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THIRD
AMENDED AND RESTATED
BY
LAWS
OF
AVANTAIR,
INC.
ARTICLE
I
OFFICES
1.1
REGISTERED OFFICE. The registered office of Avantair, Inc. (the “Corporation”)
in the State of Delaware shall be established and maintained at 2711 Centreville
Road, Suite 400, City of Wilmington, County of New Castle, Delaware and
Corporation Service Company. shall be the registered agent of the corporation in
charge thereof.
1.2 OTHER
OFFICES. The Corporation may also have offices at such other places both within
and without the State of Delaware as the board of directors of the Corporation
(the “Board of Directors”) may from time to time determine or the business of
the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
2.1 PLACE
OF MEETINGS. All meetings of the stockholders shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors or the Chief Executive Officer and
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
2.2
ANNUAL MEETINGS. The annual meeting of stockholders shall be held on such date
and at such time as may be fixed by the Board of Directors and stated in the
notice of the meeting, for the purpose of electing directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these Bylaws (the “Bylaws”).
Written
notice of an annual meeting stating the place, date and hour of the meeting,
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the
annual meeting.
To be
properly brought before the annual meeting, business must be either
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(i)
specified in the notice of annual meeting (or any supplement or amendment
thereto) given by or at the direction of the Board of Directors,
(ii) otherwise brought before the annual meeting by or at the direction of
the Board of Directors, or (iii) otherwise properly brought before the
annual meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, it must be a proper matter for stockholder action under the
Delaware General Corporation Law and the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder’s notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than ninety
(90) days nor more than one twenty (120) days prior to the first
anniversary of the date of the preceding year’s annual meeting as first
specified in the Corporation’s notice of meeting (without regard to any
postponements or adjournments of such meeting after such notice was first sent),
except that if no annual meeting was held in the previous year or the date of
the annual meeting is more than 30 days earlier or later than such anniversary
date, notice by the stockholders to be timely must be received not later than
the close of business on the later of the 120th day prior to the annual meeting
or the 10th day following the date on which public announcement of the date of
such meeting is first made. A stockholder’s notice to the Secretary shall set
forth (a) as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be
brought before the annual meeting, including the text of any resolutions
proposed for consideration, and the reasons for conducting such business at the
annual meeting, (ii) any material interest of the stockholder in such
business, and (iii) any agreement that the stockholder may have with other
entities or interested parties in connection with the business desired to be
brought before the annual meeting, and (b) as to the stockholder giving the
notice (i) the name and record address of the stockholder, (ii) the
class, series and number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder, (ii) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to
any class or series of shares of the Corporation or with a value derived in
whole or in part from the value of any class or series of shares of the
Corporation, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the Corporation
or otherwise (a “Derivative Instrument”) directly or indirectly owned
beneficially by such stockholder and any other direct or indirect opportunity to
profit or share in any profit derived from any increase or decrease in the value
of shares of the Corporation, (iii) any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder has a right to
vote any shares of any security of the Corporation, (iv) any short interest in
any security of the Corporation (for purposes of this section, a person shall be
deemed to have a short interest in a security if such person directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security), (v) any rights to dividends on
the shares of the Corporation owned beneficially by such stockholder that are
separated or separable from the underlying shares of the Corporation, (vi) any
proportionate interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
stockholder is a general partner or, directly or indirectly, beneficially owns
an interest in a general partner, (vii) any performance-related fees (other than
an asset-based fee) to which such stockholder is entitled based on any increase
or decrease in the value of shares of the corporation or Derivative Instruments,
if any, as of the date of such notice, including, without limitation, any such
interests held by members of such stockholder’s immediate family sharing the
same household, (viii) any relationships through which the stockholder is acting
in combination with other stockholders with respect to the proposal or the
Corporation, and (ix) a representation by the stockholder declaring the accuracy
of the responses to the foregoing and that the stockholder expressly
acknowledges that they are still subject to all federal and state
laws. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Article II, Section 2. The officer of the
Corporation presiding at an annual meeting shall, if the facts warrant,
determine and declare to the annual meeting that business was not properly
brought before the annual meeting in accordance with the provisions of this
Article II, Section 2, and if such officer should so determine, such
officer shall so declare to the annual meeting and any such business not
properly brought before the meeting shall not be transacted. Further,
the Corporation reserves the right to omit such proposals for business at an
annual meeting pursuant to Rule 14a-8.
2.3
SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation of the Corporation (the “Certificate of Incorporation”), may only
be called by a majority of the entire Board of Directors, or the Chief Executive
Officer or the Chairman, and shall be called by the Secretary at the request in
writing of stockholders owning a majority in amount of the entire capital stock
of the corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting.
Unless
otherwise provided by law, written notice of a special meeting of stockholders,
stating the time, place and purpose or purposes thereof, shall be given to each
stockholder entitled to vote at such meeting, not less than ten (10) or
more than sixty (60) days before the date fixed for the meeting. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
2.4
QUORUM. The holders of a majority of the capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the holders of a majority of the votes entitled
to be cast by the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
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2.5
ORGANIZATION. The Chairman of the Board of Directors shall act as chairman of
meetings of the stockholders. The Board of Directors may designate any other
officer or director of the Corporation to act as chairman of any meeting in the
absence of the Chairman of the Board of Directors, and the Board of Directors
may further provide for determining who shall act as chairman of any
stockholders meeting in the absence of the Chairman of the Board of Directors
and such designee. The Secretary of the Corporation shall act as secretary of
all meetings of the stockholders, but in the absence of the Secretary the
presiding officer may appoint any other person to act as secretary of any
meeting. The chairman of the meeting 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 date and time of
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. Without limiting
the foregoing, the chairman may (a) restrict attendance at any time to bona fide
stockholders of record and their proxies and other persons in attendance at the
invitation of the chairman or Board of Directors, (b) restrict use of audio or
video recording devices at the meeting, and (c) 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 the meeting. 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 these Bylaws. The
chairman of a meeting may determine and declare to the meeting that any proposed
item of business was not brought before the meeting in accordance with the
provisions of these Bylaws, 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.
2.6
VOTING. Unless otherwise required by law, the Certificate of Incorporation or
these Bylaws, any question (other than the election of directors) brought before
any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat. A nominee for
director election shall be elected by the affirmative vote of a majority of the
votes cast with respect to such nominee at any meeting for the election of
directors at which a quorum is present, provided that if the Secretary of the
Corporation shall determine that the number of nominees exceeds the number of
directors to be elected, the directors shall be elected by a plurality of the
votes of the stock
represented and entitled to vote thereat. In an election of directors, a
majority of the votes cast means that the number of votes cast “for” a nominee
must exceed the number of votes cast “against” that nominee. Each
stockholder represented at a meeting of stockholders shall be entitled to cast
one vote for each share of the capital stock entitled to vote thereat held by
such stockholder, unless otherwise provided by the Certificate of Incorporation.
Each stockholder entitled to vote at a meeting of stockholders or to express
consent or dissent to corporate action in writing without a meeting may
authorize any person or persons to act for him by proxy. All proxies shall be
executed in writing and shall be filed with the Secretary of the Corporation not
later than the day on which exercised. No proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written
ballot.
2.7
ACTION OF STOCKHOLDERS WITHOUT MEETING. Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted, and shall be delivered to the Corporation by delivery to
its registered office in the State of Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
2.8
VOTING LIST. The officer who has charge of the stock ledger of the corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each
stockholder.
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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 ten
(10) days prior to the election, either at a place within the city, town or
village where the election is to be held, which place shall be specified in the
notice of the meeting, or, if not specified, at the place where said meeting is
to be held. The list shall be produced and kept at the time and place of
election during the whole time thereof, and may be inspected by any stockholder
of the Corporation who is present.
2.9 STOCK
LEDGER. The stock ledger of the Corporation shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list required by
Article II, Section 8 or the books of the Corporation, or to vote in person
or by proxy at any meeting of stockholders.
2.10
ADJOURNMENT. Any meeting of the stockholders, including one at which directors
are to be elected, may be adjourned for such periods as the presiding officer of
the meeting or a majority of the stockholders present in person or by proxy and
entitled to vote shall direct.
2.11
RATIFICATION. Any transaction questioned in any stockholders’ derivative suit,
or any other suit to enforce alleged rights of the Corporation or any of its
stockholders, on the ground of lack of authority, defective or irregular
execution, adverse interest of any director, officer or stockholder,
nondisclosure, miscomputation or the application of improper principles or
practices of accounting may be approved, ratified and confirmed before or after
judgment by the Board of Directors or by the holders of Common Stock and, if so
approved, ratified or confirmed, shall have the same force and effect as if the
questioned transaction had been originally duly authorized, and said approval,
ratification or confirmation shall be binding upon the Corporation and all of
its stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
2.12
JUDGES. All votes by ballot at any meeting of stockholders shall be conducted by
two judges appointed for the purpose either by the directors or by the meeting.
The judges shall decide upon the qualifications of voters, count the votes and
declare the result.
ARTICLE
III
DIRECTORS
3.1
POWERS; NUMBER; QUALIFICATIONS. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, except as
may be otherwise provided by law or in the Certificate of Incorporation. The
number of directors which shall constitute the Board of Directors shall be not
less than one (1) nor more than nine (9). The exact number of directors
shall be fixed from time to time, within the limits specified in this Article
III, Section 1 or in the Certificate of Incorporation, by the Board of
Directors. No decrease in the number of authorized directors shall
shorten the term of any incumbent director. Directors need not be
stockholders of the Corporation.
3.2
ELECTION; TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Each director shall
hold office until the next annual meeting of stockholders at which his Class
stands for election or until such director’s earlier resignation, removal from
office in accordance with these Bylaws, death or incapacity. Unless otherwise
provided in the Certificate of Incorporation, vacancies and newly created
directorships resulting from any increase in the authorized number of directors
or from any other cause may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director and each
director so chosen shall hold office until the next annual meeting and until
such director’s successor shall be duly elected and shall qualify, or until such
director’s earlier resignation, removal from office in accordance with these
Bylaws, death or incapacity.
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3.3
NOMINATIONS. Nominations of persons for election to the Board of Directors of
the Corporation at a meeting of stockholders of the Corporation may be made at
such meeting by or at the direction of the Board of Directors, by any committee
or persons appointed by the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting, but
only if such stockholder has complied with the notice procedures set forth in
this Article III, Section 3. Such nominations by any stockholder shall be
made pursuant to timely notice in writing to the Secretary of the Corporation.
To be timely, a stockholder’s notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to
the first anniversary of the date of the preceding year’s annual meeting as
first specified in the Corporation’s notice of meeting (without regard to any
postponements or adjournments of such meeting after such notice was first sent),
except that if no annual meeting was held in the previous year or the date of
the annual meeting is more than 30 days earlier or later than such anniversary
date, notice by the stockholders to be timely must be received not later than
the close of business on the later of the 120th day prior to the annual meeting
or the 10th day following the date on which public announcement of the date of
such meeting is first made. Such stockholder’s notice to the
Secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (i) the
name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and
number of shares of capital stock of the Corporation which are beneficially
owned by the person, (iv) all material information necessary for the Company to
determine whether a proposed nominee is qualified for election to the board, and
(v) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to the
Rules and Regulations of the Securities and Exchange Commission under
Section 14 of the Securities Exchange Act of 1934, as amended, and
(b) as to the stockholder giving the notice (i) the name and record
address of the stockholder, (ii) the class, series and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder, (ii) any option, warrant, convertible security, stock appreciation
right, or similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or
right shall be subject to settlement in the underlying class or series of
capital stock of the Corporation or otherwise (a “Derivative Instrument”)
directly or indirectly owned beneficially by such stockholder and any other
direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the Corporation, (iii) any proxy,
contract, arrangement, understanding, or relationship pursuant to which such
stockholder has a right to vote any shares of any security of the Corporation,
(iv) any short interest in any security of the Corporation (for purposes of this
section, a person shall be deemed to have a short interest in a security if such
person directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security), (v) any rights
to dividends on the shares of the Corporation owned beneficially by such
stockholder that are separated or separable from the underlying shares of the
Corporation, (vi) any proportionate interest in shares of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (vii) any
performance-related fees (other than an asset-based fee) to which such
stockholder is entitled based on any increase or decrease in the value of shares
of the corporation or Derivative Instruments, if any, as of the date of such
notice, including, without limitation, any such interests held by members of
such stockholder’s immediate family sharing the same household, (viii) any
relationships through which the stockholder is acting in combination with other
stockholders with respect to the proposal or the Corporation, and (ix) a
representation by the stockholder declaring the accuracy of the responses to the
foregoing. The Corporation shall require any proposed nominee to
furnish a completed questionnaire in the form provided by the Corporation that
shall set forth information about the nominee such as (a) whether the nominee is
independent from the Corporation, and (b) a representation by nominee stating
that he or she does not have nor will they have any undisclosed voting
commitments with respect to his or her actions as a director of the
Corporation. The questionnaire may require the nominee to disclose
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The officer of the Corporation presiding at an annual meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
3.4
MEETINGS. The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware. The first
meeting of each newly elected Board of Directors shall be held immediately after
and at the same place as the meeting of the stockholders at which it is elected
and no notice of such meeting shall be necessary to the newly elected directors
in order to legally constitute the meeting, provided a quorum shall be present.
Regular meetings of the Board of Directors may be held without notice at such
time and place as shall from time to time be determined by the Board of
Directors.
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Special
meetings of the Board of Directors may be called by the Chief Executive Officer
or the majority of the entire Board of Directors. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting,
by telephone, facsimile, telegram or e-mail on twenty-four (24) hours
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
3.5
QUORUM. Except as may be otherwise specifically provided by law, the Certificate
of Incorporation or these Bylaws, at all meetings of the Board of Directors or
any committee thereof, a majority of the entire Board of Directors or such
committee, as the case may be, shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors or of any
committee thereof, a majority of the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
3.6
ORGANIZATION OF MEETINGS. The Board of Directors shall elect one of its members
to be Chairman of the Board of Directors. The Chairman of the Board of Directors
shall lead the Board of Directors in fulfilling its responsibilities as set
forth in these By-Laws, including its responsibility to oversee the performance
of the Corporation, and shall determine the agenda and perform all other duties
and exercise all other powers which are or from time to time may be delegated to
him or her by the Board of Directors.
Meetings
of the Board of Directors shall be presided over by the Chairman of the Board of
Directors, or in his or her absence, by the Chief Executive Officer, or in the
absence of the Chairman of the Board of Directors and the Chief Executive
Officer by such other person as the Board of Directors may designate or the
members present may select.
3.7
ACTIONS OF BOARD OF DIRECTORS WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors or of such committee, as the case may be, consent thereto in writing,
and the writing or writings are filled with the minutes of proceedings of the
Board of Directors or committee.
3.8
REMOVAL OF DIRECTORS BY STOCKHOLDERS. The entire Board of Directors or any
individual Director may be removed from office with or without cause by a
majority vote of the holders of the outstanding shares then entitled to vote at
an election of directors. In case the Board of Directors or any one or more
Directors be so removed, the vacancies created thereby shall be filled in
accordance with Article III, Section 2; provided that, in the event of the
removal of the entire Board of Directors, new Directors may be elected at the
meeting at which such removal occurred to complete the unexpired portion of the
full term of the Director or Directors so removed.
3.9
RESIGNATIONS. Any Director may resign at any time by submitting his written
resignation to the Board of Directors or Secretary of the
Corporation.
Such
resignation shall take effect at the time of its receipt by the Corporation
unless another time be fixed in the resignation, in which case it shall become
effective at the time so fixed. The acceptance of a resignation shall not be
required to make it effective.
3.10
COMMITTEES. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided by law and in
the resolution of the Board of Directors establishing such committee, 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; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation’s property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution
or amending the Bylaws of the Corporation; and, unless the resolution expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock or to adopt a certificate of
ownership and merger. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
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3.11
COMPENSATION. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed amount (in cash
or other form of consideration) for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
3.12
INTERESTED DIRECTORS. No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if (i) the material facts as to his or their 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 of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (ii) the material facts as to his or their
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 (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. 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.
3.13
MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Members of the Board of Directors or
any committee designed by the Board of Directors may participate in a meeting of
the Board of Directors or of a committee of the Board of Directors 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 in a
meeting pursuant to this subsection shall constitute presence in person at such
meeting.
ARTICLE
IV OFFICERS
4.1
GENERAL. The officers of the Corporation shall be elected by the Board of
Directors and may consist of: a Chairman of the Board, provided that the Board
of Directors may determine that the Chairman of the Board shall not be
considered an officer, Vice Chairman of the Board, Chief Executive Officer,
Chief Financial Officer, President, Secretary and Treasurer. The Board of
Directors, in its discretion, may also elect one or more Vice Presidents
(including Executive Vice Presidents and Senior Vice Presidents), Assistant
Secretaries, Assistant Treasurers, a Controller and such other officers as in
the judgment of the Board of Directors may be necessary or desirable. Any number
of offices may be held by the same person and more than one person may hold the
same office, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The officers of the Corporation need not be
stockholders of the Corporation, nor need such officers be directors of the
Corporation.
4.2
ELECTION. The Board of Directors at its first meeting held after each annual
meeting of stockholders shall elect the officers of the Corporation who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors;
and all officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier resignation or removal. Except as
otherwise provided in this Article IV, any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries of all officers who are
directors of the Corporation shall be fixed by the Board of
Directors.
4.3
VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney, proxies, waivers
of notice of meeting, consents and other instruments relating to securities
owned by the Corporation may be executed in the name of and on behalf of the
Corporation by the Chief Executive Officer, Chief Financial Officer, President
or any Vice President, and any such officer may, in the name and on behalf of
the Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by resolution,
from time to time confer like powers upon any other person or
persons.
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4.4 CHIEF
EXECUTIVE OFFICER. Subject to the provisions of these Bylaws and to the
direction of the Board of Directors, the Chief Executive Officer shall have
ultimate authority for decisions relating to the general management and control
of the affairs and business of the Corporation and shall perform such other
duties and exercise such other powers which are or from time to time may be
delegated to him or her by the Board of Directors or these Bylaws, all in
accordance with basic policies as established by and subject to the oversight of
the Board of Directors.
4.5 CHIEF
FINANCIAL OFFICER. The Chief Financial Officer shall have general supervision,
direction and control of the financial affairs of the Corporation and shall
perform such other duties and exercise such other powers which are or from time
to time may be delegated to him or her by the Board of Directors or these
Bylaws, all in accordance with basic policies as established by and subject to
the oversight of the Board of Directors. In the absence of a named Treasurer,
the Chief Financial Officer shall also have the powers and duties of the
Treasurer as hereinafter set forth and shall be authorized and empowered to sign
as Treasurer in any case where such officer’s signature is
required.
4.6 PRESIDENT.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors or the Chief Executive Officer, if such titles by held by other
officers, the President shall have the general supervision, direction and
control of the business and supervision of other officers of the
Corporation.
The
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. He or she shall have the
power to sign 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,
other than the Chairman of the Board and the Chief Executive
Officer.
4.7 VICE
PRESIDENTS. At the request of the Chief Executive Officer or in the absence of
the Chief Executive Officer, or in the event of his or her inability or refusal
to act, the Vice President or the Vice Presidents if there is more than one (in
the order designated by the Board of Directors) shall perform the duties of the
Chief Executive Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon such office.
Each Vice
President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Vice
President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer or in the event of the
inability or refusal of such officer to act, shall perform the duties of such
office, and when so acting, shall have all the powers of and be subject to all
the restrictions upon such office.
4.8
SECRETARY. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties
for the standing committees when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer, under whose supervision
the Secretary shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, then any Assistant Secretary shall perform
such actions. If there be no Assistant Secretary, then the Board of Directors or
the Chief Executive Officer may choose another officer to cause such notice to
be given. The Secretary shall have custody of the seal of the Corporation and
the Secretary or any Assistant Secretary, if there be one, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
8
4.9
TREASURER. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
4.10
ASSISTANT SECRETARIES. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the Chief Executive Officer, President, any Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
4.11
ASSISTANT TREASURERS. Assistant Treasurers, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chief Executive Officer, any Vice President, if there be
one, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation.
4.12
CONTROLLER. The Controller shall establish and maintain the accounting records
of the Corporation in accordance with generally accepted accounting principles
applied on a consistent basis, maintain proper internal control of the assets of
the Corporation and shall perform such other duties as the Board of Directors,
the Chief Executive Officer, President or any Vice President of the Corporation
may prescribe.
4.13
OTHER OFFICERS. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
4.14
VACANCIES. The Board of Directors shall have the power to fill any vacancies in
any office occurring from whatever reason.
4.15
RESIGNATIONS. Any officer may resign at any time by submitting his written
resignation to the Corporation. Such resignation shall take effect at the time
of its receipt by the Corporation, unless another time be fixed in the
resignation, in which case it shall become effective at the time so fixed. The
acceptance of a resignation shall not be required to make it
effective.
4.16
REMOVAL. Subject to the provisions of any employment agreement approved by the
Board of Directors, any officer of the Corporation may be removed at any time,
with or without cause, by the Board of Directors.
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ARTICLE
V
CAPITAL
STOCK
5.1 FORM
OF CERTIFICATES. The shares of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the board,
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed in
accordance with this Section 5.1 representing the number of shares registered in
certificate form. With respect to certificated shares, every holder of stock in
the Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, Chief Executive
Officer or a Vice President and (ii) by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
5.2
SIGNATURES. Any or all of the signatures on the certificate may be a facsimile,
including, but not limited to, signatures of officers of the Corporation and
countersignatures of a transfer agent or registrar. In case an officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
5.3 LOST
CERTIFICATES. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
5.4
TRANSFERS. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made
on the books of the Corporation and in the case of certificated shares of stock,
only by the person named in the certificate or by his attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, which
shall be canceled before a new certificate shall be issued. Upon surrender to
the Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession, assignment
or authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transactions upon its books, unless the Corporation has a duty to
inquire as to adverse claims with respect to such transfer which has not been
discharged. In the case of uncertificated shares of stock, transfers
shall be made upon receipt of proper transfer instructions from the registered
holder of the shares or by his attorney lawfully constituted in writing, and
upon compliance with appropriate procedures for transferring shares in
uncertificated form. The Corporation shall have no duty to inquire into adverse
claims with respect to such transfer unless (a) the Corporation has received a
written notification of an adverse claim at a time and in a manner which affords
the Corporation a reasonable opportunity to act on it prior to the issuance of a
new, reissued or re-registered share certificate and the notification identifies
the claimant, the registered owner and the issue of which the share or shares is
a part and provides an address for communications directed to the claimant; or
(b) the Corporation has required and obtained, with respect to a fiduciary, a
copy of a will, trust, indenture, articles of co-partnership, Bylaws or other
controlling instruments, for a purpose other than to obtain appropriate evidence
of the appointment or incumbency of the fiduciary, and such documents indicate,
upon reasonable inspection, the existence of an adverse claim. The Corporation
may discharge any duty of inquiry by any reasonable means, including notifying
an adverse claimant by registered or certified mail at the address furnished by
him or, if there be no such address, at his residence or regular place of
business that the security has been presented for registration of transfer by a
named person, and that the transfer will be registered unless within thirty days
from the date of mailing the notification, either (a) an appropriate restraining
order, injunction or other process issues from a court of competent
jurisdiction; or (b) an indemnity bond, sufficient in the Corporation’s judgment
to protect the Corporation and any transfer agent, registrar or other agent of
the Corporation involved from any loss which it or they may suffer by complying
with the adverse claim, is filed with the Corporation.
5.5
FIXING RECORD DATE. In order that the Corporation may determine the stockholders
entitled to notice or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record is adopted by
the Board of Directors, and which record date shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting, nor
more than ten (10) days after the date upon which the resolution fixing the
record date of action with a meeting is adopted by the Board of Directors, nor
more than sixty (60) days prior to any other action. If no record date is
fixed:
10
(a) The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held.
(b) The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the first date on which a signed written
consent is delivered to the Corporation.
(c) The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
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.
5.6
REGISTERED STOCKHOLDERS. Prior to due presentment for transfer of any share or
shares, the Corporation shall treat the registered owner thereof as the person
exclusively entitled to vote, to receive notifications and to all other benefits
of ownership with respect to such share or shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State
Delaware.
ARTICLE
VI
OWNERSHIP
BY NON-U.S. CITIZENS
6.1
FOREIGN STOCK RECORD. There shall be maintained a separate stock record,
designated the “Foreign Stock Record,” for the registration of Voting Stock, as
defined in Article VI, Section 2, that is Beneficially Owned (as defined below)
by Non-U.S. Citizens, as defined below (“Foreign Stock”). The Beneficial
Ownership by Non-U.S. Citizens of Voting Stock shall be determined in conformity
with regulations prescribed by the Board of Directors. “Non-U.S. Citizens” means
Persons who are not “citizens of the United States” as defined in 49 U.S.C.
40102(a)(15), as now in effect or as it may hereafter from time to time be
amended (“U.S. Citizens”). “Beneficial Ownership,” “Beneficially Owned,” or
“Owned Beneficially” refers to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under
the Securities Exchange Act of 1934, as amended.
6.2
MAXIMUM PERCENTAGE. At no time shall ownership of shares representing more than
the Maximum Percentage, as defined below, be registered in the Foreign Stock
Record. As used herein, (a) “Maximum Percentage” means the maximum
percentage of voting power of Voting Stock, as defined below, which may be voted
by, or at the direction of, Non-U.S. Citizens without violating Foreign
Ownership Restrictions (as defined below) or adversely affecting the
Corporation’s operating certificates or authorities, and (b) “Voting Stock”
means all outstanding shares of capital stock of the Corporation issued from
time to time by the Corporation, which, but for the provisions of Article
SEVENTH of the Amended and Restated Certificate of Incorporation, by their terms
may vote (at the time such determination is made). “Foreign Ownership
Restrictions” means applicable statutory, regulatory and interpretive
restrictions regarding foreign ownership or control of U.S. air carriers as
amended or modified from time to time.
6.3
RECORDING OF SHARES. If at any time there exist shares of Voting Stock that are
Foreign Stock but that are not registered in the Foreign Stock Record, the
Beneficial Owner thereof may request, in writing, the Corporation to register
ownership of such shares on the Foreign Stock Record and the Corporation shall
comply with such request, subject to the limitation set forth in Article VI,
Section 4. The order in which Foreign Stock shall be registered on the Foreign
Stock Record shall be chronological, based on the date the Corporation received
a written request to so register such shares of Foreign Stock. If at any time
the Corporation shall find that the combined voting power of Voting Stock then
registered in the Foreign Stock Record exceeds the Maximum Percentage, there
shall be removed from the Foreign Stock Record the registration of such number
of shares so registered as is sufficient to reduce the combined voting power of
the shares so registered to an amount not in excess of the Maximum Percentage.
The order in which such shares shall be removed shall be reverse chronological
order based upon the date the Corporation received a written request to so
register such shares of Foreign Stock.
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6.4
RESTRICTIONS ON SHARE TRANSFERS. Any transfer, or attempted or purported
transfer, of any shares of the capital stock of the Corporation or any interest
therein or right thereof, that would result in the Beneficial Ownership by
Non-U.S. Citizens, individually or in the aggregate, of shares of voting stock
in excess of the Maximum Percentage will, until such excess no longer exists, be
void and ineffective as against the Corporation and the Corporation will not
recognize, with respect to those shares that caused the Maximum Percentage to be
exceeded, the purported transferee as a stockholder of the Corporation for any
purpose other than the transfer by the purported transferee of such excess to a
person who is a U.S. Citizen or to the extent necessary to effect any other
remedy available to the Corporation under this Article VI. The exercise of
remedies in this Section 4 shall be exercised in reverse chronological
order of the dates and times of the registry of such shares in the Foreign Stock
Record. Each holder as of the record date (the “Record Holder”) and Beneficial
Owner shall advise the Corporation in writing of any change in such Record
Holder’s or Beneficial Owner’s citizenship status.
6.5
SUSPENSION OF VOTING, DIVIDEND AND DISTRIBUTION RIGHTS OF EXCESS SHARES. If any
shares of voting stock in excess of the Maximum Percentage are Beneficially
Owned by Non-U.S. Citizens, individually or in the aggregate (such “Excess
Shares” to be determined in accordance with Article VI, Section 3 (Recording of
Shares)), the Corporation shall have the power, but not the obligation, with
respect to such Excess Shares, until such excess no longer exists, to do the
following: (i) suspend distribution of dividends or other assets declared
payable or paid to the holders of the capital stock of the Corporation during
such period or (ii) prohibit voting with respect to any matter submitted to
a vote of the stockholders of the Corporation, and such Excess Shares shall not
be deemed to be outstanding for purposes of determining the vote required on any
matter properly submitted to a vote of the stockholders of the Corporation. At
such time as the Maximum Percentage is no longer exceeded, full voting rights
shall be restored to any shares previously deemed to be Excess Shares, and any
dividends or distributions with respect thereto that have been withheld shall be
due and paid to the holders of such shares. If the number of shares of voting
stock Beneficially Owned by Non-U.S. Citizens is in excess of the Maximum
Percentage, the shares deemed to be Excess Shares for purposes of this Article
VI will be those shares Beneficially Owned by Non-U.S. Citizens that the Board
of Directors determines became so Beneficially Owned most recently, and such
determination shall be conclusive. The exercise of remedies in this
Section 5 shall be exercised in reverse chronological order of the dates
and times of the registry of such shares in the Foreign Stock
Record.
6.6
REDEMPTION OF EXCESS SHARES. If any shares of voting stock in excess of the
Maximum Percentage are Beneficially Owned by Non-U.S. Citizens, individually or
in the aggregate, the Corporation shall have the power, but not the obligation,
to redeem Excess Shares subject to the following terms and
conditions:
(i) The
per share redemption price (the “Redemption Price”) to be paid for the Excess
Shares to be redeemed shall be the sum of (a) the average closing sales
price of such shares and (b) any dividend or distribution declared with
respect to such shares prior to the date such shares are called for redemption
hereunder but which has been withheld by the Corporation. As used herein, the
term “average closing sales price” shall mean the average of the closing sales
prices of such shares on a national securities exchange on which the stock is
traded or listed during the 10 trading days immediately prior to the date the
notice of redemption is given; except that, if such shares are not so traded or
quoted, the average closing sales price shall be determined in good faith by the
Board of Directors.
(ii) The
Redemption Price may be paid in cash or by delivery of a promissory note of the
Corporation, at the election of the Corporation. Any such promissory note shall
have a maturity of not more than 10 years from the date of issuance and shall
bear interest at the rate equal to the then current coupon rate of a 10-year
Treasury note as such rate is published in THE WALL STREET JOURNAL or comparable
publication.
(iii) A
notice of redemption shall be given by first class mail, postage prepaid, mailed
not less than 10 days prior to the redemption date to each holder of record of
the shares to be redeemed, at such holder’s address as the same appears on the
stock records of the Corporation. Each such notice shall state (a) the
redemption date, (b) the number of shares of such shares to be redeemed
from such holder, (c) the Redemption Price, and the manner of payment
thereof, (d) the place where certificates for such shares are to be
surrendered for payment of the Redemption Price, and (e) that dividends on
the shares to be redeemed will cease to accrue on such redemption
date.
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(iv) From
and after the redemption date, dividends on the shares called for redemption
shall cease to accrue and such shares shall no longer be deemed to be
outstanding and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the Redemption
Price) shall cease. Upon surrender of the certificates for any shares so
redeemed in accordance with the requirements of the notice of redemption
(properly endorsed or assigned for transfer if the notice shall so state), such
shares shall be redeemed by the Corporation at the Redemption Price. In case
fewer than all shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the shares not redeemed without cost to
the holder thereof.
(v) Such
other terms and conditions as the Board of Directors may reasonably
determine.
The
exercise of remedies in this Section 6 shall be exercised in reverse
chronological order of the dates and times of the registry of such shares in the
Foreign Stock Record.
ARTICLE
VII
NOTICES
7.1 FORM
OF NOTICE. Notices to directors and stockholders other than notices to directors
of special meetings of the board of Directors which may be given by any means
stated in Article III, Section 4, shall be in writing and delivered
personally or mailed to the directors or stockholders at their addresses
appearing on the books of the corporation. Notice by mail shall be deemed to be
given at the time when the same shall be mailed. Notice to directors may also be
given by telegram.
7.2
WAIVER OF NOTICE. Whenever any notice is required to be given under the
provisions of law or the Certificate of Incorporation or by these Bylaws of the
Corporation, a written waiver, signed by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular, or special meeting of the stockholders, Directors, or members of a
committee of Directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation.
ARTICLE
VIII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
8.1 The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
8.2 The
Corporation shall indemnify any person who was or is a party, or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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8.3 To
the extent that a director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2 of this Article, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by him or her in
connection therewith.
8.4 Any
indemnification under Sections 1 or 2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in such Section. Such determination shall be
made:
(a) By
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or
(b) If
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or
(c) By
the stockholders.
8.5
Expenses (including attorneys’ fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Section. Such expenses (including attorneys’ fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
8.6 The
indemnification and advancement of expenses provided by, or granted pursuant to
the other Sections of this Article shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
8.7 The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article.
8.8 For
purposes of this Article, references to “the Corporation” shall include, in
addition to the resulting Corporation, any constituent Corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer employee or agent of such constituent
Corporation, or is or was serving at the request of such constituent Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving Corporation as he would
have with respect to such constituent Corporation of its separate existence had
continued.
8.9 For
purposes of this Article, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to “serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article.
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8.10 The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
8.11 No
director or officer of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation for monetary damages for
breach of fiduciary duty as a director or officer, provided that this provision
shall not limit the liability of a director or officer (i) for any breach
of the director’s or the officer’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of Delaware, or (iv) for
any transaction from which the director or officer derived an improper personal
benefit.
ARTICLE
IX
GENERAL
PROVISIONS
9.1
RELIANCE ON BOOKS 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.
9.2
DIVIDENDS. Subject to the provisions of the Certificate of Incorporation, if
any, dividends upon the capital stock of the Corporation may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the Certificate of Incorporation.
Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the Directors
shall think conducive to the interest of the Corporation, and the Directors may
modify or abolish any such reserve in the manner in which it was
created.
9.3 ANNUAL
STATEMENT. The Board of Directors shall present at each annual meeting, and at
any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
Corporation.
9.4
CHECKS. All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other persons as the Board of
Directors may from time to time designate.
9.5
FISCAL YEAR. The fiscal year of the Corporation shall be as determined by the
Board of Directors. If the Board of Directors shall fail to do so, the Chief
Executive Officer shall fix the fiscal year.
9.6 SEAL.
The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal, Delaware”. The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any manner reproduced.
9.7
AMENDMENTS. Except as otherwise set forth in these Bylaws, these Bylaws may be
altered, amended or repealed or new Bylaws 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. The fact that
such power has been so conferred upon the Board of Directors shall not divest
the stockholders of the power nor limit their power to adopt, amend or repeal
Bylaws.
9.8
INTERPRETATION OF BYLAWS. All words, terms and provisions of these Bylaws shall
be interpreted and defined by and in accordance with the General Corporation Law
of the State of Delaware, as amended, and as amended from time to time
hereafter.
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