Bylaws – SanDisk Corp.
AMENDED AND RESTATED BYLAWS OF
SANDISK CORPORATION
(AMENDED AND RESTATED AS OF DECEMBER 14,
2011)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of directors shall be held at such place, if any, 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, if any, within or without
the State of Delaware, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held at
such place, if any, date and hour as shall be fixed by the Board of Directors
and stated in the notice of the meeting, at which the stockholders shall elect a
Board of Directors, and transact such other business as may properly be brought
before the meeting.
Section 3. Notice of the annual meeting stating the place,
if any, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting as of the record date for determining stockholders
entitled to notice of the meeting not less than ten (10) nor more than sixty
(60) days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of
the corporation shall prepare and make, or cause a third party to 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 (provided,
however, if the record date for determining the stockholders entitled to
vote is less than ten (10) days before the date of the meeting, the list shall
reflect the stockholders entitled to vote as of the tenth (10th) day
before the meeting date), 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 at least ten (10) days prior to the
meeting (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
meeting or (ii) during ordinary business hours at the principal place of
business of the corporation. If the meeting is to be held at a place, then a
list of stockholders entitled to vote at the meeting shall be produced
and kept at the time and place of the meeting during the whole time thereof
and may be examined by any stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list shall also be open
to the examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chief executive officer or
the chairman of the Board of Directors and shall be called by the chief
executive officer or secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders owning at least
a majority of the entire capital stock of the corporation issued and outstanding
and entitled to vote, which shall be delivered to the secretary. Such request
shall state the purpose or purposes of the proposed meeting.
Section 6. Notice of a special meeting stating the place, if
any, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting as of the record date for determining stockholders entitled to
notice of the meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereon, 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. 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. 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.
Section 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power 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 certificate of
incorporation, these bylaws, the rules or regulations of any stock exchange
applicable to the corporation, or applicable law or pursuant to any regulation
applicable to the corporation or its securities, a different vote is required,
in which case such express provision shall govern and control the decision of
such question.
Section 10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
A proxy shall be irrevocable if it states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
Section 11. Except as provided in Section 2 of Article III
of these bylaws, each director shall be elected by the vote of the majority of
the votes cast with respect to that director153s election at any meeting for the
election of directors at which a quorum is present, provided that if, at the
close of the notice period set forth in Section 13 of this Article II, the
number of nominees exceeds the number of directors to be elected, the directors
shall be elected by the vote of a plurality of the votes cast. For purposes of
this Section 11, a
majority of votes cast shall mean that the number of votes cast “for” a
director153s election exceeds the number of votes cast “against” that director153s
election (with “abstentions” and “broker nonvotes” not counted as a vote cast
either “for” or “against” that director153s election).
Section 12. Unless otherwise provided in the certificate of
incorporation, subject to the requirements of Section 5(C) of Article VI of
these bylaws, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action 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. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 13. (A)(1) Nominations of persons for election to
the Board of Directors of the corporation and the proposal of other business to
be considered by the stockholders may be made only at an annual meeting of
stockholders and only: (a) pursuant to the corporation153s notice of meeting (or
any supplement thereto), (b) by or at the direction of the Board of Directors or
any committee thereof, or (c) by any stockholder of the corporation who (i) was
a stockholder of record of the corporation at the time the notice provided for
in this Section 13 is delivered to the secretary of the corporation, (ii) is
entitled to vote at the meeting, and (iii) complies with the notice procedures
set forth in this Section 13.
(A)(2) For any nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 13, the stockholder must have given timely notice thereof in
writing to the secretary of the corporation and any such proposed business other
than the nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholder153s
notice 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
one hundred twentieth (120th) day nor earlier than the close of
business on the one hundred fiftieth (150th) day prior to the first
anniversary of the preceding year153s annual meeting. In the event that the date
of the annual meeting is more than thirty (30) days before or more than seventy
(70) days after the first anniversary of the preceding year153s annual meeting,
notice by the stockholder must be so delivered not later than the close of
business on the later of the one hundred twentieth (120th) day prior
to such annual meeting or the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made by the
corporation). In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder153s notice as described above.
(A)(3) Such stockholder153s notice shall set forth:
(a) as to each person whom the stockholder proposes to nominate for election
as a director, (i) all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to and in
accordance with Section 14A of the Securities Exchange Act of 1934, as amended
(the “Exchange Act“), and the rules and regulations
promulgated thereunder, and (ii) such person153s written consent to being named in
the proxy statement as a nominee and to serving as a director if elected;
(b) as to any other business that the stockholder proposes to bring before
the meeting, (i) a brief description of the business desired to be brought
before the meeting, (ii) the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the bylaws of the corporation, the
language of the proposed amendment), (iii) the reasons for conducting such
business at the meeting, and (iv) 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 corporation153s books, and of such
beneficial owner, (ii) the class and number of shares of capital stock of the
corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, (iii) a description of any agreement, arrangement or
understanding with respect to the nomination or proposal between or among such
stockholder and/or such beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the foregoing,
including, in the case of a nomination, the nominee, (iv) a description of any
agreement, arrangement or understanding (including any derivative or short
positions, profit interests, options, warrants, convertible securities, stock
appreciation or similar rights, hedging transactions, and borrowed or loaned
shares) that has been entered into as of the date of the stockholder153s notice
by, or on behalf of, such stockholder and such beneficial owners, whether or not
such instrument or right shall be subject to settlement in underlying shares of
capital stock of the corporation, the effect or intent of which is to mitigate
loss to, manage risk or benefit of share price changes for, or increase or
decrease the voting power of, such stockholder or such beneficial owner, with
respect to securities of the corporation, (v) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, (vi) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group which
intends (x) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation153s outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (y) otherwise to
solicit proxies or votes from stockholders in support of such proposal or
nomination, and (vii) any other information relating to such stockholder and
beneficial owner, if any, required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14(a) of the Exchange Act and
the rules and regulations promulgated thereunder.
The foregoing notice requirements shall be deemed satisfied by a stockholder
with respect to business other than nominations if the stockholder has notified
the corporation of his or her intention to present a proposal at an annual
meeting in compliance with applicable rules and regulations promulgated under
the Exchange Act and such stockholder153s proposal has been included in a proxy
statement that has been prepared by the corporation to solicit proxies for such
annual meeting. The corporation may require any proposed nominee to furnish such
other information as it may reasonably require to determine the eligibility of
such proposed nominee to serve as a director of the corporation.
(A)(4) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this Section 13 to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the corporation at an annual meeting is
increased effective after the time period for which nominations would otherwise
be due under paragraph (A)(2) of this Section 13 and there is no public
announcement by the corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of
the preceding year153s annual meeting, a stockholder153s notice required by this
Section 13 shall also be considered timely, but only with respect to nominees
for the additional directorships, if it shall be delivered to the secretary at
the principal executive offices of the corporation not later than the close of
business on the tenth (10th) day following the day on which such
public announcement regarding an increase in the number of directors to be
elected to the Board of Directors of the corporation at an annual
meeting is first made by the corporation.
(B)(1) Except as otherwise expressly provided in any applicable rule or
regulation promulgated under the Exchange Act, only such persons who are
nominated in accordance with the procedures set forth in this Section 13 shall
be eligible to be elected at an annual meeting of stockholders of the
corporation to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 13. Except as otherwise
provided by law, the chairman of the meeting shall have the power and duty (a)
to determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 13 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies or votes in support of such stockholder153s nominee or
proposal in compliance with such stockholder153s representation as required by
clause (A)(2)(c)(vi) of this Section 13), and (b) if any proposed nomination or
business was not made or proposed in compliance with this Section 13, to declare
that such nomination shall be disregarded or that such proposed business shall
not be transacted. Notwithstanding the foregoing provisions of this Section 13,
unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the corporation to present a nomination or proposed
business, such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the corporation. For purposes of this Section 13, to be
considered a qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder to act for such stockholder
as proxy at the meeting of stockholders and such person must produce such
writing or a reliable reproduction of the writing at the meeting of
stockholders.
(B)(2) For purposes of this Section 13, “public announcement” shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press, other 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 and the rules and regulations promulgated
thereunder.
(B)(3) Notwithstanding the foregoing provisions of this Section 13, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the
matters set forth in this Section 13; provided, however, that any
references in these bylaws to the Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any requirements
applicable to nominations or proposals as to any other business to be considered
pursuant to this Section 13 (including paragraph (A)(1)(c) hereof), and
compliance with paragraphs (A)(1)(c) and (B) of this Section 13 shall be the
exclusive means for a stockholder to make nominations or submit other business
(other than, as provided in the penultimate sentence of (A)(2), business other
than nominations brought properly under and in compliance with Rule 14a-8 of the
Exchange Act, as may be amended from time to time). Nothing in this Section 13
shall be deemed to affect any rights (a) of stockholders to request inclusion of
proposals in the corporation153s proxy statement pursuant to applicable rules and
regulations promulgated under the Exchange Act or (b) of the holders of any
series of Preferred Stock to elect directors pursuant to any applicable
provisions of the certificate of incorporation.
Section 14. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting by the person presiding over
the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the person presiding over any meeting of
stockholders shall have the right and authority to convene and (for any or no
reason) to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding person,
are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by the
presiding person of the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting; (ii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the
meeting to stockholders entitled to vote at the meeting, their duly authorized
and constituted proxies or such other persons as the presiding person of the
meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding person at any
meeting of stockholders, in addition to making any other determinations that may
be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person should so determine,
such presiding person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the Board of Directors or the
person presiding over the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute
the whole Board of Directors shall be ten (10). Each director shall be elected
at the annual meeting of the stockholders except as provided in Section 2 of
this Article III, and shall hold office until his or her successor is elected
and qualified.
Section 2. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may only be
filled by a majority of the directors then in office, though less than a quorum,
or by a sole remaining director, except that in the event a director is removed
by the stockholders for cause, the stockholders shall be entitled to fill the
vacancy created as a result of such removal. The directors so chosen shall serve
for the remainder of the term of the vacated directorships being filled and
until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by statute.
Section 3. The business of the corporation shall be managed
by or under the direction of its 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.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
Section 5. 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.
Section 6. Special meetings of the Board of Directors may be
called by the chief executive officer,
chairman or vice-chairman on five (5) days153 notice to each director by mail
or twenty-four (24) hours notice to each director either personally or by
telephone, telegram, facsimile or other electronic transmission; special
meetings shall be called by the chief executive officer or secretary in like
manner and on like notice on the written request of two directors unless the
Board of Directors consists of only one director, in which case special meetings
shall be called by the chief executive officer or secretary in like manner and
on like notice on the written request of the sole director. A written waiver of
notice, signed by the person entitled to such notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
of the meeting stated therein, shall be deemed equivalent to notice.
Section 7. At all meetings of the Board of Directors a
majority of the then existing 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 statute or by 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 8. Meetings of the Board of Directors shall be
presided over by the chairman of the Board of Directors, if any, or in his or
her absence by the vice-chairman, or if there is no vice-chairman, by the chief
executive officer, or in their absence by a chairman chosen at the meeting. The
secretary shall act as secretary of the meeting, but in his or her absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting. The chairman of any meeting shall determine the order of business and
the procedures at the meeting.
Section 9. 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 may be taken
without a meeting, if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmission or electronic transmissions are
filed with the minutes of the proceedings of the Board of Directors or
committee.
Section 10. Unless otherwise restricted by the certificate
of incorporation or these bylaws, 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 any committee, by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. 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 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 he/she 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.
Section 12. Any such committee, to the extent provided in
the resolution of the Board of Directors, 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: (i) approving or adopting, or recommending to the
stockholders, any action or matter (other than the election or removal of
directors) expressly required by the General Corporation Law of the State of
Delaware to be submitted to stockholders for approval or (ii) adopting, amending
or repealing any bylaw of the Corporation. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. The corporation has, by resolution of the
Board of Directors, elected to be governed by the provisions of Section
141(c)(2) of the General Corporation Law of the State of Delaware.
Section 13. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the certificate
of incorporation or these bylaws, the Board of Directors shall have the
authority to fix the compensation of directors. Director compensation may
include, among other things, payment of their expenses, if any, of attendance at
each meeting of the Board of Directors, payment of a fixed sum for attendance at
each meeting of the Board of Directors or payment of a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the certificate
of incorporation or by law, any director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or
of the certificate of incorporation or of these bylaws, notice is required to be
given to any director or stockholder, such notice may be given in writing, by
mail, addressed to such director or stockholder, at his or her address as it
appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. An affidavit of the secretary or an
assistant secretary or of the transfer agent of the corporation that the notice
has been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein. Notice to directors may also be given personally or by
telephone, telegram, telecopier or other means of electronic transmission.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any waiver
of notice unless so required by the certificate of incorporation or these
bylaws.
ARTICLE V
OFFICERS
Section 1. The Board of Directors shall designate certain
officers of the corporation as executive officers of the corporation, and such
executive officers shall include the president, the chief executive officer, the
chief financial officer, and such other officers as the Board of Directors may
designate and may include the chairman or vice-chairman.
The Board of Directors may also create other offices of the corporation that
are not designated as executive offices and such non-executive offices may
include one or more vice-presidents, a secretary, assistant secretaries, a
treasurer, a controller and other assistants to the chief financial officer.
Section 2. The non-executive officers of the corporation may
be appointed by the Board of Directors or by the chief executive officer. Any
number of offices may be held by the same person, unless the certificate of
incorporation or these bylaws otherwise provide.
Section 3. The Board of Directors at its first meeting after
each annual meeting of stockholders shall choose a president, a chief executive
officer, a chief financial officer and such other executive officers as the
Board of Directors may elect.
Section 4. With respect to the non-executive offices
established by the Board of Directors, the Board of Directors or, if so
delegated to the chief executive officer, the chief executive officer, may
appoint such other non-executive officers, who 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 or by the chief executive
officer.
Section 5. The compensation of all the executive officers of
the corporation shall be fixed by the Board of Directors, and the salaries of
all the non-executive officers of the corporation shall be fixed by the Board of
Directors or, if so delegated by the Board, by the chief executive officer.
Section 6. The officers of the corporation shall hold office
until their successors are duly elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any non-executive
officer appointed by the chief executive officer may be removed at any time by
such person. Any vacancy occurring in any office of the corporation appointed by
the Board of Directors shall be filled by the Board of Directors, and any
vacancy occurring in any non-executive office of the corporation appointed by
the chief executive officer shall be filled by the Board of Directors or by the
chief executive officer.
THE CHAIRMAN AND VICE-CHAIRMAN OF THE BOARD
Section 7. The chairman of the Board of Directors, if any,
shall preside at all meetings of the Board of Directors and of the stockholders
at which he/she shall be present. He/she shall have and may exercise such powers
as are, from time to time, assigned to him/her by the Board of Directors and as
may be provided by law. The Board of Directors may appoint a vice-chairman who
shall have and may exercise such powers as are, from time to time, assigned to
him/her by the Board of Directors.
Section 8. In the absence of the chairman of the Board of
Directors, the vice-chairman of the Board of Directors, if any, and if there is
no vice-chairman of the Board of Directors, the chief executive officer, shall
preside at all meetings of the Board of Directors and of the stockholders at
which he/she shall be present and in their absence by a chairman chosen at the
meeting. He/she shall have and may exercise such powers as are, from time to
time, assigned to him/her by the Board of Directors and as may be provided by
law.
THE PRESIDENT, CHIEF EXECUTIVE OFFICER AND
VICE-PRESIDENT
Section 9. The president, unless the Board of Directors has
appointed a separate chief executive officer, shall be the chief executive
officer of the corporation. The president and the chief executive officer shall
be responsible for the general and active management of the business of the
corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 10. The president, the chief executive officer or
any vice-president shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
Section 11. In the absence of the president or in the event
of his or her inability or refusal to act, the vice-president, if any, (or in
the event there be more than one vice-president, the vice-presidents in the
order designated by the directors, 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 Board of Directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 12. The secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders (and in his or her
absence a secretary of the meeting chosen by the Board of Directors or the
chairman of the Board of Directors at the meeting), 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
standing committees when required. He/she shall give, 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 may be prescribed by the Board
of Directors or president, under whose supervision he/she shall be. He/she shall
have custody of the corporate seal of the corporation, and he, 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 his or her signature or by the
signature of such assistant secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his or her signature.
Section 13. 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 his or her
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
Board of Directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER
Section 14. The chief financial officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books
of account shall at all reasonable times be open to inspection by any director.
Section 15. The chief financial officer shall deposit all
money and other valuables in the name and to the credit of the corporation with
such depositaries as may be designated by the Board of Directors. He/she shall
disburse the funds of the corporation as may be ordered by the Board of
Directors, shall render to the president, the chief executive officer and
directors, whenever they request it, an account of all of his
or her transactions as chief financial officer and of the financial condition
of the corporation, and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or these bylaws.
Section 16. The treasurer, controller and the other
assistants to the chief financial officer in the order determined by the Board
of Directors or the chief executive officer (or if there be no such
determinations then in the order of their election) shall, in the absence of the
chief financial officer or in the event of his or her inability or refusal to
act, perform the duties and exercise the powers of the chief financial officer
and shall perform such other duties and have such other powers as the Board of
Directors or the chief executive officer may from time to time prescribe.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. The corporation153s stock may be certificated or
uncertificated as provided under Delaware law, and shall be entered in the books
of the corporation and registered as shares are issued. Every holder of stock in
the corporation represented by certificates shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the chairman or
vice-chairman of the Board of Directors, or the president or a vice-president
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, representing the number of shares registered in
certificate form in the name of the holder.
Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, or upon the books and records of the corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to be
paid therefor, and the amount paid thereon shall be specified.
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 qualification, limitations or restrictions of such
preferences and/or rights for certificated shares 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 General Corporation Law of the State of
Delaware, 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. Within a reasonable time after
the issuance or transfer of uncertificated stock, the corporation shall send to
the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to section 151, 156,
202(a) or 218(a) of the General Corporation Law of the State of Delaware a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of uncertificated stock and the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical.
Section 2. Any of or all the 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 he/she were such officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new
certificate or certificates of stock or uncertificated shares 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
of stock or uncertificated shares, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his or her legal
representative, to give the corporation a bond in such sum sufficient to
indemnify it against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. 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, assignation or authority to
transfer, it shall be the duty of the corporation to either issue a new
certificate or provide evidence of the issuance of uncertificated shares to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
FIXING RECORD DATE
Section 5. 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 to express consent to corporate action in writing
without a meeting, 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, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action as hereinbefore described, nor, for a consent to corporate action in
writing without a meeting, more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Any stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the secretary of
the corporation, request the Board of Directors to fix a record date for such
consent. Such request shall include a brief description of the action to be
taken. The Board of Directors shall, within ten (10) days after the date on
which such request is received, adopt a resolution fixing the record date. Such
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days after the earliest dated written consent received, a valid
written consent or valid written consents signed by a sufficient number of
stockholders to take such action are delivered to the corporation in the manner
prescribed by this Section 5 and applicable law and not revoked. In addition,
the corporation shall be entitled to engage independent inspectors of elections
to promptly perform a ministerial review of the validity of the written
consents. No action by written consent shall be effective until such inspectors
have completed their review. Nothing
contained in this Section 5 shall be construed to imply that the Board of
Directors or any stockholder shall not be entitled to contest the validity of
any consent, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
REGISTERED STOCKHOLDERS
Section 6. 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 it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purposes 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.
CHECKS
Section 3. 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.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
SEAL
Section 5. The Board of Directors may adopt a corporate seal
having inscribed thereon the name of the corporation, the year of its
organization 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.
CORPORATION STOCKHOLDINGS
Section 6. The chairman of the Board of Directors, the
president, the chief executive officer, the chief financial officer, or any
other person authorized by the Board of Directors is authorized to vote,
represent and exercise on behalf of this corporation all rights incident to any
and all shares of any other entity or entities standing in the name of this
corporation. The authority granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE VIII
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 1. The corporation shall indemnify its officers and
directors to the full extent and in the manner permitted by the General
Corporation Law of Delaware and the corporation153s certificate of incorporation
(as each presently exists or may hereafter be amended) against expenses
(including attorneys153 fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with a threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (the “Proceeding“), that is arising by
reason of the fact such person is or was a director or an officer of the
corporation or, while a director or an officer of the corporation, is or was
serving as director, officer, employee or agent of another corporation, or of a
partnership, joint venture, trust, enterprise or nonprofit entity, at the
corporation153s request. Notwithstanding the preceding sentence, except as
otherwise provided in Section 3 of this Article VIII, the corporation shall be
required to indemnify its directors and officers in connection with a Proceeding
(or part thereof) commenced by such person only if the commencement of such
Proceeding (or part thereof) by the person was authorized in the specific case
by the Board of Directors of the corporation.
The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware and the corporation153s
certificate of incorporation (as each presently exists or may hereafter be
amended), to indemnify each of its employees and agents (in addition to
directors and officers) against expenses (including attorneys153 fees), judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with a Proceeding, arising by reason of the fact that such person is
or was an agent of the corporation or, while an employee or agent of the
corporation, is or was serving as a director or an officer, employee or agent of
another corporation, or of a partnership, joint venture, trust, enterprise or
nonprofit entity, at the corporation153s request. For purposes of this Section, an
“employee” or “agent” of the corporation includes any person (i) who is or was
an employee or agent of the corporation, or (ii) who is or was serving at the
corporation153s request as an employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity.
Section 2. The corporation, to the fullest extent not
prohibited by law, shall pay in advance of its final disposition the reasonable
expenses (including attorneys153 fees) incurred by a director, officer or employee
or agent the corporation indemnifies (each, a “Covered
Person“) in defending a Proceeding, by reason of the fact that
he/she is or was a director, an officer, an employee or an agent of the
corporation, or while a director, an officer, an employee or an agent of the
corporation, is or was serving as a director or an officer, employee or agent of
another corporation, or of a partnership, joint venture, trust, enterprise or
nonprofit entity, at the corporation153s request provided, however, that to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article VIII, the General Corporation Law of Delaware or otherwise.
Section 3. If a claim for indemnification (following the
final disposition of such Proceeding) or
advancement of expenses under this Article VIII is not paid in full within
thirty (30) days after a written claim therefor by the Covered Person has been
received by the corporation, the Covered Person may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim to the fullest extent
permitted by law. In any such action the corporation shall have the burden of
proving that the Covered Person is not entitled to the requested indemnification
or advancement of expenses under applicable law.
Section 4. The rights conferred on any Covered Person by
this Article VIII shall not be deemed exclusive of any other rights which such
Covered Person may be entitled or hereafter acquire under any statute, provision
of the certificate of incorporation, these bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 5. Any right to indemnification or to advancement of
expenses of any Covered Person arising hereunder shall not be eliminated or
impaired by an amendment to or repeal of these bylaws after the occurrence of
the act or omission that is the subject of the civil, criminal, administrative
or investigative action, suit or proceeding for which indemnification or
advancement of expenses is sought.
Section 6. This Article VIII shall not limit the right of
the corporation, to the extent and in the manner permitted by law, to indemnify
and to advance expenses to persons other than Covered Persons when and as
authorized by appropriate corporate action.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed
or new bylaws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
bylaws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal bylaws is conferred upon the Board of Directors by the
certificate of incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
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