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S-1 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_s1.htm |
EX-3.1 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex3-1.htm |
EX-23.1 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex23-1.htm |
EX-10.4 - LINDBLAD EXPEDITIONS HOLDINGS, INC. | v211538_ex10-4.htm |
Adopted
as of August 9, 2010
BY
LAWS
OF
CAPITOL
ACQUISITION CORP. II
ARTICLE
I
OFFICES
1.1 Registered
Office. The registered office of Capitol Acquisition Corp. II
(the “Corporation”) in the State of Delaware shall be established and maintained
at 615 S. DuPont Highway, Kent County, Dover, Delaware and National Corporate
Research, Ltd. 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 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.
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To be
properly brought before the annual meeting, business must be either (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, 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 sixty (60) days nor more than ninety (90) days prior
to the meeting; provided, however, that in the event that less than seventy (70)
days notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by a stockholder, to be timely, must be
received no later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made, whichever first occurs. 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 and the reasons
for conducting such business at the annual meeting, and (ii) any material
interest of the stockholder in such business, and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class, series and number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder. 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.
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 President 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.
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. At all meetings of
stockholders for the election of directors, a plurality of the votes cast shall
be sufficient to elect. 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 Shareholders
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. 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.
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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 Section
8 of this Article II 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 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 Inspectors. The
election of directors and any other vote by ballot at any meeting of the
stockholders shall be supervised by at least one inspector. Such
inspectors shall be appointed by the Board of Directors in advance of the
meeting. If the inspector so appointed shall refuse to serve or shall
not be present, such appointment shall be made by the officer presiding at the
meeting.
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. Directors
need not be stockholders of the Corporation. The Board may be divided
into Classes as more fully described in the Certificate of
Incorporation.
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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, 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, death or incapacity.
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 who complies 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 sixty (60) days nor more than ninety (90) days prior
to the meeting; provided however, that in the event that less than seventy (70)
days notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder, to be timely, must be received
no later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. Such stockholder’s
notice to the Secretary shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (a)
the name, age, business address and residence address of the person, (b) the
principal occupation or employment of the person, (c) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (d) 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 (ii) as to
the stockholder giving the notice (a) the name and record address of the
stockholder and (b) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The
Corporation may require any proposed nominee to furnish 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. Special meetings of the Board of Directors
may be called by the President or a 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.
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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 President, or in the absence of the
Chairman of the Board of Directors and the President 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, new Directors may be elected at the same time for 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.
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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.
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.
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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, Vice Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer, 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 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.
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 President. 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 President 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. The President shall perform such other duties and
have such other powers as the Board of Directors from time to time may
prescribe.
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4.6 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.
4.7 Vice
Presidents. At the request of the President or in the absence
of the President, 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 President,
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 President 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 President, 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 President 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.
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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 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, 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 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 President, 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
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.
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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.
ARTICLE
V
CAPITAL
STOCK
5.1 Form of
Certificates. The shares of stock in the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation’s stock shall be in uncertificated form. Stock
certificates shall be in such forms as the Board of Directors may prescribe and
signed by the Chairman of the Board, President or a Vice President and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation.
5.2 Signatures. Any
or all of the signatures on a stock 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 such person were such officer,
transfer agent or registrar at the date of issue.
5.3 Lost
Certificates. The Board of Directors may direct a new stock
certificate or certificates to be issued in place of any stock 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 stock 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.
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5.4 Transfers. Stock
of the Corporation shall be transferable in the manner prescribed by law and in
these Bylaws. Transfers of certificated stock shall be made on the
books of the Corporation only by the person named in the certificate or by such
person’s attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued. Transfers of uncertificated stock shall be made on the books
of the Corporation only by the person then registered on the books of the
Corporation as the owner of such shares or by such person's attorney lawfully
constituted in writing and written instruction to the Corporation containing
such information as the Corporation or its agents may prescribe. No
transfer of uncertificated stock shall be valid as against the Corporation for
any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred. The
Corporation shall have no duty to inquire into adverse claims with respect to
any stock 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, in the case of certificated
stock, or entry in the stock record books of the Corporation, in the case of
uncertificated stock, 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:
(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.
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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
NOTICES
6.1 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.
6.2 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
VII
INDEMNIFICATION OF DIRECTORS
AND OFFICERS
7.1 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.
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7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
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7.7 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.
7.8 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.
7.9 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.
7.10 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.
7.11 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.
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ARTICLE
VIII
GENERAL
PROVISIONS
8.1 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.
8.2 Maintenance and Inspection
of Records. The Corporation shall, either at its principal executive
office or at such place or places as designated by the Board of Directors, keep
a record of its stockholders listing their names and addresses and the number
and class of shares held by each stockholder, a copy of these by-laws, as may be
amended to date, minute books, accounting books and other records.
Any such
records maintained by the Corporation may be kept on, or by means of, or be in
the form of, any information storage device or method, provided that the records
so kept can be converted into clearly legible paper form within a reasonable
time. The Corporation shall so convert any records so kept upon the request of
any person entitled to inspect such records pursuant to the provisions of the
Delaware General Corporation Law. When records are kept in such manner, a
clearly legible paper form produced from or by means of the information storage
device or method shall be admissible in evidence, and accepted for all other
purposes, to the same extent as an original paper form accurately portrays the
record.
Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation’s
stock ledger, a list of its stockholders, and its other books and records and to
make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person’s interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal executive
office.
8.3 Inspection by
Directors. Any director shall have the right to examine the Corporation’s
stock ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his or her position as a director.
8.4 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.
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8.5 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.
8.6 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.
8.7 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 President shall fix the fiscal year.
8.8 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.
8.9 Amendments. The
original or other Bylaws may be adopted, amended or repealed by the stockholders
entitled to vote thereon at any regular or special meeting or, if the
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 adopt, amend or repeal Bylaws.
8.10 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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