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8-K - SEACHANGE INTERNATIONAL INC | v208917_8k.htm |
AMENDED
AND RESTATED
BY-LAWS
OF
SEACHANGE
INTERNATIONAL, INC.
BY-LAWS
TABLE OF
CONTENTS
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Page
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ARTICLE
1 - Stockholders
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1 | |||
Section
1.1
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Place
of Meetings
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1
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Section
1.2
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Annual
Meeting
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1
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Section
1.3
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Special
Meetings
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1
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Section
1.4
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Notice
of Meetings
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1
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Section
1.5
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Voting
List
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1
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Section
1.6
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Quorum
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2
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Section
1.7
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Adjournments
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2
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Section
1.8
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Voting
and Proxies
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2
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Section
1.9
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Action
at Meeting
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3
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Section
1.10
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Introduction
of Business at Meeting
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3
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Section
1.11
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Action
without Meeting
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6
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ARTICLE
2 - Directors
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6 | ||
Section
2.1
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General
Powers
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6
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Section
2.2
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Number;
Election and Qualification
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7
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Section
2.3
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Classes
of Directors
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7
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Section
2.4
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Terms
in Office
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7
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Section
2.5
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Allocation
of Directors Among Classes
in the Event of Increases or
Decreases in the Number of Directors
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7 | ||
Section
2.6
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Tenure
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8
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Section
2.7
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Vacancies
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8
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Section
2.8
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Resignation
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8
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Section
2.9
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Regular
Meetings
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8
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Section
2.10
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Special
Meetings
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8
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Section
2.11
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Notice
of Special Meetings
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8
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Section
2.12
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Meetings
by Telephone Conference Calls
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9
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Section
2.13
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Quorum
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9
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Section
2.14
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Action
at Meeting
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9
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Section
2.15
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Action
by Consent
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9
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Section
2.16
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Removal
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9
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Section
2.17
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Committees
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9
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Section
2.18
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Compensation
of Directors
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10
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Section
2.19
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Amendments
to Article
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10
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Page | |||
ARTICLE 3 - Officers
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10
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Section 3.1
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Enumeration
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10
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Section 3.2
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Election
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10
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Section 3.3
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Qualification
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10
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Section 3.4
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Tenure
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10
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Section 3.5
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Resignation and Removal
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11
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Section 3.6
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Vacancies
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11
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Section 3.7
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Chairman of the Board and Vice-Chairman
of the Board
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11 | ||
Section 3.8
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President
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11
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Section 3.9
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Vice Presidents
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11
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Section 3.10
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Secretary and Assistant
Secretaries
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12
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Section 3.11
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Treasurer and Assistant
Treasurers
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12
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Section 3.12
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Salaries
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13
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Section 3.13
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Action with Respect to Securities of
Other Corporations
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13 | ||
ARTICLE 4 - Capital
Stock
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13
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Section 4.1
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Issuance of Stock
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13
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Section 4.2
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Certificates of Stock
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13
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Section 4.3
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Transfers
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13
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Section 4.4
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Lost, Stolen or Destroyed
Certificates
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14
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Section 4.5
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Record Date
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14
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ARTICLE 5 - General
Provisions
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14 | |||
Section 5.1
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Fiscal Year
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14
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Section 5.2
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Corporate Seal
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14
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Section 5.3
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Notices
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14
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Section 5.4
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Waiver of Notice
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15
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Section 5.5
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Evidence of Authority
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15
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Section 5.6
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Facsimile Signatures
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15
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Section 5.7
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Reliance upon Books, Reports and
Records
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15
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Section 5.8
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Time Periods
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15
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Section 5.9
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Certificate of
Incorporation
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15
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Section 5.10
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Transactions with Interested
Parties
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15
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Section 5.11
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Severability
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16
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Section 5.12
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Pronouns
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16
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ii
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Page | |||
ARTICLE
6 - Amendments
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16
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Section
6.1
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By
the Board of Directors
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16
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Section
6.2
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By
the Stockholders
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16
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iii
AMENDED
AND RESTATED
BY-LAWS
OF
SEACHANGE
INTERNATIONAL, INC. (the "Corporation")
ARTICLE 1 -
Stockholders
1.1 Place of
Meetings. All meetings of
stockholders shall be held at such place within or without the State of Delaware
as may be designated from time to time by the Chairman of the Board (if any),
the board of directors of the Corporation (the "Board of Directors") or the
President or, if not so designated, at the registered office of the
Corporation.
1.2 Annual
Meeting. The annual
meeting of stockholders for the election of directors and for the transaction of
such other business as may properly be brought before the meeting shall be held
on a date to be fixed by the Chairman of the Board (if any), Board of Directors
or the President (which date shall not be (i) a legal holiday in the place where
the meeting is to be held, (ii) earlier than three months subsequent to the end
of the Corporation’s preceding fiscal year or (iii) later than eight months
subsequent to the end of the Corporation’s preceding fiscal year) at the time
and place to be fixed by the Chairman of the Board, the Board of Directors or
the President and stated in the notice of the meeting.
1.3 Special
Meetings. Special meetings
of stockholders may be called at any time by the Chairman of the Board (if any),
a majority of the Board of Directors or the President and shall be held at such
place, on such date and at such time as shall be fixed by the Board of Directors
or the person calling the meeting. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 Notice of
Meetings. Except as
otherwise provided by law, written notice of each meeting of stockholders,
whether annual or special, shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such
meeting. The notices of all meetings shall state the place, date and hour of the
meeting. The notice of a special meeting shall state, in addition,
the purpose or purposes for which the meeting is called. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his or her address as it appears on the records
of the Corporation.
1.5 Voting
List. The officer who
has charge of the stock ledger of the Corporation shall prepare, at least 10
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time of the meeting, and may
be inspected by any stockholder who is present. 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.
1
1.6 Quorum. Except as
otherwise provided by law, the Certificate of Incorporation or these By-Laws,
the holders of a majority of the shares of the capital stock of the Corporation
issued and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business. Shares
held by brokers which such brokers are prohibited from voting (pursuant to their
discretionary authority on behalf of beneficial owners of such shares who have
not submitted a proxy with respect to such shares) on some or all of the matters
before the stockholders, but which shares would otherwise be entitled to vote at
the meeting ("Broker Non-Votes") shall be counted, for the purpose of
determining the presence or absence of a quorum, both (a) toward the total
voting power of the shares of capital stock of the Corporation and (b) as
being represented by proxy. If a quorum has been established for the
purpose of conducting the meeting, a quorum shall be deemed to be present for
the purpose of all votes to be conducted at such meeting, provided that where a
separate vote by a class or classes, or series thereof, is required, a majority
of the voting power of the shares of such class or classes, or series, present
in person or represented by proxy shall constitute a quorum entitled to take
action with respect to that vote on that matter. If a quorum shall fail
to attend any meeting, the chairman of the meeting or the holders of a majority
of the voting power 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.
1.7 Adjournments. Any meeting of
stockholders may be adjourned to any other time and to any other place at which
a meeting of stockholders may be held under these By-Laws by the stockholders
present or represented at the meeting and entitled to vote, although less than a
quorum, or, if no stockholder is present, by any officer entitled to preside at
or to act as Secretary of such meeting. It shall not be necessary to
notify any stockholder of any adjournment of less than 30 days if the time and
place of the adjourned meeting are announced at the meeting at which adjournment
is taken, unless after the adjournment a new record date is fixed for the
adjourned meeting. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original
meeting.
1.8 Voting
and Proxies. At any meeting of
the stockholders, each stockholder shall have one vote for each share of stock
entitled to vote at such meeting held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
in the Certificate of Incorporation. Each stockholder of record
entitled to vote at a meeting of stockholders, or to express consent or dissent
to corporate action in writing without a meeting (to the extent not otherwise
prohibited by the Certificate of Incorporation or these By-Laws), may vote or
express such consent or dissent in person or may authorize another person or
persons to vote or act for such stockholder by written proxy executed by such
stockholder or his or her authorized agent or by a transmission permitted by law
and delivered to the Secretary of the Corporation. No such proxy
shall be voted or acted upon after three years from the date of its execution,
unless the proxy expressly provides for a longer period. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this Section 1.8 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 telecommunication or reproduction shall be a complete reproduction of
the entire original writing or transmission.
2
All voting, including on the election
of directors but excepting where otherwise required by law or the Certificate of
Incorporation, may take place via a voice vote. Any vote not taken by
voice shall be taken by ballots, 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.
1.9 Action at
Meeting. When a quorum is
present at any meeting of stockholders, the holders of a majority of the stock
present or represented and voting on a matter (or if there are two or more
classes of stock entitled to vote as separate classes, then in the case of each
such class, the holders of a majority of the stock of that class present or
represented and voting on such matter) shall decide any matter to be voted upon
by the stockholders at such meeting (other than the election of directors),
except when a different vote is required by express provision of law, the
Certificate of Incorporation or these By-Laws. Any election of directors by the
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at such election, except as otherwise provided by
the Certificate of Incorporation. For the purposes of this paragraph, Broker
Non-Votes represented at the meeting but not permitted to vote on a particular
matter shall not be counted, with respect to the vote on such matter, in the
number of (a) votes cast, (b) votes cast affirmatively, or (c) votes
cast negatively.
1.10 Introduction
of Business at Meetings.
A. Annual Meetings of
Stockholders.
(1)
Nominations
of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's notice of meeting,
(b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section 1.10, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 1.10.
3
(2)
For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (c) of paragraph (A)(1) of this
Section 1.10, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
one hundred twentieth (120th) day nor earlier than the close of business on
the one hundred fiftieth (150th) day prior to the first anniversary of the
date of the proxy statement delivered to stockholders in connection with the
preceding year's annual meeting provided, however, that
if either (i) the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such an anniversary date or
(ii) no proxy statement was delivered to stockholders in connection with
the preceding year's annual meeting, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the
ninetieth (90th) day prior to such annual meeting and not later than the
close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made
by the Corporation. Such stockholder's notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected);
(b) as to any other business that the stockholder proposes to bring before
the meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (c) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of capital stock of the
Corporation that are owned beneficially and held of record by such stockholder
and such beneficial owner.
(3)
Notwithstanding
anything in the second sentence of paragraph (A)(2) of this
Section 1.10 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least
seventy (70) days prior to the first anniversary of the preceding year's
annual meeting (or, if the annual meeting is held more than thirty (30)
days before or sixty (60) days after such anniversary date, at least
seventy (70) days prior to such annual meeting), a stockholder's notice
required by this Section 1.10 shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive office of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
4
B.
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Special
Meetings of Stockholders.
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Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation's notice of
meeting. 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 (a) by or
at the direction of the Board of Directors or (b) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time of
giving of notice of the special meeting, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 1.10. If 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 specified in the Corporation's
notice of meeting, if the stockholder's notice required by paragraph (A)(2)
of this Section 1.10 shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the ninetieth (90th)
day prior to such special meeting nor later than the later of (x) the close
of business on the sixtieth (60th) day prior to such special meeting or
(y) the close of business on the tenth (10th) day following the day on
which public announcement is first made of the date of such special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting.
C.
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General.
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(1)
Only such
persons who are nominated in accordance with the procedures set forth in this
Section 1.10 shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section 1.10. Except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 1.10 and,
if any proposed nomination or business is not in compliance herewith, to declare
that such defective proposal or nomination shall be
disregarded.
(2)
For
purposes of this Section 1.10, "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.
5
(3)
Notwithstanding
the foregoing provisions of this Section 1.10, 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
herein. Nothing in this Section 1.10 shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (ii) of the holders of any series of Preferred Stock to elect directors
under specified circumstances.
1.11 Action
without Meeting. Stockholders of
the Corporation may not take any action by written consent in lieu of a
meeting. Notwithstanding any other provision of law, the Certificate
of Incorporation or these By-Laws, and notwithstanding the fact that a lesser
percentage may be specified by law, the affirmative vote of the holders of at
least seventy-five percent (75%) of the votes which all the stockholders would
be entitled to cast at any annual election of directors or class of directors
shall be required to amend or repeal, or to adopt any provision inconsistent
with, this Section 1.11.
ARTICLE 2 -
Directors
2.1 General
Powers. The business and
affairs of the Corporation shall be managed by or under the direction of a Board
of Directors, who may exercise all of the powers of the Corporation except as
otherwise provided by law or the Certificate of Incorporation. In the
event of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law or the Certificate of Incorporation, may exercise the
powers of the full Board of Directors until the vacancy is
filled. Without limiting the foregoing, the Board of Directors
may:
(a) declare
dividends from time to time in accordance with law;
(b) purchase
or otherwise acquire any property, rights or privileges on such terms as it
shall determine;
(c) 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,
to borrow funds and guarantee obligations, and to do all things necessary in
connection therewith;
(d) 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) confer
upon any officer of the Corporation the power to appoint, remove and suspend
subordinate officers, employees and agents;
6
(f) 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) adopt
from time to time such insurance, retirement, and other benefit plans for
directors, officers, employees, consultants and agents of the Corporation and
its subsidiaries as it may determine; and
(h) adopt
from time to time regulations, not inconsistent herewith, for the management of
the Corporation's business and affairs.
2.2 Number;
Election and Qualification. The number of
directors which shall constitute the whole Board of Directors shall be
determined by resolution of the Board of Directors, but in no event shall be
less than three. The number of directors may be decreased at any time
and from time to time by a majority of the directors then in office, but only to
eliminate vacancies existing by reason of the death, resignation, removal or
expiration of the term of one or more directors. The directors shall
be elected at the annual meeting of stockholders (or, if so determined by the
Board of Directors pursuant to Section 10 hereof, at a special meeting of
stockholders), by such stockholders as have the right to vote on such
election. Directors need not be stockholders of the
Corporation.
2.3 Classes
of Directors. The Board of
Directors shall be and is divided into three classes: Class I,
Class II and Class III. No one class shall have more than
one director more than any other class.
2.4 Terms in
Office. Each director
shall serve for a term ending on the date of the third annual meeting following
the annual meeting at which such director was elected provided,
however, that each initial director in Class I shall serve for a term
ending on the date of the annual meeting next following the end of the
Corporation's fiscal year ending December 31, 1996; each initial director in
Class II shall serve for a term ending on the date of the annual meeting
next following the end of the Corporation's fiscal year ending December 31,
1997; and each initial director in Class III shall serve for a term ending
on the date of the annual meeting next following the end of the Corporation's
fiscal year ending December 31, 1998.
2.5 Allocation
of Directors Among Classes in the Event of Increases or Decreases in the Number
of Directors. In the event of
any increase or decrease in the authorized number of directors, (i) each
director then serving as such shall nevertheless continue as a director of the
class of which he or she is a member until the expiration of such director's
current term or his or her prior death, removal or resignation and (ii) the
newly created or eliminated directorships resulting from such increase or
decrease shall be apportioned by the Board of Directors among the three classes
of directors, subject to the second sentence of Section 2.3. To
the extent possible, consistent with the foregoing rule, any newly created
directorships shall be added to those classes whose terms of office are to
expire at the earliest dates following such allocation, unless otherwise
provided for from time to time by resolution adopted by a majority of the
directors then in office, although less than a quorum. No decrease in
the number of directors constituting the whole Board of Directors shall shorten
the term of an incumbent Director.
7
2.6 Tenure. Notwithstanding
any provisions to the contrary contained herein, each director shall hold office
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal.
2.7 Vacancies. Unless and until
filled by the stockholders, any vacancy in the Board of Directors, however
occurring, including a vacancy resulting from an enlargement thereof, may be
filled by vote of a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. A director elected to fill
a vacancy shall be elected for the unexpired term of his or her predecessor in
office, if any, and a director chosen to fill a position resulting from an
increase in the number of directors shall hold office until the next election of
directors of the class for which such director was chosen and until his or her
successor is elected and qualified, or until his or her earlier death,
resignation or removal.
2.8 Resignation. Any director may
resign by delivering his or her written resignation to the Corporation at its
principal office or to the President or Secretary. Such resignation
shall be effective upon receipt unless it is specified to be effective at some
other time or upon the happening of some other event.
2.9 Regular
Meetings. Regular meetings
of the Board of Directors may be held without notice at such time and place,
either within or without the State of Delaware, as shall be determined from time
to time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given notice of the determination. 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.
2.10 Special
Meetings. Special meetings
of the Board of Directors may be held at any time and place, within or without
the State of Delaware, designated in a call by the Chairman of the Board (if
any), the President, two or more directors, or by one director in the event that
there is only a single director in office.
2.11 Notice of
Special Meetings. Notice of any
special meeting of directors shall be given to each director by the Secretary or
by the officer or one of the directors calling the meeting. Notice
shall be duly given to each director (i) by giving notice to such director
in person or by telephone at least 48 hours in advance of the meeting,
(ii) by sending a telegram or delivering written notice by facsimile
transmission or by hand, to his or her last known business or home address at
least 48 hours in advance of the meeting, or (iii) by mailing written
notice to his or her last known business or home address at least 72 hours in
advance of the meeting. A notice or waiver of notice of a meeting of
the Board of Directors need not specify the purposes of the
meeting.
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2.12 Meetings
by Telephone Conference Calls. Directors or any
members of any committee designated by the Board of Directors may participate in
a meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall be deemed to constitute presence in person at such
meeting.
2.13 Quorum. A majority of the
total number of the whole Board of Directors shall constitute a quorum at all
meetings of the Board of Directors. In the event one or more of the
directors shall be disqualified to vote at any meeting, then the required quorum
shall be reduced by one for each such director so disqualified; provided,
however, that in no case shall less than one-third (1/3) of the total number of
the whole Board of Directors constitute a quorum. In the absence of a
quorum at any such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.14 Action at
Meeting. At any meeting of
the Board of Directors at which a quorum is present, the vote of a majority of
those present shall be sufficient to take any action, unless a different vote is
specified by law, the Certificate of Incorporation or these
By-Laws.
2.15 Action by
Written Consent. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee of the Board of Directors may be taken without a meeting, if all
members of the Board of Directors or committee, as the case may be, consent to
such action in writing, and the written consents are filed with the minutes of
proceedings of the Board of Directors or committee.
2.16 Removal. Unless otherwise
provided in the Certificate of Incorporation, any one or more or all of the
directors may be removed, only for cause, by the holders of at least
seventy-five percent (75%) of the shares then entitled to vote at an election of
directors.
2.17 Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of such committee. In
the absence or disqualification of a member of a committee, the member or
members of such committee present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at such
meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the Board of
Directors and subject to the provisions of the General Corporation Law of the
State of Delaware, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Each such committee shall keep minutes
and make such reports as the Board of Directors may from time to time
request. Except as the Board of Directors may otherwise determine or
as provided herein, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these By-Laws for the Board of Directors. Adequate
provisions shall be made for notice to members of all meeting of
committees. One-third (1/3) of the members of any committee shall
constitute a quorum unless the committee shall consist of one (1) or
two (2) members, in which event one (1) 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.
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2.18 Compensation
of Directors. Directors may be
paid such compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall preclude any director from serving
the Corporation or any of its parent or subsidiary corporations in any other
capacity and receiving compensation for such service.
2.19 Amendments
to Article. Notwithstanding
any other provisions of law, the Certificate of Incorporation or these By-Laws,
and notwithstanding the fact that a lesser percentage may be specified by law,
the affirmative vote of the holders of a least seventy-five percent (75%) of the
votes which all the stockholders would be entitled to cast at any annual
election of directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this
Article 2.
ARTICLE 3 -
Officers
3.1 Enumeration. The officers of
the Corporation shall consist of a President, a Secretary, a Treasurer and such
other officers with such other titles as the Board of Directors shall determine,
including, but not limited to, a Chairman of the Board, a Vice-Chairman of the
Board, and one or more Vice Presidents, Assistant Treasurers and Assistant
Secretaries. The Board of Directors may appoint such other officers
as it may deem appropriate.
3.2 Election. The President,
Treasurer and Secretary shall be elected annually by the Board of Directors at
its first meeting following the annual meeting of stockholders. Other
officers may be appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification. No officer need
be a stockholder. Any two or more offices may be held by the same
person.
3.4 Tenure. Except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, each officer shall hold office until his or her successor is elected
and qualified, unless a different term is specified in the vote choosing or
appointing such officer, or until his or her earlier death, resignation or
removal.
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3.5 Resignation
and Removal. Any officer may
resign by delivering his or her written resignation to the Chairman of the Board
(if any), to the Board of Directors at a meeting thereof, to the Corporation at
its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other
event.
Any officer may be removed at any time,
with or without cause, by vote of a majority of the entire number of directors
then in office.
Except as the Board of Directors may
otherwise determine, no officer who resigns or is removed shall have any right
to any compensation as an officer for any period following his or her
resignation or removal, or any right to damages on account of such removal,
whether his or her compensation be by the month or by the year or otherwise,
unless such compensation is expressly provided in a duly authorized written
agreement with the Corporation.
3.6 Vacancies. The Board of
Directors may fill any vacancy occurring in any office for any reason and may,
in its discretion, leave unfilled for such period as it may determine any
offices other than those of President, Treasurer and Secretary. Each
such successor shall hold office for the unexpired term of his predecessor and
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal.
3.7 Chairman
of the Board and Vice-Chairman of the Board. The Chairman of
the Board, if any, shall preside at all meetings of the Board of Directors and
stockholders at which he or she is present and shall perform such duties and
possess such powers as are designated by the Board of Directors. If
the Board of Directors appoints a Vice-Chairman of the Board, he or she shall,
in the absence or disability of the Chairman of the Board, perform the duties
and exercise the powers of the Chairman of the Board and shall perform such
other duties and possess such other powers as may from time to time be
designated by the Board of Directors.
3.8 President. The President
shall, subject to the direction of the Board of Directors, have general charge
and supervision of the business of the Corporation. Unless otherwise
provided by the Board of Directors, and provided that there is no Chairman of
the Board or that the Chairman and Vice-Chairman, if any, are not available, the
President shall preside at all meetings of the stockholders, and, if a director,
at all meetings of the Board of Directors. Unless the Board of
Directors has designated another officer as the Chief Executive Officer, the
President shall be the Chief Executive Officer of the
Corporation. The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to time
prescribe. The President shall have the power to enter into contracts
and otherwise bind the Corporation in matters arising in the ordinary course of
the Corporation's business.
3.9 Vice
Presidents. Any Vice
President shall perform such duties and possess such powers as the Board of
Directors or the President may from time to time prescribe. In the
event of the absence, inability or refusal to act of the President, the Vice
President (or if there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of the President
and, when so performing, shall have all the powers of and be subject to all the
restrictions upon the President. The Board of Directors may assign to
any Vice President the title of Executive Vice President, Senior Vice President
or any other title selected by the Board of Directors. Unless
otherwise determined by the Board of Directors, any Vice President shall have
the power to enter into contracts and otherwise bind the Corporation in matters
arising in the ordinary course of the Corporation's business.
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3.10 Secretary
and Assistant Secretaries. The Secretary
shall perform such duties and shall have such powers as the Board of Directors
or the President may from time to time prescribe. In addition, the
Secretary shall perform such duties and have such powers as are incident to the
office of secretary, including without limitation the duty and power to give
notices of all meetings of stockholders and special meetings of the Board of
Directors, to attend all meetings of stockholders and the Board of Directors and
keep a record of the proceedings, to maintain a stock ledger and prepare lists
of stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform
such duties and possess such powers as the Board of Directors, the President or
the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary
(or if there shall be more than one, the Assistant Secretaries in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Secretary.
In the absence of the Secretary or any
Assistant Secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary secretary to keep a record
of the meeting.
3.11 Treasurer
and Assistant Treasurers. The Treasurer
shall perform such duties and shall have such powers as the Board of Directors
or the President may from time to time prescribe. In addition, the
Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to keep and
be responsible for all funds and securities of the Corporation, to deposit funds
of the Corporation in depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts for such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
Corporation.
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The Assistant Treasurers shall perform
such duties and possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the Assistant Treasurer
(or if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Treasurer.
3.12 Salaries. Officers of the
Corporation shall be entitled to such salaries, compensation or reimbursement as
shall be fixed or allowed from time to time by the Board of
Directors.
3.13 Action
with Respect to Securities of Other Corporations. Unless otherwise
directed by the Board of Directors, the President or any officer of the
Corporation authorized by the President 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 the 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 4 - Capital
Stock
4.1 Issuance
of Stock. Unless otherwise
voted by the stockholders and subject to the provisions of the Certificate of
Incorporation, the whole or any part of any unissued balance of the authorized
capital stock of the Corporation or the whole or any part of any issued,
authorized capital stock of the Corporation held in its treasury may be issued,
sold, transferred or otherwise disposed of by vote of the Board of Directors in
such manner, for such consideration and on such terms as the Board of Directors
may determine.
4.2 Certificates
of Stock. Every holder of
stock of the Corporation shall be entitled to have a certificate, in such form
as may be prescribed by law and by the Board of Directors, certifying the number
and class of shares owned by such stockholder in the
Corporation. Each such certificate shall be signed by, or in the name
of the Corporation by, the Chairman or Vice-Chairman, if any, of the Board of
Directors, or the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation. Any or all of the signatures on such certificate may be
a facsimile.
Each certificate for shares of stock
which are subject to any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any agreement among
any number of shareholders or among such holders and the Corporation shall have
conspicuously noted on the face or back of such certificate either the full text
of such restriction or a statement of the existence of such
restriction.
4.3 Transfers. Except as
otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law, shares of stock may be transferred on
the books of the Corporation by the surrender to the Corporation or its transfer
agent of the certificate representing such shares, properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and
with such proof of authority or the authenticity of signature as the Corporation
or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or by these
By-Laws, the Corporation shall be entitled to treat the record holder of stock
as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock, until the
shares have been transferred on the books of the Corporation in accordance with
the requirements of these By-Laws.
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4.4 Lost,
Stolen or Destroyed Certificates. The Corporation
may issue a new certificate of stock in place of any previously issued
certificate alleged to have been lost, stolen, or destroyed, upon such terms and
conditions as the President may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of such
indemnity as the President may require for the protection of the Corporation or
any transfer agent or registrar.
4.5 Record
Date. The Board of
Directors may fix in advance a date as a record date for the determination of
the stockholders entitled to notice of or to vote at any meeting of stockholders
or, to the extent permitted by the Certificate of Incorporation and these
By-Laws, to express consent (or dissent) to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action. Such record
date shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action to which such
record date relates.
If no record date is fixed, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. The record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting (to the extent permitted by the Certificate of
Incorporation and these By-Laws) when no prior action by the Board of Directors
is necessary, shall be the day on which the first written consent is
expressed. The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - General
Provisions
5.1 Fiscal
Year. The fiscal year
of the Corporation shall be fixed by resolution of the Board of
Directors.
5.2 Corporate
Seal. The
corporate seal shall be in such form as shall be approved by the Board of
Directors.
5.3 Notices. Except as otherwise
specifically provided herein or required by law or the Certificate of
Incorporation, all notices required to be given to any stockholder, director,
officer, employee or agent of the Corporation 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 or facsimile transmission. 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 is received shall be deemed to
be the time of the giving of the notice.
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5.4 Waiver of
Notice. Whenever any
notice whatsoever is required to be given by law, by the Certificate of
Incorporation or by these By-Laws, a waiver of such notice either in writing
signed by the person entitled to such notice or such person's duly authorized
attorney, or by telegraph, facsimile transmission or any other available method,
whether before, at or after the time stated in such waiver, or the appearance of
such person or persons at such meeting in person or by proxy, shall be deemed
equivalent to such notice.
5.5 Evidence
of Authority. A certificate by
the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any
action taken by the stockholders, directors, a committee or any officer or
representative of the Corporation shall, as to all persons who rely on the
certificate in good faith, be conclusive evidence of such action.
5.6 Facsimile
Signatures. In addition to
the provisions for use of facsimile signatures elsewhere specifically authorized
in these By-Laws, 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.
5.7 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 or her duties, be
fully protected in relying in good faith upon the books of account or other
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees or
committees of the Board of Directors so designated, or by any other person as to
matters which such director or committee member reasonably believes are within
such other person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
5.8 Time
Periods. In applying any
provision of these By-Laws that requires that an act be done or not be 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.
5.9 Certificate
of Incorporation. All references in
these By-Laws to the Certificate of Incorporation shall be deemed to refer to
the Certificate of Incorporation of the Corporation, as amended and in effect
from time to time.
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5.10 Transactions
with Interested Parties. No contract or
transaction between the Corporation and one or more of the directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of the directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because such director or officer
is present at or participates in the meeting of the Board of Directors or a
committee of the Board of Directors which authorizes the contract or transaction
or solely because his, her or their votes are counted for such
purpose, if:
(1) The
material facts as to his or her 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 vote of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or
(3) The
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the
Board of Directors, or the stockholders.
Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
5.11 Severability. Any determination
that any provision of these By-Laws is for any reason inapplicable, illegal or
ineffective shall not affect or invalidate any other provision of these
By-Laws.
5.12 Pronouns. All pronouns used
in these By-Laws shall be deemed to refer to the masculine, feminine or neuter,
singular or plural, as the identity of the persons or persons so designated may
require.
ARTICLE 6 -
Amendments
6.1 By the
Board of Directors. Except as is
otherwise set forth in these By-Laws, these By-Laws may be altered, amended or
repealed, or new by-laws may be adopted, by the affirmative vote of a majority
of the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2 By the
Stockholders. Except as
otherwise set forth in these By-Laws, these By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of the holders of
seventy-five percent (75%) of the shares of the capital stock of the Corporation
issued and outstanding and entitled to vote at any regular meeting of
stockholders, or at any special meeting of stockholders, provided notice of such
alteration, amendment, repeal or adoption of new by-laws shall have been stated
in the notice of such special meeting.
Updated
January 19, 2011 (Section 1.2)
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