By-Laws - Plantronics Inc.
[EXECUTION COPY]
AMENDED AND RESTATED
BY-LAWS
OF
PLANTRONICS, INC.
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TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES............................................................................ 1
Section 1. Registered Office........................................................ 1
Section 2. Other Offices............................................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS.......................................................... 1
Section 1. Place and Time of Meetings............................................... 1
Section 2. Special Meetings......................................................... 1
Section 3. Place of Meetings........................................................ 2
Section 4. Notice................................................................... 2
Section 5. Stockholders List........................................................ 2
Section 6. Quorum................................................................... 3
Section 7. Adjourned Meetings....................................................... 3
Section 8. Vote Required............................................................ 3
Section 9. Voting Rights............................................................ 3
Section 10. Proxies.................................................................. 4
Section 11. Prohibitions on Action by Written Consent................................ 4
ARTICLE III - DIRECTORS........................................................................ 4
Section 1. General Powers........................................................... 4
Section 2. Number, Election and Term of Office...................................... 4
Section 3. Removal and Resignation.................................................. 4
Section 4. Vacancies................................................................ 5
Section 5. Annual Meetings.......................................................... 5
Section 6. Other Meetings and Notice................................................ 5
Section 7. Quorum, Required Vote and Adjournment.................................... 6
Section 8. Committees............................................................... 7
Section 9. Committee Rules.......................................................... 8
Section 10. Communications Equipment................................................. 8
Section 11. Waiver of Notice and Presumption of Assent............................... 8
Section 12. Action by Written Consent................................................ 9
ARTICLE IV - OFFICERS.......................................................................... 9
Section 1. Number................................................................... 9
Section 2. Election and Term of Office.............................................. 9
Section 3. Removal.................................................................. 9
Section 4. Vacancies................................................................ 9
Section 5. Compensation............................................................ 10
Section 6. The President........................................................... 10
Section 7. Vice-Presidents......................................................... 10
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 8. The Secretary and Assistant Secretaries................................. 10
Section 9. The Treasurer and Assistant Treasurer.................................... 11
Section 10. Other Officers, Assistant Officers and
Agents.............................................................. 11
Section 11. Absence or Disability of Officers........................................ 11
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS.................................. 12
Section 1. Nature of Indemnity...................................................... 12
Section 2. Procedure for Indemnification of Directors
and Officers........................................................ 12
Section 3. Article Not Exclusive.................................................... 13
Section 4. Insurance................................................................ 13
Section 5. Expenses................................................................. 14
Section 6. Employees and Agents..................................................... 14
Section 7. Contract Rights.......................................................... 14
Section 8. Merger or Consolidation.................................................. 14
ARTICLE VI - CERTIFICATES OF STOCK............................................................. 15
Section 1. Form..................................................................... 15
Section 2. Lost Certificate......................................................... 16
Section 3. Fixing a Record Date for Stockholder
Meetings............................................................ 16
Section 4. Fixing a Record Date for Other Purposes.................................. 16
Section 5. Registered Stockholders.................................................. 17
Section 6. Subscriptions for Stock.................................................. 17
ARTICLE VII - GENERAL PROVISIONS............................................................... 17
Section 1. Dividends................................................................ 17
Section 2. Checks, Drafts or Orders................................................. 17
Section 3. Contracts................................................................ 18
Section 4. Loans.................................................................... 18
Section 5. Fiscal Year.............................................................. 18
Section 6. Voting Securities Owned By Corporation................................... 18
Section 7. Inspection of Books and Records.......................................... 18
Section 8. Section Headings......................................................... 19
Section 9. Inconsistent Provisions.................................................. 19
ARTICLE VIII - AMENDMENTS...................................................................... 19
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AMENDED AND RESTATED
BY-LAWS
OF
PLANTRONICS, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be located at 1209 Orange Street, Wilmington,
Delaware 19801, County of New Castle. The name of the corporation's registered
agent at such address shall be The Corporation Trust Company. The registered
office and/or registered agent of the corporation may be changed from time to
time by action of the board of directors.
Section 2. Other Offices. The corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year within one hundred twenty (120) days after
the close of the immediately preceding fiscal year of the corporation for the
purpose of electing directors and conducting such other proper business as may
come before the meeting. The date, time and place of the annual meeting shall be
determined by the president of the corporation; provided, that if the president
does not act, the board of directors shall determine the date, time and place of
such meeting.
Section 2. Special Meetings. Special meetings of stockholders may be
called for any purpose and may be held at such time and place, within or without
the State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by
the board of directors, the chairman of the board of directors, the
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president or the holders of twenty percent (20%) or more of the outstanding
Common Stock of the corporation. No business may be conducted at a special
meeting other than the business brought before the meeting by the Board of
Directors, the chairman of the board of directors, the president or the holders
of twenty percent (20%) or more of the outstanding Common Stock of the
corporation, as the case may be.
Section 3. Place of Meetings. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the board of
directors. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal executive office of the
corporation.
Section 4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time, and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
All such notices shall be delivered, either personally or by mail, by or at the
direction of the board of directors, the president or the secretary, and if
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, postage pre-paid, addressed to the stockholder at his, her or its
address as the same appears on the records of the corporation.
Section 5. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the 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 in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
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Section 6. Quorum. The holders of the outstanding shares of capital
stock representing a majority of the voting power of the corporation, present in
person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders, except as otherwise provided by law or by the certificate of
incorporation. If a quorum is not present, the holders of the shares
representing a majority of the voting power present in person or represented by
proxy at the meeting, and entitled to vote at the meeting, may adjourn the
meeting to another time and/or place. When a specified item of business requires
a vote by a class or series (if the corporation shall then have outstanding
shares of more than one class or series) voting as a class, the holders of a
majority of the shares of such class or series shall constitute a quorum (as to
such class or series) for the transaction of such item of business. When a
quorum is once present to commence a meeting of stockholders, it is not broken
by the subsequent withdrawal of any stockholder or their proxies.
Section 7. Adjourned Meetings. When a meeting is adjourned to another
time and place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record day is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote
of the holders of the shares representing a majority of the voting power present
in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders, unless the question is one
upon which by express provisions of an applicable law or of the certificate of
incorporation a different vote is required, in which case such express provision
shall govern and control the decision of such question. Where a separate vote by
class may be required, the affirmative vote of the majority of shares of such
class present in person or represented by proxy at the meeting shall be the act
of such class.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation
of the corporation or any amendments thereto and subject to Section 3 of Article
VI hereof, every stockholder shall at every meeting of the stockholders be
entitled
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to one vote in person or by proxy for each share of Common Stock held by such
stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
Section 11. Prohibitions on Action by Written Consent. Unless otherwise
provided in the certificate of incorporation, no action may be taken by the
stockholders of the corporation pursuant to a written consent in lieu of an
annual or special meeting of the stockholders of the corporation.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. The authorized number of
directors constituting the board of directors shall be seven (7). This number
may be changed by an amendment to these by-laws adopted by (a) the vote of
66-2/3% of the outstanding Common Stock of the corporation or (b) by a
resolution of the board of directors adopted by the affirmative vote of at least
66-2/3% of such authorized number of directors. No reduction of the authorized
number of directors shall have the effect of removing any director before that
director's term expires. The directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote in the election of directors. The directors shall be elected in
this manner at the annual meeting of the stockholders, except as provided in
Section 4 of this Article III. Each director elected 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. Removal and Resignation. Any director or the entire board of
directors may be removed at any time, with or without cause, by the holders of
the shares representing a majority of the voting power of the corporation then
entitled to vote at an election of directors. Whenever the holders of any class
or series
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are entitled to elect one or more directors by the provisions of the
corporation's certificate of incorporation, the provisions of this section shall
apply, in respect to the removal without cause of a director or directors so
elected, to the vote of the holders of the outstanding shares of that class or
series and not to the vote of the outstanding shares as whole. Any director may
resign at any time upon written notice to the corporation.
Section 4. Vacancies.
(a) Vacancies in the unexpired term of any directorship shall be
filled as follows:
(i) If such vacancy has resulted from the death,
resignation or removal of a director that was designated by Citicorp Venture
Capital, Ltd. ("CVC") to serve on the Board of Directors pursuant to the terms
of that certain Board Designation Agreement between the Company and CVC (a "CVC
Designee"), such vacancy shall be filled by a majority of the remaining CVC
Designees then in office, though such directors may constitute less than a
quorum; or
(ii) If such vacancy has resulted from the death,
resignation or removal of a director that is not a CVC Designee, such vacancy
shall be filled by a majority of those remaining directors then in office that
are neither (x) a CVC Designee or (y) the Chief Executive Officer of the
corporation, though such directors may constitute less than a quorum; provided,
however, that if the Chief Executive Officer of the corporation is the sole
remaining director that is not a CVC Designee, the Chief Executive Officer shall
fill any such vacancy.
(b) Newly created directorships resulting from any increase in
the authorized number of directors shall be filled by a majority of the
directors then in office.
(c) Each director so chosen shall hold office until a successor
is duly elected and qualified or until his or her earlier death, resignation or
removal as herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected
board of directors shall be held without other notice than this by-law
immediately after, and at the same place as, the annual meeting of stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the board of directors may be
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held without notice at such time and at such place as shall from time to time be
determined by resolution of the board. Special meetings of the board of
directors may be called by or at the request of the president on at least 24
hours notice to each director, either personally, by telephone, by mail or by
telegraph; special meetings shall be called by the president or the secretary in
like manner and on like notice on written request of two (2) directors unless
the board consists of only one (1) director at such time.
Section 7. Quorum, Required Vote and Adjournment.
(a) A majority of the total number of directors shall constitute
a quorum for the transaction of business. Except as otherwise set forth in
clause (b), the vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the board of directors. If a quorum shall
not be present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(b) The affirmative vote of at least 66 2/3% of the directors
then in office shall be required to adopt a resolution necessary to:
(i) amend, alter or repeal any provisions of the
certificate of incorporation or by-laws of the corporation;
(ii) sell, lease or convey all or substantially all of
the property or business of the corporation or permit any Subsidiary to sell,
lease or convey all or substantially all of the property or business of such
Subsidiary (other than to the corporation or another Subsidiary in a
consolidation or merger in which the corporation is the surviving person) or
permit any Subsidiary to consolidate or merge with any other corporation (other
than the corporation or a Subsidiary in a consolidation or merger in which the
corporation or such Subsidiary is the surviving person), or voluntarily
liquidate, dissolve or wind up the corporation;
(iii) issue or sell, or agree to issue or sell, or
permit any Subsidiary to issue or sell, its capital stock or any securities
consisting of or containing any options or rights to acquire any shares of
capital stock or any securities convertible or exchangeable or exercisable for
any of its capital stock, other than any issuance of capital stock (A) pursuant
to any stock split
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or dividend effected by the corporation on a pro-rata basis to all stockholders,
(B) pursuant to a dividend on shares of Common Stock that is paid in shares of
capital stock of the corporation on a pro-rata basis to all stockholders or (C)
upon the exercise of rights or options under the 1993 Option Plan.
(iv) enter into any stock option plan, other than the
1993 Stock Option Plan dated as of September 25, 1993 or amend any stock option
plan to increase the number of shares issuable thereunder; or
(v) acquire the business or assets of, or enter into
any joint venture or partnership with, any Person (except the corporation may
acquire the business or assets of, or enter into any joint venture or
partnership with, any Subsidiary) or permit any Subsidiary to acquire the
business or assets of, or enter into any joint venture or partnership with, any
Person (except any Subsidiary may acquire the business or assets of any other
Subsidiary or enter into any joint venture or partnership with the Corporation
or any other Subsidiary) if the aggregate amount of all expenditures incurred by
the corporation (on a consolidated basis) in its then current fiscal year in
connection with acquisitions or investments in joint ventures or partnerships
would, after giving effect to expenditures to be incurred by the corporation (on
a consolidated basis) in such fiscal year in connection with such proposed
acquisition or investment in joint venture or partnership, exceed $10 million.
For purposes of this clause (b), the following terms shall have
the following respective meanings:
"Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Subsidiary" shall mean any corporation, at least a majority of
the total combined voting power of all classes of stock having general voting
power of which shall, at the time as of which any determination is being made,
be owned by the corporation either directly or through one or more Subsidiaries.
Section 8. Committees. Subject to the voting requirements set forth in
Article III, the board of directors may, by resolution passed by a majority of
the whole board, designate one or more committees, each committee to consist of
one or more of the directors of the corporation, which to the extent provided in
such
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resolution or these by-laws shall have and may exercise the powers of the board
of directors in the management and affairs of the corporation except as
otherwise limited by law. 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. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the board of directors. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
Section 9. Committee Rules. Each committee of the board of directors may
fix its own rules of procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the committee
shall be necessary to constitute a quorum. In the event that a member and that
member's alternate, if alternates are designated by the board of directors as
provided in Section 8 of this Article III, of such committee is or are absent or
disqualified, the member or members thereof 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 place of any such absent or disqualified member.
Section 10. Communications Equipment. Members of the board of directors
or any committee thereof may participate in and act at any meeting of such board
or committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 11. Waiver of Notice and Presumption of Assent. Any member of
the board of directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except when
such member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary
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of the corporation immediately after the adjournment of the meeting. Such right
to dissent shall not apply to any member who voted in favor of such action.
Section 12. Action by Written Consent. Unless otherwise restricted by
the certificate of incorporation, 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 or committee, as the case
may be consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be elected by
the board of directors and shall consist of a president, one or more
vice-presidents, a secretary, a treasurer, and such other offices and assistant
officers as may be deemed necessary or desirable by the board of directors. 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 as it may deem
advisable, except that the offices of president and secretary shall be filled as
expeditiously as possible.
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. Vacancies may be filled or new offices created and filled at any meeting
of the board of directors. 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. Removal. Any officer or agent elected by the board of
directors may be removed by the board of directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise, may be filled by the
board of directors for the unexpired portion of the term by the board of
directors then in office.
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Section 5. Compensation. Compensation of all officers shall be fixed by
the board of directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the corporation.
Section 6. The President. The president shall be the chief executive
officer of the corporation; shall preside at all meetings of the stockholders
and board of directors at which he or she is present; subject to the powers of
the board of directors, shall have general charge of the business, affairs and
property of the corporation, and control over its officers, agents and
employees; and shall see that all orders and resolutions of the board of
directors are carried into effect. The president shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation. The
president shall have such other powers and perform such other duties as may be
prescribed by the board of directors or as may be provided in these by-laws.
Section 7. Vice-Presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the board of
directors, shall, in the absence or disability of the president, act with all of
the powers and be subject to all the restrictions of the president. The
vice-presidents shall also perform such other duties and have such other powers
as the board of directors, the president or these by-laws, from time to time,
prescribe.
Section 8. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the board of directors, all meetings of the committees
thereof and all meetings of the stockholders and record all the proceedings of
the meetings in a book or books to be kept for that purpose. Under the
president's supervision, the secretary shall give, or cause to be given, all
notices required to be given by these by-laws or by law; shall have such powers
and perform such duties as the board of directors, the president or these
by-laws may, from time to time, prescribe; and shall have custody of the
corporate seal of the corporation. The secretary, or an assistant secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his or her signature.
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The assistant secretary, or if there be more than one, the assistant secretaries
in the order determined by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
board of directors, the president, or secretary may, from time to time,
prescribe.
Section 9. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name and
to the credit of the corporation as may be ordered by the board of directors;
shall cause the funds of the corporation to be disbursed when such disbursements
have been duly authorized, taking proper vouchers for such disbursements; and
shall render to the president and the board of directors, at its regular meeting
or when the board of directors so requires, an account of the corporation; shall
have such powers and perform such duties as the board of directors, the
president or these by-laws may, from time to time, prescribe. If required by the
board of directors, the treasurer shall give the corporation a bond (which shall
be rendered every six years) in such sums and with such surety or sureties as
shall be satisfactory to the board of directors for the faithful performance of
the duties of the office of treasurer and for the restoration to the
corporation, in case of death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the
corporation. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in
the absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer. The assistant treasurers shall perform such other
duties and have such other powers as the board of directors, the president or
treasurer may, from time to time, prescribe.
Section 10. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these by-laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
Section 11. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in such officer's place
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during such officer's absence or disability, the board of directors may by
resolution delegate the powers and duties of such officer to any other officer
or to any director, or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Nature of Indemnity. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee, fiduciary, or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the corporation to the fullest extent which it is empowered to
do so by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees actually and reasonably incurred by such person in connection with such
proceeding and such indemnification shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that, except as provided
in Section 2 hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the board of directors of the corporation. The
right to indemnification conferred in this Article V shall be a contract right
and, subject to Sections 2 and 5 hereof, shall include the right to be paid by
the corporation the expenses incurred in defending any such proceeding in
advance of its final disposition. The corporation may, by action of its board of
directors, provide indemnification to employees and agents of the corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
Section 2. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the corporation under Section 1 of
this Article V or advance of expenses under Section 5 of this Article V shall be
made promptly,
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and in any event within thirty (30) days, upon the written request of the
director or officer. If a determination by the corporation that the director or
officer is entitled to indemnification pursuant to this Article V is required,
and the corporation fails to respond within sixty (60) days to a written request
for indemnity, the corporation denies a written request for indemnification or
advancing of expenses, in whole or in part, of if payment in full pursuant to
such request is not made within thirty (30) days, the right to indemnification
or advances as granted by this Article V shall be enforceable by the director or
officer in any court of competent jurisdiction. Such person's costs and expenses
incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the General Corporation Law
of the State of Delaware for the corporation to indemnify the claimant for the
amount claimed, but the burden of such defense shall be on the corporation.
Neither the failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor
an actual determination by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Section 3. Article Not Exclusive. The rights to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the corporation or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation,
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partnership, joint venture, trust or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity,
whether or not the corporation would have the power to indemnify such person
against such liability under this Article V.
Section 5. Expenses. Expenses incurred by any person described in
Section 1 of this Article V in defending a proceeding shall be paid by the
corporation in advance of such proceeding's final disposition upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
Section 6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article V and who are or were employees or agents
of the corporation, or who are or were serving at the request of the corporation
as employees or agents of another corporation, partnership, joint venture, trust
or other enterprise, may be indemnified to the extent authorized at any time or
from time to time by the board of directors.
Section 7. Contract Rights. The provisions of this Article V shall be
deemed to be a contract right between the corporation and each director or
officer who serves in any such capacity at any time while this Article V and the
relevant provisions of the General Corporation Law of the State of Delaware or
other applicable law are in effect, and any repeal or modification of this
Article V or any such law shall not affect any rights or obligations then
existing with respect to any state of facts or proceeding then existing.
Section 8. Merger or Consolidation. For purposes of this Article V,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article V
with respect to the resulting or surviving corporation as he or she would have
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with respect to such constituent corporation if its separate existence had
continued.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by
the president or a vice-president and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by such holder in the
corporation. If such a certificate is countersigned (1) by a transfer agent or
an assistant transfer agent other than the corporation or its employee or (2) by
a registrar, other than the corporation or its employee, the signature of any
such president, vice-president, secretary or assistant secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer or officers of the corporation whether because of
death, resignation or otherwise before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed
such certificate of certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name of the person to whom the shares represented
thereby are issued, with the number of shares and date of issue, shall be
entered on the books of the corporation. Shares of stock of the corporation
shall only be transferred on the books of the corporation by the holder of
record thereof or by such holder's attorney duly authorized in writing, upon
surrender to the corporation of the certificate or certificates for such shares
endorsed by the appropriate person or persons, with such evidence of the
authenticity of such endorsement, transfer, authorization, and other matters as
the corporation may reasonably require, and accompanied by all necessary stock
transfer stamps. In that event, it shall be the duty of the corporation to issue
a new certificate to the person entitled thereto, cancel the old certificate or
certificates, and record the transaction on its books. The board of directors
may appoint a bank or trust company organized under the laws of the United
States or any state thereof to act as its transfer agent or registrar, or both
in connection with the transfer of any class or series of securities of the
corporation.
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Section 2. Lost Certificate. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 3. Fixing a 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 sixty (60) nor less than
ten (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 next day 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 adjournment meeting.
Section 4. 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 or 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 be
not more than sixty (60) days prior to written action. If no record date is
fixed, the record date for determining stockholders for any such purpose shall
be at the close
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of business on the day on which the board of directors adopts the resolution
relating thereto.
Section 5. Registered Stockholders. Prior to the surrender to the
corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner.
Section 6. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement, subscriptions for shares all be paid in full at such
time, or in such installments and at such times, as shall be determined by the
board of directors. Any call made by the board of directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the
amount due in the same manner as any debt due the corporation.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or any other purpose
and the directors may modify or abolish any such reserve in the manner in which
it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders
for the payment of money by or to the corporation and all notes and other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner,
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as shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any officer
or officers, or any agent or agents, of the corporation to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined to specific
instances.
Section 4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
corporation or of its subsidiary, including any officer or employee who is a
director of the corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the board
of directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute. No loans shall be made or contracted on behalf
of the corporation and no evidences of indebtedness shall be issued in its name
unless authorized by resolution of the board of directors. Such authority may be
general or confined to specific instances.
Section 5. Fiscal Year. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
Section 6. Voting Securities Owned By Corporation. Voting securities in
any other corporation held by the corporation shall be voted by the president or
the secretary, unless the board of directors specifically confers authority to
vote with respect there to, 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 7. Inspection of Books and Records. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean any purpose reasonably related to such
person's interest as a stockholder. In
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every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be directed
to the corporation at its registered office in the State of Delaware or at its
principal place of business.
Section 8. Section Headings. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 9. Inconsistent Provisions. In the event that any provision of
these by-laws 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 by-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE VIII
AMENDMENTS
Except as set forth in the next sentence, these by-laws may be amended,
altered, or repealed and new by-laws adopted at any meeting of the board of
directors by a majority vote. The provisions set forth in Article III, Section
2, Article III, Section 7(b) and this Article VIII may only be amended, altered
or repealed upon the affirmative of at least 66 2/3% of the directors then in
office. The fact that the power to adopt, amend, alter, or repeal the by-laws
has been conferred upon the board of directors shall not divest the stockholders
of the same powers.
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