Attached files
file | filename |
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EX-21 - SUBSIDIARIES OF THE REGISTRANT - AVID TECHNOLOGY, INC. | exhibit_21.htm |
EX-31.1 - CEO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-1.htm |
EX-10.8 - SECOND AND RESTATED 1996 ESPP, AS AMENDED - AVID TECHNOLOGY, INC. | exhibit_10-8.htm |
EX-23.1 - CONSENT OF ERNST & YOUNG LLP - AVID TECHNOLOGY, INC. | exhibit_23-1.htm |
EX-31.2 - CFO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-2.htm |
EX-32.1 - CEO & CFO SECTION 906 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_32-1.htm |
EX-10.36 - LETTER AGREEMENT BETWEEN AVID AND MARTIN VANN - AVID TECHNOLOGY, INC. | exhibit_10-36.htm |
EX-10.37 - FORM OF EXECUTIVE OFFICER EMPLOYMENT AGREEMENT - AVID TECHNOLOGY, INC. | exhibit_10-37.htm |
10-K - FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2009 - AVID TECHNOLOGY, INC. | f10k_123109.htm |
EXHIBIT
3.3
AMENDED
AND RESTATED
BY-LAWS
OF
AVID
TECHNOLOGY, INC.
(as
amended on February 9, 2010)
ARTICLE 1 -
Stockholders
1.1 Place of
Meetings. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the President or, if not so designated, at the
registered office of the corporation.
1.2 Annual
Meeting. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors or the President (which date shall not be a legal holiday in the place
where the meeting is to be held) at the time and place to be fixed by the Board
of Directors or the President and stated in the notice of the
meeting. If no annual meeting is held in accordance with the
foregoing provisions, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be held in
lieu of the annual meeting, and any action taken at that special meeting shall
have the same effect as if it had been taken at the annual meeting, and in such
case all references in these By-Laws to the annual meeting of the stockholders
shall be deemed to refer to such special meeting.
1.3 Special
Meetings. Special meetings of stockholders may be called at
any time by the Chairman of the Board, the President or by a majority of the
members of the Board of Directors. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 Notice of
Meetings. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all
meetings shall state the place, date and hour of the meeting. The
notice of a special meeting shall state, in addition, the purpose or purposes
for which the meeting is called. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting
List. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before 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 10 days prior to the meeting, at a place within
the city where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time of
the meeting, and may be inspected by any stockholder who is
present.
1.6 Quorum. Except
as otherwise provided by law, the Certificate of Incorporation or these By-Laws,
the holders of a majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business.
1.7 Adjournments. Any
meeting of stockholders may be adjourned to any other time and to any other
place at which a meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting and entitled to vote,
although less than a quorum, or, if no stockholder is present, by any
officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of
any adjournment of less than 30 days if the time and place of the adjourned
meeting are announced at the meeting at which adjournment is taken, unless after
the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
1.8 Voting and
Proxies. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided in the
Certificate of Incorporation. Each stockholder of record entitled to
vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent
in person or may authorize another person or persons to vote or act for him by
written proxy executed by the stockholder or his authorized agent and delivered
to the Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution, unless the proxy
expressly provides for a longer period.
1.9 Action at
Meeting. When a quorum is present at any meeting, any matter
other than the election of directors to be voted upon by the stockholders at
such meeting shall be decided by the vote of the holders of shares of stock
having a majority in voting power of the votes cast by the holders of all of the
shares of stock present or represented at the meeting and voting affirmatively
or negatively on such matter (or if there are two or more classes or series of
stock entitled to vote as separate classes, then in the case of each such class
or series, the holders of a majority in voting power of the shares of stock of
that class or series present or represented at the meeting and voting
affirmatively or negatively on such matter), except when a different vote is
required by law, the Certificate of Incorporation or these
By-Laws. Other than in a Contested Election Meeting (as defined
below), when a quorum is present, a nominee for director shall be elected to the
Board of Directors if the votes cast “for” such nominee’s election exceed the
votes cast “against” such nominee’s election (with “abstentions,” “broker
non-votes” and “withheld votes” not counted as a vote “for” or “against” such
nominee’s election). In a Contested Election Meeting, when a quorum is
present, directors shall be elected by a plurality of the votes cast at such
Contested Election Meeting. If directors are to be elected by a
plurality of the votes cast, stockholders shall not be permitted to vote
“against” a nominee. A meeting of stockholders shall be a “Contested
Election Meeting” if there are more persons nominated for election as directors
at such meeting than there are directors to be elected at such meeting,
determined as of the tenth day preceding the date of the corporation’s first
notice to stockholders of such meeting sent pursuant to Section 1.4 of
these By-Laws (the “Determination Date”); provided, however, that if in
accordance with Section 1.10 of these By-Laws stockholders are entitled to
nominate persons for election as director during a period of time that ends
after the otherwise applicable Determination Date, the Determination Date shall
instead be as of the end of such period. 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.
1.10 Introduction of Business at
Meeting. Except as otherwise provided by law, at any annual or
special meeting of stockholders only such business shall be conducted as shall
have been properly brought before the meeting. In order to be
properly brought before the meeting, such business must have been either (A)
specified in the written notice of the meeting (or any supplement thereto) given
to stockholders of record on the record date for such meeting by or at the
direction of the Board of Directors, (B) brought before the meeting at the
direction of the Board of Directors or the chairman of the meeting or (C)
specified in a written notice given by or on behalf of a stockholder of record
on the record date for such meeting entitled to vote thereat or a duly
authorized proxy for such stockholder, in accordance with all of the following
requirements. A notice referred to in clause (C) hereof must be
delivered personally to or mailed to and received at the principal executive
office of the corporation, addressed to the attention of the Secretary, not more
than ten (10) days after the date of the initial notice referred to in clause
(A) hereof, in the case of business to be brought before a special meeting of
stockholders, and not less than thirty (30) days prior to the first anniversary
date of the initial notice referred to in clause (A) hereof to the previous
year's annual meeting, in the case of business to be brought before an annual
meeting of stockholders, provided, however, that such notice shall not be
required to be given more than sixty (60) days prior to an annual meeting of
stockholders. Such notice referred to in clause (C) hereof shall set
forth (i) a full description of each such item of business proposed to be
brought before the meeting, (ii) the name and address of the person proposing to
bring such business before the meeting, (iii) the class number of shares held of
record, held beneficially and represented by proxy by such person as of the
record date for meeting (if such date has been made publicly available) and as
of the date of such notice, (iv) if any item of such business involves
nomination for director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities Exchange Commission pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended, or any successor thereto, and the written consent of
each such nominee to serve if elected, and (v) all other information that would
be required to be filed with the Securities and Exchange Commission if, with
respect to the business proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation subject to Section
14 of the Securities Exchange Act of 1934, as amended, or any successor
thereto. No business shall be brought before any meeting of
stockholders of the Corporation otherwise than as provided in this
paragraph.
Notwithstanding the foregoing
provisions, the Board of Directors shall be obligated to include information as
to any nominee for director in any proxy statement or other communication sent
to stockholders.
The chairman of the meeting may, if the
facts warrant, determine and declare to the meeting that any proposed item of
business was not brought before the meeting in accordance with the foregoing
procedure and, if he should so determine, he shall so declare to the meeting and
the defective item of business shall be disregarded.
1.11 Action without
Meeting. Until the closing of a firm commitment, underwritten
public offering of the corporation's Common Stock (a “Public Offering”), any
action required or permitted to be taken at any annual or special meeting of
stockholders of the corporation may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, is 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 on such action were present
and voted. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Effective upon the
closing of a Public Offering, stockholders of the corporation may not take any
action by written consent in lieu of a meeting. Notwithstanding any
other provision of law, the Certificate of Incorporation, as amended, or these
By-laws, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least sixty-six and two-thirds
per cent (66 2/3%) of the votes which all the stockholders would be entitled to
case at any annual election or directors or class of directors shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Section
1.11.
ARTICLE 2 -
Directors
2.1 General
Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and
Qualification. The number of directors which shall constitute
the whole Board of Directors shall be determined by resolution of the
stockholders or the Board of Directors, but in no event shall be less than
three. The number of directors may be decreased at any time and from
time to time either by the stockholders or by a majority of the directors then
in office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more
directors. The number of directors may be increased at any time and
from time to time by a majority of the directors then in office. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors
need not be stockholders of the corporation.
2.3 Classes of
Directors. The Board of Directors shall be and is divided into
three classes: Class I, Class II and Class III. No one
class shall have more than one director more than any other class. If
a fraction is contained in the quotient arrived at by dividing the authorized
number of directors by three, then if such fraction is one-third, the extra
director shall be a member of Class III and, if such fraction is two thirds, one
of the extra directors shall be a member of Class I and the other extra director
shall be a member of Class II, unless otherwise provided for from time to time
by resolution adopted by a majority of the Board of Directors.
2.4 Terms in
Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
shall serve for a term ending on the date of the annual meeting next following
the end of the Corporation's fiscal year ending December 31, 1993; each initial
director in Class II shall serve for a term ending on the date of the annual
meeting next following the end of the Corporation's fiscal year ending December
31, 1994; and each initial director in Class III shall serve for a term ending
on the date of the annual meeting next following the end of the Corporation's
fiscal year ending December 31, 1995.
2.5 Allocation of Directors
Among Classes in the Event of Increases or Decreases in the Number of
Directors. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such shall
nevertheless continue as director of the class of which he is a member until the
expiration of his current term or his prior death, retirement or resignation and
(ii) the newly created or eliminated directorships resulting from such increase
or decrease shall be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of office are to expire at the
earliest dates following such allocation, unless otherwise provided for from
time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum.
2.6 Tenure. Notwithstanding
any provisions to the contrary contained herein, each director shall hold office
until the next annual meeting and until his successor is elected and qualified,
or until his earlier death, resignation or removal.
2.7
Vacancies. Unless
and until filled by the stockholders, any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of the
Board, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office, and a director chosen to fill a position resulting
from an increase in the number of directors shall hold office until the annual
meeting of stockholders at which the terms of the other directors of the same
class as the director chosen to fill such position expire and until his
successor is elected and qualified, or until his earlier death, resignation or
removal.
2.8
Resignation. Any
director may resign by delivering his written resignation to the corporation at
its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other
event.
2.9
Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board
of Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.10.
Special
Meetings. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in
office.
2.11
Notice of Special
Meetings. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 48 hours in advance of the meeting, (ii) by sending a telegram or telex,
or delivering written notice by hand, to his last known business or home address
at least 48 hours in advance of the meeting, or (iii) by mailing written notice
to his last known business or home address at least 72 hours in advance of the
meeting. A notice or waiver of notice of a meeting of the Board of
Directors need not specify the purposes of the meeting.
2.12 Meetings by Telephone
Conference Calls. Directors or any members of any committee
designated by the directors may participate in a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
2.13 Quorum. A
majority of the total number of the whole Board of Directors shall constitute a
quorum at all meetings of the Board of Directors. In the event one or
more of the directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a
quorum at any such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.14 Action at
Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
2.15 Action by
Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.16 Removal. Except
as otherwise provided by the General Corporation Law of Delaware, any one or
more or all of the directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors, except that the directors elected by the holders of a particular
class or series of stock may be removed without cause only by vote of the
holders of a majority of the outstanding shares of such class or
series.
2.17 Committees. The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence
or disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in
the resolution of the Board of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may require
it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-Laws for the Board of Directors.
2.18 Compensation of
Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the
Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.19 Amendments to
Article. Notwithstanding any other provisions of law, the
Certificate of Incorporation or these By-Laws, and notwithstanding the fact that
a lesser percentage may be specified by law, the affirmative vote of the holders
of at least sixty-six and two thirds percent (66 2/3%) of the votes which all
the stockholders would be entitled to cast at any annual election of directors
or class of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article II.
ARTICLE 3 -
Officers
3.1 Enumeration. The
officers of the corporation shall consist of a President, a Secretary, a
Treasurer and such other officers with such other titles as the Board of
Directors shall determine, including a Chairman of the Board, a Vice-Chairman of
the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant
Secretaries. The Board of Directors may appoint such other officers
as it may deem appropriate.
3.2 Election. The
President, Treasurer and Secretary shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of
stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 Qualification. No
officer need be a stockholder. Any two or more offices may be held by
the same person.
3.4 Tenure. Except
as otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, each officer shall hold office until his successor is elected and
qualified, unless a different term is specified in the vote choosing or
appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and
Removal. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
Any officer may be removed at any time,
with or without cause, by vote of a majority of the entire number of directors
then in office.
Except as the Board of Directors may
otherwise determine, no officer who resigns or is removed shall have any right
to any compensation as an officer for any period following his resignation
or removal, or any right to damages on account of such removal, whether his
compensation be by the month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written agreement with
the corporation.
3.6 Vacancies. The
Board of Directors may fill any vacancy occurring in any office for any reason
and may, in its discretion, leave unfilled for such period as it may determine
any offices other than those of President, Treasurer and
Secretary. Each such successor shall hold office for the unexpired
term of his predecessor and until his successor is elected and qualified, or
until his earlier death, resignation or removal.
3.7 Chairman of the Board and
Vice-Chairman of the Board. The Board of Directors may appoint
a Chairman of the Board and may designate the Chairman of the Board as Chief
Executive Officer. 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. If the Board of Directors appoints
a Vice-Chairman of the Board, he shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other, duties and possess such
other powers as may from time to time be vested in him by the Board of
Directors.
3.8 President. The
President shall, subject to the direction of the Board of Directors, have
general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he
shall preside at all meetings of the stockholders and, if he is a director, at
all meetings of the Board of Directors. Unless the Board of Directors
has designated the Chairman of the Board or another officer as Chief Executive
Officer, the President shall be the Chief Executive Officer of the corporation.
The President shall perform such other duties and shall have such other powers
as the Board of Directors may from time to time prescribe.
3.9 Vice
Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to
act of the President, the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board of Directors) shall
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the
President. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or
any other title selected by the Board of Directors.
3.10 Secretary and Assistant
Secretaries. The Secretary shall perform such duties and shall
have such powers as the Board of Directors or the President may from time to
time prescribe. In addition, the Secretary shall perform such duties
and have such powers as are incident to the office of the secretary, including
without limitation the duty and power to give notices of all meetings of
stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform
such duties and possess such powers as the Board of Directors, the President or
the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary,
(or if there shall be more than one, the Assistant Secretaries in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Secretary.
In the absence of the Secretary or any
Assistant Secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary secretary to keep a record
of the meeting.
3.11 Treasurer and Assistant
Treasurers. The Treasurer shall perform such duties and shall
have such powers as may from time to time be assigned to him by the Board of
Directors or the President. In addition, the Treasurer shall perform
such duties and have such powers as are incident to the office of treasurer,
including without limitation the duty and power to keep and be responsible for
all funds and securities of the corporation, to deposit funds of the corporation
in depositories selected in accordance with these By-Laws, to disburse such
funds as ordered by the Board of Directors, to make proper accounts of such
funds, and to render as required by the Board of Directors statements of all
such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform
such duties and possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the Assistant Treasurer,
(or if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Treasurer.
3.12 Salaries. Officers
of the corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
ARTICLE 4 - Capital
Stock
4.1 Issuance of
Stock. Unless otherwise voted by the stockholders and subject
to the provisions of the Certificate of Incorporation, the whole or any part of
any unissued balance of the authorized capital stock of the corporation or the
whole or any part of any unissued balance of the authorized capital stock of the
corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of
Stock. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and by
the Board of Directors, certifying the number and class of shares owned by him
in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice-Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock
which are subject to any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any agreement
among any number of shareholders or among such holders and the corporation shall
have conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such
restriction.
4.3 Transfers. Except
as otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law, shares of stock may be transferred on
the books of the corporation by the surrender to the corporation or its
transfer agent of the certificate representing such shares properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except
as may be otherwise required by law, by the Certificate of Incorporation or by
these By-Laws, the corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with respect to such
stock, regardless of any transfer, pledge or other disposition of such stock
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed
Certificates. The corporation may issue a new certificate of
stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including the presentation of reasonable evidence of such loss,
theft or destruction and the giving of such indemnity as the Board of Directors
may require for the protection of the corporation or any transfer agent or
registrar.
4.5 Record
Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action to which such record date relates.
If no record date is fixed, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. The record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating to such purpose.
A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - General
Provisions
5.1 Fiscal
Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each
year.
5.2 Corporate
Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of
Notice. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these By-Laws, a waiver of
such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4 Voting of
Securities. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of which
may be held by this corporation.
5.5 Evidence of
Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Certificate of
Incorporation. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to
time.
5.7 Transactions with Interested
Parties. No contract or transaction between the corporation
and one or more of the directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of the directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee of the Board of Directors which authorizes
the contract or transaction or solely because his or their votes are counted for
such purpose, if:
(1) The
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or
(3) The
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the
Board of Directors, or the stockholders.
Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
5.8 Severability. Any
determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
5.9 Pronouns. All
pronouns used in these By-Laws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or persons
may require.
ARTICLE 6 -
Amendments
6.1 By the Board of
Directors. Except as otherwise set forth in these By-Laws,
these By-Laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is
present.
6.2 By the
Stockholders. Except as otherwise set forth in these By-Laws,
these By-Laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
any regular meeting of stockholders, or at any special meeting of stockholders,
provided notice of such alteration, amendment, repeal or adoption of new by-laws
shall have been stated in the notice of such special meeting.