Attached files
file | filename |
---|---|
10-K - PERPETUAL TECHNOLOGIES, INC. | v206730_10k.htm |
EX-32 - PERPETUAL TECHNOLOGIES, INC. | v206730_ex32.htm |
EX-3.1 - PERPETUAL TECHNOLOGIES, INC. | v206730_ex3-1.htm |
EX-31.1 - PERPETUAL TECHNOLOGIES, INC. | v206730_ex31-1.htm |
EX-31.2 - PERPETUAL TECHNOLOGIES, INC. | v206730_ex31-2.htm |
CHINA
SLP FILTRATION TECHNOLOGY, INC.
(a
Delaware corporation)
AMENDED
AND RESTATED BYLAWS
ARTICLE
I
STOCKHOLDERS
Section 1.1 Annual Meeting. An
annual meeting of the stockholders, for the election of directors and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix.
Section 1.2 Special Meetings.
Special meetings of the stockholders may be called only by the Board of
Directors, for any purpose or purposes prescribed in the notice of the meeting,
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exists any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption) and shall be held at such place, on such date and at
such time as the Board of Directors may fix provided that the
Board of Directors shall call a special meeting of stockholders upon request by
the holders of not less than 25% of all shares entitled to cast votes at the
meeting, voting together as a single class, only for the purposes set forth in
Section 2.3. Business transacted at special meetings shall be
confined to the purpose or purposes stated in the notice.
Upon
request in writing sent by registered mail to the president or chief executive
officer by any stockholder or stockholders entitled to request a special meeting
of stockholders pursuant to this Section 1.2 and Section 2.3, and
containing the information required pursuant to Sections 1.8(b) and 2.11, the
Board of Directors shall determine a place and time for such meeting,
which time shall be not less than one hundred twenty (120) nor more than
one hundred thirty (130) days after the receipt of such request, and a
record date for the determination of stockholders entitled to vote at such
meeting shall be fixed by the Board of Directors, in advance, which shall not be
more that 60 days nor less than 10 days before the date of such
meeting. Following such receipt of a request and determination by the
Secretary of the validity thereof, it shall be the duty of the Secretary to
present the request to the Board of Directors, and upon Board action as provided
in this Section 1.2, to cause notice to be given to the stockholders
entitled to vote at such meeting, in the manner set forth in Section 1.3
hereof, that a meeting will be held at the place and time so determined, for
such purposes, as well as any purpose or purposes determined by the Board of
Directors in accordance with this Section 1.2.
Section 1.3 Notice of Meetings.
Written notice of the place, date, and time of all meetings of the stockholders
shall be given, not less than ten (10) nor more than sixty (60) days
before the date on which the meeting is to be held, to each stockholder entitled
to vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the Delaware
General Corporation Law or the Certificate of Incorporation of the
Corporation).
Section 1.4 Adjournment. 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
holders of a majority of the shares of stock 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. When a meeting is adjourned to another place, date or
time, written notice need not be given of the adjourned meeting if the place,
date and time thereof are announced at the meeting at which the adjournment is
taken; provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting, written
notice of the place, date, and time of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
Section 1.5 Quorum. At any
meeting of the stockholders, the holders of a one-third of all of the shares of
the stock entitled to vote at the meeting, present in person or by proxy, shall
constitute a quorum for all purposes, unless or except to the extent that the
presence of a larger number may be required by law.
If a
quorum shall fail to attend any meeting, the chairman of the meeting or the
holders of a majority of the shares of stock entitled to vote who are present,
in person or by proxy, may adjourn the meeting to another place, date, or
time.
Section 1.6 Conduct of the Stockholders’
Meeting. At every meeting of the stockholders, the Chairman, if there is
such an officer, or if not, the President of the Corporation, or in his absence
the Vice President designated by the President, or in the absence of such
designation any Vice President, or in the absence of the President or any Vice
President, a chairman chosen by the majority of the voting shares represented in
person or by proxy, shall act as Chairman. The Secretary of the
Corporation or a person designated by the Chairman shall act as Secretary of the
meeting. Unless otherwise approved by the Chairman, attendance at the
stockholders’ meeting is restricted to stockholders of record, persons
authorized in accordance with Section 1.9 of these Bylaws to act by proxy,
and officers of the Corporation.
Section 1.7 Conduct of Business.
The Chairman shall call the meeting to order, establish the agenda, and conduct
the business of the meeting in accordance therewith or, at the Chairman’s
discretion, it may be conducted otherwise in accordance with the wishes of the
stockholders in attendance. The opening and closing of the polls for each matter
upon which the stockholders will vote at the meeting shall be announced at the
meeting.
The
Chairman shall also conduct the meeting in an orderly manner, rule on the
precedence of and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 1.7 and
Section 1.8, below, and no business shall be conducted at a special meeting
except for that specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors. The Chairman of a
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with the
provisions of this Section 1.7 and Section 1.8, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section 1.8 Notice of Stockholder
Business.
(a) At an
annual or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (ii) properly brought before the meeting by or at
the direction of the Board of Directors, or (iii) properly brought before
an annual meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder proposal to be presented at an annual meeting shall be received at
the Corporation’s principal executive offices not less than 120 calendar days in
advance of the date of previous year’s annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days,
notice by the stockholders to be timely must be received not later than the
close of business on the tenth day following the day on which the date of the
annual meeting is publicly announced. “Public announcement” for purposes hereof
shall have the meaning set forth in Article II, Section 2.11 of these
Bylaws. For business to be properly brought before a special meeting
by a stockholder, the business must be limited to the purposes set forth in
Section 2.3 made by a request under Section 1.2.
(b) A
stockholder’s notice to the Secretary of the Corporation shall set forth as to
each matter the stockholder proposes to bring before the annual or special
meeting (i) a brief description of the business desired to be brought
before the annual or special meeting and reasons for conducting such business at
the special meeting, (ii) the name and address, as they appear on the
Corporation’s books, of the stockholder proposing such business, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, and (iv) any material interest of the stockholder in such
business.
2
Section 1.9 Voting and
Proxies. Unless otherwise provided by law or the certificate
of incorporation, each stockholder shall have one
vote for each share of stock entitled to vote held of record by such
stockholder. Each stockholder of record entitled to vote at a meeting
of stockholders, may vote in person or by written proxy executed by the
stockholder or his authorized agent or by a transmission permitted by law and
delivered to the Secretary of the Corporation. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
transmission or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Every
vote shall be taken by written ballot, each of which shall state the name of the
stockholder or proxy voting and such other information as may be required under
the procedure established for the meeting. Every vote taken by a written ballot
shall be counted by an inspector or inspectors appointed by the chairman of the
meeting. The Corporation may, and to the extent required by law,
shall, in advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The Corporation may
designate one or more persons as an alternate inspector to replace any inspector
who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the person presiding at the meeting may, and to the
extent required by law, shall, appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
All
elections shall be determined by a plurality of the votes cast, and all other
matters shall be determined by a majority of the votes cast affirmatively or
negatively on the matter, except when a different vote is required by express
provision of law, the Certificate of Incorporation or these
By-laws.
Section 1.10 Stock
List. A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten (10) days prior to the meeting, at the
principal place of business of the Corporation.
The stock
list shall also be kept at the place of the meeting during the whole time
thereof and shall be open to the examination of any such stockholder who is
present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE
II
BOARD
OF DIRECTORS
Section 2.1 Number and Term of
Office. The number of directors shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). All directors
shall hold office until their respective successors are elected or their earlier
death, resignation or removal.
Section 2.2 Vacancies and Newly Created
Directorships. Newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification or
other cause (other than removal from office by a vote of the stockholders) may
be filled only by a majority vote of the directors then in office, though less
than a quorum, or by the sole remaining director. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
3
Section 2.3 Removal Any
directors, or the entire Board of Directors, may be removed from office at any
time, with or without cause, but only by the affirmative vote of the holders of
at least a majority of the voting power of all of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class. Vacancies in the Board
of Directors resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the stockholders at a
special meeting of stockholders called for that purpose provided that the
request for such meeting is made in compliance with Sections 1.2 and
1.8. Directors so chosen shall hold office until the next annual
meeting of stockholders and until their respective successors are elected, or
their earlier death, resignation or removal.
Section 2.4 Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
Section 2.5 Special Meetings.
Special meetings of the Board of Directors may be called by one-third of the
directors then in office (rounded up to the nearest whole number) or by the
chief executive officer and shall be held at such place, on such date, and at
such time as they or he or she shall fix. Notice of the place, date, and time of
each such special meeting shall be given to each director by whom it is not
waived by mailing written notice not fewer than three (3) business days before
the meeting or by telegraphing or personally delivering the same not fewer than
twenty-four (24) hours before the meeting. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special
meeting.
Section 2.6 Quorum. At
any meeting of the Board of Directors, a majority of the total number of
authorized directors shall constitute a quorum for all purposes. If a quorum
shall fail to attend any meeting, a majority of those present may adjourn the
meeting to another place, date, or time, without further notice or waiver
thereof.
Section 2.7 Participation in Meetings by
Conference Telephone. 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 and such
participation shall constitute presence in person at such meeting.
Section 2.8 Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in such
order and manner as the Board of Directors may from time to time determine, and
all matters shall be determined by the vote of a majority of the directors
present, except as otherwise provided herein or required by
law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of
Directors.
Section 2.9 Powers. The Board of
Directors may, except as otherwise required by law, exercise all such powers and
do all such acts and things as may be exercised or done by the Corporation,
including, without limiting the generality of the foregoing, the unqualified
power:
(a) To
declare dividends from time to time in accordance with law;
(b) To
purchase or otherwise acquire any property, rights or privileges on such terms
as it shall determine;
(c) To
authorize the creation, making and issuance, in such form as it may determine,
of written obligations of every kind, negotiable or non-negotiable, secured or
unsecured, and to do all things necessary in connection therewith;
(d) To
remove any officer of the Corporation with or without cause, and from time to
time to devolve the powers and duties of any officer upon any other person for
the time being;
(e) To
confer upon any officer of the Corporation the power to appoint, remove and
suspend subordinate officers, employees and agents;
4
(f) To
adopt from time to time such stock, option, stock purchase, bonus or other
compensation plans for directors, officers, employees, consultants and agents of
the Corporation and its subsidiaries as it may determine;
(g) To
adopt from time to time such insurance, retirement, and other benefit plans for
directors, officers, employees and agents of the Corporation and its
subsidiaries as it may determine; and
(h) To
adopt from time to time regulations, not inconsistent with these bylaws, for the
management of the Corporation’s business and affairs.
Section 2.10 Compensation of
Directors. Directors, as such, may receive, pursuant to resolution of the
Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of
committees of the Board of Directors.
Section 2.11 Nomination of Director
Candidates.
(a)
Nominations for the election of directors may be made at an annual meeting by
the Board of Directors or a committee appointed by the Board of Directors or by
any stockholder entitled to vote in the election of directors generally, who
complies with the procedures set forth in this Bylaw and who is a stockholder of
record at the time notice is delivered to the Secretary of the Corporation. Any
stockholder entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at an annual meeting only if
timely notice of such stockholder’s intent to make such nomination or
nominations has been given in writing to the Secretary of the
Corporation. To be timely, a stockholder nomination for a director to
be elected at an annual meeting shall be received at the Corporation’s principal
executive offices not less than 120 calendar days in advance of the date of the
anniversary of the previous year’s annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been changed by more than 30 calendar days, notice by the
stockholders to be timely must be received no later than the close of business
on the tenth day following the day on which public announcement of the date of
such meeting is first made. Each such notice shall set forth: (i) the name
and address of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (ii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
for the election of directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (iii) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder; (iv) such other information regarding each
nominee proposed by such stockholder as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (iv) the consent of each nominee to serve as a
director of the Corporation if so elected. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder’s notice as described above.
(b) Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation’s notice of meeting (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is entitled to
vote at the meeting, who complies with the notice procedures set forth in this
Bylaw and who is a stockholder of record at the time such notice is delivered to
the Secretary of the Corporation. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the
Board of Directors, any such stockholder may nominate a person or persons (as
the case may be), for election
to such position(s) as are specified in the Corporation’s notice of meeting, if
the stockholder’s notice as required by paragraph (a) of this Bylaw shall
be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the ninetieth day prior to such special meeting and
not later than the close of business on the later of the seventieth day prior to
such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder’s notice as described
above.
5
(c) For
purposes of these Bylaws, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act.
(d)
Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Bylaw.
Nothing in this Bylaw shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(e) In
the event that a person is validly designated as a nominee in accordance with
this Section 2.11 and shall thereafter become unable or unwilling to stand
for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee, of a written notice to the
Secretary setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to this
Section 2.11 had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a director of
the Corporation, if elected, of each such substitute nominee.
(f) If
the chairman of the meeting for the election of directors determines that a
nomination of any candidate for election as a director at such meeting was not
made in accordance with the applicable provisions of this Section 2.11,
such nomination shall be void.
ARTICLE
III
COMMITTEES
Section 3.1 Committees of the Board of
Directors. The Board of Directors, by a vote of a majority of the whole
Board, may from time to time designate committees of the Board of Directors,
with such lawfully delegable powers and duties as it thereby confers, to serve
at the pleasure of the Board and shall, for those committees and any others
provided for herein, elect a director or directors to serve as the member or
members, designating, if it desires, other directors as alternate
members who may replace any absent or disqualified member at any meeting of the
committee. Any committee so designated may exercise the power and authority of
the Board of Directors to declare a dividend, to authorize the issuance of stock
or to adopt a certificate of ownership and merger pursuant to Section 253
of the Delaware General Corporation Law if the resolution which designates the
committee or a supplemental resolution of the Board of Directors shall so
provide. In the absence or disqualification of any member of any committee and
any alternate member in his place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not he or
she or they constitute a quorum, may by unanimous vote appoint another member of
the Board of Directors to act at the meeting in the place of the absent or
disqualified member.
Section 3.2 Conduct of Business.
Each committee may determine the procedural rules for meeting and conducting its
business and shall act in accordance therewith, except as otherwise provided
herein or required by law. Adequate provision shall be made for notice to
members of all meetings; one-third of the authorized members shall constitute a
quorum unless the committee shall consist of one or two members, in which event
one member shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of such
committee.
6
ARTICLE
IV
OFFICERS
Section 4.1 Generally. The
officers of the Corporation shall consist of a Chief Executive Officer, Chief
Financial Officer, a Secretary and such other officers as may from time to time
be appointed by the Board of Directors. Officers shall be elected by the Board
of Directors, which shall consider that subject at its first meeting after each
annual meeting of stockholders. Each officer shall hold office until
his or her successor is elected and qualified or until his or her earlier
resignation or removal. The Chairman of the Board, if there shall be such an
officer, and the Chief Executive Officer shall each be members of the Board of
Directors. Any number of offices may he held by the same person.
Section 4.2 Chief Executive
Officer. The Chief Executive Officer, shall, if present,
preside at all meetings of the Board of Directors, and exercise and perform such
other powers and duties as may be from time to time assigned to him by the Board
of Directors or prescribed by these bylaws. The Chief Executive
Officer of the Corporation, subject to the provisions of these bylaws and to the
direction of the Board of Directors, shall have the responsibility for the
general management and control of the business and affairs of the Corporation
and shall perform all duties and have all powers which are commonly incident to
the office of chief executive or which are delegated to him or her by the Board
of Directors. He or she shall have power to sign all stock certificates,
contracts and other instruments of the Corporation which are authorized and
shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation.
Section 4.3 Vice President. Each
Vice President shall have such powers and duties as may be delegated to him or
her by the Board of Directors. One Vice President shall be designated by the
Board to perform the duties and exercise the powers of the President in the
event of the President’s absence or disability.
Section 4.4 Chief Financial
Officer. The Chief Financial Officer shall keep and maintain, or cause to
be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief
Financial Officer shall deposit all moneys and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board of Directors. He or she shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, shall render to the Chief Executive
Officer, or the directors, upon request, an account of all his or her
transactions as Chief Financial Officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 4.5 Secretary. The
Secretary shall issue all authorized notices for, and shall keep, or cause to be
kept, minutes of all meetings of the stockholders, the Board of Directors, and
all committees of the Board of Directors. The Secretary shall have the authority
to designate and appoint assistant secretaries to assist in the administration
and performance of his or her duties. He or she shall have charge of the
corporate books and shall perform such other duties as the Board of Directors
may from time to time prescribe.
Section 4.6 Delegation of
Authority. The Board of Directors may from time to time delegate the
powers or duties of any officer to any other officers or agents, notwithstanding
any provision hereof.
Section 4.7 Removal. Any officer
of the Corporation may be removed at any time, with or without cause, by the
Board of Directors.
7
Section 4.8 Action With Respect to
Securities of Other Corporations. Unless otherwise directed by the Board
of Directors, the Chief Executive Officer or any officer of the Corporation
authorized by the Chief Executive Officer shall have power to vote and otherwise
act on behalf of the Corporation, in person or by proxy, at any meeting of
stockholders of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE
V
STOCK
Section 5.1 Certificates of
Stock. The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any class or series of its stock shall be
uncertificated shares; provided, however, that no such resolution shall apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Each stockholder, and, upon written request to the Corporation’s
transfer agent, any stockholder of uncertificated shares, shall be entitled to a
certificate signed by, or in the name of the Corporation by, the appropriate
officers of the Corporation certifying the number of shares owned by
him or her. Any of or all the signatures on the certificate may be
facsimile.
Section 5.2 Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation
kept at an office of the Corporation or by transfer agents designated to
transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these
bylaws, (i) in the case of shares represented by a certificate, an
outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor and (ii) in
the case of uncertificated shares, receipt of proper transfer instructions from
the registered owner thereof shall be required before a new certificate is
issued therefor.
Section 5.3 Record Date. The
Board of Directors may fix a record date, which shall not be more than sixty
(60) nor fewer than ten (10) days before the date of any meeting of
stockholders, nor more than sixty (60) days prior to the time for the other
action hereinafter described, as of which there shall be determined the
stockholders who are entitled: to notice of or to vote at any meeting of
stockholders or any adjournment thereof; to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any rights with
respect to any change, conversion or exchange of stock or with respect to any
other lawful action.
Section 5.4 Lost, Stolen or Destroyed
Certificates. In the event of the loss, theft or destruction of any
certificate of stock, the Corporation may issue a new certificate in its place,
or it may issue uncertificated shares if the shares represented by such
certificate have been designated as uncertificated shares in a resolution
adopted pursuant to Section 1 of Article V of these bylaws, and upon such
regulations as the Board of Directors may establish concerning proof of such
loss, theft or destruction and concerning the giving of a satisfactory bond or
bonds of indemnity.
Section 5.5 Regulations. The
issue, transfer, conversion and registration of certificates of stock shall be
governed by such other regulations as the Board of Directors may
establish.
ARTICLE
VI
NOTICES
Section 6.1 Notices. Except as
otherwise specifically provided herein or required by law, all notices required
to be given to any stockholder, director, officer, employee or agent shall be in
writing and may in every instance be effectively given by hand delivery to the
recipient thereof, by depositing such notice in the mails, postage paid, or by
sending such notice by prepaid telegram, mailgram, telecopy or commercial
courier service. Any such notice shall be addressed to such stockholder,
director, officer, employee or agent at his or her last known address as the
same appears on the books of the Corporation. The time when such notice shall be
deemed to be given shall be the time such notice is received by such
stockholder, director, officer, employee or agent, or by any person accepting
such notice on behalf of such person, if hand delivered, or the time such notice
is dispatched, if delivered through the mails or be telegram or
mailgram.
8
Section 6.2 Waivers. A written
waiver of any notice, signed by a stockholder, director, officer, employee or
agent, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to such
stockholder, director, officer, employee or agent. Neither the business nor the
purpose of any meeting need be specified in such a waiver.
ARTICLE
VII
MISCELLANEOUS
Section 7.1 Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 7.2 Corporate Seal. The
Board of Directors may provide a suitable seal, containing the name of the
Corporation, which seal shall be in the charge of the Secretary. If and when so
directed by the Board of Directors or a committee thereof, duplicates of the
seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 7.3 Reliance Upon Books, Reports
and Records. Each director, each member of any committee designated by
the Board of Directors, and each officer of the Corporation shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or other records of the Corporation, including reports made to
the Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
Section 7.4 Fiscal Year. The
fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 7.5 Time Periods. In
applying any provision of these bylaws which require that an act be done or not
done a specified number of days prior to an event or that an act be done during
a period of a specified number of days prior to an event, calendar days shall be
used, the day of the doing of the act shall be excluded, and the day of the
event shall be included.
ARTICLE
VIII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section 8.1 Right to
Indemnification. Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (“proceeding”), by reason of
the fact that he or she or a person of whom he or she is the legal
representative, is or was a director, officer or employee of the Corporation or
is or was serving at the request of the Corporation as a director, officer or
employee of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to provide prior
to such amendment) against all expenses, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties, amounts paid
or to be paid in settlement and amounts expended in seeking indemnification
granted to such person under applicable law, this bylaw or any agreement with
the Corporation) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer or employee and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except as
provided in Section 8.2 of this Article VIII, the Corporation shall
indemnify any such person seeking indemnity in connection with an action, suit
or proceeding (or part thereof) initiated by such person only if (a) such
indemnification is expressly required to be made by law, (b) the action,
suit or proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation, (c) 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, or (d) the action, suit or proceeding
(or part thereof) is brought to establish or enforce a right to indemnification
under an indemnity agreement or any other statute or law or otherwise as
required under Section 145 of the Delaware General Corporation Law. Such
right shall be a contract right and shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, unless the Delaware General
Corporation Law then so prohibits, the payment of such expenses incurred by a
director or officer of the Corporation in his or her capacity as a director or
officer (and not in any other capacity in which service was or is tendered by
such person while a director or officer, including, without limitation. service
to an employee benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this Section or otherwise.
9
Section 8.2 Right of Claimant to Bring
Suit. If a claim under Section 8.1 of this Article VIII is not paid
in full by the Corporation within ninety (90) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim
and, if such suit is not frivolous or brought in bad faith, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. The burden of
proving such claim shall be on the claimant. It shall be a defense to any such
action (other then an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to this Corporation) that the claimant
has not met the standards of conduct which 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 claimant has not met the applicable standard of
conduct.
Section 8.3 Non-Exclusivity of
Rights. The rights conferred on any person in Sections 8.1 and 8.2 shall
not be exclusive of any other right which such persons may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise.
Section 8.4 Indemnification
Contracts. The Board of Directors is authorized to enter into a contract
with any director, officer, employee or agent of the Corporation, or any person
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing for indemnification
rights equivalent to or, if the Board of Directors so determines, greater than,
those provided for in this Article VIII.
Section 8.5 Insurance. The
Corporation shall maintain insurance to the extent reasonably available, at its
expense, to protect itself and any such director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 8.6 Effect of Amendment.
Any amendment, repeal or modification of any provision of this Article VIII by
the stockholders and the directors of the Corporation shall not adversely affect
any right or protection of a director or officer of the Corporation existing at
the time of such amendment, repeal or modification.
10
ARTICLE
IX
AMENDMENTS
Section 9.1
Amendment of
Bylaws. The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of
the Corporation by the Board of Directors shall require the approval of a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board of
Directors). The stockholders shall also have power to adopt, amend or repeal the
Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the stockholders shall require, in addition to any vote of the
holders of any class or series of stock of the Corporation required by law or by
the Certificate of Incorporation, the affirmative vote of the holders of at
least majority of the voting power of all of the then outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of
directors, voting together as a single class.