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8-K - FORM 8-K - Vicor Technologies, Inc. | y04885e8vk.htm |
EX-99.1 - EX-99.1 - Vicor Technologies, Inc. | y04885exv99w1.htm |
Exhibit 3.01
AMENDED AND RESTATED
BYLAWS
OF
VICOR TECHNOLOGIES, INC.
(a Delaware corporation)
ARTICLE I
Meetings of Stockholders and Other Stockholder Matters
SECTION 1. Annual Meeting. An annual meeting of the stockholders of Vicor
Technologies, Inc, (hereinafter, the Corporation) shall be held for the election of directors and
for the transaction of such other proper business at such time, date and place, either within or
without the State of Delaware, as shall be designated by resolution of the Board of Directors from
time to time.
SECTION 2. Special Meetings. Special meetings of stockholders for any purpose or
purposes may be called by the Board of Directors, or by a committee of the Board of Directors that
has been designated by the Board of Directors and whose powers and authority, as expressly provided
in a resolution of the Board of Directors, include the power to call such meetings, and shall be
held at such time, date and place, either within or without the state of Delaware, as shall be
designated by resolution of the Board of Directors or such committee. The only business to be
transacted at a special meeting of stockholders shall be that business set forth in the notice of
meeting given pursuant to Section 3 of this Article I. Except as provided in the Corporations
certificate of incorporation, special meetings of stockholders may not be called by any other
person or persons.
SECTION 3. Notice of Meetings. Written notice of each meeting of the stockholders,
which shall state the time, date and place of the meeting and in the case of a special meeting, the
purpose or purposes for which it is called, shall, unless otherwise provided by applicable law, the
certificate of incorporation or these bylaws, be given not less than 10 nor more than sixty 60 days
before the date of such meeting to each stockholder entitled to vote at such meeting, and, if
mailed, it shall be deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholders address as it appears on the records of the Corporation.
Whenever notice is required to be given, a written waiver thereof signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted nor the purpose of any annual or special meeting of the
stockholders need be specified in any written waiver of 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.
SECTION 4. Adjournments. Any meeting of the stockholders may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At any such adjourned meeting at which a quorum may be present, the
Corporation may transact any business which might have been transacted at the original meeting. If
the adjournment is for more than thirty 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 of record entitled to vote at the meeting.
SECTION 5. Quorum. Except as otherwise provided by Delaware law, the certificate of
incorporation or these bylaws, at any meeting of the stockholders the holders of a majority of the
shares of stock, issued and outstanding and entitled to vote, shall be present in person or
represented by proxy in order to constitute a quorum for the transaction of any business. In the
absence of a quorum, the holders of a majority of the shares present in person or represented by
proxy and entitled to vote may adjourn the meeting from time to time in the manner described in
Section 4 of this Article I.
SECTION 6. Organization. At each meeting of the stockholders, the Chairman, of the
Board, or in his absence or inability to act, the President and Chief Executive Officer or, in his
absence or inability to act, a Vice President or, in the absence or inability to act of such
persons, any person designated by the Board of Directors, or in the absence of such designation,
any person chosen by a majority of those stockholders present in person or represented by proxy,
shall act as chairman of the meeting. The Secretary or, in his absence or inability to act, any
person appointed by the chairman of the meeting shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 7. Notice of Business. At any annual meeting of the stockholders of the
Corporation, only such business shall be conducted as shall have been brought before the meeting.
To be properly brought before an annual meeting, such business must be (i) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board of Directors; (ii)
otherwise properly brought before the meeting by or at the direction of the Board of Directors; or
(iii) otherwise properly brought before the meeting by any stockholder of the Corporation who is a
stockholder of record at the time of giving of the notice provided for in this Section 7, who shall
be entitled to vote at such meeting and who complies with the notice procedures set forth in this
Section 7, in addition to any other applicable legal requirements. For business to be properly
brought before an annual meeting of the stockholders by a stockholder, the stockholder shall have
given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholders notice shall be delivered to or mailed and received by the Secretary at the principal
executive office of the Corporation not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting; provided, however, that in the event
that no annual meeting was held in the previous year or the annual meeting is called for a date
that is not within 30 days before or after such anniversary date, notice from the stockholder to be
timely must be so received not later than the close of business on the tenth 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. In no event shall any adjournment or postponement of an annual meeting or
the announcement thereof commence a new time period (or extend any time period) for the giving of
the stockholders notice as
described above. Such stockholders notice to the Secretary of the Corporation shall set
forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting, the reasons for
conducting such business at the annual meeting and, in the event that such business includes a
proposal to amend any document, including these bylaws, the language of the proposed amendment, (b)
the name and address, as they appear on the Corporations books, of the stockholder proposing such
business, (c) the class and number of shares of capital stock of the Corporation which are
beneficially owned by such stockholder and (d) any material interest of such stockholder in such
business. Notwithstanding anything in these bylaws to the contrary, no business shall be conducted
at any annual meeting of the stockholders except in accordance with the procedures set forth in
this Section 7. The chairman of the annual meeting of the stockholders shall, if the facts
warrant, determine and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 7, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought before the meeting shall
not be transacted. Notwithstanding the foregoing provisions of this Section 7, a stockholder shall
also comply with all applicable requirements of the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder with respect to matters set forth in
this Section 7.
SECTION 8. Order of Business: Conduct of Meetings. The order of business at all
meetings of the stockholders shall be as determined by the chairman of the meeting.
SECTION 9. Voting; Proxies. Unless otherwise provided by Delaware law or in the
certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of capital stock which has voting power upon the
matter in question held by such stockholder either (i) on the date fixed pursuant to the provisions
of Section 10 of Article I of these bylaws as the record date for the determination of the
stockholders to be entitled to notice of or to vote at such meeting; or (ii) if no record date is
fixed, then at the close of business on the day next preceding the day on which notice is given.
Each stockholder entitled to vote at any meeting of the stockholders may authorize another person
or persons to act for him by proxy. Any such proxy shall be delivered to the secretary of such
meeting at or prior to the time designated in the order of business for so delivering such proxies.
At all meetings of the stockholders for the election of directors, a plurality of the votes cast
shall be sufficient to elect. On all other matters, except as otherwise required by Delaware law
or the certificate of incorporation, a majority of the votes cast at a meeting of the stockholders
shall be necessary to authorize any corporate action to be taken by vote of the stockholders.
Unless required by Delaware law, or determined by the chairman of the meeting to be advisable, the
vote on any question other than the election of directors need not be by written ballot. On a vote
by written ballot, each written ballot shall be signed by the stockholder voting, or by his proxy
if there be such proxy, and shall state the number of shares voted.
SECTION 10. Fixing of Record Date for Stockholder Meetings. 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, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than 60 nor less than 10 days before
the date of such meeting. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be 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. 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.
SECTION 11. Fixing a Record Date for Other Purposes. In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purposes 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 date is adopted, and which record date shall not be more than 60 days
prior to such action. If no record date is fixed, the record date for determining stockholders for
any such purpose shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
SECTION 12. List of Stockholders Entitled to Vote. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of the 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 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 of the Corporation who is present.
SECTION 13. Inspectors. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any adjournment thereof. If
the inspectors shall not be so appointed or if any of them shall fail to appear or act, the
chairman of the meeting shall appoint inspectors. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of his or her ability.
The inspectors shall determine the number of shares outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum, the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting or any stockholder
entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question
or matter determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an election of
directors. Inspectors need not be stockholders.
SECTION 14. 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 12 of this Article I, the books of the Corporation, or to vote in person or by proxy at any
meeting of the stockholders.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors. The Board of Directors may exercise all
such authority and powers of the Corporation and do all such lawful acts and things as are not, by
Delaware law or the certificate of incorporation, directed or required to be exercised or done by
the stockholders.
SECTION 2. Number, Qualification. Except as otherwise fixed by or pursuant to
provisions of the certificate of incorporation relating to the rights of the holders of any class
or series of stock having a preference over common stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, the number of directors of the
Corporation shall be fixed from time to time by affirmative vote of a majority of the directors
then in office. Directors need not be stockholders.
SECTION 3. Elections And Terms. The Board of Directors, other than those who may be
elected by the holders of any classes or series of stock having a preference over the common stock
as to dividends or upon liquidation, shall be classified, with respect to the time for which they
severally hold office, into three class, as nearly equal in number as possible, one class to be
originally elected for a term expiring at the annual meeting of stockholders to be held in 2008
another class to be originally elected for a term expiring at the annual meeting of stockholders to
be held in 2009, and another class to be originally elected for a term expiring at the annual
meeting of the stockholders to be held in 2010, with each class to hold office until its successors
are elected and qualified. At each annual meeting of the stockholders of the Corporation after
fiscal year 2010, 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.
SECTION 4. Newly Created Directorships And Vacancies. Except as otherwise fixed by
or pursuant to provisions of the certificate of incorporation relating to the rights of the holders
of any class or series of stock having a preference over common stock as to dividends or upon
liquidation to elect additional directors under specified circumstances, 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 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. Except as otherwise provided under Delaware law,
newly created directorships and vacancies resulting from any cause may not be filled by any other
person or persons. 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 such directors successor shall
have been elected and qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any director then in office.
SECTION 5. Removal and Resignation. Except as otherwise fixed by or pursuant to
provisions of the certificate of incorporation relating to the rights of the holders of any class
or series of stock having a preference over common stock as to dividends or upon liquidation to
elect additional directors under specified circumstances, any director may be removed from office
only for cause and only by the affirmative vote of the holders of two-thirds of the outstanding
shares of stock entitled to vote generally in the election of directors. Any director may resign
at any time upon written notice to the Corporation. Any such resignation shall take effect at the
time specified therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 6. Nomination of Directors. Only persons who are nominated in accordance
with the following procedures shall be eligible for election by the stockholders as directors of
the Corporation. Nominations of persons for election as directors of the Corporation may be made
at an annual meeting of stockholders (i) by or at the direction of the Board of Directors; or (ii)
by any committee appointed by the Board of Directors; or (iii) 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 Section 6 and any other applicable legal requirements. Such
nominations, other than those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholders notice shall be delivered to or mailed and received at the principal executive office
of the Corporation not less than 60 days nor more than 90 days prior to the annual meeting;
provided, however, that in the event that no annual meeting was held in the previous year or the
annual meeting is called for a date that is not within 30 days before or after such anniversary
date, notice from the stockholder to be timely must be so received not later than the close of
business on the tenth 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. In no event shall any
adjournment or postponement of an annual meeting or the announcement thereof commence a new time
period (or extend any time period) for the giving of the stockholders notice as described above.
To be in proper form, a stockholders notice to the Secretary of the Corporation shall be in
writing and shall set forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, (i) the name, age, business address and residence address of
the person, (ii) the principal occupation or employment of the person, (iii) the class and number
of shares of capital stock of the Corporation which are beneficially owned by the person and (iv)
any other information relating to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to Regulation 14A under the Securities Exchange Act of
1934, as now or hereafter amended; and (b) as to the stockholder giving the notice, (i) the name
and record address of such stockholder and (ii) the class and number of shares of capital stock of
the Corporation which are beneficially owned by such 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 by the stockholders as a director of the Corporation
unless nominated in accordance with the procedures set forth herein. The chairman of the annual
meeting of the stockholders shall, if
the facts warrant, determine and declare to the meeting that 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.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors may be held
at such places within or without the State of Delaware and at such times as the Board of Directors
may from time to time determine. Notice of regular meetings of the Board of Directors need not be
given except as otherwise required by Delaware law or these bylaws.
SECTION 8. Special Meetings. Special meetings of the Board of Directors may be held
at any time or place within or without the State of Delaware whenever called by the Chairman of the
Board of Directors, the President and Chief Executive Officer or by a majority of the whole Board
of Directors.
SECTION 9. Notice of Meetings. Notice of each special meeting of the Board of
Directors (and of each regular meeting for which notice shall be required) shall be given by the
Secretary as hereinafter provided in this Section 9, in which notice shall be stated the time and
place of the meeting. Except as otherwise required by Delaware law or these bylaws, such notice
need not state the purpose(s) of such meeting. Notice of each such meeting shall be mailed,
postage prepaid, to each director, addressed to such director at such directors residence or usual
place of business, by registered mail, return receipt requested delivered at least two (2) days
before the day on which such meeting is to be held, or shall be sent addressed to such director at
such place by electronic mail, telegraph, telex, cable or wireless, or be delivered to such
director personally, by facsimile or by telephone, at least 24 hours before the time at which such
meeting is to be held. A written waiver of notice, signed by the director entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to notice. Notice of
any such meeting need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without protesting, prior to or
at its commencement, the lack of notice to him. Neither the business to be transacted nor the
purpose of any meeting of the Board of Directors need be specified in any written waiver of notice.
SECTION 10. Quorum and Manner of Acting. Except as hereinafter provided, a majority
of the whole Board of Directors shall be present in person or by means of a conference telephone or
similar communications equipment which allows all persons participating in the meeting to hear each
other at the same time at any meeting of the Board of Directors in order to constitute a quorum for
the transaction of business at such meeting; and, except as otherwise required by Delaware law, the
certificate of incorporation or these bylaws, the act of a majority of the directors present at any
meeting at which a quorum is present shall be the at of the Board of Directors. Once a quorum for
the transaction of business has been established at any meeting of the Board of Directors in
accordance with this Section 10 it may not be broken by the departure of any director or directors.
In the absence of a quorum at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn such meeting to another time and place. Notice of the time and place
of any such adjourned meeting shall be given to the directors who were not present at the time of
the adjournment and, unless such time and place were announced at the meeting at which the
adjournment was taken, to the other directors. At any adjourned meeting at which a quorum is
present, any business may be transacted which
might have been transacted at the meeting as originally called. The directors shall act only
as a Board and the individual directors shall have no power as such.
SECTION 11. Action Without a Meeting. 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 thereto in writing, and the writing or writings are filed with the minutes of the
proceedings of the Board of Directors.
SECTION 12. Telephonic Participation. Members of the Board of Directors may
participate in a meeting of the Board by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other at the same time.
Participation in such a meeting shall constitute presence in person at such meeting.
SECTION 13. Organization. At each meeting of the Board, the Chairman of the Board
or, in his absence or inability to act, the President and Chief Executive Officer or, in his
absence or inability to act, another director chosen by a majority of the directors present shall
act as chairman of the meeting and preside thereat. The Secretary or, in his absence or inability
to act, any person appointed by the chairman shall act as secretary of the meeting and keep the
minutes thereof.
SECTION 14. Compensation. The Board of Directors shall have authority by resolution
to fix the compensation, including fees and reimbursement of expenses, of directors for services to
the Corporation in any capacity; provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 15. Lead Director. The Board of Directors may, by resolution passed by a
majority of the Board of Directors, establish the position of Lead Director who shall be a director
eligible to occupy a position on a committee established by the Board of Directors as a
non-employee director and outside director as defined in Article III Section 1, with such
duties, powers, authority and responsibilities as determined by the Board of Directors and adopted
from time to time.
ARTICLE III
Committees
SECTION 1. Committees. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors, designate one or more committees including, but not
limited to, an Audit Committee, Compensation Committee and Governance and Nominating Committee,
each committee to consist of two or more of the directors of the Corporation who are non-employee
directors within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended, and who are outside directors within the meaning of Section 162(m) of the Internal
Revenue Code of 1986, as amended. The Board of Directors may fill vacancies in, change the
membership of, or dissolve any such committee. The Board of Directors may designate one or more
directors as alternate members of any committee who may
replace any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the 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 place of such absent or
disqualified member. Any such committee, to the extent provided by Delaware law and to the extent
provided in the resolution of the Board of Directors or pursuant to committee charters adopted by
the Board of Directors, shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it. Each committee shall keep written
minutes of its proceedings and shall report such minutes to the Board of Directors when required.
SECTION 2. Committee Rules. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules for the conduct of
its business. In the absence of such rules, each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.
ARTICLE IV
Officers
SECTION 1. Number. The officers of the Corporation shall be elected by the Board of
Directors and shall consist of a Chairman of the Board, a President and Chief Executive Officer,
one or more Vice Presidents, a Secretary, a Treasurer and a Chief Financial Officer. Any number of
offices may be held by the same person. In its discretion, the Board of Directors may choose not
to fill any office for any period that it may deem advisable unless otherwise required by Delaware
law.
SECTION 2. Election and Term of Office. The officers of the Corporation shall be
elected annually by the Board of Directors at its first meeting held after each annual meeting of
stockholders or as soon thereafter as conveniently may be. The President and Chief Executive
Officer shall appoint persons to other offices as he or she deems desirable. Each officer shall
hold office until a successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
SECTION 3. Resignations. Any officer may resign at any time upon written notice to
the Corporation. Any such resignation shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified therein, immediately upon its receipt;
and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
SECTION 4. Removal. Any officer or agent of the Corporation may be removed, either
with or without cause, at any time, by a majority of the Board of Directors and except in the case
of an officer or agent elected or appointed by the Board of Directors, by the President and Chief
Executive Officer, but any such removal shall be without prejudice to the contract rights, if any,
of the person so removed.
SECTION 5. Vacancies. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise, may be filled for the unexpired portion of the term of
the office which shall be vacant by the Board of Directors at any special or regular meeting.
SECTION 6. Powers and Duties of Executive Officers. The officers of the Corporation
shall have such powers and duties in the management of the Corporation as may be prescribed in a
resolution by the Board of Directors and, to the extent not so provided, as generally pertain to
their respective offices, subject to the control of the Board of Directors. The Board of Directors
may require any officer, agent or employee to give security for the faithful performance of his or
her duties.
SECTION 7. The Chairman of the Board. The Chairman of the Board may be if the Board
of Directors determines, an employee of the Corporation. He shall, if present, preside at each
meeting of the stockholders and of the Board of Directors and shall be an ex-officio member of all
committees of the Board of Directors. Such person shall perform all duties incident to the office
of Chairman of the Board and such other duties as may from time to time be assigned to such person
by the Board of Directors.
SECTION 8. The President and Chief Executive Officer. The President and Chief
Executive Officer shall have the general and active supervision and direction over the business
operations and affairs of the Corporation and over the other officers, agents and employees and
shall see that their duties are properly performed, subject, however, to the control of the Board
of Directors. At the request of the Chairman of the Board, or in the case of his absence or
inability to act, the President and Chief Executive Officer 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, if any, as may be imposed upon the Chairman of the Board by the Board of Directors.
Such person shall perform all duties incident to the office of President and Chief Executive
Officer and such other duties as may from time to time be assigned to such person by the Board of
Directors.
SECTION 9. Vice Presidents. Each Vice President shall have such powers and perform
such duties as may from time to time be assigned to such person by the Board of Directors or
President and Chief Executive Officer.
SECTION 10. The Chief Financial Officer. The Chief Financial Officer shall have the
general and active supervision and direction over the financial books and records, accounting, tax,
and related operations and affairs of the Corporation, subject, however, to the direction of the
President and Chief Executive Officer and the Board of Directors. Such person shall perform all
duties incident to the office of Chief Financial Officer and such other duties as may reasonably be
assigned to such person by the Board of Directors or the President and Chief Executive Officer.
The Chief Financial Officer may serve as the Chief Accounting Officer, or such position can be held
separately. If separate, the Chief Accounting Officer shall have the general and active
supervision and direction over the financial books and records and accounting policies and
procedures, subject however, to the direction of the Chief Financial Officer, President and Chief
Executive Officer and Board of Directors.
SECTION 11. The Treasurer. The Treasurer shall (a) have charge and custody of, and
be responsible for, all the funds and securities of the Corporation; (b) keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation; (c) cause all
monies and other valuables to be deposited to the credit of the Corporation in such depositories as
may be designated by the Board; (d) receive, and give receipts for, monies due and payable to the
Corporation from any source whatsoever; (e) disburse the funds of the Corporation and supervise the
investment of its funds as ordered or authorized by the Board, taking proper vouchers therefor; and
(f) in general, have all the powers and perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the Board of Directors or the
President and Chief Executive Officer.
SECTION 12. The Secretary. The Secretary shall (a) record the proceedings of the
meetings of the stockholders and directors in a minute book to be kept for that purpose; .(b) see
that all notices are duly given in accordance with the provisions of these bylaws and as required
by law; (c) be custodian of the records and the seal of the Corporation and affix and attest the
seal to all stock certificates of the Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all
other documents to be executed on behalf of the Corporation under its seal; (d) see that the books,
reports, statements, certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and (e) in general, have all the powers and perform all the
duties incident to the office of Secretary and such other duties as from time to time may be
assigned to him by the Board of Directors or the President and Chief Executive Officer.
SECTION 13. Officers Bonds or Other Security. The Board of Directors or the
President and Chief Executive Officer may secure the fidelity of any or all of its officers or
agents by bond or otherwise, in such amount and with such surety or sureties as the Board of
Directors or the President and Chief Executive Officer may require.
SECTION 14. Compensation. The compensation of the officers of the Corporation set
forth herein for their services as such officers shall be fixed from time to time by the Board of
Directors (or a committee thereof); provided, however, that the Board of Directors may delegate to
the President and Chief Executive Officer the power to fix the compensation of all officers and
agents appointed by the President and Chief Executive Officer, as the case may be. An officer of
the Corporation shall not be prevented from receiving compensation by reason of the fact that such
person is also a director of the Corporation.
ARTICLE V
Shares of Stock
SECTION 1. Stock Certificates. The shares of capital stock of the Corporation
shall be represented by a certificate, provided that the Board of Directors of the Corporation may
adopt a resolution permitting shares to be uncertificated. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the corporation. Each
share of capital stock may be issued in book-entry form and otherwise eligible for registration
under a direct registration system.
SECTION 2. Book Entry Shares. The Corporation may issue shares of its capital stock
in book-entry (uncertificated) form. In such event, all references in these bylaws to the delivery
of stock certificates shall be inapplicable. The Corporations transfer agent or registrar
shall keep appropriate records indicating the number of shares of capital stock owned by each
person to whom shares are issued, any restrictions applicable to such shares of capital stock and
the duration thereof, and other relevant information. Upon expiration of any applicable
restrictions for any reason, the transfer agent shall adjust its records to reflect the expiration
of such restrictions, and by notifying the person in whose name such shares were issued that such
restrictions have lapsed.
SECTION 3. Certificated Shares. Every holder of stock in the Corporation which is
represented by a certificate shall be entitled to have a certificate signed by, or in the name of
the Corporation by the Chairman of the Board or the President and Chief Executive Officer or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary, certifying the number of shares owned by such holder in the Corporation. Any of or all
the signatures on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, it
may nevertheless 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 4. Books of Account and Record of Stockholders. The books and records of
the Corporation may be kept at such places, within or without the State of Delaware, as the Board
of Directors may from time to time determine. The stock record books and the blank stock
certificate books shall be kept by the Secretary or by any other officer or agent designated by the
Board of Directors.
SECTION 5. Transfer of Shares. Transfers of shares of stock of the Corporation
shall be made on the stock records of the Corporation only upon authorization by the registered
holder thereof, or by his attorney hereunto authorized by power of attorney duly executed and filed
with the Secretary or with a transfer agent or transfer clerk, and on surrender of the certificate
or certificates for such shares properly endorsed or accompanied by a duly executed stock transfer
power and the payment of all taxes thereon. Except as otherwise provided by Delaware law, the
Corporation shall be entitled to recognize the exclusive right of a person in whose name any share
or shares stand on the record of stockholders as the owner of such share or shares for all
purposes, including, without limitation, the rights to receive dividends or other distributions,
and to vote as such owner, and the Corporation may hold any such stockholder of record liable for
calls and assessments and the Corporation shall not be bound to recognize any equitable or legal
claim to or interest in any such share or shares on the part of any other person whether or not it
shall have express or other notice thereof. Whenever any transfers of shares shall be made for
collateral security and not absolutely, and both the transferor and transferee request the
Corporation to do so, such fact shall be stated in the entry of the transfer.
SECTION 6. Regulations. The Board of Directors may make such additional rules and
regulations, not inconsistent with these bylaws, as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of the Corporation. It may appoint,
or authorize any officer or officers to appoint, one or more transfer agents or one or more
transfer clerks and one or more registrars and may require all certificates for shares of stock to
bear the signature or signatures of any of them.
SECTION 7. Lost Stolen or Destroyed Stock Certificates. The holder of any
certificate representing shares of stock of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of such certificate, and the Corporation may
issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged
to have been lost, stolen or destroyed, and the Board of Directors or the President and Chief
Executive Officer may, in its or his discretion, require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond sufficient, as the Board
or the President and Chief Executive Officer in its or his absolute discretion shall determine, to
indemnify the Corporation against any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such new certificate.
Anything herein to the contrary notwithstanding, the Board of Directors or the President and Chief
Executive Officer, in its or his absolute discretion, may refuse to issue any such new certificate,
except pursuant to judicial proceedings under the laws of the State of Delaware.
ARTICLE VI
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 1. Execution of Contracts. Except as otherwise required by statute, the
certificate of incorporation or these bylaws, any contract or other instrument may be executed and
delivered in the name and on behalf of the Corporation by the President and Chief Executive Officer
or by such other officer or officers (including any assistant officer) of the Corporation as the
Board of Directors may from time to time direct. Such authority may be general or confined to
specific instances as the Board of Directors may determine. Unless authorized by the Board of
Directors or expressly permitted by these bylaws, no officer or 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 pecuniary liable for any purpose or to any amount.
SECTION 2. Loans. Unless the Board of Directors shall otherwise determine, the
Chief Executive Officer, President, Chief Financial or Accounting Officer, or any Vice-President
designated by the President and Chief Executive Officer, may effect loans and advances at any time
for the Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual, and for such loans and advances may make, execute and deliver promissory
notes, bonds or other certificates or evidences of indebtedness of the Corporation, but no officer
or officers shall mortgage, pledge, hypothecate or transfer any securities or other property of the
Corporation other than in connection with the purchase of chattels for use in the Corporations
operations, except when authorized by the Board of Directors.
SECTION 3. Checks, Drafts, Bank Accounts, etc. All checks, drafts, bills of
exchange or other orders for the payment of money out of the funds of the Corporation, and all
notes or other evidence of indebtedness of the Corporation, shall be signed in the name and on
behalf of the Corporation by the President and Chief Executive Officer, Chief Financial or
Accounting Officer, or such persons and in such manner as shall from time to time be authorized by
the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks, trust companies or
other depositaries as the Board of Directors may from time to time designate or as may be
designated by the President and Chief Executive Officer, Chief Financial or Accounting Officer, or
any officer or officers of the Corporation to whom such power of designation may from time to time
be delegated by the Board of Directors. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation may be endorsed, assigned and delivered by
any officer of the Corporation.
SECTION 5. General and Special Bank Accounts. The Board of Directors may from time
to time authorize the opening and keeping of general and special bank accounts with such banks,
trust companies or other depositaries as the Board of Directors may designate or as may be
designated by any officer or officers of the Corporation to whom such power of designation may from
time to time be delegated by the Board of Directors. The Board of Directors may make such special
rules and regulations with respect to such bank accounts, not inconsistent with the provisions of
these bylaws, as it may deem expedient.
ARTICLE VII
Indemnification
SECTION 1. Right To Indemnification. The Corporation shall indemnify and hold
harmless to the fullest extent permitted by applicable law as it presently exists or may hereafter
be amended, any person who was or is a party or is threatened to be made a party or is otherwise
involved in any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, or by or in the right of the Corporation to procure a
judgment in its favor (a Proceeding), 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, enterprise or nonprofit entity, including serving with respect to employee benefit
plans, against all liability and loss suffered and expenses (including attorneys 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; provided,
however, with respect to a Proceeding involving the right of the Corporation to procure judgment in
its favor, such indemnification shall only cover expenses (including attorney fees) and shall only
be made if such person acted in good faith and in a manner such person reasonably believed to be in
the best interests of the Corporation and shall not be made with respect to any Proceeding as to
which such person has been adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery of the State of Delaware or the court in which such Proceeding 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 of the State of Delaware or such other court shall deem
proper. The Corporation shall be required to indemnify a person in connection with a Proceeding
(or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
SECTION 2. Prepayment of Expenses. Expenses incurred in defending any Proceeding
shall be paid by the Corporation 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 or officer to repay such amount if it should be
ultimately determined that such person is not entitled to be indemnified by the Corporation as
authorized in this Article VII or otherwise.
SECTION 3. Claims. If a claim for indemnification or payment of expenses under this
Article VII is not paid in full within 60 days after a written claim therefor has been received by
the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under applicable Delaware law.
SECTION 4. Non-Exclusivity of Rights. The indemnification provided by this Article
VII shall not be deemed exclusive of any other rights to which those seeking indemnification may be
entitled under these bylaws or any agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in such persons 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. The Corporation may enter into indemnity agreements with members
of the Board from time to time and such other officers as the Board may designate, to provide
indemnification to the fullest extent permitted by Delaware law.
SECTION 5. Other Indemnification. The Corporations obligation, if any, to
indemnify any person who was or is serving at its request as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, enterprise or non-profit entity be
reduced by any amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or non-profit enterprise.
SECTION 6. 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
persons status as such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of Delaware law, the certificate of
incorporation or of this Article VII.
SECTION 7. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VII shall not adversely effect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE VIII
General Provisions
SECTION 1. Registered Office. The registered office and registered agent of the
Corporation will be as specified in the certificate of incorporation of the Corporation.
SECTION 2. Other Offices. The Corporation may also have such offices, both within
or without the State of Delaware, as the Board of Directors may from time to time determine or, at
the discretion of the President and Chief Executive Officer, the business of the Corporation may
require.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be so determined
by the Board of Directors.
SECTION 4. Seal. The seal of the Corporation shall be circular in form, shall bear
the name of the Corporation and shall include the words and numbers Corporate Seal, Delaware
and the year of incorporation.
SECTION 5. Voting Securities Owned By Corporation. Voting securities in any other
corporation held by the Corporation shall be voted by the Chairman of the Board, or the President
and Chief Executive Officer, unless the Board of Directors specifically confers authority to vote
with respect thereto, which authority may be general or confined to specific instances, upon some
other person or officer. Any person authorized to vote securities shall have the power to appoint
proxies, with general power of substitution.
SECTION 6. Section Headings. Section headings in these bylaws are for convenience
of reference only and shall not be given any substantive effect in limiting or otherwise construing
any provision herein.
SECTION 7. Inconsistent Provisions. In the event that any provision of these bylaws
is or becomes inconsistent with any provision of the certificate of incorporation, the general
corporation law of the State of Delaware or any other applicable law, the provision of these bylaws
shall not be given any effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
SECTION 8. Inspection of Books and Records. Stockholders shall have such inspection
rights as provided by the applicable laws of the State of Delaware.
ARTICLE IX
Amendment
These bylaws, may be adopted, amended or repealed, and new bylaws made, by a majority of the
members of the Board of Directors of the Corporation, but the stockholders of the Corporation may
make additional bylaws and may alter and repeal any bylaws, whether adopted by them or otherwise,
by affirmative vote of the holders of two-thirds of the outstanding shares of stock entitled to
vote upon the election of directors.