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8-K - RUBIOS RESTAURANTS INC | v195180_8-k.htm |
EX-3.1 - RUBIOS RESTAURANTS INC | v195180_ex3-1.htm |
EX-3.2 - RUBIOS RESTAURANTS INC | v195180_ex3-2.htm |
EX-99.1 - RUBIOS RESTAURANTS INC | v195180_ex99-1.htm |
BY-LAWS
OF
MRRC
MERGER CO.
Section
1 CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 These
by-laws are subject to the certificate of incorporation of the
corporation. In these by-laws, references to the certificate of
incorporation and by-laws mean the provisions of the certificate of
incorporation and the by-laws as are from time to time in effect.
Section
2 OFFICES
2.1 Registered
Office. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
2.2 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.
Section
3 STOCKHOLDERS
3.1 Location of
Meetings. All meetings of the stockholders shall be held at
such place either within or without the State of Delaware as shall be designated
from time to time by the board of directors, or if not so designated, at the
registered office of the corporation. Notwithstanding the foregoing,
the board of directors may, in its sole discretion, determine that the meeting
shall not be held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the Delaware
General Corporation Law. If so authorized, and subject to such
guidelines and procedures as the board of directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication, participate in a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (i) the corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder, (ii)
the corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (iii) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the corporation. Any adjourned
session of any meeting shall be held at the place designated in the vote of
adjournment.
3.2 Annual
Meeting. The annual meeting of stockholders shall be held at
10:00 a.m. on the second Wednesday in May in each year, unless that day be a
legal holiday at the place where the meeting is to be held, in which case the
meeting shall be held at the same hour on the next succeeding day not a legal
holiday, or at such other date and time as shall be designated from time to time
by the board of directors, at which they shall elect a board of directors and
transact such other business as may be required by law or these by-laws or as
may properly come before the meeting.
3.3 Special Meeting in Place of
Annual Meeting. If the election for directors shall not be
held on the day designated by these by-laws, the directors shall cause the
election to be held as soon thereafter as convenient, and to that end, if the
annual meeting is omitted on the day herein provided therefor or if the election
of directors shall not be held thereat, a special meeting of the stockholders
may be held in place of such omitted meeting or election, and any business
transacted or election held at such special meeting shall have the same effect
as if transacted or held at the annual meeting, and in such case all references
in these by-laws to the annual meeting of the stockholders, or to the annual
election of directors, shall be deemed to refer to or include such special
meeting. Any such special meeting shall be called and the purposes
thereof shall be specified in the call, as provided in Section 3.5.
3.4 Notice of Annual
Meeting. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting. Such notice may specify the business to be
transacted and actions to be taken at such meeting. No action shall
be taken at such meeting unless such notice is given or unless waiver of such
notice is given in accordance with Section 5.2 by each stockholder entitled to
such notice to whom such notice was not given.
3.5 Other Special
Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by law or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of the holders of at least ten percent
of all capital stock of the corporation issued and outstanding and entitled to
vote at such meeting. Such request shall state the purpose or
purposes of the proposed meeting and business to be transacted at any special
meeting of the stockholders.
3.6 Notice of Special
Meeting. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the date of the meeting, to each stockholder entitled to vote at such
meeting. No action shall be taken at such meeting unless such notice
is given or unless waiver of such notice is given in accordance with Section 5.2
by each stockholder entitled to such notice to whom such notice was not
given.
3.7 Stockholder
List. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at 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 for a period of at least ten
days prior to the meeting, either (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the principal place of business of the corporation. In the event that the
corporation determines to make the list available on an electronic network, the
corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is
to be held at a place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to examination
of any stockholder during the entire meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
3.8 Quorum of
Stockholders. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise required by law, by the certificate
of incorporation or by these by-laws. Except as otherwise provided by
law, no stockholder present at a meeting may withhold his shares from the quorum
count by declaring his shares absent from the meeting.
3.9 Adjournment. Any
meeting of stockholders may be adjourned from time to time to any other time and
to any other place at which a meeting of stockholders may be held under these
by-laws, which time and place shall be announced at the meeting, by a majority
of votes cast upon the question, whether or not a quorum is present, or, if no
stockholder is present or represented by proxy, by any officer entitled to
preside at or to act as secretary of such meeting. At
such adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty 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.
3.10 Proxy
Representation. Every stockholder may authorize another person
or persons to act for him by proxy in all matters in which a stockholder is
entitled to participate, whether by waiving notice of any meeting, objecting to
or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or
by his attorney-in-fact. No proxy shall be voted or acted upon after
three years from its date unless such proxy provides for a longer
period. Except as provided by law, a revocable proxy shall be deemed
revoked if the stockholder is present at the meeting for which the proxy was
given. A duly executed proxy shall be irrevocable if it states that
it is irrevocable and, if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be
made irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation
generally. The authorization of a proxy may, but need not be limited
to specified action, provided, however, that if a proxy limits its authorization
to a meeting or meetings of stockholders, unless otherwise specifically provided
such proxy shall entitle the holder thereof to vote at any adjourned session but
shall not be valid after the final adjournment thereof.
3.11 Inspectors. The
directors or the person presiding at the meeting may, but need not unless
required by law, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum and the validity and effect of proxies, and shall
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspectors shall make a
report in writing of any challenge, question or matter determined by them and
execute a certificate of any fact found by them.
3.12 Action by
Vote. When a quorum is present at any meeting, whether the
same be an original or an adjourned session, a plurality of the votes properly
cast for election to any office shall elect to such office and a majority of the
votes properly cast upon any question other than an election to an office shall
decide the question, except when a larger vote is required by law, by the
certificate of incorporation or by these by-laws. 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.
3.13 Action Without
Meetings. 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 in writing, setting forth
the action so taken 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 present and voted. 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.
3.14 Organization. Meetings
of stockholders shall be presided over by the chairperson of the board of
directors, if any, or in his absence by the president, or in his absence by a
vice president, or in the absence of the foregoing persons by a chairperson
chosen at the meeting by the board. The secretary shall act as
secretary of the meeting, but in his absence the chairperson of the meeting may
appoint any person to act as secretary of the meeting. The
chairperson of the meeting shall announce at the meeting of stockholders the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote.
3.15 Conduct of
Meetings. The board of directors of the corporation may adopt
by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the board of
directors, the chairperson of any meeting of stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairperson, are appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the board of directors or prescribed by the chairperson of
the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting
to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as the chairperson of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent
determined by the board of directors or the chairperson of the meeting, meetings
of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section
4 DIRECTORS
4.1 Number. The
number of directors which shall constitute the whole board shall not be less
than one. The first board shall consist of one (1)
director. Thereafter, the stockholders at the annual meeting shall
determine the number of directors, and the number of directors may be increased
or decreased at any time or from time to time by the stockholders or by the
directors by vote of a majority of directors then in office, except that any
such decrease by vote of the directors shall only be made to eliminate vacancies
existing by reason of the death, resignation or removal of one or more
directors. The directors shall be elected at the annual meeting of
the stockholders, except as provided in these by-laws. Directors need
not be stockholders.
4.2 Tenure. Except
as otherwise provided by law, by the certificate of incorporation or by these
by-laws, each director shall hold office until the next annual meeting and until
his successor is elected and qualified, or until he sooner dies, resigns, is
removed or becomes disqualified.
4.3 Powers. The
business of the corporation shall be managed by or under the direction of the
board of directors which shall have and may exercise all the powers of the
corporation and do all such lawful acts and things as are not by law, the
certificate of incorporation or these by-laws directed or required to be
exercised or done by the stockholders.
4.4 Vacancies. Vacancies
and any newly created directorships resulting from any increase in the number of
directors may be filled by vote of the stockholders at a meeting called for the
purpose, or by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. When one or more directors shall resign
from the board, effective at a future date, a majority of the directors then in
office, including those who have resigned, shall have power to fill such vacancy
or vacancies, the vote or action in writing thereon to take effect when such
resignation or resignations shall become effective. The directors
shall have and may exercise all their powers notwithstanding the existence of
one or more vacancies in their number, subject to any requirements of law or of
the certificate of incorporation or of these by-laws as to the number of
directors required for a quorum or for any vote or other
actions.
4.5 Committees. The
board of directors may, by vote of a majority of the whole board, (a) designate,
change the membership of or terminate the existence of any committee or
committees, each committee to consist of one or more of the directors; (b)
designate one or more directors as alternate members of any such committee who
may replace any absent or disqualified member at any meeting of the committee;
and (c) determine the extent to which each such committee shall have and may
exercise the powers and authority of the board of directors in the management of
the business and affairs of the corporation, including the power to authorize
the seal of the corporation to be affixed to all papers which require it and the
power and authority to declare dividends or to authorize the issuance of stock;
excepting, however, such powers which by law, by the certificate of
incorporation or by these by-laws they are prohibited from so
delegating. In the absence or disqualification of any member of such
committee and his alternate, if any, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting 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. Except as the board of directors may otherwise determine, any
committee may make, alter and repeal rules for the conduct of its business, but
unless otherwise provided by the board or such rules, its business shall be
conducted as nearly as may be in the same manner as is provided by these by-laws
for the conduct of business by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors upon request.
4.6 Regular
Meeting. Regular meetings of the board of directors may be
held without call or notice at such place within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting
of the directors may be held without call or notice immediately after and at the
same place as the annual meeting of the stockholders.
4.7 Special
Meetings. Special meetings of the board of directors may be
held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the president, or by
one-third or more in number of the directors, reasonable notice thereof being
given to each director by the secretary or by the president or by any one of the
directors calling the meeting.
4.8 Notice. It
shall be reasonable and sufficient notice to a director to send notice by mail
at least forty-eight hours or by telegram or telecopy or other form of
electronic transmission at least twenty-four hours before the meeting, addressed
to him at his usual or last known business or residence address or to give
notice to him in person or by telephone at least twenty-four hours before the
meeting. Notice of a meeting need not be given to any director if a
written waiver of notice, executed by him before or after the meeting, is filed
with the records of the meeting, or to any director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. Neither notice of a meeting nor a waiver of a notice need
specify the purposes of the meeting.
4.9 Quorum. Except
as may be otherwise provided by law, by the certificate of incorporation or by
these by-laws, at any meeting of the directors a majority of the directors then
in office shall constitute a quorum. A quorum shall not in any case
be less than one-third of the total number of directors constituting the whole
board. Any meeting may be adjourned from time to time by a majority
of the votes cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
4.10 Action by
Vote. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, when a quorum is present at
any meeting the vote of a majority of the directors present shall be the act of
the board of directors.
4.11 Action Without a
Meeting. Unless otherwise restricted by the certificate of
incorporation or these by-laws, 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 the members of the board or of such committee, as the
case may be, consent thereto in writing, and such writing or writings are filed
with the records of the meetings of the board or of such
committee. Such consent shall be treated for all purposes as the act
of the board or of such committee, as the case may be.
4.12 Participation in Meetings by
Conference Telephone. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors or of any
committee thereof may participate in a meeting of such board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each
other. Such participation shall constitute presence in person at such
meeting.
4.13 Compensation. Unless
otherwise restricted by the certificate of incorporation or these by-laws, the
board of directors shall have the authority to fix from time to time the
compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and the
performance of their responsibilities as directors and may be paid a fixed sum
for attendance at each meeting of the board of directors and/or a stated salary
as director. No such payment shall preclude any director from serving
the corporation or its parent or subsidiary corporations in any other capacity
and receiving compensation therefor. The board of directors may also
allow compensation for members of special or standing committees for service on
such committees.
4.14 Interested Directors and
Officers.
(a) No
contract or transaction between the corporation and one or more of its directors
or officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of the corporation's
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 or
committee thereof 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;
or
(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 thereof,
or the stockholders.
(b) 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.
4.15 Resignation or Removal of
Directors. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of the stock issued
and outstanding and entitled to vote at an election of directors. Any director
may resign at any time by delivering his resignation in writing to the president
or the secretary or to a meeting of the board of directors. Such
resignation shall be effective upon receipt unless specified to be effective at
some other time and without in either case the necessity of its being accepted
unless the resignation shall so state. No director resigning and no
director removed shall have any right to receive compensation as such director
for any period following his resignation or removal, except where a right to
receive compensation shall be expressly provided in a duly authorized written
agreement with the corporation, or any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless in the case of a resignation, the directors, or in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
Section
5 NOTICES
5.1 Form of
Notice. Whenever, under the provisions of law, of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, such notice may be given by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States
mail. Unless written notice by mail is required by law, written
notice may also be given by telegram, cable, telecopy, commercial delivery
service, telex or similar means, addressed to such director or stockholder at
his address as it appears on the records of the corporation, in which case such
notice shall be deemed to be given when delivered into the control of the
persons charged with effecting such transmission, the transmission charge to be
paid by the corporation or the person sending such notice and not by the
addressee. Notice may also be given to any stockholder and to any
director by any form of electronic transmission, to the same extent permitted by
Section 232 of the Delaware General Corporation Law with respect to
stockholders, and will be deemed given at the time provided
therein. Oral notice or other in-hand delivery (in person or by
telephone) shall be deemed given at the time it is actually
given.
5.2 Waiver of
Notice. Whenever notice is required to be given under the
provisions of law, the certificate of incorporation or these by-laws, a written
waiver thereof, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose
of, any meeting of the stockholders, directors or members of a committee of the
directors need be specified in any written waiver of notice.
Section
6 OFFICERS AND AGENTS
6.1 Enumeration;
Qualification. The officers of the corporation shall be a
president, a treasurer, a secretary and such other officers, if any, as the
board of directors from time to time may in its discretion elect or appoint
including without limitation a chairperson of the board of directors and one or
more vice presidents. Any officer may be, but none need be, a
director or stockholder. Any two or more offices may be held by the
same person. Any officer may be required by the board of directors to
secure the faithful performance of his duties to the corporation by giving bond
in such amount and with sureties or otherwise as the board of directors may
determine.
6.2 Powers. Subject
to law, to the certificate of incorporation and to the other provisions of these
by-laws, each officer shall have, in addition to the duties and powers herein
set forth, such duties and powers as are commonly incident to his office and
such additional duties and powers as the board of directors may from time to
time designate.
6.3 Election. The
board of directors at its first meeting after each annual meeting of
stockholders shall choose a president, a secretary and a
treasurer. Other officers may be appointed by the board of directors
at such meeting, at any other meeting or by written consent. At any
time or from time to time, the directors may delegate to any officer their power
to elect or appoint any other officer or any agents.
6.4 Tenure. Each
officer shall hold office until the first meeting of the board of directors
following the next annual meeting of the stockholders and until his successor is
elected and qualified unless a shorter period shall have been specified in terms
of his election or appointment, or in each case until he sooner dies, resigns,
is removed or becomes disqualified. Each agent of the corporation
shall retain his authority at the pleasure of the directors, or the officer by
whom he was appointed or by the officer who then holds agent appointive
power.
6.5 Chairperson of the Board of
Directors. The chairperson of the board of directors, if any,
shall have such duties and powers as shall be designated from time to time by
the board of directors. Unless the board of directors otherwise
specifies, the chairperson of the board, or if there is none the president,
shall preside, or designate the person who shall preside, at all meetings of the
stockholders and of the board of directors. References in these
by-laws to a chairperson shall include references to persons designated by the
board of directors with the title chairman, chairwoman or chair or any similar
title.
6.6 President and Vice
Presidents. The president shall be the chief executive officer
and shall have direct and active charge of all business operations of the
corporation and shall have general supervision of the entire business of the
corporation, subject to the control of the board of directors. As
provided in Section 6.5, in the absence of the chairperson of the board of
directors, the president shall preside at all meetings of the stockholders and
of the board of directors at which the president is present, except as otherwise
voted by the board of directors.
The
president or treasurer 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.
Any vice
presidents shall have such duties and powers as shall be designated from time to
time by the board of directors or by the president.
6.7 Treasurer and Assistant
Treasurers. The treasurer shall be the chief financial officer
of the corporation and shall be in charge of its funds and valuable papers, and
shall have such other duties and powers as may be assigned to him from time to
time by the board of directors or by the president.
Any
assistant treasurers shall have such duties and powers as shall be designated
from time to time by the board of directors, the president or the
treasurer.
6.8 Secretary and Assistant
Secretaries. The secretary shall record all proceedings of the
stockholders, of the board of directors and of committees of the board of
directors in a book or series of books to be kept therefor and shall file
therein all writings of, or related to, action by stockholder or director
consent. In the absence of the secretary from any meeting, an
assistant secretary, or if there is none or he is absent, a temporary secretary
chosen at the meeting, shall record the proceedings thereof. Unless a
transfer agent has been appointed, the secretary shall keep or cause to be kept
the stock and transfer records of the corporation, which shall contain the names
and record addresses of all stockholders and the number of shares registered in
the name of each stockholder. The secretary shall have such other
duties and powers as may from time to time be designated by the board of
directors or the president.
Any
assistant secretaries shall have such duties and powers as shall be designated
from time to time by the board of directors, the president or the
secretary.
6.9 Resignation and
Removal. Any officer may resign at any time by delivering his
resignation in writing to the president or the secretary or to a meeting of the
board of directors. Such resignation shall be effective upon receipt
unless specified to be effective at some other time, and without in any case the
necessity of its being accepted unless the resignation shall so
state. The board of directors may at any time remove any officer
either with or without cause. The board of directors may at any time
terminate or modify the authority of any agent. No officer resigning
and no officer removed shall have any right to any compensation as such officer
for any period following his resignation or removal, except where a right to
receive compensation shall be expressly provided in a duly authorized written
agreement with the corporation, or any right to damages on account of such
removal, whether his compensation be by the month or by the year or otherwise;
unless in the case of a resignation, the directors, or in the case of removal,
the body acting on the removal, shall in their or its discretion provide for
compensation.
6.10 Vacancies. If
the office of the president or the treasurer or the secretary becomes vacant,
the directors may elect a successor. If the office of any other
officer becomes vacant, any person or body empowered to elect or appoint that
office may choose a successor. Each such successor shall hold office
for the unexpired term of his predecessor, and in the case of the president, the
treasurer and the secretary until his successor is chosen and qualified, or in
each case until he sooner dies, resigns, is removed or becomes
disqualified.
Section
7 CAPITAL STOCK
7.1 Stock
Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by
(i) the chairperson of the board of directors or the president or a
vice-president and (ii) the treasurer or an assistant treasurer or the secretary
or an assistant secretary. Any or all of the signatures on the
certificate may be a facsimile. In case an officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the time
of its issue.
7.2 Lost
Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
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 legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section
8 TRANSFER OF SHARES OF STOCK
8.1 Transfer on
Books. Subject to any restrictions with respect to the
transfer of shares of stock, 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 therefor properly endorsed or accompanied by a written assignment
and power of attorney properly executed, with necessary transfer stamps affixed,
and with such proof of the authenticity of signature as the board of directors
or the transfer agent of the corporation 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 receive notice and to vote or to give any consent with respect thereto and to
be held liable for such calls and assessments, if any, as may lawfully be made
thereon, regardless of any transfer, pledge or other disposition of such stock
until the shares have been properly transferred on the books of the
corporation.
It shall
be the duty of each stockholder to notify the corporation of his post office
address.
Section
9 GENERAL PROVISIONS
9.1 Record
Date. 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, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action to which
such record date relates. 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. If no record date is
fixed,
(a) The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held;
(b) 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; and
(c) 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.
9.2 Dividends. Dividends
upon the capital stock of the corporation may be declared by the board of
directors at any regular or special meeting or by written consent, 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.
9.3 Payment of
Dividends. 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
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
9.4 Checks. All
checks or demands for money and notes of the corporation shall be signed by such
officer or officers or such other person or persons as the board of directors
may from time to time designate.
9.5 Fiscal
Year. The fiscal year of the corporation shall begin on the
first of January in each year and shall end on the last day of December next
following, unless otherwise determined by the board of directors.
9.6 Seal. The
board of directors may, by resolution, adopt a corporate seal. The
corporate seal shall have inscribed thereon the name of the corporation, the
year of its organization and the word “Delaware.” The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by
the board of directors.
Section
10 INDEMNIFICATION
10.1 It
being the intent of the corporation to provide maximum protection available
under the law to its executive officers and directors, the corporation shall
indemnify its executive officers and directors to the full extent the
corporation is permitted or required to do so by the Delaware General
Corporation Law. In furtherance of and not in limitation of the
foregoing, the corporation shall advance expenses, including attorneys' fees,
incurred by an executive officer or director of the corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or executive officer to repay
such advances if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation. The corporation shall have power to
indemnify its other officers, employees and other agents as set forth in the
Delaware General Corporation Law. The corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or who is 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 such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the corporation has the power to indemnify such person
under the Delaware General Corporation Law. Notwithstanding the
foregoing, the Corporation shall not be required to indemnify any
person in connection with any action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person against the corporation or its
directors, officers, employees or other agents unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by
the board of directors of the corporation and (iii) such indemnification is
provided by the corporation, in its sole discretion, pursuant to the powers
vested in the corporation under the Delaware General Corporation
Law.
Notwithstanding
the foregoing, unless otherwise determined pursuant to Section 10 of these
by-laws, no advance shall be made by the corporation if a determination is
reasonably and promptly made (i) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to the proceeding or (ii)
if such quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, that the facts known to the decision-making party at the time such
determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation.
10.2 (a) For
purposes of any determination under this Bylaw, a director or executive officer
shall be deemed to have acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe that his or her conduct was unlawful, if his or her action is
based on information, opinions, reports and statements, including financial
statements and other financial data, in each case prepared or presented
by:
(1) one
or more officers or employees of the corporation whom the director or executive
officer believed to be reliable and competent in the matters
presented;
(2) counsel,
independent accountants or other persons as to matters which the director or
executive officer believed to be within such person's professional competence;
and
(3) with
respect to a director, a committee of the board upon which such director does
not serve, as to matters within such committee's designated authority, which
committee the director believes to merit confidence; so long as, in each case,
the director or executive officer acts without knowledge that would cause such
reliance to be unwarranted.
(b) The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal proceeding, that such person had
reasonable cause to believe that his or her consent was unlawful.
(c) The
provisions of this Section 10.2 shall not be deemed to be exclusive or to limit
in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth by the Delaware General Corporation
Law.
10.3 Without
the necessity of entering into an express contract, all rights to
indemnification and advances to directors and executive officers under this
Bylaw shall be deemed to be contractual rights and be effective to the same
extent and as if provided for in a contract between the corporation and the
director or executive officer. Any right to indemnification or
advances granted by this Bylaw to a director or executive officer shall be
enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting such claim. The corporation
shall be entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed. 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 Delaware General Corporation
Law, nor an actual determination by the corporation (including its board of
directors, independent legal counsel or its stockholders) that the claimant 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.
10.4 The
rights conferred on any person by this Bylaw shall continue as to a person who
has ceased to be a director, officer, employee or other agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person. The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, as amended
from time to time, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding office. The
corporation is specifically authorized to enter into individual contracts with
any or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the
Delaware General Corporation Law.
Section
11 AMENDMENTS
11.1 These
by-laws may be altered, amended or repealed or new by-laws may be adopted by the
stockholders or by the board of directors when such power is conferred upon the
board of directors by the certificate of incorporation, at any regular meeting
of the stockholders or of the board of directors or at any special meeting of
the stockholders or of the board of directors. If the power to adopt,
amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.