Bylaws - Securacom Inc.
BYLAWS
OF
SECURACOM INCORPORATED
ARTICLE 1
OFFICES
SECTION 1.1 Registered Office. The registered office of the Corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle, and the name of its registered agent shall be .
SECTION 1.2 Places of Business. The Corporation may have offices at
such 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 2
MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meeting. All meetings of stockholders for the
election of directors shall be held at the principal business office of the
Corporation or at such other place, either within or without the State of
Delaware, as shall be designated from time to time by the caller of the meeting
and stated in the notice of the meeting.
SECTION 2.2 Annual Meeting. The annual meeting of stockholders shall be
held at such date and time as shall be designated by the Board of Directors and
stated in the notice of the meeting.
SECTION 2.3 Voting List. The officer who has charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of such
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. Failure to comply with this Section shall not affect the validity of
any action taken at such meeting.
SECTION 2.4 Special Meetings. Special meetings of stockholders of the
Corporation may be called only by (i) the Chairman, (ii) the President or (iii)
the Board of Directors pursuant to a
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resolution approved by a majority of the entire Board of Directors.
SECTION 2.5 Notice of Meeting. Written or printed notice of the annual,
and each special meeting of stockholders, stating the time, place and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat,
not less than ten (10) nor more than sixty (60) days before the meeting. Such
further or earlier notice shall be given as may be required by law. A
stockholder's attendance at a meeting shall constitute a waiver of notice by
such stockholder, unless such attendance is 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, or called or convened as
herein required. In addition, a stockholder may waive notice of a meeting in
writing signed by him as provided in Section 5.2 hereof.
SECTION 2.6 Notice of Stockholder Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice (other
than a request for inclusion of a proposal in the Corporation's proxy statement
pursuant to Rule 14a-8 of the Securities Exchange Act of 1934) must be delivered
to or mailed and received at the principal executive offices of the Corporation,
not less than 60 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and record
address of the stockholder proposing such business, (c) the class and number of
shares of the Corporation which are beneficially owned by the stockholder, and
(d) any material interest of the stockholder in such business. Notwithstanding
anything in the By-Laws to the contrary, no business shall be conducted at an
annual meeting except in accordance with the procedures set forth in this
Section. The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting and in accordance with the provisions of this Section, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted. At any special
meeting of the stockholders, only such business shall be conducted as shall have
been brought before the meeting by or at the direction of the Board of
Directors.
SECTION 2.7 Quorum. The holders of a majority of the voting power of
the stock issued and outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at any meeting of
stockholders for the transaction of business except as
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otherwise provided by statute or by the Certificate of Incorporation.
Notwithstanding the other provisions of the Certificate of Incorporation or
these bylaws, the holders of a majority of the voting power of the shares of
capital stock entitled to vote thereat, present in person or represented by
proxy, whether or not a quorum is present, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
SECTION 2.8 Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the voting power of the
stock having voting rights present in person or represented by proxy shall
decide any question brought before such meeting, unless the question is one upon
which, by express provision of the statutes, of the Certificate of Incorporation
or of these bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder,
bearing a date not more than three years prior to voting, unless such instrument
provides for a longer period, and filed with the Secretary of the Corporation
before, or at the time of, the meeting. If such instrument shall designate two
(2) or more persons to act as proxies, unless such instrument shall provide the
contrary, a majority of such persons present at any meeting at which their
powers thereunder are to be exercised shall have and may exercise all the powers
of voting or giving consents thereby conferred, or if only one (1) be present,
then such powers may be exercised by that one (1); or, if any even number attend
and a majority do not agree on any particular issue, each proxy so attending
shall be entitled to exercise such powers in respect of the same portion of the
shares as he is of the proxies representing such shares.
SECTION 2.9 Voting of Stock of Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the bylaws of such Corporation may prescribe, or in the
absence of such provision, as the Board of Directors of such Corporation may
determine. Shares standing in the name of a deceased person may be voted by the
executor or administrator of such deceased person, either in person or by proxy.
Shares standing in the name of a guardian, conservator or trustee may be voted
by such fiduciary, either in person or by proxy, but no such fiduciary shall be
entitled to vote shares held in such fiduciary capacity without a transfer of
such shares into the name of such fiduciary. Shares standing in the name of a
receiver may be voted by such receiver. A stockholder whose shares are pledged
shall be entitled to vote such shares, unless in the transfer by the pledgor on
the books of the Corporation, he has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, on his proxy, may represent the stock
and vote thereon.
SECTION 2.10 Treasury Stock. The Corporation shall not vote, directly
or indirectly, shares of its own stock owned by it; and such shares shall not be
counted in determining the total number of outstanding shares.
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SECTION 2.11 Fixing Record Date. The Board of Directors may fix in
advance a date, not exceeding sixty (60) days preceding the date of any meeting
of stockholders, or the date for payment of any dividend or distribution, or the
date for the allotment of rights, or the date when any change, or conversion or
exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend or distribution, or to receive any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, and in such case such stockholders and only such stockholders as
shall be stockholders of record on the date so fixed shall be entitled to such
notice of, and to vote at, any such meeting and any adjournment thereof, or to
receive payment of such dividend or distribution, or to receive such allotment
of rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid.
SECTION 2.12 Balloting. Upon the demand of any stockholder, the vote
upon any question before the meeting shall be by ballot. At each meeting
inspectors of election may be appointed by the presiding officer of the meeting,
and at any meeting for the election of directors, inspectors shall be so
appointed on the demand of any stockholder present or represented by proxy and
entitled to vote at the election of Directors. No director or candidate for the
office of director shall be appointed as such inspector. The number of votes
cast by shares in the election of directors shall be recorded in the minutes.
SECTION 2.13 Record of Stockholders. The Corporation shall keep at its
principal business office, or the office of its transfer agents or registrars, a
record of its stockholders, giving the names and addresses of all stockholders
and the number and class of the shares held by each.
ARTICLE 3
BOARD OF DIRECTORS
SECTION 3.1 Powers. The business and affairs of the Corporation shall
be managed by the Corporation's board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these bylaws directed or
required to be exercised or done by the stockholders.
SECTION 3.2 Number, Qualification and Term. The number of directors
which shall constitute the whole Board Shall be fixed and determined from time
to time by the Board of Directors and shall be set forth in the notice of any
meeting of stockholders held for the purpose of electing directors. At each
annual meeting of stockholders, Directors shall be elected to hold office until
the next succeeding annual meeting. Each Director shall hold office until the
expiration of his or her term and until his or her successor is elected and
qualified or until his or her earlier death, resignation or removal. The number
of directors may be decreased from time to time; however, no such decrease shall
have the effect of shortening the term of any incumbent director.
SECTION 3.3 Notice of Stockholder Nominees. Only persons who are
nominated in accordance with the procedures set forth in this Section shall be
eligible for election as Directors.
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Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of stockholders by or at the direction of the Board of
Directors by any nominating committee or person appointed by the Board of
Directors or by any stockholder of the Corporation entitled to vote for the
election of Directors at the meeting who complies with the notice procedures set
forth in this Section. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a Director, (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number of
shares of the Corporation which are beneficially owned by such person and (iv)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including without limitation such person's written consent to
being named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the Stockholder giving the notice (i) the name and
record address of such stockholder and (ii) the class and number of shares of
the Corporation which are beneficially owned by such stockholder. No person
shall be eligible for election as a Director of the Corporation unless nominated
in accordance with the procedures set forth in this Section. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
Bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
SECTION 3.4 Vacancies, Additional Directors and Removal From Office. If
any vacancy occurs in any position on the Board of Directors caused by the
death, resignation, retirement, disqualification or removal from office of such
director, or otherwise, or if any new directorship is created, a majority of the
directors then in office, though less than a quorum, or a sole remaining
director, may chose a successor to fill the newly created directorship; and a
director so chosen shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until his successor shall be duly elected and shall qualify, unless
sooner displaced. Any director may be removed for cause at any duly constituted
special meeting of stockholders duly called and held for such purpose by the
affirmative vote of two-thirds of the voting power of the issued and outstanding
capital stock of the Corporation. This section may not be amended except upon
the affirmative vote of stockholders holding at least two-thirds of the voting
power of the issued and outstanding capital stock of the Corporation.
SECTION 3.5 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such times and places as may be
designated from time to time as may be determined by the Board of Directors.
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SECTION 3.6 Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board or by the President and
shall be called by the Secretary on the written request of any two directors.
The Chairman or President so calling, or the directors so requesting, any such
meeting shall fix the time and any place, either within or without the State of
Delaware, as the place for holding such meeting.
SECTION 3.7 Notice of Special Meetings. Written notice of special
meetings of the Board of Directors shall be given to each director at least
twenty-four (24) hours prior to the time of such meeting. Any director may waive
notice of any meeting. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the purpose of objecting to the transaction or any business because
the meeting is not lawfully called or convened. Except as may be otherwise
provided by law, the Certificate of Incorporation or these bylaws neither the
business to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting, except that notice shall be given of any proposed amendment to the
bylaws if it is to be adopted at any special meeting.
SECTION 3.8 Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, the Certificate of Incorporation
or these bylaws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting, from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 3.9 Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof as provided in Article IV of these bylaws, may be taken without a
meeting, if a written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board or committee.
SECTION 3.10 Telephonic Meetings. Unless otherwise restricted by law,
the Certificate of Incorporation, or these Bylaws, members of the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
shall constitute presence in person at such meeting.
SECTION 3.11 Compensation of Directors. The Board of Directors shall
have authority to determine, from time to time, the amount of compensation, if
any, which shall be paid to its members for their services as Directors and as
members of committees of the Board of Directors. The Board of Directors shall
also have power in its discretion to provide for and to pay to Directors
rendering services to the Corporation not ordinarily rendered by Directors as
such, special
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compensation appropriate to the value of such services as determined by the
Board of Directors from time to time. Nothing herein contained shall be
construed to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE 4
COMMITTEE OF DIRECTORS
SECTION 4.1 Designation, Powers and Name. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate one (1) or more
committees, including, if they shall so determine, an Executive Committee, each
such committee to consist of two (2) or more of the directors of the
Corporation. The committee shall have and may exercise such of the powers of the
Board of Directors in the management of the business and affairs of the
Corporation as may be provided in such resolution. The committee may authorize
the seal of the Corporation to be affixed to all papers which may require it;
provided, however, that in no event shall any such committee have any power or
authority in reference to (i) amending the Certificate of Incorporation, (ii)
adopting an agreement of merger or consolidation, (iii) recommending to the
stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's property and assets, (iv) recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, (v) amending
the bylaws of the Corporation, or (vi) unless specifically so authorized by
resolution passed by a majority of the whole Board of Directors, declaring a
dividend or authorizing the issuance of stock. The Board of Directors may
designate one (1) or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of such committee.
In the absence or disqualification of any member of such committee or
committees, any other member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Such committee
or committees shall have such name or names and such limitations of authority as
may be determined from time to time by resolution adopted by the Board of
Directors.
SECTION 4.2 Minutes. Each committee of the Board of Directors shall
keep regular minutes of its proceedings and report the same to the Board of
Directors when required except that the minutes of the Executive Committee shall
be reported to the Board of Directors on a regular basis.
SECTION 4.3 Compensation. Members of special or standing committees may
be allowed compensation for attending committee meetings, if the Board of
Directors shall so determine.
ARTICLE 5
NOTICE
SECTION 5.1. Methods of Giving Notice. Whenever under the provisions of
the statutes, the Certificate of Incorporation or these bylaws, notice is
required to be given to any director, member of any committee or stockholder,
such notice shall be in writing and delivered personally or mailed to such
director, member or stockholder; provided that in the case of a director or a
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member of any committee such notice may be given orally or by telephone or
telegram. If mailed, notice to a director, member of a committee or stockholder
shall be deemed to be given when deposited in the United States mail first class
in a sealed envelope, with postage thereon prepaid, addressed, in the case of a
stockholder, to the stockholder at the stockholder's address as it appears on
the records of the Corporation or, in the case of a director or a member of a
committee, to such person at his business address. If sent by telegram, notice
to a director or member of a committee shall be deemed to be given when the
telegram, so addressed, is delivered to the telegraph company.
SECTION 5.2 Written Waiver. Whenever any notice is required to be given
under the provisions of the statutes, the Certificate of Incorporation or these
bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE 6
OFFICERS
SECTION 6.1 Officers. The Corporation shall have a President and a
Secretary and such other officers and assistant officers as the board may deem
desirable to conduct the affairs of the Corporation. In the event there is a
Chairman of the Board, that person shall ipso facto be President of the
Corporation until and unless a person is elected President. Any two or more
offices may be held by the same person. No officer need be a Stockholder or a
Director.
SECTION 6.2 Powers and Duties of Officers. The officers of the
Corporation shall have the powers and duties generally ascribed to the
respective offices, and such additional authority or duty as may from time to
time be established by the Board of Directors.
SECTION 6.3 Removal and Resignation. Any officer appointed by the Board
of Directors may be removed by the Board of Directors whenever, in the judgment
of the Board of Directors, the best interests of the Corporation will be served
thereby. Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the date of receipt of
such notice or at a later time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 6.4 Term and Vacancies. The officers of the Corporation shall
hold office until their successors are elected or appointed, or until their
death, resignation, or removal from office. Any vacancy occurring in any office
of the Corporation by death, resignation, removal, or otherwise, may be filled
by the Board of Directors.
SECTION 6.5 Compensation. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors. The Board of Directors
shall have the power to enter into contracts for the employment and compensation
of officers on such terms as the Board of Directors deems advisable. No officer
shall be disqualified from receiving a salary or other compensation by reason
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of the fact that he or she is also a Director of the Corporation.
ARTICLE 7
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.1 Contracts. The Board of Directors may authorize any
officer, officers, agent or agents, to enter into any contract or 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 7.2 Checks, Etc. All checks, demands, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers or such
agent or agents of the Corporation, and in such manner, as shall be determined
by the Board of Directors.
SECTION 7.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE 8
CERTIFICATES OF STOCK
SECTION 8.1 Issuance. Each stockholder of this Corporation shall be
entitled to a certificate or certificates showing the number of shares of stock
registered in his name on the books of the Corporation. The certificates shall
be in such form or forms as comply with the requirements of law and the
Certificate of Incorporation and as the Board of Directors shall approve. The
certificates shall be issued in numerical order and shall be entered in the
books of the Corporation as they are issued. Such certificates shall exhibit the
holder's name and number of shares and shall be signed by the President or a
Vice President and by the Secretary or an Assistant Secretary. If any
certificate is countersigned (1) by a transfer agent other than the Corporation
or any employee of the Corporation, or (2) by a registrar other than the
Corporation or any employee of the Corporation, any other signature on the
certificate may be a facsimile. In the event any officer or officers who have
signed or whose facsimile signature or signatures have been placed upon such
certificate shall have ceased to be such officer or officers before such
certificate is issued, it may be adopted and issued by the Corporation with the
same effect as if he or they had not ceased to be such officer or officers as of
the date of its issuance, and issuance and delivery thereof by the Corporation
shall constitute adoption thereof by the Corporation. If the Corporation shall
be authorized to issue more than one class of stock or more than one series of
any class, the 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 rights shall
be set forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent such class of stock; provided that,
except as otherwise provided by statute, in lieu of the foregoing requirements
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or Series of stock, a statement
that the Corporation will furnish to each stockholder who so requests the
designations, preferences and relative, participating, optional or
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other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and rights. All
certificates surrendered to the Corporation for transfer shall be canceled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except that in the
case of a lost, stolen, destroyed or mutilated certificate a new one may be
issued therefor upon such terms and with such indemnity, if any, to the
Corporation as the Board of Directors may prescribe. Certificates shall not be
issued representing fractional shares of stock.
SECTION 8.2 Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate or certificates alleged to have been lost,
stolen or destroyed, or both.
SECTION 8.3 Transfers. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney and filed with the Secretary of the
Corporation or the Transfer Agent.
SECTION 8.4 Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
SECTION 8.5 Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or registrars of the shares, or both, and
may require all stock certificates to bear the signature of a transfer agent or
registrar or both.
ARTICLE 9
DIVIDENDS
SECTION 9.1 Declaration. 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 capital stock, subject to the provisions of the Certificate of
Incorporation.
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SECTION 9.2 Reserve. 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 Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Seal. The corporate seal, if any, shall have inscribed
thereon the name of the Corporation, and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
SECTION 10.2 Books. The books of the Corporation may be kept (subject
to any provision contained in the statutes) outside the State of Delaware at the
Chief Executive Office of the Corporation, or at such other place or places as
may be designated from time to time by the Board of Directors.
SECTION 10.3 Endorsement of Stock Certificates. Subject to the specific
directions of the Board, any share or shares of stock issued by any other
corporation and owned by the Corporation (including reacquired shares of the
Corporation) may, for sale or transfer, be endorsed in the name of the
Corporation by the President or any Vice-President, and attested or witnessed by
the Secretary or any Assistant Secretary either with or without affixing the
Corporation seal.
SECTION 10.4 Voting of Shares Owned By the Corporation. Unless
otherwise ordered by the Board of Directors, the President, the Secretary or the
Treasurer, or any of them, shall have full power and authority on behalf of the
Corporation to attend, to vote and to grant proxies to be used at any meeting of
stockholders of such other corporation in which the Corporation may hold stock.
The Board of Directors may confer like powers upon. any other person or persons.
SECTION 10.5 Fiscal Year; Accounting Election. The fiscal year of and
the method of accounting for the Corporation shall be as the Board of Directors
shall at any time determine.
SECTION 10.6 Indemnification of Officers, Directors and Agents.
(a) Right to Indemnification. Each person who was or is made a party to
or is threatened to be made a party to or is otherwise 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 is or was a
director, officer, employee, or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee, or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such
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proceeding is alleged action in an official capacity as a director, officer,
employee, or agent or in any other capacity while serving as a director,
officer, employee, or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, 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 permitted prior thereto), against
all expense, liability, and loss (including attorney's fees, judgments, fines,
ERISA excise taxes, or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
indemnitee's heirs, executors, and administrators; provided, however, that,
except as provided in paragraph (c) hereof with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the board
of directors of the Corporation.
(b) Right to Advancement of Expenses. The right to indemnification
conferred in paragraph (a) of this Section shall include the right to be paid by
the Corporation the expenses incurred in defending any proceeding for which such
right to indemnification is applicable in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise.
(c) Right of Indemnitee to Bring Suit. The rights to indemnification
and to the advancement of expenses conferred in paragraphs (a) and (b) of this
Section shall be contract rights. If a claim under paragraph (a) or (b) of this
Section is not paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled also to be paid the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation
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Law. 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 suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its board of directors,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expense hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section or otherwise shall be on the
Corporation.
(d) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
this Corporation's certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested, directors, or otherwise.
(e) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee, or agent of the
Corporation or another corporation, partnership, joint venture, trust, or other
enterprise against any expense, liability, or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability, or loss under the Delaware General Law.
Section 10.7 Invalid Provisions. If any provision of these bylaws is
held to be illegal, invalid, or unenforceable under present or future laws, such
provision shall be fully severable; these bylaws shall be construed and enforced
as if such illegal, invalid, or unenforceable provision had never comprised a
part hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision there shall be added automatically as a part
of these bylaws a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
Section 10.8 Headings. The headings used in these bylaws are for
reference purposes only and do not affect in any way the meaning or
interpretation of these bylaws.
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ARTICLE 11
AMENDMENT
Except as otherwise provided herein, these Bylaws may be altered,
amended or repealed at any regular meeting of the Board of Directors without
prior notice or at any special meeting of the Board of Directors if notice of
such alteration, amendment or repeal be contained in the notice of such special
meeting, or by the affirmative vote of two-thirds of the voting power of the
issued and outstanding capital stock voting as a single class.
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