Attached files
EXHIBIT
3.2
BY-LAWS
OF
ENDRA
LIFE SCIENCES INC.
TABLE
OF CONTENTS
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ARTICLE I
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STOCKHOLDERS
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1.1
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Place of Meetings
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1
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1.2
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Annual Meeting
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1
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1.3
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Special Meetings
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1
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1.4
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Notice of Meetings
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1
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1.5
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Voting List
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1
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1.6
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Quorum
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2
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1.7
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Adjournments
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2
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1.8
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Voting and Proxies
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2
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1.9
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Action at Meeting
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3
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1.10
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Conduct of Meetings
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3
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1.11
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Action without Meeting
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4
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ARTICLE II
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DIRECTORS
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2.1
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General Powers
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5
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2.2
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Number, Election and Qualification
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5
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2.3
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Chairman of the Board; Vice Chairman of the Board
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5
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2.4
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Tenure
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5
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2.5
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Quorum
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5
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2.6
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Action at Meeting
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5
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2.7
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Removal
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5
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2.8
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Vacancies
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6
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2.9
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Resignation
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6
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2.10
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Regular Meetings
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6
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2.11
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Special Meetings
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6
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2.12
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Notice of Special Meetings
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6
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2.13
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Meetings by Conference Communications Equipment
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6
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2.14
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Action by Consent
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7
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2.15
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Committees
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7
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2.16
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Compensation of Directors
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7
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ARTICLE III
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OFFICERS
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3.1
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Titles
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7
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3.2
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Election
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8
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3.3
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Qualification
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8
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3.4
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Tenure
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8
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3.5
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Resignation and Removal
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8
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3.6
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Vacancies
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8
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3.7
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President; Chief Executive Officer
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8
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3.8
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Vice Presidents
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8
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3.9
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Secretary and Assistant Secretaries
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9
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3.10
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Treasurer and Assistant Treasurers
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9
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3.11
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Salaries
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9
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3.12
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Delegation of Authority
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9
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ARTICLE IV
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CAPITAL STOCK
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4.1
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Issuance of Stock
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10
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4.2
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Stock Certificates; Uncertificated Shares
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10
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4.3
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Transfers
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11
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4.4
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Lost, Stolen or Destroyed Certificates
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11
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4.5
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Record Date
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11
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4.6
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Regulations
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12
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ARTICLE V
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GENERAL PROVISIONS
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5.1
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Fiscal Year
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12
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5.2
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Corporate Seal
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12
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5.3
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Waiver of Notice
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12
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5.4
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Voting of Securities
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12
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5.5
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Evidence of Authority
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12
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5.6
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Certificate of Incorporation
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12
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5.7
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Severability
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12
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5.8
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Pronouns
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13
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ARTICLE VI
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AMENDMENTS
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6.1
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By the Board of Directors
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13
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6.2
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By the Stockholders
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13
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ii
ARTICLE I
1.1 Place of
Meetings. All meetings of
stockholders shall be held at such place as may be designated from
time to time by the Board of Directors, the Chairman of the Board,
the Chief Executive Officer or the President or, if not so
designated, at the principal office of the corporation. The Board
of Directors may, in its sole discretion, determine that a meeting
shall not be held at any place, but may instead be held solely by
means of remote communication in a manner consistent with the
General Corporation Law of the State of Delaware.
1.2 Annual
Meeting. The annual
meeting of stockholders for the election of directors and for the
transaction of such other business as may properly be brought
before the meeting shall be held on a date and at a time designated
by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President (which date shall not be a legal
holiday in the place where the meeting is to be held).
1.3 Special
Meetings. Special meetings
of stockholders for any purpose or purposes may be called at any
time by only the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President, and may not be called by
any other person or persons. The Board of Directors may postpone or
reschedule any previously scheduled special meeting of
stockholders. Business transacted at any special meeting of
stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 Notice of
Meetings. Except as
otherwise provided by law, notice of each meeting of stockholders,
whether annual or special, shall be given not less than 10 nor more
than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. Without limiting the manner by
which notice otherwise may be given to stockholders, any notice
shall be effective if given by a form of electronic transmission
consented to (in a manner consistent with the General Corporation
Law of the State of Delaware) by the stockholder to whom the notice
is given. The notices of all meetings shall state the place, if
any, date and time of the meeting and the means of remote
communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting. The
notice of a special meeting shall state, in addition, the purpose
or purposes for which the meeting is called. If notice is given by
mail, such notice shall be deemed given when deposited in the
United States mail, postage prepaid, directed to the stockholder at
such stockholder’s address as it appears on the records of
the corporation. If notice is given by electronic transmission,
such notice shall be deemed given at the time specified in Section
232 of the General Corporation Law of the State of
Delaware.
1.5 Voting List. The Secretary
shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, for a period of at least 10 days prior to the meeting: (a)
on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with
the notice of the meeting, or (b) during ordinary business hours,
at the principal place of business of the corporation. If the
meeting is to be held at a physical location (and not solely by
means of remote communication), then the list shall be produced and
kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If
the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably
accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting.
The list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of
shares held by each of them.
1
1.6 Quorum. Except as
otherwise provided by law, the Certificate of Incorporation or
these By-laws, the holders of a majority in voting power of the
shares of the capital stock of the corporation issued and
outstanding and entitled to vote at the meeting, present in person,
present by means of remote communication in a manner, if any,
authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction
of business; provided, however, that where a separate vote by a
class or classes or series of capital stock is required by law or
the Certificate of Incorporation, the holders of a majority in
voting power of the shares of such class or classes or series of
the capital stock of the corporation issued and outstanding and
entitled to vote on such matter, present in person, present by
means of remote communication in a manner, if any, authorized by
the Board of Directors in its sole discretion, or represented by
proxy, shall constitute a quorum entitled to take action with
respect to the vote on such matter. A quorum, once established at a
meeting, shall not be broken by the withdrawal of enough votes to
leave less than a quorum.
1.7 Adjournments.
Any meeting of stockholders may be adjourned from time to time to
any other time and to any other place at which a meeting of
stockholders may be held under these By-laws by the chairman of the
meeting or by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum. It shall
not be necessary to notify any stockholder of any adjournment of
less than 30 days if the time and place, if any, of the adjourned
meeting, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting, are announced at the meeting at
which adjournment is taken, unless after the adjournment a new
record date is fixed for the adjourned meeting. At the adjourned
meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8 Voting and
Proxies. Each stockholder
shall have one vote for each share of stock entitled to vote held
of record by such stockholder and a proportionate vote for each
fractional share so held, unless otherwise provided by law or the
Certificate of Incorporation. Each stockholder of record entitled
to vote at a meeting of stockholders, or to express consent or
dissent to corporate action without a meeting, may vote or express
such consent or dissent in person (including by means of remote
communications, if any, by which stockholders may be deemed to be
present in person and vote at such meeting) or may authorize
another person or persons to vote or act for such stockholder by a
proxy executed or transmitted in a manner permitted by the General
Corporation Law of the State of Delaware by the stockholder or such
stockholder’s authorized agent and delivered (including by
electronic transmission) to the Secretary of the corporation. No
such proxy shall be voted or acted upon after three years from the
date of its execution, unless the proxy expressly provides for a
longer period.
2
1.9 Action at
Meeting. When a quorum is
present at any meeting, any matter other than the election of
directors to be voted upon by the stockholders at such meeting
shall be decided by the vote of the holders of shares of stock
having a majority in voting power of the votes cast by the holders
of all of the shares of stock present or represented at the meeting
and voting affirmatively or negatively on such matter (or if there
are two or more classes or series of stock entitled to vote as
separate classes, then in the case of each such class or series,
the holders of a majority in voting power of the shares of stock of
that class or series present or represented at the meeting and
voting affirmatively or negatively on such matter), except when a
different vote is required by law, the Certificate of Incorporation
or these By-laws. When a quorum is present at any meeting, any
election by stockholders of directors shall be determined by a
plurality of the votes cast by the stockholders entitled to vote on
the election.
(a) Chairman
of Meeting. Meetings of
stockholders shall be presided over by the Chairman of the Board,
if any, or in the Chairman’s absence by the Vice Chairman of
the Board, if any, or in the Vice Chairman’s absence by the
Chief Executive Officer, or in the Chief Executive Officer’s
absence, by the President, or in the President’s absence by a
Vice President, or in the absence of all of the foregoing persons
by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen by vote of the
stockholders at the meeting. The Secretary shall act as secretary
of the meeting, but in the Secretary’s absence the chairman
of the meeting may appoint any person to act as secretary of the
meeting.
(b) Rules,
Regulations and Procedures. The Board of
Directors may adopt by resolution such rules, regulations and
procedures for the conduct of any meeting of stockholders of the
corporation as it shall deem appropriate including, without
limitation, such guidelines and procedures as it may deem
appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically
present at a meeting. Except to the extent inconsistent with such
rules, regulations and procedures as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have
the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board
of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation
in the meeting to stockholders of record of the corporation, their
duly authorized and constituted proxies or such other persons as
shall be determined; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of
parliamentary procedure.
3
(a) Taking
of Action by Consent. Any action
required or permitted to be taken at any annual or special meeting
of stockholders of the corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is 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 on such action were
present and voted. Except as otherwise provided by the Certificate
of Incorporation, stockholders may act by written consent to elect
directors; provided, however, that, if such consent is less than
unanimous, such action by written consent may be in lieu of holding
an annual meeting only if all of the directorships to which
directors could be elected at an annual meeting held at the
effective time of such action are vacant and are filled by such
action.
(b) Electronic
Transmission of Consents. A telegram,
cablegram or other electronic transmission consenting to an action
to be taken and transmitted by a stockholder or proxyholder, or by
a person or persons authorized to act for a stockholder or
proxyholder, shall be deemed to be written, signed and dated for
the purposes of this section, provided that any such telegram,
cablegram or other electronic transmission sets forth or is
delivered with information from which the corporation can determine
(i) that the telegram, cablegram or other electronic transmission
was transmitted by the stockholder or proxyholder or by a person or
persons authorized to act for the stockholder or proxyholder and
(ii) the date on which such stockholder or proxyholder or
authorized person or persons transmitted such telegram, cablegram
or electronic transmission. The date on which such telegram,
cablegram or electronic transmission is transmitted shall be deemed
to be the date on which such consent was signed. No consent given
by telegram, cablegram or other electronic transmission shall be
deemed to have been delivered until such consent is reproduced in
paper form and until such paper form 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 a
corporation’s registered office shall be made by hand or by
certified or registered mail, return receipt requested.
Notwithstanding the foregoing limitations on delivery, consents
given by telegram, cablegram or other electronic transmission may
be otherwise delivered to the principal place of business of the
corporation or to an officer or agent of the corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded if, to the extent and in the manner
provided by resolution of the Board of Directors. Any copy,
facsimile or other reliable reproduction of a consent in writing
may be substituted or used in lieu of the original writing for any
and all purposes for which the original writing could be used,
provided that such copy, facsimile or other reproduction shall be a
complete reproduction of the entire original writing.
(c) Notice
of Taking of Corporate Action. Prompt notice of
the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the
action were delivered to the corporation.
4
ARTICLE II
2.1 General
Powers. The business and
affairs of the corporation shall be managed by or under the
direction of a Board of Directors, who may exercise all of the
powers of the corporation except as otherwise provided by law or
the Certificate of Incorporation.
2.2 Number, Election and
Qualification. Subject to the
rights of holders of any series of Preferred Stock to elect
directors, the number of directors of the corporation shall be
established from time to time by the stockholders or the Board of
Directors. The directors shall be elected at the annual meeting of
stockholders by such stockholders as have the right to vote on such
election. Election of directors need not be by written ballot.
Directors need not be stockholders of the corporation.
2.3 Chairman of the Board; Vice Chairman
of the Board. The Board of
Directors may appoint from its members a Chairman of the Board and
a Vice Chairman of the Board, neither of whom need be an employee
or officer of the corporation. If the Board of Directors appoints a
Chairman of the Board, such Chairman shall perform such duties and
possess such powers as are assigned by the Board of Directors and,
if the Chairman of the Board is also designated as the
corporation’s Chief Executive Officer, shall have the powers
and duties of the Chief Executive Officer prescribed in Section 3.7
of these By-laws. If the Board of Directors appoints a Vice
Chairman of the Board, such Vice Chairman shall perform such duties
and possess such powers as are assigned by the Board of Directors.
Unless otherwise provided by the Board of Directors, the Chairman
of the Board or, in the Chairman’s absence, the Vice Chairman
of the Board, if any, shall preside at all meetings of the Board of
Directors.
2.4 Tenure. Each director
shall hold office until the next annual meeting of stockholders and
until a successor is elected and qualified, or until such
director’s earlier death, resignation or
removal.
2.5 Quorum. The greater of
(a) a majority of the directors at any time in office and (b)
one-third of the number of directors fixed pursuant to Section 2.2
of these By-laws shall constitute a quorum of the Board of
Directors. If at any meeting of the Board of Directors there shall
be less than such a quorum, a majority of the directors present may
adjourn the meeting from time to time without further notice other
than announcement at the meeting, until a quorum shall be
present.
2.6 Action at
Meeting. Every act or
decision done or made by a majority of the directors present at a
meeting of the Board of Directors duly held at which a quorum is
present shall be regarded as the act of the Board of Directors,
unless a greater number is required by law or by the Certificate of
Incorporation.
2.7 Removal. Except as
otherwise provided by the General Corporation Law of the State of
Delaware, any one or more or all of the directors of the
corporation may be removed, with or without cause, by the holders
of a majority of the shares then entitled to vote at an election of
directors, except that the directors elected by the holders of a
particular class or series of stock may be removed without cause
only by vote of the holders of a majority of the outstanding shares
of such class or series.
5
2.8 Vacancies. Subject to the
rights of holders of any series of Preferred Stock to elect
directors, unless and until filled by the stockholders, any vacancy
or newly-created directorship on the Board of Directors, however
occurring, may be filled by vote of a majority of the directors
then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected for
the unexpired term of such director’s predecessor in office,
and a director chosen to fill a position resulting from a
newly-created directorship shall hold office until the next annual
meeting of stockholders and until a successor is elected and
qualified, or until such director’s earlier death,
resignation or removal.
2.9 Resignation. Any director may
resign by delivering a resignation in writing or by electronic
transmission to the corporation at its principal office or to the
Chairman of the Board, the Chief Executive Officer, the President
or the Secretary. Such resignation shall be effective upon delivery
unless it is specified to be effective at some later time or upon
the happening of some later event.
2.10 Regular
Meetings. Regular meetings
of the Board of Directors may be held without notice at such time
and place as shall be determined from time to time by the Board of
Directors; provided that any director who is absent when such a
determination is made shall be given notice of the determination. A
regular meeting of the Board of Directors may be held without
notice immediately after and at the same place as the annual
meeting of stockholders.
2.11 Special
Meetings. Special meetings
of the Board of Directors may be held at any time and place
designated in a call by the Chairman of the Board, the Chief
Executive Officer, the President, two or more directors, or by one
director in the event that there is only a single director in
office.
2.12 Notice of Special
Meetings. Notice of the
date, place, if any, and time of any special meeting of directors
shall be given to each director by the Secretary or by the officer
or one of the directors calling the meeting. Notice shall be duly
given to each director (a) in person or by telephone at least 24
hours in advance of the meeting, (b) by sending written notice by
reputable overnight courier, telecopy, facsimile or electronic
transmission, or delivering written notice by hand, to such
director’s last known business, home or electronic
transmission address at least 48 hours in advance of the meeting,
or (c) by sending written notice by first-class mail to such
director’s last known business or home address at least 72
hours in advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes of
the meeting.
2.13 Meetings by Conference Communications
Equipment. Directors may
participate in meetings of the Board of Directors or any committee
thereof by means of conference telephone or other communications
equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
6
2.14 Action by
Consent. 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 committee, as
the case may be, consent to the action in writing or by electronic
transmission, and the written consents or electronic transmissions
are filed with the minutes of proceedings of the Board of Directors
or committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
2.15 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 with
such lawfully delegable powers and duties as the Board of Directors
thereby confers, to serve at the pleasure of the Board of
Directors. 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 a committee, the
member or members of the committee present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors and subject to
the provisions of law, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the seal
of the corporation to be affixed to all papers which may require
it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the
Board of Directors may otherwise determine, any committee may make
rules for the conduct of its business, but unless otherwise
provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided
in these By-laws for the Board of Directors. Except as otherwise
provided in the Certificate of Incorporation, these By-laws, or the
resolution of the Board of Directors designating the committee, a
committee may create one or more subcommittees, each subcommittee
to consist of one or more members of the committee, and delegate to
a subcommittee any or all of the powers and authority of the
committee.
2.16 Compensation of
Directors. Directors may be
paid such compensation for their services and such reimbursement
for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any
director from serving the corporation or any of its parent or
subsidiary entities in any other capacity and receiving
compensation for such service.
ARTICLE III
3.1 Titles. The officers of
the corporation shall consist of a Chief Executive Officer, a
President, a Secretary, a Treasurer and such other officers with
such other titles as the Board of Directors shall determine,
including one or more Vice Presidents, Assistant Treasurers and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
7
3.2 Election. The Chief
Executive Officer, President, Treasurer and Secretary shall be
elected annually by the Board of Directors at its first meeting
following the annual meeting of stockholders. Other officers may be
appointed by the Board of Directors at such meeting or at any other
meeting.
3.3 Qualification.
No officer need be a stockholder. Any two or more offices may be
held by the same person.
3.4 Tenure. Except as
otherwise provided by law, by the Certificate of Incorporation or
by these By-laws, each officer shall hold office until such
officer’s successor is elected and qualified, unless a
different term is specified in the resolution electing or
appointing such officer, or until such officer’s earlier
death, resignation or removal.
3.5 Resignation and
Removal. Any officer may
resign by delivering a written resignation to the corporation at
its principal office or to the Chief Executive Officer, the
President or the Secretary. Such resignation shall be effective
upon receipt unless it is specified to be effective at some later
time or upon the happening of some later event. Any officer may be
removed at any time, with or without cause, by vote of a majority
of the directors then in office. Except as the Board of Directors
may otherwise determine, no officer who resigns or is removed shall
have any right to any compensation as an officer for any period
following such officer’s resignation or removal, or any right
to damages on account of such removal, whether such officer’s
compensation be by the month or by the year or otherwise, unless
such compensation is expressly provided for in a duly authorized
written agreement with the corporation.
3.6 Vacancies. The Board of
Directors may fill any vacancy occurring in any office for any
reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of Chief Executive
Officer, President, Treasurer and Secretary. Each such successor
shall hold office for the unexpired term of such officer’s
predecessor and until a successor is elected and qualified, or
until such officer’s earlier death, resignation or
removal.
3.7 President; Chief Executive
Officer. Unless the Board
of Directors has designated another person as the
corporation’s Chief Executive Officer, the President shall be
the Chief Executive Officer of the corporation. The Chief Executive
Officer shall have general charge and supervision of the business
of the corporation subject to the direction of the Board of
Directors, and shall perform all duties and have all powers that
are commonly incident to the office of chief executive or that are
delegated to such officer by the Board of Directors. The President
shall perform such other duties and shall have such other powers as
the Board of Directors or the Chief Executive Officer (if the
President is not the Chief Executive Officer) may from time to time
prescribe. In the event of the absence, inability or refusal to act
of the Chief Executive Officer or the President (if the President
is not the Chief Executive Officer), the Vice President (or if
there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of
the Chief Executive Officer and when so performing such duties
shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer.
3.8 Vice
Presidents. Each Vice
President shall perform such duties and possess such powers as the
Board of Directors or the Chief Executive Officer may from time to
time prescribe. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice
President or any other title selected by the Board of
Directors.
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3.9 Secretary and Assistant
Secretaries. The Secretary
shall perform such duties and shall have such powers as the Board
of Directors or the Chief Executive Officer may from time to time
prescribe. In addition, the Secretary shall perform such duties and
have such powers as are incident to the office of the secretary,
including without limitation the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of
Directors, to attend all meetings of stockholders and the Board of
Directors and keep a record of the proceedings, to maintain a stock
ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate
seal and to affix and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer or
the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the
Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the
Secretary.
In the
absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the chairman of the meeting shall
designate a temporary secretary to keep a record of the
meeting.
3.10 Treasurer and Assistant
Treasurers. The Treasurer
shall perform such duties and shall have such powers as may from
time to time be assigned by the Board of Directors or the Chief
Executive Officer. In addition, the Treasurer shall perform such
duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep
and be responsible for all funds and securities of the corporation,
to deposit funds of the corporation in depositories selected in
accordance with these By-laws, to disburse such funds as ordered by
the Board of Directors, to make proper accounts of such funds, and
to render as required by the Board of Directors statements of all
such transactions and of the financial condition of the
corporation.
The
Assistant Treasurers shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer or
the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the
Treasurer.
3.11 Salaries. Officers of the
corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the
Board of Directors.
3.12 Delegation of
Authority. The Board of
Directors may from time to time delegate the powers or duties of
any officer to any other officer or agent, notwithstanding any
provision hereof.
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ARTICLE IV
4.1 Issuance of
Stock. Subject to the
provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any shares of the
authorized capital stock of the corporation held in the
corporation’s treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such
manner, for such lawful consideration and on such terms as the
Board of Directors may determine.
4.2 Stock Certificates; Uncertificated
Shares. The shares of 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 its stock shall be
uncertificated shares. Every holder of stock of the corporation
represented by certificates shall be entitled to have a
certificate, in such form as may be prescribed by law and by the
Board of Directors, representing the number of shares held by such
holder registered in certificate form. Each such certificate shall
be signed in a manner that complies with Section 158 of the General
Corporation Law of the State of Delaware.
Each
certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of
Incorporation, these By-laws, applicable securities laws or any
agreement among any number of stockholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction or
a statement of the existence of such restriction.
If the
corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face
or back of each certificate representing shares of such class or
series of stock, provided that in lieu of the foregoing
requirements there may be set forth on the face or back of each
certificate representing shares of such class or series of stock a
statement that the corporation will furnish without charge to each
stockholder who so requests a copy of the full text of the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights.
Within
a reasonable time after the issuance or transfer of uncertificated
stock, the corporation shall send to the registered owner thereof a
written notice containing the information required to be set forth
or stated on certificates pursuant to Sections 151, 202(a) or
218(a) of the General Corporation Law of the State of Delaware or,
with respect to Section 151 of General Corporation Law of the State
of Delaware, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers,
designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights.
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4.3 Transfers. Shares of stock
of the corporation shall be transferable in the manner prescribed
by law and in these By-laws. Transfers of shares of stock of the
corporation shall be made only on the books of the corporation or
by transfer agents designated to transfer shares of stock of the
corporation. Subject to applicable law, shares of stock represented
by certificates shall be transferred only on the books of the
corporation by the surrender to the corporation or its transfer
agent of the certificate representing such shares properly endorsed
or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the
authenticity of signature as the corporation or its transfer agent
may reasonably require. Except as may be otherwise required by law,
by the Certificate of Incorporation or by these By-laws, the
corporation shall be entitled to treat the record holder of stock
as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with
respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on
the books of the corporation in accordance with the requirements of
these By-laws.
4.4 Lost, Stolen or Destroyed
Certificates. The corporation
may issue a new certificate of stock in place of any previously
issued certificate alleged to have been lost, stolen or destroyed,
upon such terms and conditions as the Board of Directors may
prescribe, including the presentation of reasonable evidence of
such loss, theft or destruction and the giving of such indemnity
and posting of such bond as the Board of Directors may require for
the protection of the corporation or any transfer agent or
registrar.
4.5 Record Date. The Board of
Directors may fix in advance a date as a record date for the
determination of the stockholders entitled to notice of or to vote
at any meeting of stockholders or to express consent (or dissent)
to corporate action without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action. Such record date
shall not precede the date on which the resolution fixing the
record date is adopted, and such record date shall not be more than
60 nor less than 10 days before the date of such meeting, nor more
than 10 days after the date of adoption of a record date for a
consent without a meeting, nor more than 60 days prior to any other
action to which such record date relates.
If no
record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day before the day on which
notice is given, or, if notice is waived, at the close of business
on the day before the day on which the meeting is held. If no
record date is fixed, the record date for determining stockholders
entitled to express consent to corporate action without a meeting,
when no prior action by the Board of Directors is necessary, shall
be the day on which the first consent is properly delivered to the
corporation. If no record date is fixed, the record date for
determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts
the resolution relating to such purpose.
A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
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4.6 Regulations. The issue,
transfer, conversion and registration of shares of stock of the
corporation shall be governed by such other regulations as the
Board of Directors may establish.
ARTICLE V
5.1 Fiscal Year. Except as from
time to time otherwise designated by the Board of Directors, the
fiscal year of the corporation shall begin on the first day of
January of each year and end on the last day of December in each
year.
5.2 Corporate
Seal. The corporate
seal shall be in such form as shall be approved by the Board of
Directors.
5.3 Waiver of
Notice. Whenever notice
is required to be given by law, by the Certificate of Incorporation
or by these By-laws, a written waiver, signed by the person
entitled to notice, or a waiver by electronic transmission by the
person entitled to notice, whether before, at or after the time of
the event for which notice is to be given, shall be deemed
equivalent to notice required to be given to such person. Neither
the business nor the purpose of any meeting need be specified in
any such waiver. 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.
5.4 Voting of
Securities. Except as the
Board of Directors may otherwise designate, the Chief Executive
Officer, the President or the Treasurer may waive notice of, vote,
or appoint any person or persons to vote, on behalf of the
corporation at, and act as, or appoint any person or persons to act
as, proxy or attorney-in-fact for this corporation (with or without
power of substitution) at, any meeting of stockholders or
securityholders of any other entity, the securities of which may be
held by this corporation.
5.5 Evidence of
Authority. A certificate by
the Secretary, or an Assistant Secretary, or a temporary Secretary,
as to any action taken by the stockholders, directors, a committee
or any officer or representative of the corporation shall as to all
persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Certificate of
Incorporation. All references in
these By-laws to the Certificate of Incorporation shall be deemed
to refer to the Certificate of Incorporation of the corporation, as
amended and in effect from time to time.
5.7 Severability.
Any determination that any provision of these By-laws is for any
reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-laws.
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5.8 Pronouns. All pronouns used
in these By-laws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE VI
6.1 By the Board of
Directors. These By-laws may
be altered, amended or repealed, in whole or in part, or new
by-laws may be adopted by the Board of Directors.
6.2 By the
Stockholders. These By-laws may
be altered, amended or repealed, in whole or in part, or new
by-laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any annual meeting
of stockholders, or at any special meeting of stockholders,
provided notice of such alteration, amendment, repeal or adoption
of new by-laws shall have been stated in the notice of such special
meeting.
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