bylaws or any agreement to which the corporation
is a party, shall have the fact of the restriction noted
conspicuously on the certificate and shall also set forth on the
face or back either the full text of the restriction or a statement
that the corporation will furnish a copy to the holder of such
certificate upon written request and without charge.
Section
4.8
Multiple Classes or Series of
Stock.
The amount and classes of the capital stock and the par value, if
any, of the shares, shall be as fixed in the Certificate of
Incorporation. At all times when there are two or more classes or
series of stock, the several classes or series of stock shall
conform to the description and the terms and have the respective
preferences, voting powers, restrictions and qualifications set
forth in the Certificate of Incorporation and these Bylaws. Every
certificate issued when the corporation is authorized to issue more
than one class or series of stock shall set forth on its face or
back either (i) the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of
each class and series authorized to be issued, or (ii) a statement
of the existence of such preferences, powers, qualifications and
rights, and a statement that the corporation will furnish a copy
thereof to the holder of such certificate upon written request and
without charge.
ARTICLE V
DIVIDENDS
Section
5.1
Declaration of
Dividends.
Except as otherwise required by law or by the Certificate of
Incorporation, the board of directors may, in its discretion,
declare what, if any, dividends shall be paid from the surplus or
from the net profits of the corporation for the current or
preceding fiscal year, or as otherwise permitted by law. Dividends
may be paid in cash, in property, in shares of the
corporation’s stock, or in any combination thereof. Dividends
shall be payable upon such dates as the board of directors may
designate.
Section
5.2
Reserves.
Before the payment of any dividend
and before making any distribution of profits, the board of
directors, from time to time and in its absolute discretion, shall
have power to set aside out of the surplus or net profits of the
corporation such sum or sums as the board of directors deems proper
and sufficient as a reserve fund to meet contingencies or for such
other purpose as the board of directors shall deem to be in the
best interests of the corporation, and the board of directors may
modify or abolish any such reserve.
ARTICLE VI
POWERS OF OFFICERS
TO CONTRACT WITH THE CORPORATION
Any
and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and
perform any contract or agreement of any nature between the
corporation and themselves, or any and all of the individuals from
time to time constituting the board of directors of the
corporation, or any firm or corporation in which any such director
may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall
thereby derive personal or corporate profits or benefits or
otherwise; provided, that (i) the material facts of such interest
are disclosed or are known to the board of directors or committee
thereof which authorizes such contract or agreement; (ii) if the
material facts as to such person’s relationship or interest
are disclosed or are known to the stockholders entitled to vote
thereon, and the contract is specifically approved in good faith by
a vote of the stockholders; or (iii) the contract or agreement is
fair as to the corporation as of the time it is authorized,
approved or ratified by the board of directors, a committee
thereof, or the stockholders. Any director of the corporation who
is interested in any transaction as aforesaid may nevertheless be
counted in determining the existence of a quorum at any meeting of
the board of directors which shall authorize or ratify any such
transaction. This Article shall not be construed to invalidate any
contract or other transaction which would otherwise be valid under
the common or statutory law applicable thereto.
ARTICLE VII
INDEMNIFICATION
Section
7.1
Definitions.
For purposes of this Article VII the following terms shall have the
meanings indicated:
“Corporate
Status” describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the
Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the express written request of the
corporation.
“Court”
means the Court of Chancery of the State of Delaware, or any other
court in which a Proceeding in respect of indemnification may
properly be brought.
“Covered
Person” means any person who has a Corporate Status who the
corporation, pursuant to the provisions of Section 7.9 hereof,
determines is entitled to indemnification as provided herein. It
shall in each case include such person’s legal
representatives, heirs, executors and administrators.
“Disinterested”
describes any individual, whether or not that individual is a
director, officer, employee or agent of the corporation who is not
and was not and is not threatened to be made a party to the
Proceeding in respect of which indemnification, advancement of
expenses or other action, is sought by a Covered
Person.
“Expenses”
shall include, without limitation, all reasonable attorneys’
fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
“Good
Faith” shall mean a Covered Person having acted in good faith
and in a manner such Covered Person reasonably believed to be in or
not opposed to the best interests of the corporation or, in the
case of an employee benefit plan, the best interests of the
participants or beneficiaries of said plan, as the case may be,
and, with respect to any Proceeding which is criminal in nature,
having had no reasonable cause to believe such Covered
Person’s conduct was unlawful.
“Independent
Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and may include law firms
or members thereof that are regularly retained by the corporation
but not by any other party to the Proceeding giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the
term “Independent Counsel” shall not include any person
who, under the standards of professional conduct then prevailing
and applicable to such counsel, would have a conflict of interest
in representing either the corporation or the Covered Person in an
action to determine the Covered Person’s rights under this
Article.
“Proceeding”
includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation
(including any internal corporate investigation), administrative
hearing or any other proceeding, whether civil, criminal,
administrative or investigative, other than one initiated by the
Covered Person, but including one initiated by a Covered Person for
the purpose of enforcing such Covered Person’s rights under
this Article to the extent provided in Section 7.14 of this
Article. “Proceeding” shall not include any
counterclaim brought by any Covered Person other than one arising
out of the same transaction or occurrence that is the subject
matter of the underlying claim.
Section
7.2
Right to Indemnification in
General.
The corporation may indemnify, and advance Expenses to, each
Covered Person who is, was or is threatened to be made a party or
is otherwise involved in any Proceeding, as provided in this
Article and to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable
law may hereafter from time to time permit.
Section
7.3
Proceedings Other Than Proceedings
in the Right of the Corporation.
Each Covered Person may be indemnified
if, by reason of such Covered Person’s Corporate Status, such
Covered Person is or is threatened to be made a party to or is
otherwise involved in any Proceeding, other than a Proceeding by or
in the right of the corporation. Such Covered Person may be
indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlements, actually and reasonably incurred by
such Covered Person or on such Covered Person’s behalf in
connection with such Proceeding or any claim, issue or matter
therein, if such Covered Person acted in Good Faith.
Section
7.4
Proceedings by or in the Right of
the Corporation.
Each Covered Person may be indemnified if,
by reason of such Covered Person’s Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is
otherwise involved in any Proceeding brought by or in the right of
the corporation to procure a judgment in its favor. Such Covered
Person may be indemnified against Expenses, judgments, penalties,
and amounts paid in settlement, actually and reasonably incurred by
such Covered Person or on such Covered Person’s behalf in
connection with such Proceeding if such Covered Person acted in
Good Faith. Notwithstanding the foregoing, no such indemnification
shall be made in respect of any claim, issue or matter in such
Proceeding as to which such Covered Person shall have been adjudged
to be liable to the corporation if applicable law prohibits such
indemnification; provided, however, that, if applicable law so
permits, indemnification shall nevertheless be made by the
corporation in such event if and only to the extent that the Court
which is considering the matter shall so determine.
Section
7.5
Indemnification of a Party Who is
Wholly or Partly Successful.
Notwithstanding any other provision of
this Article, to the extent that a present or former director or
officer or any other person who has a Corporate Status is, by
reason of such Corporate Status, a party to or is otherwise
involved in and is successful, on the merits or otherwise, in any
Proceeding, such person shall be indemnified to the maximum extent
permitted by law, against all Expenses, judgments, penalties,
fines, and amounts paid in settlement, actually and reasonably
incurred by such person or on such person’s behalf in
connection therewith. If such person is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as
to one or more but less than all claims, issues or matters in such
Proceeding, the corporation shall indemnify such person to the
maximum extent permitted by law, against all Expenses, judgments,
penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such person or on such person’s behalf
in connection with each successfully resolved claim, issue or
matter. The termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
Section
7.6
Indemnification for Expenses of a
Witness.
Notwithstanding any other provision of this Article, to the extent
that a Covered Person is, by reason of such Covered Person’s
Corporate Status, a witness in any Proceeding, such Covered Person
shall be indemnified against all Expenses actually and reasonably
incurred by such Covered Person or on such Covered Person’s
behalf in connection therewith.
Section
7.7
Advancement of
Expenses.
(a) Notwithstanding
any provision to the contrary in this Article, the corporation may
advance all reasonable Expenses which were incurred by or on behalf
of a present director or officer by reason of such person’s
Corporate Status, in connection with any Proceeding, within 20 days
after the receipt by the corporation of a statement or statements
from such person requesting such advance or advances, whether prior
to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by the
person and shall include or be preceded or accompanied by an
undertaking by or on behalf of the person to repay any Expenses if
such person shall be adjudged to be not entitled to be indemnified
against such Expenses. Any advance and undertakings to repay made
pursuant to this paragraph shall be unsecured and interest-free.
Advancement of Expenses pursuant to this paragraph shall not
require approval of the board of directors or the stockholders of
the corporation, or of any other person or body. The secretary of
the corporation shall promptly advise the Board in writing of the
request for advancement of Expenses, of the amount and other
details of the advance and of the undertaking to make repayment
provided pursuant to this paragraph.
(b) Advancement
of expenses to any other Covered Person shall be upon such terms
and conditions as the board of directors may determine
appropriate.
Section
7.8
Notification and Defense of
Claim.
(a) Promptly
after receipt by any person who has a Corporate Status of a notice
of the commencement of any Proceeding, such person shall, if a
claim is to be made against the corporation under this Article,
notify the corporation of the commencement of the Proceeding. The
omission of such notice will not relieve the corporation from any
liability which it may have to such person otherwise than under
this Article. With respect to any such Proceedings as to which the
corporation determines to provide indemnification:
(i) The
corporation will be entitled to participate in the defense at its
own expense.
(ii) Except
as otherwise provided below, the corporation (jointly with any
other indemnifying party similarly notified) will be entitled to
assume the defense with counsel reasonably satisfactory to the
Covered Person. After notice from the corporation to the Covered
Person of its election to assume the defense of a suit, the
corporation will not be liable to the Covered Person under this
Article for any legal or other expenses subsequently incurred by
the Covered Person in connection with the defense of the Proceeding
other than reasonable costs of investigation or as otherwise
provided below.
(b) The
Covered Person shall have the right to employ his own counsel in
such Proceeding but the fees and expenses of such counsel incurred
after notice from the corporation of its assumption of the defense
shall be at the expense of the Covered Person except as follows.
The fees and expenses of counsel shall be at the expense of the
corporation if (i) the employment of counsel by the Covered Person
has been authorized by the corporation, (ii) the Covered Person
shall have concluded reasonably that there may be a conflict of
interest between the corporation and the Covered Person in the
conduct of the defense of such action and such conclusion is
confirmed in writing by the corporation’s outside counsel
regularly employed by it in connection with corporate matters, or
(iii) the corporation shall not in fact have employed counsel to
assume the defense of such Proceeding. The corporation shall be
entitled to participate in, but shall not be entitled to assume the
defense of, any Proceeding brought by or in the right of the
corporation or as to which the Covered Person shall have made the
conclusion provided for in (ii) above and such conclusion shall
have been so confirmed by the corporation’s said outside
counsel.
(c) Notwithstanding
any provision of this Article to the contrary, the corporation
shall not be liable to indemnify the Covered Person under this
Article for any amounts paid in settlement of any Proceeding
effected without its written consent. The corporation shall not
settle any Proceeding or claim in any manner which would impose any
penalty, limitation or disqualification of the Covered Person for
any purpose without such Covered Person’s written consent.
Neither the corporation nor the Covered Person will unreasonably
withhold their consent to any proposed settlement.
(d) If
it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b)
above, payment to the Covered Person of the additional amounts for
which he is to be indemnified shall be made within 10 days after
such determination.
Section
7.9
Procedures.
(a) Method
of Determination For Present Officers and Directors. A
determination (as provided for by this Article or if required by
applicable law in the specific case) with respect to entitlement to
indemnification by a person who at the date of determination is a
director or officer shall be made either (i) by a majority vote of
Disinterested directors, even though less than a quorum, or (ii) a
committee of Disinterested directors designated by a majority of
disinterested Directors, even though less than a quorum, or (iii)
if there are no such Disinterested directors, or if the
Disinterested directors so direct, by Independent Counsel in a
written determination to the board of directors, a copy of which
shall be delivered to the Covered Person seeking indemnification,
or (iv) by the vote of the holders of a majority of the
corporation’s capital stock outstanding at the time entitled
to vote thereon.
(b) Method
of Determination For Others. A determination (as provided for in
this Article or if required by applicable law in the specific case)
with respect to indemnification of any person other than a present
director or officer may be made by the board of directors in such
manner as it may determine appropriate.
(c) Initiating
Request. A person who seeks indemnification under this Article
shall submit a request for indemnification, including such
documentation and information as is reasonably available to such
person and is reasonably necessary to determine whether and to what
extent such person is entitled to indemnification.
(d) Effect
of Other Proceedings. The termination of any Proceeding or of any
claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article)
of itself adversely affect the right of a Covered Person to
indemnification or create a presumption that a Covered Person did
not act in Good Faith.
Section
7.10
Action by the
Corporation.
Any action, payment, advance determination (other than a
determination made pursuant to Section 7.9 above), authorization,
requirement, grant of indemnification or other action taken by the
corporation pursuant to this Article shall be effected exclusively
through any Disinterested person so authorized by the board of
directors of the corporation, including the president or any vice
president of the corporation.
Section
7.11
Non-Exclusivity.
The rights to indemnification and to receive advancement of
Expenses as provided by this Article shall not be deemed exclusive
of any other rights to which a person may at any time be entitled
under applicable law, the Certificate of Incorporation, these
Bylaws, any agreement, a vote of stockholders, a resolution of the
board of directors, or otherwise.
Section
7.12
Insurance.
The corporation may maintain, at its expense, an insurance policy
or policies to protect itself and any director, officer, employee
or agent of the corporation or another enterprise against liability
arising out of this Article or otherwise, whether or not the
corporation would have the power to indemnify any such person
against such liability under the Delaware General Corporation
Law.
Section
7.13
No Duplicative
Payment.
The corporation shall not be liable under this Article to Covered
Person has otherwise actually received such payment under any
insurance policy, contract, agreement or otherwise.
Section
7.14
Expenses of
Adjudication.
In the event that any Covered Person seeks a judicial
adjudication, or an award in arbitration, to enforce such Covered
Person’s rights under, or to recover damages for breach of,
this Article, the Covered Person shall be entitled to recover from
the corporation, and shall be indemnified by the corporation
against, any and all Expenses actually and reasonably incurred by
such Covered Person in seeking such adjudication or arbitration,
but only if such Covered Person prevails therein. If it shall be
determined in such adjudication or arbitration that the Covered
Person is entitled to receive part but not all of the
indemnification of expenses sought, the expenses incurred by such
Covered Person in connection with such adjudication or arbitration
shall be appropriately prorated.
Section
7.15
Severability.
If any provision or provisions of
this Article shall be held to be invalid, illegal or unenforceable
for any reason whatsoever:
(a) the
validity, legality and enforceability of the remaining provisions
of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
(b) to
the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this
Article containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
Section
7.16
No Retroactive
Amendment.
No amendment or repeal of this Article or any provision hereof
shall affect any right of any person to be indemnified hereunder
with respect to any actions, omissions or state of facts existing
prior to the date of such amendment or repeal.
ARTICLE VIII
MISCELLANEOUS
PROVISIONS