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8-K - FORM 8-K - ALLION HEALTHCARE INC | g21771e8vk.htm |
EX-3.1 - EX-3.1 - ALLION HEALTHCARE INC | g21771exv3w1.htm |
EX-99.1 - EX-99.1 - ALLION HEALTHCARE INC | g21771exv99w1.htm |
Exhibit 3.2
BY-LAWS
OF
BRICKELL BAY MERGER CORP.
A Delaware corporation
(Adopted as of October 18, 2009)
(Adopted as of October 18, 2009)
ARTICLE I
OFFICES
OFFICES
Section 1 Registered Office. The address of the Corporations registered
office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
The registered office and/or registered agent of the corporation may be changed from time to time
by action of the board of directors.
Section 2 Other Offices. The corporation may also have offices 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 II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 1 Annual Meetings. An annual meeting of the stockholders shall be
held each year within one hundred twenty (120) days after the close of the immediately preceding
fiscal year of the corporation for the purpose of electing directors and conducting such other
proper business as may come before the meeting. The date, time and place, if any, and/or the means
of remote communication, of the annual meeting shall be determined by the president of the
corporation; provided, however, that if the president does not act, the board of
directors shall determine the date, time and place, if any, and/or the means of remote
communication, of such meeting. No annual meeting of stockholders need be held if not required by
the corporations certificate of incorporation or by the General Corporation Law of the State of
Delaware.
Section 2 Special Meetings. Special meetings of stockholders may be called
for any purpose (including, without limitation, the filling of board vacancies and newly created
directorships) and may be held at such time and place, within or without the State of Delaware,
and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by the board of
directors or the president and shall be called by the president upon the written request of holders
of shares entitled to cast not less than 50 percent of the votes at the meeting, which written
request shall state the purpose or purposes of the meeting and shall be delivered to the president.
Section 3 Place of Meetings. The board of directors may designate any place,
either within or without the State of Delaware, and/or by means of remote communication, as the
place of meeting for any annual meeting or for any special meeting called by the board of
directors. If
no designation is made, or if a special meeting be otherwise called, the place of meeting
shall be the principal executive office of the corporation.
Section 4 Notice. Whenever stockholders are required or permitted to take any
action at a meeting, written or printed notice stating the place, if any, date and hour of the
meeting, the means of remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and, in the case of special meetings, the
purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices
shall be delivered, either personally, by mail, or by a form of electronic transmission consented
to by the stockholder to whom the notice is given, by or at the direction of the board of
directors, the president or the secretary, and if mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder
at his, her or its address as the same appears on the records of the corporation. If given by
electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile
telecommunication, when directed to a number at which the stockholder has consented to receive
notice; (b) if by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (c) if by a posting on an electronic network together
with separate notice to the stockholder of such specific posting, upon the later of (1) such
posting and (2) the giving of such separate notice; and (3) if by any other form of electronic
transmission, when directed to the stockholder. Any such consent shall be revocable by the
stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1)
the corporation is unable to deliver by electronic transmission two consecutive notices given by
the corporation in accordance with such consent and (2) such inability becomes known to the
secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except when the person
attends for the express purpose of objecting at the beginning of the meeting to the transaction of
any business because the meeting is not lawfully called or convened.
Section 5 Stockholders List. The officer who has charge of the stock ledger
of the corporation shall make, at least 10 days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order,
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, 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, and/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.
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Section 6 Quorum. The holders of a majority of the votes represented by the
issued and outstanding shares of capital stock, entitled to vote thereon, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by statute or by the certificate of incorporation. If a quorum is not present,
the holders of a majority of the shares present in person or represented by proxy at the meeting,
and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.
Section 7 Adjourned Meetings. When a meeting is adjourned to another time and
place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and
the means of remote communications, if any, by which stockholders and proxy holders may be deemed
to be present in person and vote at such adjourned meeting are announced at the meeting at which
the adjournment is taken. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8 Vote Required. When a quorum is present, the affirmative vote of the
majority of shares present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders, unless the question is one upon which by
express provisions of an applicable law or of the certificate of incorporation a different vote is
required, in which case such express provision shall govern and control the decision of such
question.
Section 9 Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation
or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at
every meeting of the stockholders be entitled to one vote in person or by proxy for each share of
common stock held by such stockholder.
Section 10 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy, but no such proxy shall
be voted or acted upon after three years from its date, unless the proxy provides for a longer
period. At each meeting of the stockholders, and before any voting commences, all proxies filed at
or before the meeting shall be submitted to and examined by the secretary or a person designated by
the secretary, and no shares may be represented or voted under a proxy that has been found to be
invalid or irregular.
Section 11 Action by Written Consent. Unless otherwise provided in the
certificate of incorporation, any action required 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 and bearing the dates of
signature of the stockholders who signed the consent or consents, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote thereon were
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present and voted and shall be delivered to the corporation by delivery to its registered
office in the state of Delaware, or the corporations principal place of business, or an officer or
agent of the corporation having custody of the book or books in which proceedings of meetings of
the stockholders are recorded. Delivery made to the corporations registered office shall be by
hand or by certified or registered mail, return receipt requested or by reputable overnight courier
service. All consents properly delivered in accordance with this section shall be deemed to be
recorded when so delivered. No written consent shall be effective to take the corporate action
referred to therein unless, within 60 days after the earliest dated consent delivered to the
corporation as required by this section, written consents signed by the holders of a sufficient
number of shares to take such corporate action are so recorded. 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. Any action taken pursuant to such written consent
or consents of the stockholders shall have the same force and effect as if taken by the
stockholders at a meeting thereof.
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.
Section 12 Action by Telegram, Cablegram or Other Electronic Transmission Consent
A telegram, cablegram or other electronic transmission consenting 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 (A) 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 (B)
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 the State of
Delaware, its principal place of business or an officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in
the manner provided by resolution of the board of directors of the corporation.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1 General Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors.
Section 2 Number, Election and Term of Office. The number of directors which
shall constitute the first board shall be three (3). Thereafter, the number of directors shall be
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established from time to time by resolution of the board. The directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy at the meeting and
entitled to vote in the election of directors. The directors shall be elected in this manner at the
annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each
director elected shall hold office until a successor is duly elected and qualified or until his or
her earlier death, resignation or removal as hereinafter provided.
Section 3 Removal and Resignation. Any director or the entire board of
directors may be removed at any time, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors. Whenever the holders of any class or
series are entitled to elect one or more directors by the provisions of the corporations
certificate of incorporation, the provisions of this section shall apply, in respect to the removal
without cause of a director or directors so elected, to the vote of the holders of the outstanding
shares of that class or series and not to the vote of the outstanding shares as a whole. Any
director may resign at any time upon notice given in writing or by electronic transmission to the
corporation.
Section 4 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, though less than a quorum, or by a sole remaining director. Each director so chosen
shall hold office until a successor is duly elected and qualified or until his or her earlier
death, resignation or removal as herein provided.
Section 5 Annual Meetings. The annual meeting of each newly elected board of
directors shall be held without notice (other than notice under these by-laws) immediately after,
and at the same place, if any, as the annual meeting of stockholders.
Section 6 Other Meetings and Notice. Regular meetings, other than the annual
meeting, of the board of directors may be held without notice at such time and at such place, if
any, as shall from time to time be determined by resolution of the board of directors and promptly
communicated to all directors then in office. Special meetings of the board of directors may be
called, on at least 24 hours notice to each director, either personally, by telephone, by mail, or
by facsimile or electronic mail.
Section 7 Quorum, Required Vote and Adjournment. A majority of the total
number of directors shall constitute a quorum for the transaction of business. The vote of a
majority of directors present at a meeting at which a quorum is present shall be the act of the
board of directors. If a quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 8 Committees. The board of directors may designate one or more
committees, each committee to consist of one or more of the directors of the corporation, which to
the extent provided in such resolution or these by-laws shall have and may exercise the powers of
the board of directors in the management and affairs of the corporation, except as otherwise
limited by law. 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.
Such committee or committees shall have such name or names as may be
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determined from time to time by resolution adopted by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of directors when
required.
Section 9 Committee Rules. Each committee of the board of directors may fix
its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the board of directors designating such committee. In the
event that a member and that members alternate, if alternates are designated by the board of
directors as provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in place of any such absent or disqualified
member.
Section 10 Communications Equipment. Members of the board of directors or any
committee thereof may participate in and act at any meeting of such board or committee by means of
conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 11 Waiver of Notice and Presumption of Assent. Any member of the
board of directors or any committee thereof who is present at a meeting shall be conclusively
presumed to have waived notice of such meeting, except when such member attends for the express
purpose of objecting at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Such member shall be conclusively presumed to have
assented to any action taken unless his or her dissent shall be entered in the minutes of the
meeting or unless his or her written dissent to such action shall be filed with the person acting
as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered
mail to the secretary of the corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to any member who voted in favor of such action.
Section 12 Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, 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 committee, as the case may be, consent thereto in writing or by electronic
transmission, and the 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.
ARTICLE IV
OFFICERS
OFFICERS
Section 1 Number. The officers of the corporation shall be elected by the
board of directors and shall consist of a president, one or more vice-presidents, a secretary, a
treasurer, and such other officers and assistant officers as may be deemed necessary or desirable
by the
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board of directors. Any number of offices may be held by the same person. In its discretion,
the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 2 Election and Term of Office. The president shall be elected
annually by the board of directors at the first meeting of the board of directors held after each
annual meeting of stockholders or as soon thereafter as conveniently may be. The president shall
appoint other officers to serve for such terms as he or she deems desirable. Vacancies may be
filled or new offices created and filled at any meeting of the board of directors. Each officer
shall hold office until a successor is duly elected and qualified or until his or her earlier
death, resignation or removal as hereinafter provided.
Section 3 Removal. Any officer or agent elected by the board of directors may
be removed by the board of directors whenever in its judgment the best interests of the corporation
would be served thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
Section 4 Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board of directors for
the unexpired portion of the term by the board of directors then in office.
Section 5 Compensation. Compensation of all officers shall be fixed by the
board of directors, and no officer shall be prevented from receiving such compensation by virtue of
his or her also being a director of the corporation.
Section 6 The President. The president shall be the chief executive officer
of the corporation; shall preside at all meetings of the stockholders and board of directors at
which he or she is present; subject to the powers of the board of directors, shall have general
charge of the business, affairs and property of the corporation, and control over its officers,
agents and employees; and shall see that all orders and resolutions of the board of directors are
carried into effect. The president shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be expressly delegated
by the board of directors to some other officer or agent of the corporation. The president shall
have such other powers and perform such other duties as may be prescribed by the board of directors
or as may be provided in these by-laws.
Section 7 Chief Financial Officer. The chief financial officer of the
corporation shall, under the direction of the chief executive officer, be responsible for all
financial and accounting matters and for the direction of the offices of treasurer and controller.
The chief financial officer shall have such other powers and perform such other duties as may be
prescribed by the chairman of the board, the president or the board of directors or as may be
provided in these by-laws.
Section 8 Vice-presidents. The vice-president, or if there shall be more than
one, the vice-presidents in the order determined by the board of directors, shall, in the absence
or disability of the president, act with all of the powers and be subject to all the restrictions
of the
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president. The vice-presidents shall also perform such other duties and have such other
powers as the board of directors, the president or these by-laws may, from time to time, prescribe.
Section 9 Secretary and Assistant Secretaries. The secretary shall attend all
meetings of the board of directors, all meetings of the committees thereof and all meetings of the
stockholders and record all the proceedings of the meetings in a book or books to be kept for that
purpose. Under the presidents supervision, the secretary shall give, or cause to be given, all
notices required to be given by these by-laws or by law, shall have such powers and perform such
duties as the board of directors, the president or these by-laws may, from time to time, prescribe,
and shall have custody of the corporate seal of the corporation. The secretary, or an assistant
secretary, shall have authority to affix the corporate seal to any instrument requiring it and when
so affixed, it may be attested by his or her signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his or her signature. The assistant
secretary, or if there be more than one, the assistant secretaries in the order determined by the
board of directors, shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and have such other powers
as the board of directors, the president, or secretary may, from time to time, prescribe.
Section 10 Treasurer and Assistant Treasurer. The treasurer shall have the
custody of the corporate funds and securities; shall keep full and accurate accounts of receipts
and disbursements in books belonging to the corporation; shall deposit all monies and other
valuable effects in the name and to the credit of the corporation as may be ordered by the board of
directors; shall cause the funds of the corporation to be disbursed when such disbursements have
been duly authorized, taking proper vouchers for such disbursements; and shall render to the
president and the board of directors, at its regular meeting or when the board of directors so
requires, an account of the corporation; shall have such powers and perform such duties as the
board of directors, the president or these by-laws may, from time to time, prescribe. If required
by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered
every six years) in such sums and with such surety or sureties as shall be satisfactory to the
board of directors for the faithful performance of the duties of the office of treasurer and for
the restoration to the corporation, in case of death, resignation, retirement, or removal from
office, of all books, papers, vouchers, money, and other property of whatever kind in the
possession or under the control of the treasurer belonging to the corporation. The assistant
treasurer, or if there shall be more than one, the assistant treasurers in the order determined by
the board of directors, shall in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and
have such other powers as the board of directors, the president or treasurer may, from time to
time, prescribe.
Section 11 Other Officers, Assistant Officers and Agents. Officers, assistant
officers and agents, if any, other than those whose duties are provided for in these by-laws, shall
have such authority and perform such duties as may from time to time be prescribed by resolution of
the board of directors.
Section 12 Absence or Disability of Officers. In the case of the absence or
disability of any officer of the corporation and of any person hereby authorized to act in such
officers place during such officers absence or disability, the board of directors may by
resolution
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delegate the powers and duties of such officer to any other officer or to any director, or to
any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1 Nature of Indemnity. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that
he or she, or a person of whom he or she is the legal representative, is or was a director or
officer, of the corporation or is or was serving at the request of the corporation as a director,
officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest
extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment) against all expense,
liability and loss (including attorneys fees actually and reasonably incurred by such person in
connection with such proceeding), and such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided that, except as provided in Section 2 hereof,
the corporation shall indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by the board of
directors of the corporation. The right to indemnification conferred in this Article V shall be a
contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance of its final
disposition. The corporation may, by action of its board of directors, provide indemnification to
employees and agents of the corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
Section 2 Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation provided for under Section 1 of this
Article V or advance of expenses provided for under Section 5 of this Article V shall be made
promptly, and in any event within 30 days, upon the written request of the director or officer. If
a determination by the corporation that the director or officer is entitled to indemnification
pursuant to this Article V is required, and the corporation fails to respond within 60 days to a
written request for indemnity, the corporation shall be deemed to have approved the request. If
the corporation wrongfully denies a written request for indemnification or advancing of expenses,
in whole or in part, or if payment in full pursuant to such request is not properly made within 30
days, the right to indemnification or advances as granted by this Article V shall be enforceable by
the director or officer in any court of competent jurisdiction. Such persons costs and expenses
incurred in connection with successfully establishing his or her right to indemnification, in whole
or in part, in any such action shall also be indemnified by the corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required undertaking, if
any, has been tendered to the corporation) that the claimant has not met the standards of conduct
which make it permissible under the General Corporation Law of the State of Delaware for the
corporation to indemnify the claimant for the amount claimed, but
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the burden of such 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 in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its board of directors, independent legal counsel, or
its stockholders) that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the applicable standard
of conduct.
Section 3 Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article V shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the certificate of incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 4 Insurance. The corporation may purchase and maintain insurance on
its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary,
or agent of the corporation or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him or her in any such
capacity, whether or not the corporation would have the power to indemnify such person against such
liability under this Article V.
Section 5 Expenses. Expenses incurred by any person described in Section 1 of
this Article V in defending a proceeding shall be paid by the corporation in advance of such
proceedings final disposition upon receipt of an undertaking by or on behalf of the director or
officer or other person to repay such amount if it shall ultimately be determined that he or she is
not entitled to be indemnified by the corporation. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
Section 6 Employees and Agents. Persons who are not covered by the foregoing
provisions of this Article V and who are or were employees or agents of the corporation, or who are
or were serving at the request of the corporation as employees or agents of another corporation,
partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced
expenses, to the extent authorized at any time or from time to time by the board of directors.
Section 7 Contract Rights. The provisions of this Article V shall be deemed
to be a contract right between the corporation and each director or officer who serves in any such
capacity at any time while this Article V and the relevant provisions of the General Corporation
Law of the State of Delaware or other applicable law are in effect, and any repeal or modification
of this Article V or any such law shall not affect any rights or obligations then existing with
respect to any state of facts or proceeding then existing.
Section 8 Merger or Consolidation. For purposes of this Article V, references
to the corporation shall include, in addition to the resulting corporation, any constituent
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corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same position under this
Article V with respect to the resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate existence had continued.
ARTICLE VI
CERTIFICATES OF STOCK
CERTIFICATES OF STOCK
Section 1 Form. 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 president or a
vice-president and the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by such holder in the corporation. If such a certificate is countersigned
(1) by a transfer agent or an assistant transfer agent other than the corporation or its employee
or (2) by a registrar, other than the corporation or its employee, the signature of any such
president, vice-president, secretary, or assistant secretary may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures have been used on,
any such certificate or certificates shall cease to be such officer or officers of the corporation
whether because of death, resignation or otherwise before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be such officer or
officers of the corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered on the books of the corporation.
Shares of stock of the corporation shall only be transferred on the books of the corporation by the
holder of record thereof or by such holders attorney duly authorized in writing, upon surrender to
the corporation of the certificate or certificates for such shares endorsed by the appropriate
person or persons, with such evidence of the authenticity of such endorsement, transfer,
authorization, and other matters as the corporation may reasonably require, and accompanied by all
necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate or certificates, and
record the transaction on its books. The board of directors may appoint a bank or trust company
organized under the laws of the United States or any state thereof to act as its transfer agent or
registrar, or both in connection with the transfer of any class or series of securities of the
corporation.
Section 2 Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or certificates previously
issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, 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, stolen, or destroyed certificate or certificates, or his or her legal
representative, to give the corporation a bond sufficient to indemnify the corporation against any
claim that may be made
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against the corporation on account of the loss, theft or destruction of any such certificate
or the issuance of such new certificate.
Section 3 Fixing a Record Date for Stockholder Meetings. 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 sixty nor less than ten days
before the date of such meeting. If no record date is fixed by the board of directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting of stockholders
shall be the close of business on the next day preceding the day on which notice is given, or if
notice is waived, at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided that the board of
directors may fix a new record date for the adjourned meeting.
Section 4 Fixing a Record Date for Action by Written Consent. In order that
the corporation may determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record date shall not
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 ten days after the date upon which the resolution
fixing the record date is adopted by the board of directors. If no record date has been fixed by
the board of directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board of directors is
required by statute, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the corporations 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 statute, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the board of directors adopts the resolution taking
such prior action.
Section 5 Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment or any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purposes of any other lawful
action, the board of directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record date shall be not
more than sixty days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
Section 6 Registered Stockholders. Prior to the surrender to the corporation
of the certificate or certificates for a share or shares of stock with a request to record the
transfer of
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such share or shares, the corporation may treat the registered owner as the person entitled to
receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner.
Section 7 Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at such time, or in such
installments and at such times, as shall be determined by the board of directors. Any call made by
the board of directors for payment on subscriptions shall be uniform as to all shares of the same
class or as to all shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the amount due in the same
manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1 Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be declared by the board
of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or any other purpose
and the directors may modify or abolish any such reserve in the manner in which it was created.
Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for
the payment of money by or to the corporation and all notes and other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or officers, agent or agents
of the corporation, and in such manner, as shall be determined by resolution of the board of
directors or a duly authorized committee thereof.
Section 3 Contracts. The board of directors may authorize any officer or
officers, or any agent or agents, of the corporation to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances.
Section 4 Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be
with or without interest, and may be unsecured, or secured in such manner as the board of directors
shall approve, including, without limitation, a pledge of shares of stock of the corporation.
Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty
or warranty of the corporation at common law or under any statute.
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Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
Section 6 Corporate Seal. The board of directors shall provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the name of the
corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7 Voting Securities Owned By Corporation. Voting securities in any
other corporation held by the corporation shall be voted by the president, unless the board of
directors specifically confers authority to vote with respect thereto, which authority may be
general or confined to specific instances, upon some other person or officer. Any person
authorized to vote securities shall have the power to appoint proxies, with general power of
substitution.
Section 8 Inspection of Books and Records. Any stockholder of record, in
person or by attorney or other agent, shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours for business to inspect for any proper purpose the
corporations stock ledger, a list of its stockholders, and its other books and records, and to
make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to
such persons interest as a stockholder. In every instance where an attorney or other agent shall
be the person who seeks the right to inspection, the demand under oath shall be accompanied by a
power of attorney or such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the corporation at its
registered office in the State of Delaware or at its principal place of business.
Section 9 Section Headings. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.
Section 10 Inconsistent Provisions. In the event that any provision of these
by-laws is or becomes inconsistent with any provision of the certificate of incorporation, the
General Corporation Law of the State of Delaware or any other applicable law, the provision of
these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise
be given full force and effect.
ARTICLE VIII
AMENDMENTS
AMENDMENTS
These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of
the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or
repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders
of the same powers.
ARTICLE IX
CERTAIN BUSINESS COMBINATIONS
CERTAIN BUSINESS COMBINATIONS
The corporation, by the affirmative vote (in addition to any other vote required by law or the
certificate of incorporation) of its stockholders holding a majority of the shares entitled to
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vote, expressly elects not to be governed by §203 of the General Corporation Law of the State
of Delaware.
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