Attached files
| file | filename |
|---|---|
| S-1 - WESTPOINT INTERNATIONAL INC | v210431_s1.htm |
| EX-3.1 - WESTPOINT INTERNATIONAL INC | v210431_ex3-1.htm |
| EX-3.2 - WESTPOINT INTERNATIONAL INC | v210431_ex3-2.htm |
| EX-10.9 - WESTPOINT INTERNATIONAL INC | v210431_ex10-9.htm |
| EX-10.8 - WESTPOINT INTERNATIONAL INC | v210431_ex10-8.htm |
| EX-21.1 - WESTPOINT INTERNATIONAL INC | v210431_ex21-1.htm |
| EX-10.6 - WESTPOINT INTERNATIONAL INC | v210431_ex10-6.htm |
| EX-10.3 - WESTPOINT INTERNATIONAL INC | v210431_ex10-3.htm |
| EX-23.1 - WESTPOINT INTERNATIONAL INC | v210431_ex23-1.htm |
| EX-10.7 - WESTPOINT INTERNATIONAL INC | v210431_ex10-7.htm |
BY-LAWS
OF
WESTPOINT INTERNATIONAL,
INC.
ARTICLE
1
OFFICES
Section
1.1. Registered
Office; Other Offices. The registered office and registered agent of the
corporation shall be as designated from time to time by the appropriate filing
by the corporation in the office of the Secretary of State of the State of
Delaware. The corporation may also have offices, and keep the books and records
of the corporation, at such other places, either within or without the State of
Delaware, as the board of directors may from time to time determine or as the
business of the corporation may require, except as may otherwise be required by
law.
ARTICLE
2
MEETINGS
OF STOCKHOLDERS
Section
2.1. Place of
Meetings. All meetings of the stockholders shall be held at the office of
the corporation or at such other places as may be fixed from time to time by the
board of directors, either within or without the State of Delaware, and stated
in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section
2.2. Annual
Meetings. Annual meetings of
stockholders shall be held at the time and place to be selected by the board of
directors. If the day is a legal holiday, then the meeting shall be held on the
next following business day. At the meeting, the stockholders shall elect a
board of directors by written ballot and transact such other business as may
properly be brought before the meeting.
Section
2.3. Notice of Annual
Meeting. Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
Section
2.4. 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, 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
ten (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 thereof, and may be inspected by any stockholder who is
present.
Section
2.5. Special
Meetings. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the chairman of the board or the president of
the corporation and shall be called by the president or the secretary at the
request in writing of a majority of the board of directors. Such request shall
state the purpose or purposes of the proposed meeting. Special meetings of the
stockholders may not be called by any person or persons other than as set forth
in this Section 2.5 or as otherwise provided in the certificate of
incorporation.
Section
2.6. Notice of Special
Meetings. Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Business transacted at any special meeting of the stockholders shall be limited
to the purposes stated in the notice.
Section
2.7. Quorum.
The holders of a majority of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business,
except, as may otherwise be provided by statute or by the certificate of
incorporation.
If a
quorum is present at a meeting of stockholders, the stockholders represented in
person or by proxy at the meeting may conduct such business as may be properly
brought before the meeting until it is finally adjourned, and the subsequent
withdrawal from the meeting of any stockholder or the refusal of any stockholder
represented in person or by proxy to vote shall not affect the presence
of a quorum at the meeting, except as may otherwise be provided by law or the
certificate of incorporation.
If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the chairman of the meeting or 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 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 notified. 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, or if these Bylaws otherwise
require, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section
2.8. Order of
Business. At each meeting of the stockholders, one of the following
persons, in the order in which they are listed (and in the absence of the first,
the next, and so on), shall serve as chairman of the meeting: chairman of the
board, president, vice presidents (in the order of their seniority if more than
one) and secretary. The order of business at each such meeting shall be as
determined by the chairman of the meeting. Except as may otherwise be provided
by statute, the certificate of incorporation or these Bylaws, the chairman of
the meeting shall have, in his sole discretion, the right and authority to
prescribe such rules, regulations and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting,
including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls. Only stockholders of record will be permitted
to present motions from the floor at any meeting of
stockholders.
Section
2.9. Majority
Vote. When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the statutes, the certificate of
incorporation or these Bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such
question. The stockholders present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section
2.10. Method of
Voting. Unless otherwise provided in the certificate of incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one
vote in person or by proxy for each share of the capital stock having voting
power held by such stockholder (i) at the time fixed pursuant to Section 8.5 of
these Bylaws as the record date for the determination of stockholders entitled
to vote at such meeting, or (ii) if no such record date shall have been fixed,
then at the close of business on the date next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held, but no proxy shall be
voted on or after three (3) years from its date, unless the proxy provides for a
longer period.
Section
2.11. Action of
Stockholders by Unanimous Written Consent Without Meetings. Unless
otherwise provided in the certificate of incorporation, any action required or
permitted to be taken by stockholders for or in connection with any corporate
action may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing setting forth the action so taken shall be
(i) signed by the holders of all shares entitled to vote thereon and (ii)
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings 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. Unless otherwise provided in the
instrument creating any class or series of preferred stock of the corporation,
any action required or permitted to be taken by holders of any class or series
of preferred stock of the corporation at any annual or special meeting of
holders of such class or series of preferred stock of the corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing setting forth the action so taken shall be (i) signed by
the holders of such outstanding class or series of preferred 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 of such class or series of
preferred stock entitled to vote thereon were present and voted and (ii)
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings 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. Every written consent shall bear the date of signature of
each stockholder who signs the consent.
If action
is taken by written consent of stockholders, the writing or writings comprising
such written consent shall be filed with the records of the meetings of
stockholders.
In the
event that the action which is consented to is such as would have required the
filing of a certificate under any of the provisions of the General Corporation
Law of the State of Delaware, as amended
(the “DGCL”), if such action had been voted upon by the stockholders at a
meeting thereof, the certificate filed under such provisions shall state (i)
that written consent has been given under Section 228 of the DGCL, in lieu of
stating that the stockholders have voted upon the corporate action in question,
if such last mentioned statement is so required, and (ii) that written notice
has been given as provided in such Section 228.
ARTICLE
3
DIRECTORS
Section
3.1. General
Powers. The business and affairs of the corporation shall be managed by
or under the direction of the board of directors, which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
law or by the certificate of incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
Section
3.2. Number of
Directors. Subject to the terms of the certificate of incorporation, as
it may be amended from time to time, the number of directors constituting the
board shall be such number as shall be from time to time specified by resolution
of the board of directors, but shall not, in any event, be less than one
(1). No director’s term shall be shortened by reason of a resolution
reducing the number of directors.
Section
3.3. Election,
Qualification and Term of Office of Directors. At each annual meeting of
stockholders at which a quorum is present beginning in 2007, the successors of
the class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election. The persons
receiving a plurality of the votes of the shares represented in person or by
proxy and entitled to vote on the election of directors shall be elected
directors. Except as may otherwise be provided by law, the certificate of
incorporation or these Bylaws, directors need not be stockholders nor residents
of the State of Delaware. Notwithstanding the foregoing, whenever the
holders of any one or more classes or series of preferred stock issued by the
corporation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office and other features of such directorships shall be governed by the terms
of the instrument creating such class or series of preferred stock.
Section
3.4. First
Meetings. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section
3.5. Regular
Meetings. Regular meetings of the board of directors may be held without
notice (except as may otherwise be required by law or these Bylaws) at such
times and at such places as shall from time to time be determined by the
board.
Section
3.6. Special
Meetings. Special meetings of the board of directors may be called by the
chairman of the board or the president, and shall be called by the president or
secretary on the written request of two (2) directors unless the board consists of only one
director, in which case special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of the sole
director.
Section
3.7. Quorum; Majority
Vote. At all meetings of the board, a majority of the entire board of
directors 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors, 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.
Section
3.8. Action 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 may be taken without a meeting, if all members of the
board consent in writing to the adoption of a resolution authorizing the action,
and the writing or writings are filed with the minutes of the proceedings of the
board.
Section
3.9. Telephone and
Similar Meetings. Unless otherwise restricted by the certificate of
incorporation or these Bylaws, members of the board of directors may participate
in any meeting 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. Participation by such means shall constitute
presence in person at a meeting of the board.
Section
3.10. Notice of
Meetings. Unless otherwise required by law or specified herein, notice of
regular meetings of the board of directors or of any adjourned meeting thereof
need not be given.
Notice of each special meeting of the board (and of each regular meeting for
which notice shall be required) shall be mailed to each director, addressed to
such director at such director’s residence or usual place of business, at least
two (2) days before the day on which the meeting is to be held or shall be sent
to such director at such place by telex, cable, facsimile or telegram or be given personally
or by telephone, not later than the day before the meeting is to be held, but
notice need not be given to any director who shall, either before or after the
meeting, submit a signed written waiver of such notice or who shall attend such
meeting without protesting, prior to or at its commencement, the lack of notice
to such director. Every such notice shall state the time and place but need not
state the purpose of the meeting.
Section
3.11. Rules and
Regulations. The board of directors may adopt such rules and regulations
not inconsistent with the provisions of law, the certificate of incorporation or
these Bylaws for the conduct of its meetings and management of the affairs of
the corporation as the board may deem proper.
Section
3.12. Resignations. Any
director of the corporation may at any time resign by giving written notice to
the board of directors, the chairman of the board, the president or the
secretary of the corporation. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section
3.13. Removal of
Directors. Unless otherwise restricted by statute, by the certificate of
incorporation or by these Bylaws, any director elected by vote of the holders of
the outstanding common stock of the corporation may be removed from office only
for cause upon the affirmative vote of the holders of 85% of the then
outstanding shares of common stock of the corporation.
Section
3.14. Vacancies. Except as
may otherwise be provided by, law, the certificate of incorporation or these By
Laws, newly created directorships resulting from any increase in the number of
directors and any vacancies on the board of directors resulting from death,
resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the board of directors. Any
director elected in accordance with the preceding sentence shall hold office for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until successors for such
director’s class shall have been elected and qualified or until his or her
earlier death, disqualification, resignation or removal.
Section
3.15. Compensation of
Directors. Unless otherwise restricted by the certificate of
incorporation or these Bylaws, the board of directors shall have the authority
to fix the compensation of directors. 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 sum 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.
ARTICLE
4
EXECUTIVE
AND OTHER COMMITTEES
Section
4.1. Executive and
Other Committees. The board of directors may, by resolution adopted by a
majority of the entire board, designate from time to time one (1) or more of its
members to constitute members or alternate members of an executive committee or
one or more other committees, which committees shall have and may exercise,
between meetings of the board, all the powers and authority of the board in the
management of the business and affairs of the corporation, including, if any
such committee is so empowered and authorized by resolution adopted by a
majority of the entire board, the power and authority to declare a dividend, to
authorize the issuance of stock and to adopt a certificate of ownership and
merger pursuant to Section 253 of the DGCL, and may authorize the seal of the
corporation to be affixed to all papers which may require it, except that no
such committee shall have such power or authority with reference
to:
(a)
amending the certificate of incorporation of the corporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
pursuant to authority, if any, expressly vested in the board by the provisions
of the certificate of incorporation, (i) fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation, or (ii) fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series);
(b)
adopting an agreement of merger or consolidation
involving the corporation;
(c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the property and assets of the corporation;
(d)
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution;
(e)
adopting, amending or repealing any Bylaw;
(f)
filling vacancies on the board;
(g)
fixing the compensation of directors for serving on the board or on any
committee of the board, including the
executive committee; or
(h)
amending or repealing any resolution of the board which by its terms may be
amended or repealed only by the board.
Section
4.2. Procedure;
Meetings; Quorum. Regular meetings of the executive committee or any
other committee of the board of directors, of which no notice shall be
necessary, may be held at such times and places as shall be fixed by resolution
adopted by a majority of the members thereof. Special meetings of the executive
committee or any other committee of the board shall be called at the request of
any member thereof. Notice of each special meeting of the executive committee or
any other committee of the board shall be sent by mail, telex, cable, facsimile,
telegram or telephone, or be delivered personally to each member thereof not
later than the day before the day on which the meeting is to be held, but notice
need not be given to any member who shall, either before or after the meeting,
submit a signed written waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of such notice to
such member. Any special meeting of the executive committee or any other
committee of the board shall be a legal meeting without any notice thereof
having been given, if all the members thereof shall be present thereat. Notice
of any adjourned meeting of any committee of the board need not be given. The
executive committee or any other committee of the board may adopt such rules and
regulations not inconsistent with the provisions of law, the certificate of
incorporation of the corporation or
these Bylaws for the conduct of its meetings as the executive committee or any
other committee of the board may deem proper. A majority of the executive
committee or any other committee of the board shall constitute a quorum for the
transaction of business at any meeting, and the vote of a majority of the
members thereof present at any meeting at which a quorum is present shall be the
act of such committee. In the absence or disqualification of a member, the
remaining members, whether or not a quorum may fill a vacancy. The executive
committee or any other committee of the board of directors shall keep written
minutes of its proceedings, a copy of which is to be filed with the secretary of
the corporation, and shall report on such proceedings to the
board.
Section
4.3. Compensation. Members
of special or standing committees may be allowed compensation if the board of directors shall so
determine pursuant to Section 3.15 of these Bylaws.
Section
4.4. Action by
Consent; Participation by Telephone or Similar Equipment. Unless the
board of directors, the certificate of incorporation or these Bylaws shall
otherwise provide, any action required or permitted to be taken by any committee
may be taken without a meeting if all members of the committee consent in
writing to the adoption of a resolution authorizing the action, and the writing
or writings are filed with the minutes of the proceedings of the committee.
Unless the board of directors, the certificate of incorporation or these Bylaws
shall otherwise provide, any one or more members of any such committee may
participate in any meeting of the committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation by such means shall constitute
presence in person at a meeting of the committee.
Section
4.5. Changes in
Committees; Resignations; Removals. The board shall have powers, by the
affirmative vote of a majority of the authorized number of directors, at any
time to change the members of, to fill vacancies in, and to discharge any
committee of the board. Any member of any such committee may resign at any time
by giving notice to the corporation, provided, however, that notice to the
board, the chairman of the board, the president, the chairman of such committee
or the secretary shall be deemed to constitute notice to the corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, acceptance of such
resignation shall
not be necessary to make it effective. Any member of any such committee may be
removed at any time, with or without cause, by the
affirmative vote of a majority of the authorized number of directors at any
meeting of the board called for that purpose.
ARTICLE
5
NOTICES
Section
5.1. Method.
Whenever, under the provisions of the statutes or of the certificate of
incorporation or of these Bylaws, notice is required to be given to any director
or stockholder, it shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telex, cable, facsimile or telegram.
Section
5.2. Waiver.
Whenever any notice is required to be given under the provisions of the statutes
or of the certificate of incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto. 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 or these Bylaws.
ARTICLE
6
OFFICERS
Section
6.1. Election;
Qualification. The officers of the corporation shall be chosen annually
by the board of directors at its first regular meeting held after the annual
meeting of stockholders or as soon thereafter as conveniently practicable and
shall be a president, one or more vice presidents and a secretary. The board of
directors may also choose as officers a chairman of the board, one or more vice
chairmen of the board, a treasurer, one or more assistant secretaries and
assistant treasurers and such other officers and agents as it shall deem
necessary. Any number of offices may be held by the same person, unless the
certificate of incorporation or these Bylaws otherwise provide. The chairman of
the board and any vice chairman of the board shall be elected from among the
directors. With the foregoing exception, none of the other officers need be a
director, and none of the officers need be a stockholder of the corporation
unless otherwise required by the certificate of incorporation.
Section
6.2. Term;
Removal. The officers of the corporation shall hold office until their
successors are chosen and qualify or until their death or the effective date of
their removal or
resignation (or until he shall cease to be a director in the case of the
chairman of the board or any vice chairman of the board). Any officer elected or
appointed by the board of directors may be removed, with or without cause, at
any time by the affirmative vote of a majority of the board of
directors.
Section
6.3. Resignation. Subject
at all times to the right of removal as provided in Section 6.2 of this Article
6, any officer may resign at any time by giving notice to the board of
directors, the chairman of the board, the president or the secretary of the
corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later date specified therein; provided that the president
or, in the event of the resignation of the president, the board of directors may
designate an effective date for such resignation which is earlier than the date
specified in such notice but which is not earlier than the date of receipt of
such notice; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section
6.4. Vacancies.
A vacancy in any office because of death, resignation, removal or any other
cause may be filled for the unexpired portion of the term by the board of
directors.
Section
6.5. Chairman of the
Board. The chairman of the board shall, if there be such an officer,
preside at meetings of the board of directors and preside at meetings of the
stockholders. The chairman of the board shall counsel with and advise the
president and perform such other duties as the president or the board or the
executive committee may from time to time determine. Except as otherwise
provided by resolution of the board, the chairman of the board shall be
ex-officio a member of all committees of the board. The chairman of the board
may sign and execute in the name of the corporation any and all deeds,
mortgages, bonds, contracts, agreements, certificates or other instruments
or documents
authorized by the board or any committee thereof empowered to authorize the
same.
Section
6.6. Vice Chairman of
the Board. In the absence of the chairman of the board or, in the event
of his inability or refusal to act, the vice chairman (or in the event there be
more than one vice chairman, the vice chairmen in the order designated by the
directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the chairman of the board, and when so
acting shall have all the powers of and be subject to all the restrictions upon
the chairman of the board. The vice chairman shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe. Any vice chairman may sign and execute in the name of the corporation
any and all deeds, mortgages, bonds, contracts, agreements, certificates or
other instruments or documents authorized by the board or any committee thereof
empowered to authorize the same.
Section
6.7. President.
The president shall be the chief executive officer of the corporation, shall
preside at all meetings of the stockholders and the board of directors if there
shall be no chairman or vice chairman of the board or if the chairman or vice
chairman of the board shall not be present or shall be unable or unwilling to
act at any such meeting, shall have general and active management of the
business of the corporation and shall see that all orders and resolutions of the
board of directors are carried into effect. He shall execute deeds, mortgages,
bonds, contracts, agreements, certificates or other instruments or documents
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
Section
6.8. Vice
Presidents. In the absence of the president, the chairman of the board
and the vice chairmen of the board or, in the event of their inability or
refusal to act, the vice president (or in the event there be more than one vice
president, the vice presidents in the order designated by the directors or, in
the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The vice
presidents shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
Section
6.9. Secretary.
The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He 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 president, under whose supervision he shall be. He shall have
custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
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.
Section
6.10. Assistant
Secretary. The assistant secretary, or if there shall be more than one,
the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the secretary or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
Section
6.11. 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. He 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 president 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, he 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.
Section
6.12. Assistant
Treasurer. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election), shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
ARTICLE
7
INDEMNIFICATION
OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section
7.1. Third-Party
Actions. The corporation shall indemnify to the fullest extent authorized
or permitted by Section 145 of the DGCL any person (his heirs, executors and
administrators) 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 such person is or was a
director or officer of the corporation at any time, including in connection with
such person serving at the request of the corporation as a director or officer
or in any other capacity during such period for another corporation,
partnership, joint venture, trust or other enterprise, against all expenses
(including attorney’s fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person 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 or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, that such
person had reasonable cause to believe that his or her conduct was
unlawful
The
corporation may indemnify any employee or agent of the corporation, or any
employee or agent serving at the request of the corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, in the manner and to the extent that it shall indemnify any director
or officer under this Section 7.1.
Section
7.2. Derivative
Actions. The corporation may indemnify any person (his heirs, executors
and administrators) 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 such
person 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 all expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for gross negligence or willful misconduct in the performance of such
person’s duty to the corporation unless and only to the extent that the Court of
Chancery of Delaware 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 as the Court of Chancery of Delaware or such other
court shall deem proper.
Section
7.3. Determination of
Indemnification. Any indemnification under Section 7.1 or 7.2 of this
Article 7 (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 such
person has met the applicable standard of conduct set forth in Section 7.1 or
7.2 of this Article 7. Such determination shall be made (i) 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 (ii) 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 (iii) by the
stockholders.
Section
7.4. Right to
Indemnification. Notwithstanding the other provisions of this Article 7,
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 Section 7.1 or 7.2 of this Article 7, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith.
Section
7.5. Advance of
Expenses. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the corporation on
behalf of a director, officer, employee or agent in advance of the final
disposition of such action, suit or proceeding as authorized by the board of
directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that such person is entitled to be indemnified by the
corporation as authorized in this Article 7.
Section
7.6. Indemnification
Not Exclusive. The indemnification provided by this Article 7 shall not
be deemed exclusive of any other rights to which any person seeking
indemnification may be entitled under any law, any agreement, the certificate of
incorporation, any vote of stockholders or disinterested directors or otherwise,
both as to action in such person’s official capacity and as to action in another
capacity while holding such office, and shall 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.
Section
7.7. Insurance.
The corporation may 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 such person and incurred by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power to indemnify such
person against liability under the provisions of this Article
7.
Section
7.8. Definitions of
Certain Terms. For purposes of this Article 7, 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, 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 the provisions
of this Article 7 with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
For
purposes of this Article 7, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; 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 such person 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 7.
Section
7.9. Continuity. The
indemnification and advancement of expenses provided for in this Article 7
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent of the corporation and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section
7.10. Amendment of
this Article 7. The provisions of this Article 7 relating to
indemnification and to the advancement of expenses shall constitute a contract
between the corporation and each of its directors and officers that may be
modified as to any director or officer only with that person’s consent or as
specifically provided in this Section 7.10. Notwithstanding any other provision
of these Bylaws relating to their amendment generally, any repeal or amendment
of this Article 7 that is adverse to any director or officer shall apply to such
director or officer only on a prospective basis, and shall not limit the rights
to indemnification or to the advancement of expenses with respect to any action
or failure to act occurring prior to the time of such repeal or
amendment. Notwithstanding any other provision of these Bylaws, no
repeal or amendment of these Bylaws shall affect any or all of this Article 7 so
as to limit indemnification or the advancement of expenses in any manner unless
adopted by (a) the unanimous vote of the directors of the corporation then
serving, or (b) the affirmative vote of stockholders entitled to cast not less
than 66-2/3% of the votes that all stockholders are entitled to cast in the
election of directors; provided that no such
amendment shall have retroactive effect inconsistent with the preceding
sentence.
ARTICLE
8
CERTIFICATES
OF STOCK
Section
8.1. Certificates. Every
holder of stock in the corporation shall be entitled to have a certificate,
signed by, or in the name of the corporation by, the chairman or vice chairman
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, certifying the number of shares owned by him in the
corporation.
If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional, or other special rights of each class of
stock or series thereof, and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the corporation shall issue to represent
such class or series of stock; provided that, except as otherwise stated in
Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set
forth on the face or back of the certificate which the corporation shall issue
to represent such class or series of stock, a statement that the corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional and other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section
8.2. Facsimile
Signatures. When any such certificate is countersigned by a transfer
agent or registered by a registrar other than the corporation or an employee of
the corporation, any or all of the signatures on the certificate may be
facsimile. In case any 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.
Section
8.3. 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 or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section
8.4. Transfers of
Stock. 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 transaction upon its
books.
Section
8.5. Fixing Record
Date. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. 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.
In order
that the corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the board of directors may fix a
record date, which record date shall (i) not precede the date upon which the
resolution fixing the record date is adopted by the board and (ii) not be more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted by the board.
Section
8.6. Registered
Stockholders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of 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
Delaware.
Section
8.7. Transfer
Agent and Registrar for Shares of Corporation. The board of directors may
appoint a transfer agent and a registrar of the certificates of stock of the
corporation. Any transfer agent so appointed shall maintain, among
other records, a stockholders’ ledger, setting forth the names and addresses of
the holders of all issued shares of stock of the corporation, the number of
shares held by each, the certificate numbers representing such shares, and the
date of issue of the certificates representing such shares. Any
registrar so appointed shall maintain, among other records, a share register,
setting forth the total number of shares of each class of shares which the
corporation is authorized to issue and the total number of shares actually
issued. The stockholders’ ledger and the share register are hereby
identified as the stock transfer books of the corporation; but as between the
stockholders’ ledger and the share register, the names and addresses of
stockholders, as they appear on the stockholders’ ledger maintained by the
transfer agent shall be the official list of stockholders of record of the
corporation. The name and address of each stockholder of record, as
they appear upon the stockholders’ ledger, shall be conclusive evidence of who
are the stockholders entitled to receive notice of the meetings of stockholders,
to vote at such meetings, to examine a complete list of the stockholders
entitled to vote at meetings, and to own, enjoy and exercise any other property
or rights deriving from such shares against the
corporation. Stockholders, but not the corporation, its directors,
officers, agents or attorneys, shall be responsible for notifying the transfer
agent, in writing, of any changes in their names or addresses from time to time,
and failure to do so will relieve the corporation, its other stockholders,
directors, officers, agents and attorneys, and its transfer agent and registrar,
of liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other than
the name and address appearing in the stockholders’ ledger maintained by the
transfer agent.
ARTICLE
9
GENERAL
PROVISIONS
Section
9.1. Dividends.
Dividends upon the capital stock of the corporation, subject to the provisions
of the certificate of incorporation, if any, 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.
Section
9.2. Reserves.
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 may 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.
Section
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.
Section
9.4. Checks.
All checks or demands for money and notes of the corporation shall be signed by
such officer or officers or such other person or persons as the board of
directors may from time to time designate.
Section
9.5. Contracts.
The board may authorize any officer or officers, agent or agents, in the name
and on behalf of the corporation, to enter into any contract or to execute and
deliver any instrument, which authorization may be general or confined to
specific instances; and, unless so authorized by the board, no officer, agent or
employee shall have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it liable
pecuniarily for any purpose or for any amount.
Section
9.6. Fiscal
Year. The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
Section
9.7. Seal. The
corporate seal shall have inscribed thereon the name of the corporation and the
words “Seal” or “Corporate Seal.” The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section
9.8. Voting of
Securities. Unless the board of directors otherwise provides, the
president or the treasurer may waive notice of and act on behalf of the
corporation, or appoint another person or persons to act as proxy or attorney in
fact for the corporation with or without discretionary power and/or power of
substitution, at any meeting of stockholders or shareholders of any other
corporation or organization, any of whose securities are held by the
corporation.
Section
9.9. Evidence of
Authority. A certificate by the secretary or any assistant secretary as
to any action taken by the stockholders, directors or any officer or
representative of the corporation shall, as to all persons who rely thereon in
good faith, be conclusive evidence of such action. The exercise of any power
which by law, by the certificate of incorporation, or by these Bylaws, or under
any vote of the stockholders or the board of directors, may be exercised by an
officer of the corporation only in the event of absence of another officer or
any other contingency shall bind the corporation in favor of anyone relying
thereon in good faith, whether or not such absence or contingency
existed.
Section
9.10. Electronic
Transmissions. Notwithstanding any reference in these Bylaws to written
instruments, all notices, meetings, consents and other communications
contemplated by these Bylaws may be conducted by means of an electronic
transmission, to the extent permitted by law, if specifically authorized by the
board of directors of the corporation.
Section
9.11. Charitable
Contributions. The board of directors from time to time may authorize
contributions to be made by the corporation in such amounts as it may determine
to be reasonable to corporations, trusts, funds or foundations organized and
operated exclusively for charitable, scientific or educational purposes, no part
of the net earning of which inures to the private benefit of any stockholder or
individual.
Section
9.12. Conflicts with
Certificate of Incorporation. In the event of a conflict between the
provisions of these Bylaws and the certificate of incorporation, the provisions
of the certificate of incorporation shall control.
ARTICLE
10
AMENDMENTS
Section
10.1. Amendments. Subject
to (i) Section 7.10 of these Bylaws, (ii) the certificate of incorporation and
(iii) any rights or privileges of holders of any class or series of preferred
stock of the corporation as specified by the terms of the instrument creating
such class or series of preferred stock, these Bylaws may be amended or repealed
or other Bylaws of the corporation may be adopted by the stockholders holding at
least 66 2/3% of the then outstanding shares of common stock of the corporation
or, if the corporation’s certificate of incorporation so provides, by the board
of directors. 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 amend or repeal these Bylaws or to adopt any other Bylaws of the corporation.
In the case of a meeting of stockholders to amend or repeal these Bylaws or to
adopt any other Bylaws, written notice shall be given to each stockholder
entitled to vote thereon that the purpose, or one of the purposes, of the
meeting is to consider the adoption, amendment or repeal of
Bylaws.