BY-LAWS
OF
EnerTeck Corporation
ARTICLE I
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OFFICES
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Section 1.1. Registered Office.
The address of EnerTeck Corporation's (the "Corporation") registered
office in the State of Delaware is Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware, 19808, in the County of New Castle.
Section 1.2. Other Offices.
The Corporation may also have offices at such other places both within and
without the State of Delaware as the Board of Directors of the Corporation (the
"Board of Directors") may from time to time determine or the business of the
Corporation may require.
ARTICLE II
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MEETINGS OF STOCKHOLDERS
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Section 2.1. Place of Meeting.
All meetings of the stockholders for the election of directors shall be
held at such place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
by the Chairman of the Board, President or Chief Executive Officer in his or
her, or the Board of Directors in its, notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.2. Time of Annual Meeting.
Annual meetings of stockholders shall be held at 10:00 A.M., Central time,
on the fourth Wednesday in May, if not a legal holiday, or if a legal holiday,
then on the next day that is not a Saturday, Sunday or legal holiday, or at such
other time and date as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which stockholders shall
elect directors to hold office for the term provided in the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation") and
conduct such other business as shall be considered.
Section 2.3. Notice of Annual Meetings.
Except as otherwise required by law, written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not fewer than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section 2.4. Stockholder Proposals and Nominations for Annual Meetings.
Nominations of persons for election to the Board of Directors and the
proposal of business to be transacted by the stockholders at an annual meeting
of stockholders may be made (i) pursuant to the Corporation's notice with
respect to such meeting, (ii) by, or at the direction of, the Board of Directors
or (iii) by any stockholder of record of the Corporation who was a stockholder
of record at the time of the giving of the notice provided for in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Article II, Section 2.4.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of the foregoing paragraph,
(a) the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation at the principal executive offices of the
Corporation, (b) such business must be a proper matter for stockholder action
under the General Corporation Law of the State of Delaware (the "DGCL"), (c) if
the stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in this Article II, Section 2.4 , such stockholder or
beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder (the number of voting shares required to carry the proposal or elect
the nominees being the "Required Number"), and must, in either case, have
included in such materials the Solicitation Notice and (d) if no Solicitation
Notice relating thereto has been timely provided pursuant to this Article II,
Section 2.4, the stockholder or beneficial owner proposing such business or
nomination must not have solicited proxies for a number of shares equal to or
greater than the Required Number. To be timely, a stockholder's notice shall be
delivered to the Secretary of the Corporation at the principal executive offices
of the Corporation not less than forty-five (45) nor more than seventy-five (75)
days prior to the first anniversary (the "Anniversary") of the date on which the
Corporation first mailed its proxy materials for the preceding year's annual
meeting of stockholders; provided, however, that if the date of the annual
meeting is advanced more than thirty (30) days prior to, or delayed by more than
thirty (30) days after, the anniversary of the preceding year's annual meeting,
notice by the stockholder to be timely must be so delivered not later than the
close of business on the later of (i) the 90th day prior to such annual meeting
or (ii) the 10th day following the day on which public announcement of the date
of such annual meeting is first made. Such stockholder's notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for election or
reelection as a director, all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominee as a director pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and such person's written consent
to serve as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of such
business, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; and (c) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner, (ii) the
class and number of shares of the Corporation that are owned beneficially and of
record by such stockholder and such beneficial owner, and (iii) whether either
such stockholder or such beneficial owner intends to deliver a proxy statement
and form of proxy to holders of, in the case of a proposal, at least the
percentage of the Corporation's voting shares required under applicable law to
carry the proposal or, in the case of a nomination or nominations, a sufficient
number of holders of the Corporation's voting shares to elect such nominee or
nominees (an affirmative statement of such intent, a "Solicitation Notice").
Notwithstanding anything in the second sentence of the second paragraph of
this Article II, Section 2.4 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least
fifty-five (55) days prior to the
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Anniversary, a stockholder's notice required by these By-laws (these "By-laws")
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in this
Article II, Section 2.4 shall be eligible to serve as directors, and only such
business shall be conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Article II, Section 2.4. The chair of the meeting shall have the power and
the duty to determine whether a nomination or any business proposed to be
brought before the meeting has been made in accordance with the procedures set
forth in these By-laws and, if any proposed nomination or business is not in
compliance with these By-laws, to declare that such defective proposed business
or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
Notwithstanding the foregoing provisions of this Article II, Section 2.4,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Article II, Section 2.4. Nothing in this Article II, Section 2.4 shall
be deemed to affect any rights of stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
For purposes of these By-laws, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press, PR
Newswire, Business Wire or a comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Section 2.5. Special Meetings of Stockholders.
Special meetings of the stockholders or any class or series thereof
entitled to vote may be called by the Chairman of the Board, the Chief Executive
Officer, the President or two or more of the directors comprising the Board of
Directors, or at the request in writing by stockholders of record owning at
least fifty percent (50%) of the issued and outstanding voting shares of the
Common Stock the Corporation.
Section 2.6. Notice of Special Meetings.
Written notice of a special meeting, stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called, shall
be given by the Secretary of the Corporation, not fewer than ten (10) nor more
than sixty (60) days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
Section 2.7. Business at Special Meetings.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
Section 2.8. Stockholder Nominations for Special Meetings.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of record of the Corporation
who is a stockholder of record at the time of giving notice provided for in this
paragraph, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in Article II, Section 2.4. Nominations by
stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice required by
the second paragraph of Article II, Section 2.4 shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the later of the 90th day
prior to such special meeting or
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the 10 th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
Notwithstanding the foregoing provisions of this Article II, Section 2.8,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Article II, Section 2.8.
Section 2.9. Written Consent.
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the actions so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
Section 2.10. Fixing of Record Date.
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, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which shall not precede
the date upon which the resolution fixing the record date is adopted and which
shall be (i) not more than sixty (60) nor less than ten (10) days before the
date of a meeting, and (ii) not more than sixty (60) days prior to any other
action. 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 any adjourned meeting.
Section 2.11. Voting Lists.
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 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.
Section 2.12. Quorum and Adjournments.
At any meeting of stockholders, the presence in person or by proxy of the
holders of shares entitled to cast a majority of all the votes which could be
cast at such meeting by the holders of all of the outstanding shares of stock of
the Corporation entitled to vote on every matter that is to be voted on without
regard to class at such meeting shall constitute a quorum for purposes of such
vote, except as otherwise provided by the law of the State of Delaware or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any such meeting of the stockholders, the holders of a majority
of the voting power of the stock entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented; provided that if the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed by the
directors for the adjourned meeting, a new notice shall be transmitted to the
stockholders of record entitled to vote at the adjourned 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.
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Section 2.13. Vote Required.
At any meeting of stockholders duly called and held at which a quorum is
present, (i) in all matters other than the election of directors, a majority of
the votes which could be cast at such meeting upon a given question and (ii) in
the case of the election of directors, a plurality of the votes which could be
cast at such meeting upon such election, in each case by such holders who are
present in person or by proxy, shall be necessary in addition to any vote or
other action that may be expressly required by the provisions of the Certificate
of Incorporation or the law of the State of Delaware, to decide such question or
election, and shall decide such question or election if no such additional vote
or other action is so required.
Section 2.14. Voting Rights.
Unless otherwise provided in the Certificate of Incorporation, each
stockholder having voting power shall at every meeting of the stockholders be
entitled to one (1) vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder. At any meeting of the
stockholders, every stockholder entitled to vote may vote in person or by proxy
authorized by an instrument in writing or by a transmission permitted by law
filed in accordance with the procedure established for the meeting, but no proxy
shall be voted on after three (3) years from its date, unless the proxy provides
for a longer period. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used; provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
All voting may (except where otherwise required by law) be by a voice vote;
provided, however, that upon demand therefore by a stockholder entitled to vote
or by his or her proxy, a stock vote shall be taken. Every stock vote shall be
taken by ballots, each of which shall state the name of the stockholder or proxy
voting and such other information as may be required under the procedure
established for the meeting. The Corporation may, and to the extent required by
law shall, in advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting, count the votes, decide the results and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the person presiding
at the meeting may, and to the extent required by law shall, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to faithfully
execute the duties of inspector with strict impartiality and according to the
best of his or her ability.
Section 2.15. Presiding Over Meetings.
The Chairman of the Board of Directors shall preside at all meetings of
the stockholders. In the absence or inability to act of the Chairman, the Vice
Chairman, the President or a Vice President (in that order) shall preside, and
in their absence or inability to act, another person designated by one of them
shall preside. The Secretary of the Corporation shall act as secretary of each
meeting of the stockholders. In the event of his or her absence or inability to
act, the chairman of the meeting shall appoint a person who need not be a
stockholder to act as secretary of the meeting.
Section 2.16. Conducting Meetings.
Meetings of the stockholders shall be conducted in a fair manner but need
not be governed by any prescribed rules of order. The presiding officer of the
meeting shall establish an agenda for the meeting. The presiding officer's
rulings on procedural matters shall be final. The presiding officer is
authorized to impose reasonable time limits on the remarks of individual
stockholders and may take such steps as such officer may deem necessary or
appropriate to assure that the business of the meeting is conducted in a fair
and orderly manner.
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ARTICLE III
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DIRECTORS
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Section 3.1. General Powers.
The business and affairs of the Corporation shall be under the direction
of, and managed by, a board comprised of directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not
required by law, the Certificate of Incorporation or these By-laws to be done by
the stockholders. Directors need not be residents of the State of Delaware or
stockholders of the Corporation. The number of directors, which shall constitute
the whole Board, shall be not fewer than three or more than five. Within the
limits above specified, the number of directors shall be determined by the Board
of Directors pursuant to a resolution adopted by a majority of the directors
then in office.
Section 3.2. Election.
Directors shall be elected at the annual meeting of stockholders to
succeed those directors who's terms have expired. Each director shall hold
office for the term for which elected and until his or her successor shall be
elected and qualified. Directors need not be stockholders.
Section 3.3. Removal.
Except as otherwise provided for by law, any director may be removed with
or without cause at any time by the majority vote of the stockholders given at a
special meeting of the stockholders called for that purpose.
Section 3.4. Vacancies.
Any vacancies occurring in the Board of Directors and newly created
directorships shall be filled by a majority vote of the directors and any
director so chosen shall hold office until the next annual election of directors
by the stockholders and until his successor is duly elected and qualified or
until his early resignation or removal.
Section 3.5. Place of Meetings.
The Board of Directors of the Corporation may hold meetings, both regular
and special, either within or without the State of Delaware. The first meeting
of each newly elected Board of Directors shall be held immediately following the
adjournment of the annual meeting of the stockholders at the same place as such
annual meeting, and no notice of such meeting shall be necessary to the newly
elected directors in order to legally constitute the meeting, provided a quorum
shall be present. In the event such meeting is not held at such time and place,
the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the directors.
Section 3.6 Participation by Conference Telephone.
Unless otherwise restricted by the Certificate of Incorporation or these
By-laws, members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors, or
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation by such means shall constitute presence in person at such
meeting.
Section 3.7. Regular Meetings.
Regular meetings of the Board of Directors may be held, without notice, at
such time and at such place as shall from time to time be determined by the
Board of Directors.
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Section 3.8. Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman
of the Board, the Chief Executive Officer or the President of the Corporation on
at least one day's notice to each director, either personally, or by courier,
telephone, telefax, mail, telegram or e-mail. Special meetings shall be called
by the Chairman, the Chief Executive Officer or the President in like manner and
on like notice at the written request of two or more of the directors comprising
the Board of Directors stating the purpose or purposes for which such meeting is
requested. Notice of any meeting of the Board of Directors for which a notice is
required may be waived in writing signed by the person or persons entitled to
such notice, whether before or after the time of such meeting, and such waiver
shall be equivalent to the giving of such notice. Attendance of a director at
any such meeting shall constitute a waiver of notice thereof, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because such meeting is not lawfully convened.
Neither the business to be transacted at, nor the purpose of, any meeting of the
Board of Directors for which a notice is required need be specified in the
notice, or waiver of notice, of such meeting.
The Chairman shall preside at all meetings of the Board of Directors. In
the absence or inability to act of the Chairman, then the Vice Chairman (if one
shall have been chosen by the Board), the Chief Executive Officer, the President
or the Chief Financial Officer (in that order) shall preside, and in their
absence or inability to act, another director designated by one of them shall
preside.
Section 3.9. Quorum;
No Action on Certain Matters. At all meetings of the Board of Directors, a
majority of the then duly elected directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. 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 3.10. Resignations.
Any director of the Corporation may resign at any time by giving written
notice to the Board of Directors, the Chairman, the Chief Executive Officer or
the President. Such resignation shall take effect at the time specified therein
and, unless tendered to take effect upon acceptance thereof, the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.11. Informal Action.
Unless otherwise restricted by the Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or committee consent thereto in writing
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 3.12. Presumption of Assent.
A director of the Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be conclusively
presumed to have assented to the action taken unless his or her dissent shall be
entered in the minutes of the meeting or unless he or she shall file his or her
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
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Section 3.13. Compensation of Directors.
In the discretion of the Board of Directors, the directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
or a committee thereof, may be paid a stated salary or a fixed sum for
attendance at each meeting of the Board of Directors or a committee thereof and
may be awarded other compensation for their service as directors. No such
payment or award shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefore. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
ARTICLE IV
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COMMITTEES OF DIRECTORS
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Section 4.1. Appointment and Powers.
The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
resolution of the Board of Directors appointing the members of any such
committee shall be adopted by a majority of the entire Board of Directors. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members 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 the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and permitted by law, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (a) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
DGCL to be submitted to stockholders for approval or (b) adopting, amending or
repealing any of these By-laws.
Section 4.2. Removal.
Any member of any committee appointed by the Board of Directors, or the
entire membership of such committee, may be removed, with or without cause, by
the vote of a majority of the Board of Directors.
Section 4.3. Committee Minutes.
Each committee shall keep regular minutes of its meetings and shall file
such minutes and all written consents executed by its members with the Secretary
of the Corporation. Each committee may determine the procedural rules for
meeting and conducting its business and shall act in accordance therewith,
except as otherwise provided herein or required by law. Adequate provision shall
be made for notice to members of all meetings; a majority of the members shall
constitute a quorum unless the committee shall consist of one (1) or two (2)
members, in which event one (1) member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present. Action
may be taken by any committee without a meeting if all members thereof consent
thereto in writing and the writing or writings are filed with the minutes of the
proceedings of such committee.
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ARTICLE V
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NOTICES
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Section 5.1. Manner of Notice.
Whenever, under applicable law or the Certificate of Incorporation or
these By-laws, notice is required to be given to any director or stockholder,
unless otherwise provided in the Certificate of Incorporation or these By-laws,
such notice may be given in writing, by courier or mail, addressed to such
director or stockholder, at such director's or stockholder's address as it
appears on the records of the Corporation, with freight or postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall have been deposited with such courier or in the United States mail. Notice
may be given orally if such notice is confirmed in writing in a manner provided
therein. Notice to directors may also be given by telegram, mailgram, telex,
telefax or e-mail.
Section 5.2. Waiver.
Whenever any notice is required to be given under applicable law or the
provisions of the Certificate of Incorporation or these By-laws, 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 VI
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OFFICERS
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Section 6.1. Number and Qualifications.
The officers of the Corporation shall be chosen by the Board of Directors
and there shall be a Chairman of the Board, a Chief Executive Officer, a
President, a Chief Financial Officer, one or more Vice Presidents, a Secretary
and a Treasurer. The Board of Directors may also choose a Vice Chairman for the
Board, one or more Assistant Secretaries and Assistant Treasurers and such
additional officers as the Board of Directors may deem necessary or appropriate
from time to time. Membership on the Board of Directors shall not be a
prerequisite to the holding of any other office. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these
By-laws otherwise provide.
Section 6.2. Election.
The Board of Directors at its first meeting after each annual meeting of
stockholders shall elect a Chairman of the Board, a Chief Executive Officer, a
President, a Chief Financial Officer, one or more Vice Presidents, a Secretary
and a Treasurer, and may choose a Vice Chairman of the Board, one or more
Assistant Secretaries and Assistant Treasurers and such other officers as the
Board of Directors shall deem desirable.
Section 6.3. Other Officers and Agents.
The Board of Directors may choose such other officers and agents as it
shall deem necessary, which officers and agents shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 6.4. Salaries.
The salaries or other compensation of the officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary or other compensation by
reason of the fact that such officer is also a director of the Corporation.
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Section 6.5. Term of Office.
The officers of the Corporation shall hold office until their successors
are chosen and qualified or until their earlier resignation or removal. Any
officer elected or appointed by the Board of Directors may be removed at any
time, either with or without cause, by the affirmative vote of a majority of the
directors then in office at any meeting of the Board of Directors. If a vacancy
shall exist in any office of the Corporation, the Board of Directors may elect
any person to fill such vacancy, such person to hold office as provided in
Article VI, Section 6.1.
Section 6.6. The Chairman of the Board.
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors and shall see that orders and
resolutions of the Board of Directors are carried into effect. The Chairman of
the Board shall perform such other duties as the Board of Directors may from
time to time prescribe.
Section 6.7. The Chief Executive Officer.
The Chief Executive Officer shall be the principal executive officer of
the Corporation and shall, in general, supervise and control all of the business
and affairs of the Corporation, unless otherwise provided by the Board of
Directors. In the absence of the Chairman of the Board, the Chief Executive
Officer shall preside at all meetings of the stockholders and of the Board of
Directors and shall see that orders and resolutions of the Board of Directors
are carried into effect. The Chief Executive Officer may sign bonds, mortgages,
certificates for shares and all other contracts and documents, whether or not
under the seal of the Corporation, except in cases where the signing and
execution thereof shall be expressly delegated by law, the Board of Directors or
these By-laws to some other officer or agent of the Corporation. The Chief
Executive Officer shall have general powers of supervision and shall be the
final arbiter of all differences between officers of the Corporation, and the
Chief Executive Officer's decision as to any matter affecting the Corporation
shall be final and binding as between the officers of the Corporation, subject
only to the Board of Directors. The Chief Executive Officer shall perform such
other duties as the Board of Directors may from time to time prescribe.
Section 6.8. The President.
Unless another party has been designated as Chief Operating Officer, the
President shall be the Chief Operating Officer of the Corporation responsible
for the day-to-day active management of the business of the Corporation, under
the general supervision of the Chief Executive Officer. In the absence of the
Chief Executive Officer, the President shall perform the duties of the Chief
Executive Officer and, when so acting, shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. The President
shall have concurrent power with the Chief Executive Officer to sign bonds,
mortgages, certificates for shares and other contracts and documents, whether or
not under the seal of the Corporation, except in cases where the signing and
execution thereof shall be expressly delegated by law, the Board of Directors or
these By-laws to some other officer or agent of the Corporation. In general, the
President shall perform all duties incident to the office of the President and
such other duties as the Chief Executive Officer or the Board of Directors may
from time to time prescribe.
Section 6.9. The Chief Financial Officer. The Chief Financial Officer
shall be the principal financial and accounting officer of the Corporation. The
Chief Financial Officer shall: (a) have charge of and be responsible for the
maintenance of adequate books of account for the Corporation; (b) have charge
and custody of all funds and securities of the Corporation, and be responsible
therefore and for the receipt and disbursement thereof; and (c) perform all the
duties incident to the office of the Chief Financial Officer and such other
duties as the Chief Executive Officer, the President or the Board of Directors
may from time to time prescribe. If required by the Board of Directors, the
Chief Financial Officer shall give a bond for the faithful discharge of the
Chief Financial Officer's duties in such sum and with such surety or sureties as
the Board of Directors may determine.
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Section 6.10. The Vice Presidents.
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice Presidents (in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the President and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President. The Vice
Presidents shall perform such other duties and have such other powers as the
Chief Executive Officer, the President or the Board of Directors may from time
to time prescribe.
Section 6.11. The Secretary.
The Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the meetings of
the Corporation and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the committees of the Board of
Directors when required. The Secretary shall give, or cause to be given, or
cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors and shall perform such other duties as the
Chief Executive Officer, the President or the Board of Directors may from time
to time prescribe. The Secretary shall have custody of the corporate seal of the
Corporation, and the Secretary or an Assistant Secretary shall have authority to
affix the same to any instrument requiring it, and when so affixed, it may be
attested by the Secretary's 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 such
officer's signature.
Section 6.12. The Treasurer.
In the absence of the Chief Financial Officer or in the event of the Chief
Financial Officer's inability or refusal to act, the Treasurer shall perform the
duties of the Chief Financial Officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Chief Financial
Officer. The Treasurer shall perform such other duties and have such other
powers as the Chief Executive Officer, the President, the Chief Financial
Officer or the Board of Directors may from time to time prescribe.
Section 6.13. The Assistant Secretary.
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Secretary or in the event of the Secretary's inability or refusal to act,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Chief Executive Officer, the
President or the Board of Directors may from time to time prescribe.
Section 6.14. The Assistant Treasurer.
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Treasurer or in the event of the Treasurer's inability or refusal to act,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Chief Executive Officer, the
President, the Chief Financial Officer or the Board of Directors may from time
to time prescribe.
ARTICLE VII
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CERTIFICATES OF STOCK, TRANSFERS AND RECORD DATES
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Section 7.1. Form of Certificates.
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Every holder of stock in the Corporation shall be entitled to have a
certificate signed by, or in the name of, the Corporation by (a) the Chairman of
the Board, the Vice-Chairman of the Board or the President of the Corporation,
and (b) the Chief Financial Officer, the Secretary, the Treasurer, an Assistant
Secretary or an Assistant Treasurer of the Corporation, certifying the number of
shares owned by such holder in 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 powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock; provided that, except as otherwise provided in Section 202 of the
DGCL, 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 without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights. Subject to the foregoing, certificates of stock
of the Corporation shall be in such form as the Board of Directors may from time
to time prescribe.
Section 7.2. Facsimile Signatures.
Where a certificate is countersigned (i) by a transfer agent other than
the Corporation or its employee or (ii) by a registrar other than the
Corporation or its employee, any other signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed, or
whose facsimile signature has been placed upon, a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Section 7.3. 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 such owner's legal representative, to
advertise the same in such manner as the Corporation shall require and/or give
the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation or its transfer agent or
registrar with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 7.4. Transfers of Shares.
All transfers of shares of the stock of the Corporation are subject to the
terms, conditions and restrictions, if any, of the Certificate of Incorporation
or these By-laws. Transfers of shares of the capital stock of the Corporation
shall be made on the books of the Corporation by the registered holder thereof,
or by his attorney thereunder authorized by power of attorney duly executed and
filed with the Secretary of the Corporation, or with a transfer agent appointed
as provided in Article VII, Section 7.5, and, if certificated shares, on
surrender of the certificate or certificates for the shares properly endorsed
and the payment of all taxes thereon. The person in whose names shares of stock
are registered on the books of the Corporation shall be considered the owner
thereof for all purposes as regards to the Corporation; but whenever any
transfer of shares is made for collateral security, and not absolutely, that
fact, if known to the Secretary, shall be stated in the entry of transfer. The
Board of Directors may, from time to time, make any additional rules and
regulations as it may deem expedient, not inconsistent with these By laws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation.
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Section 7.5. Transfer Agents and Registrants
The Board of Directors may appoint one or more transfer agents and one or
more registrars for the stock of the Corporation.
Section 7.6. Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to, or interest in, such share or shares
on the part of any other person, whether or not the Corporation shall have
express or other notice thereof, except as otherwise provided by the law of the
State of Delaware.
ARTICLE VII
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CONFLICT OF INTERESTS
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Section 8.1. Contract or Relationship Not Void.
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers or have a financial interest
shall be void or voidable solely for this reason, or solely because such
director or officer is present at, or participates in, the meeting of the Board
of Directors or committee thereof which authorizes the contract or transaction,
or solely because such director's or officer's vote is counted for such purpose,
if: (i) the material facts as to such director's or officer's relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to such director's or officer's
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders.
Section 8.2. Quorum.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IX
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GENERAL PROVISIONS
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Section 9.1. 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 or rights to
acquire the same, 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,
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or for such other purpose as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 9.2. Checks.
All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.
Section 9.3. Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 9.4. Seal.
The corporate seal 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 reproduced or
otherwise.
Section 9.5. Stock in Other Corporations.
Shares of any other corporation which may from time to time be held by
this Corporation may be represented and voted at any meeting of stockholders of
such corporation by the Chairman, the Chief Executive Officer, the President,
the Chief Financial Officer or a Vice President of the Corporation, or by any
proxy appointed in writing by the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President of the Corporation,
or by any other person or persons thereunto authorized by the Board of
Directors. Shares represented by certificates standing in the name of the
Corporation may be endorsed for sale or transfer in the name of the Corporation
by the Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer or any Vice President of the Corporation or by any other officer or
officers thereunto authorized by the Board of Directors. Shares belonging to the
Corporation need not stand in the name of the Corporation, but may be held for
the benefit of the Corporation in the individual name of the Chief Financial
Officer or of any other nominee designated for the purpose of the Board of
Directors.
ARTICLE X
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AMENDMENTS
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These By-laws may be altered, amended or repealed, and new by-laws may be
adopted, only in the manner provided in the Certificate of Incorporation.
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