Registration of Securities of a Small-Business Issuer — Form 10-SB Filing Table of Contents
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1: 10SB12G Form 10Sb HTML 922K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 70K
3: EX-3.2 Exhibit 3.1 HTML 100K
4: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 40K
5: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 60K
6: EX-4.1 Instrument Defining the Rights of Security Holders HTML 209K
7: EX-4.2 Instrument Defining the Rights of Security Holders HTML 72K
8: EX-4.3 Instrument Defining the Rights of Security Holders HTML 142K
9: EX-4.4 Instrument Defining the Rights of Security Holders HTML 193K
10: EX-10.1 Material Contract HTML 74K
11: EX-10.2 Material Contract HTML 35K
12: EX-10.3 Material Contract HTML 119K
13: EX-10.4 Material Contract HTML 24K
14: EX-10.6 Material Contract HTML 149K
15: EX-10.7 Material Contract HTML 31K
16: EX-14.1 Code of Ethics HTML 120K
SECTION
1.01. Registered Office. The registered office of Mohen, Inc. (the “Corporation”)
in the
State of Delaware shall be 2711 Centerville Road, Suite 400, Wilmington, in
the
County of New Castle, Delaware19808 and the registered agent in charge thereof
shall be Corporation Service Company.
SECTION
1.02. Other Offices. The Corporation may also have an office or offices at
any
other place or places within or without the State of Delaware as the Board
of
Directors of the Corporation (the “Board”)
may
from time to time determine or the business of the Corporation may from time
to
time require.
ARTICLE
II
MEETINGS
OE STOCKHOLDERS
SECTION
2.01. Annual Meetings. The annual meeting of stockholders of the Corporation
for
the election of directors of the Corporation, and for the transaction of such
other business as may properly come before such meeting, shall be held at such
place, date and time as shall be fixed by the Board and designated in the notice
or waiver of notice of such annual meeting; provided,
however,
that no
annual meeting of stockholders need be held if all actions, including the
election of directors, required by the General Corporation Law of the State
of
Delaware (the “General
Corporation Law”)
to be
taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION
2.02. Special Meetings. Special meetings of stockholders for any purpose or
purposes may be called by the Board or the Chairman of the Board of Directors,
or by a majority of the Directors, or by the recordholders of at least a
majority of the shares of common stock of the Corporation issued and outstanding
and entitled to vote thereat, to be held at such place, date and time as shall
be designated in the notice or waiver of notice thereof.
SECTION
2.03. Notice of Meetings. (a) Except as otherwise provided by law, written
notice of each annual or special meeting of stockholders stating the place,
date
and time of such meeting and, in the case of a special meeting, the purpose
or
purposes for which such meeting is to be held, shall be given personally, by
first-class mail (airmail in the case of international communications), or
by
electronic mail to each recordholder of shares entitled to vote thereat, not
less than 10 nor more than 60 days before the date of such meeting. If mailed,
such notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholder’s address
as it appears on the records of the Corporation. If, prior to the time of
mailing, the Secretary of the Corporation (the “Secretary”)
shall
have received from any stockholder a written request that notices intended
for
such stockholder are to be mailed to some address other than the address that
appears on the records of the Corporation, notices intended for such stockholder
shall be mailed to the address designated in such request.
2
(b)
Notice of a special meeting of stockholders may be given by the person or
persons calling the meeting, or, upon the written request of such person or
persons, such notice shall be given by the Secretary on behalf of such person
or
persons. If the person or persons calling a special meeting of stockholders
give
notice thereof, such person or persons shall deliver a copy of such notice
to
the Secretary. Each request to the Secretary for the giving of notice of a
special meeting of stockholders shall state the purpose or purposes of such
meeting.
SECTION
2.04. Waiver of Notice. Notice of any annual or special meeting of stockholders
need not be given to any stockholder who files a written waiver of notice with
the Secretary, signed by the person entitled to notice, whether before or after
such meeting. Neither the business to be transacted at, nor the purpose of,
any
meeting of stockholders need be specified in any written waiver of notice
thereof. Attendance of a stockholder at a meeting, in person or by proxy, shall
constitute a waiver of notice of such meeting, except when such stockholder
attends a meeting for the express purpose of objecting, at the beginning of
the
meeting, to the transaction of any business on the grounds that the notice
of
such meeting was inadequate or improperly given.
SECTION
2.05. Adjournments. Whenever a meeting of stockholders, annual or special,
is
adjourned to another date, time or place, notice need not be given of the
adjourned meeting if the date, time and place thereof are announced at the
meeting at which the adjournment is taken. If the adjournment is for more than
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 entitled to vote thereat. At the adjourned meeting, any business
may
be transacted which might have been transacted at the original
meeting.
SECTION
2.06. Quorum. Except as otherwise provided by law or the Certificate of
Incorporation of the Corporation (the “Certificate
of Incorporation”),
the
recordholders of a majority of the shares entitled to vote thereat, present
in
person or by proxy, shall constitute a quorum for the transaction of business
at
all meetings of stockholders, whether annual or special. If, however, such
quorum shall not be present in person or by proxy at any meeting of
stockholders, the stockholders entitled to vote thereat may adjourn the meeting
from time to time in accordance with Section 2.05 hereof until a quorum shall
be
present in person or by proxy.
SECTION
2.07. Voting. Each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by such stockholder
who has voting power on the matter in question. Except as otherwise provided
by
law or the Certificate of Incorporation, when a quorum is present at any meeting
of stockholders, the vote of the recordholders of a majority of the shares
constituting such quorum shall decide any question brought before such
meeting.
SECTION
2.08. Proxies. Each stockholder entitled to vote at a meeting of stockholders
or
to express, in writing, consent to or dissent from any action of stockholders
without a meeting may authorize another person or persons to act for such
stockholder by proxy. Such proxy shall be filed with the Secretary before such
meeting of stockholders or such action of stockholders without a meeting, at
such time as the Board may require. No proxy that is dated more than six months
before the meeting named therein shall be accepted. .No proxy shall be voted
or
acted upon more than three years from its date, unless the proxy provides for
a
longer period.
3
SECTION
2.09. Stockholders’ Consent in Lieu of Meeting. Any action required by the
General Corporation Law to be taken at any annual or special meeting of
stockholders, and any action which may 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 action so taken,
shall be signed by the recordholders of shares having not less than the minimum
number of votes necessary to authorize or take such action at a meeting at
which
the recordholders of all shares entitled to vote thereon were present and
voted.
SECTION
2.10. Action at Meeting. When a quorum is present, the holders of a majority
of
the stock present or represented and voting on a matter (or if there are two
(2)
or more classes of stock entitled to vote as separate classes then, in the
case
of each such class, the holders of a majority of the stock of that class present
or represented and voting on a matter) shall decide any matter to be voted
on by
the stockholders, except where a larger vote is required by law, the Certificate
of Incorporation or these Bylaws. Any election by stockholders shall be
determined by a plurality of the votes cast by the stockholders entitled to
vote
at the election. No ballot shall be required for any such election unless
requested by a stockholder present or represented at the meeting and entitled
to
vote in the election. The corporation shall not - directly or indirectly -
vote
any share of its stock.
SECTION
2.11. Action without Meeting. Any action to be taken by the stockholders at
a
meeting may be taken without a meeting, without prior notice and without a
vote,
if a written consent(s), 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 and shall
be
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings, of stockholder
meetings are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt
requested.
SECTION
2.12. Location of Meetings. All meetings of shareholders must be held in the
state of New York, USA.
SECTION
2.13. Additional Special Meeting Matters. Notwithstanding any other provision
contained in these Bylaws: (a) If a special meeting is called by stockholders
of
the corporation, the request shall be in writing, specifying the general nature
of the business proposed to be transacted, and shall be delivered personally
or
sent by certified or registered mail, return receipt requested, to the Chairman
of the Board of Directors or the Secretary of the corporation. Subject to
Section 2.14, no business may be transacted at such special meeting otherwise
than specified in such notice. The Board of Directors shall determine the time
and place of such special meeting, which shall be held not less than thirty-five
(35) and not more than one hundred twenty (120) days after the date of the
receipt of the request. Upon determination of the time and place of the meeting,
the officer receiving the request shall cause notice to be given to the
stockholders entitled to vote, in accordance with the provisions of Section
2.03
of these Bylaws. Nothing contained in this Section 2.12(a) shall be construed
as
limiting, fixing, or affecting the time when a meeting of stockholders called
by
action of the Board of Directors may be held. (b) 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 only (i) by or at the direction of the Board of Directors
or
(ii) by any stockholder of the corporation who is a stockholder of record at
the
time of giving notice provided for in these Bylaws who shall be entitled to
vote
at the meeting and who complies with the notice procedures set forth in this
Section 2.12(b). In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board
of
Directors, any such stockholder may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the corporation’s
notice of meeting, if the stockholder’s notice required by Section 2.12(a) of
these Bylaws shall be delivered to the Chairman of the Board of Directors or
Secretary at the principal executive offices of the corporation not earlier
than
the close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such meeting or the tenth (10th) day following
the
day on which 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. In no event shall the announcement of an adjournment of a special
meeting commence a new time period for the giving of a stockholder’s notice as
described above.
4
SECTION
2.14. Proper Matters. Except as otherwise provided by law, the Chairman of
the
meeting shall have the power and duty to determine whether a nomination or
any
business proposed to be brought before a meeting of stockholders was made,
or
proposed, as the case may be, in accordance with the procedures set forth in
these Bylaws and, if any proposed nomination or business is not in compliance
with these Bylaws, to declare that such defective proposal or nomination shall
not be presented for stockholder action at the meeting and shall be
disregarded.
SECTION
2.15. For the purpose of determining those stockholders entitled to vote at
any
meeting of the stockholders, except as otherwise provided by law, only persons
in whose names shares stand on the stock records of the corporation on the
record date set for such meeting, shall be entitled to vote at such
meeting.
SECTION
2.16. Conduct of Meetings. Notwithstanding any other provision contained in
these Bylaws: The Board of Directors of the corporation shall be entitled to
make such rules or regulations for the conduct of meetings of stockholders
as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting
shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders
of
record of the corporation and their duly authorized and constituted proxies
and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. The date and time of the opening and closing of the polls for
each
matter upon which the stockholders will vote at the meeting shall be announced
at the meeting. Unless and to the extent determined by the Board of Directors
or
the Chairman of the meeting, meetings of stockholders shall not be required
to
be held in accordance with rules of parliamentary procedure.
5
ARTICLE
III
BOARD
OF DIRECTORS
SECTION
3.01. General Powers. The business and affairs of the Corporation shall be
managed by the Board, which may exercise all such powers of the Corporation
and
do all such lawful acts and things as are not by law, the Certificate of
Incorporation or these Bylaws directed or required to be exercised or done
by
stockholders.
SECTION
3.02. Number and Term of Office. The number of directors shall be thirteen
or
such other number as shall be fixed from time to time by the Board of Directors.
Directors need not be stockholders. Directors shall be elected at the annual
meeting of stockholders or, if, in accordance with Section 2.01 hereof, no
such
annual meeting is held, by written consent in lieu of meeting pursuant to
Section 2.09 hereof, and each director shall hold office until his successor
is
elected and qualified, or until his earlier death or resignation or removal
in
the manner hereinafter provided. Directors shall be elected to terms of three
years. The terms shall be staggered such that one third of the seats shall
expire each year.
SECTION
3.03. Resignation. Any director may resign at any time by delivering his written
resignation to the Board, the Chairman of the Board of the Corporation (the
“Chairman”) or the Secretary. Such resignation shall take effect at the time
specified in such notice or, if the time be not specified, upon receipt thereof
by the Board, the Chairman or the Secretary, as the case may be. Unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
SECTION
3.04. Removal. A Director may be removed from office with or without cause
at
any meeting of the stockholders by vote of the stockholders holding more than
fifty percent (50%) in interest of the capital stock issued and outstanding
and
entitled to vote in the election of Directors, or for cause by vote of
two-thirds (2/3) of the Directors then in office or by written consent of the
recordholders of shares pursuant to Section 2.09 hereof. A Director may be
removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
SECTION
3.05. Vacancies. Notwithstanding any other provision contained in these Bylaws:
Unless otherwise provided in the Certificate of Incorporation, any vacancies
on
the Board of Directors resulting from death, resignation, disqualification,
removal or other causes and any newly created directorships resulting from
any
increase in the number of directors shall, unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships
shall be filled by stockholders, be filled only by the affirmative vote of
a
majority of the directors then in office, even though less than a quorum of
the
Board of Directors. Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the full term of the director
for which the vacancy was created or occurred and until such director’s
successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section 3.05 in the case of the
death, removal or resignation of any director.
6
SECTION
3.06. Meetings. (a) Annual
Meetings.
As soon
as practicable after each annual election of directors by the stockholders,
the
Board shall meet for the purpose of organization and the transaction of other
business, unless it shall have transacted all such business by written consent
pursuant to Section 3.08 hereof.
(b)
Other
Meetings.
Regular
meetings of the Board of Directors may be held without notice at such places
and
at such times as the Board of Directors may from time to time determine,
provided that any Director who is absent when such determination is made shall
be given at least one week notice of the determination. A regular meeting of
the
Board of Directors shall be held without notice at the same place as the annual
meeting of stockholders, or the special meeting held in lieu thereof, following
such meeting of stockholders. Special meetings of the Board of Directors may
be
called by the Chairman of the Board of Directors, or the concurrence of five
(5)
or more Directors of the corporation.
(c)
Notice
of Meetings.
The
Secretary shall give written notice to each director of each meeting of the
Board, which notice shall state the place, date, time and purpose of such
meeting. Notice of each such meeting shall be given to each director, if by
mail, addressed to him at his residence or usual place of business, at least
seven days before the day on which such meeting is to be held, or shall be
sent
to him at such place by telecopy, telegraph, cable, electronic transmission
or
other form of recorded communication, or be delivered personally or by telephone
not later than the day before the day on which such meeting is to be held.
A
written waiver of notice, signed by the director entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted at, nor
the
purpose of any meeting of the Board need be specified in any written waiver
of
notice thereof. Attendance of a director at a meeting of the Board shall
constitute a waiver of notice of such meeting, except as provided by
law.
(d)
Place
of Meetings.
The
Board may hold its meetings at such place or places within or without the State
of Delaware as the Board or the Chairman may from time to time determine, or
as
shall be designated in the respective notices or waivers of notice of such
meetings.
(e)
Quorum
and Manner of Acting.
One
half of the total number of directors then in office shall be present in person
at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of those directors
present at any such meeting at which a quorum is present shall be necessary
for
the passage of any resolution or act of the Board, except as otherwise expressly
required by law, the Certificate of Incorporation or these Bylaws. In the
absence of a quorum for any such meeting, a majority of the directors present
thereat may adjourn such meeting from time to time until a quorum shall be
present.
7
(f)Organization.
At each
meeting of the Board, one of the following shall act as chairman of the meeting
and preside, in the following order of precedence:
1)
the
Chairman;
2)
the
Chief
Executive Officer;
3)
the
President
4) any
director chosen by a majority of the directors present.
The
Secretary or, in the case of his absence, any person (who shall be an Assistant
Secretary, if an Assistant Secretary is present) whom the chairman of the
meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION
3.07. Committees of the Board. The Board may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of one or more directors. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification
of a
member of a committee, the member or members thereof present at any meeting
and
not disqualified from voting, whether or not he or they constitute a quorum,
may
unanimously appoint another director to act at the meeting in the place of
any
such absent or disqualified member. Any committee of the Board, to the extent
provided in the resolution of the Board designating such committee, shall have
and may exercise all the powers and authority of the Board 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; provided,
however,
that no
such committee shall have such power or authority in reference to amending
the
Certificate of Incorporation (except that such a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board as provided in Section 151(a) of the General
Corporation Law, fix the designations and any of the preferences or rights
of
such shares relating to dividends, redemption, dissolution, any distribution
of
assets of the Corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes of stock of the Corporation or fix
the
number of shares of any series of stock or authorize the increase or decrease
of
the shares of any series), adopting an agreement of merger or consolidation
under Section 251 or 252 of the General Corporation Law, recommending to the
stockholders the sale, lease or exchange of all or substantially all the
Corporation’s property and assets, recommending to the stockholders a
dissolution of the Corporation or the revocation of a dissolution, or amending
these Bylaws; providedfurther,
however,
that,
unless expressly so provided in the resolution of the Board designating such
committee, no such committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law.
Each committee of the Board shall keep regular minutes of its proceedings and
report the same to the Board when so requested by the Board.
8
SECTION
3.08. Directors’ Consent in Lieu of Meeting. Any action required or permitted to
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing or by electronic transmission, setting forth the action so taken, shall
be signed by all the members of the Board or such committee and such consent
or
electronic transmission is filed with the minutes of the proceedings of the
Board or such committee. Such filing shall be in paper form if the minutes
are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
SECTION
3.09. Action without Meeting. Any action that may be taken by the Directors
at a
Board of Directors meeting may be taken without a meeting if all Directors
entitled to vote thereon consent thereto in writing filed with the records
of
the Corporation. Such consent shall be treated for all purposes as a vote at
a
meeting of the Board of Directors.
SECTION
3.10. Presumption of Assent. A Director who is present at a meeting of the
Board
of Directors at which any action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent shall be
recorded in the minutes of the meeting or unless he or she shall file a written
dissent to such action with the Secretary of the Board of Directors meeting
before the adjournment thereof or shall forward such dissent by certified mail
to the Secretary of the Board of Directors immediately after the adjournment
of
the meeting. Such right of dissent shall not apply to a Director who voted
at
the meeting in favor of such action.
SECTION
3.11. Action by Means of Telephone or Similar Communications Equipment. Any
one
or more members of the Board, or of any committee thereof, may participate
in a
meeting of the Board or such 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 in a meeting by such means
shall constitute presence in person at such meeting.
SECTION
3.12. Compensation. Unless otherwise restricted by the Certificate of
Incorporation, the Board may determine the compensation of directors. In
addition, as determined by the Board, directors may be reimbursed by the
Corporation for their expenses, if any, in the performance of their duties
as
directors. No such compensation or reimbursement shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefore.
9
ARTICLE
IV
WAR
AND NATIONAL EMERGENCY
SECTION
4.01. Emergency Bylaws. The emergency bylaws provided in this Article IV shall
be operative during any emergency resulting from an attack on the United States,
or during any nuclear or atomic disaster, or during the existence of any
catastrophe, or other similar emergency condition, as a result of which a quorum
of the Board of Directors cannot readily be convened for action. To the extent
not inconsistent with these emergency bylaws, the Bylaws of the Corporation
shall remain in effect during any emergency and upon its termination these
emergency bylaws shall cease to be operative.
SECTION
4.02. Board Meetings During Emergencies. During any such emergency a meeting
of
the Board of Directors may be called by any officer or director by giving two
days’ notice thereof to such of the directors as it may be feasible to reach at
the time and by such means as may be feasible at the time. The notice shall
specify the time and the place of the meeting, which shall be the principal
office of the Corporation or any other place specified in the notice. At any
such meeting three members of the then existing Board of Directors shall
constitute a quorum, which may act by majority vote.
SECTION
4.03. Availability of Directors. If the number of directors who are available
to
act shall drop below three, additional directors, in whatever number is
necessary to constitute a Board of three Directors, shall be selected
automatically from the first available officers or employees of the Corporation
in the order provided in the emergency succession list established by the Board
of Directors and in effect at the time an emergency arises. Additional
directors, beyond the minimum number of three directors, but not more than
three
additional directors, may be elected from any officers or employees on the
emergency succession list.
SECTION
4.04. Powers. The Board of Directors is empowered with the maximum authority
possible under the Delaware Corporation Law, and all other applicable law,
to
conduct the interim management of the affairs of the Corporation in an emergency
in what it considers to be in the best interests of the Corporation (including
the right to amend this Article) irrespective of the provisions of the
Certificate of Incorporation or of the Bylaws.
ARTICLE
V
OFFICERS
SECTION
5.01. Officers. The officers of the Corporation shall be the Chairman, the
Chief
Executive Officer, the President, the Secretary and a Treasurer and may include
one or more Vice Presidents and one or more Assistant Secretaries and one or
more Assistant Treasurers. Any two or more offices may be held by the same
person. Only the Chairman and the Chief Executive Officer may serve as members
of the Board of Directors.
10
SECTION
5.02. Authority and Duties. All officers shall have such authority and perform
such duties in the management of the Corporation as may be provided in these
Bylaws or, to the extent not so provided, by resolution of the
Board.
SECTION
5.03. Term of Office, Resignation and Removal. (a) The Chairman shall be elected
by the Board to a term of three years in accordance with Section
3.02.
(b)
Each
other officer shall be appointed by the Board and shall hold office for such
term as may be determined by the Board. Each officer shall hold office until
his
successor has been appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided. The Board may require any officer
to give security for the faithful performance of his duties.
(c)
Any
officer may resign at any time by giving written notice to the Board, the
Chairman, the Chief Executive Officer, the President or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the
time be not specified, upon receipt thereof by the Board, the Chairman, the
Chief Executive Officer, the President or the Secretary, as the case may be.
Unless otherwise specified therein, acceptance of such resignation shall not
be
necessary to make it effective.
(d)
All
officers and agents appointed by the Board shall be subject to removal, with
or
without cause, at any time by the Board or by the action of the recordholders
of
a majority of the shares entitled to vote thereon.
SECTION
5.04. Vacancies. Any vacancy occurring in any office of the Corporation, for
any
reason, shall be filled by action of the Board. Unless earlier removed pursuant
to Section 5.03 hereof, any officer appointed by the Board to fill any such
vacancy shall serve only until such time as the unexpired term of his
predecessor expires unless reappointed by the Board.
SECTION
5.05. The Chairman. The Chairman shall have the power to call special meetings
of stockholders, to call special meetings of the Board and, if present, to
preside at all meetings of stockholders and all meetings of the Board. The
Chairman shall perform all duties incident to the office of Chairman of the
Board and all such other duties as may from time to time be assigned to him
by
the Board or these Bylaws.
SECTION
5.06. The Chief Executive Officer. The Chief Executive Officer of the
Corporation and shall have general and active management and control of the
business and affairs of the Corporation, subject to the control of the Board,
and shall see that all orders and resolutions of the Board are carried into
effect. The Chief Executive Officer shall perform all duties incident to the
office of Chief Executive Officer and all such other duties as may from time
to
time be assigned to him by the Board or these Bylaws.
11
SECTION
5.07. The President. The President, if any, shall subject to the direction
of
the Chief Executive Officer, have general supervision and responsibilities
as so
designated by the Chief Executive Officer.
SECTION
5.08. Vice Presidents. Vice Presidents, if any, in order of their seniority
or
in any other order determined by the Chief Executive Officer, shall generally
assist the Chief Executive Officer and President and perform such other duties
as the Board or the President shall prescribe, and in the absence or disability
of the President, shall perform the duties and exercise the powers of the
President.
SECTION
5.09. The Secretary. The Secretary shall, to the extent practicable, attend
all
meetings of the Board and all meetings of stockholders and shall record all
votes and the minutes of all proceedings in a book to be kept for that purpose,
and shall perform the same duties for any committee of the Board when so
requested by such committee. He shall give or cause to be given notice of all
meetings of stockholders and of the Board, shall perform such other duties
as
may be prescribed by the Board, the Chairman or the Chief Executive Officer
and
shall act under the supervision of the Chairman. He shall keep in safe custody
the seal of the Corporation and affix the same to any instrument that requires
that the seal be affixed to it and which shall have been duly authorized for
signature in the name of the Corporation and, when so affixed, the seal shall
be
attested by his signature or by the signature of the Treasurer of the
Corporation (the “Treasurer”)
or an
Assistant Secretary or Assistant Treasurer of the Corporation. He shall keep
in
safe custody the certificate books and stockholder records and such other books
and records of the Corporation as the Board, the Chairman or the Chief Executive
Officer may direct and shall perform all other duties incident to the office
of
Secretary and such other duties as from time to time may be assigned to him
by
the Board, the Chairman or the Chief Executive Officer.
SECTION
5.10. Assistant Secretaries. Assistant Secretaries of the Corporation
(“Assistant
Secretaries”),
if
any, in order of their seniority or in any other order determined by the Board,
shall generally assist the Secretary and perform such other duties as the Board
or the Secretary shall prescribe, and, in the absence or disability of the
Secretary, shall perform the duties and exercise the powers of the
Secretary.
SECTION
5.11. The Treasurer. The Treasurer shall have the care and custody of all the
funds of the Corporation and shall deposit such funds in such banks or other
depositories as the Board, or any officer or officers, or any officer and agent
jointly, duly authorized by the Board, shall, from time to time, direct or
approve. He shall disburse the funds of the Corporation under the direction
of
the Board and the President. He shall keep a full and accurate account of all
moneys received and paid on account of the Corporation and shall render a
statement of his accounts whenever the Board, the Chairman or the President
shall so request. He shall perform all other necessary actions and duties in
connection with the administration of the financial affairs of the Corporation
and shall generally perform all the duties usually appertaining to the office
of
treasurer of a corporation. When required by the Board, he shall give bonds
for
the faithful discharge of his duties in such sums and with such sureties as
the
Board shall approve.
12
SECTION
5.12. Assistant Treasurers. Assistant Treasurers of the Corporation
(“Assistant
Treasurers”),
if
any, in order of their seniority or in any other order determined by the Board,
shall generally assist the Treasurer and perform such other duties as the Board
or the Treasurer shall prescribe, and, in the absence or disability of the
Treasurer, shall perform the duties and exercise the powers of the
Treasurer.
ARTICLE
VI
INSPECTION
OF BOOKS
SECTION
6.01. Inspection of Books. The Board of Directors shall determine from time
to
time whether, and, if allowed, when and under what conditions and regulations
the accounts and books of the Corporation (except such as may by statute be
specifically open to inspection), or any of them, shall be open to the
inspection of the stockholders, and the stockholders’ rights in this respect are
and shall be restricted and limited accordingly. The Board of Directors shall
choose an Audit Committee, consisting solely of Directors who are not employees
of the corporation, who shall be empowered to meet with the outside auditor
at
least once a year.
ARTICLE
VII
CHECKS,
DRAFTS, NOTES, AND PROXIES
SECTION
7.01. Checks, Drafts and Notes. All checks, drafts and other orders for the
payment of money, notes and other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or officers, agent or agents
of the Corporation and in such manner as shall be determined, from time to
time,
by resolution of the Board.
SECTION
7.02. Execution of Proxies. The Chairman, the Chief Executive Officer, the
President or any Vice President may authorize, from time to time, the execution
and issuance of proxies to vote shares of stock or other securities of other
corporations held of record by the Corporation and the execution of consents
to
action taken or to be taken by any such corporation. All such proxies and
consents, unless otherwise authorized by the Board, shall be signed in the
name
of the Corporation by the Chairman, the Chief Executive Officer, the President
or any Vice President.
ARTICLE
VIII
SHARES
AND TRANSFERS OE SHARES
SECTION
8.01. Certificates Evidencing Shares. Each stockholder shall be entitled to
a
certificate of the capital stock of the corporation in such form as may be
prescribed from time to time by the Board of Directors. The certificate shall
be
signed by the Chairman, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or
an Assistant Secretary, but when a certificate is countersigned by a transfer
agent or a registrar, other than a Director, officer or employee of the
corporation, such signatures may be facsimiles. In case any officer who has
signed or whose facsimile signature has been placed on such certificate shall
have ceased to be such officer before such certificate is issued by the
corporation with the same effect as if he were such officer at the time of
its
issue.
13
Every
certificate for shares of stock that are subject to any restriction on transfer
pursuant to the Certificate of Incorporation, the Bylaws or any agreement to
which the Corporation is a party, shall have the restriction noted conspicuously
on the certificate and shall also set for the on the face or back either the
full text of the restriction or a statement of the existence of such restriction
and statement that the Corporation will furnish a copy to the holder of such
certificate on written request and without charge. Every certificate issued
when
the Corporation is authorized to issue more than one class or series of stock
shall set forth on its face or back either the full text of the preferences,
voting powers, qualifications and rights, or a statement that the Corporation
will furnish a copy thereof to the holder of such certificate on written request
and without charge.
SECTION
8.02. Stock Ledger. A stock ledger in one or more counterparts shall be kept
by
the Secretary, in which shall be recorded the name and address of each person,
firm or corporation owning the shares evidenced by each certificate evidencing
shares issued by the Corporation, the number of shares evidenced by each such
certificate, the date of issuance thereof and, in the case of cancellation,
the
date of cancellation. Except as otherwise expressly required by law, the person
in whose name shares stand on the stock ledger of the Corporation shall be
deemed the owner and recordholder thereof for all purposes.
SECTION
8.03. Transfers of Shares. Registration of transfers of shares shall be made
only in the stock ledger of the Corporation upon request of the registered
holder of such shares, or of his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary, and upon the surrender
of
the certificate or certificates evidencing such shares properly endorsed or
accompanied by a stock power duly executed, together with such proof of the
authenticity of signatures as the Corporation may reasonably
require.
SECTION
8.04. Addresses of Stockholders. Each stockholder shall designate to the
Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to such stockholder, and, if any stockholder
shall fail to so designate such an address, corporate notices may be served
upon
such stockholder by mail directed to the mailing address, if any, as the same
appears in the stock ledger of the Corporation or at the last known mailing
address of such stockholder.
SECTION
8.05. Lost, Destroyed and Mutilated Certificates. Each recordholder of shares
shall promptly notify the Corporation of any loss, destruction or mutilation
of
any certificate or certificates evidencing any share or shares of which he
is
the recordholder. The Board may, in its discretion, cause the Corporation to
issue a new certificate in place of any certificate theretofore issued by it
and
alleged to have been mutilated, lost, stolen or destroyed, upon the surrender
of
the mutilated certificate or, in the case of loss, theft or destruction of
the
certificate, upon satisfactory proof of such loss, theft or destruction, and
the
Board may, in its discretion, require the recordholder of the shares evidenced
by the lost, stolen or destroyed certificate or his legal representative to
give
the Corporation a bond sufficient to indemnify the Corporation against any
claim
made against it on account of the alleged loss, theft or destruction of any
such
certificate or the issuance of such new certificate.
14
SECTION
8.06. Regulations. The Board may make such other rules and regulations as it
may
deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates evidencing shares.
SECTION
8.07. Issue of Stock. Unless otherwise voted by the stockholders, the whole
or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any capital stock of the corporation
held in its treasury may be issued or disposed of by majority vote of the Board
of Directors in such manner, for such consideration, and on such terms as the
Board of Directors may determine..
SECTION
8.08. No Fractional Shares. The Corporation shall issue no fractional shares
to
any stockholder and upon any action which would require such issuance but for
this provision, the Corporation shall, in lieu of such issuance, pay in cash
the
fair value of fractions of a share as of the time when those entitled to receive
such fractions are determined.
SECTION
8.09. Fixing Date for Determination of Stockholders of Record. 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, or to dissent from, 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 may fix, in advance, a record date, which shall not be more than
60
nor less than 10 days before the date of such meeting, nor more than 60 days
prior to any other such action. A determination of the stockholders entitled
to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of such meeting; provided,
however,
that
the Board may fix a new record date for the adjourned meeting.
ARTICLE
IX
SEAL
SECTION
9.01. Seal. The Board may approve and adopt a corporate seal, which shall be
in
the form of a circle and shall bear the full name of the Corporation, the year
of its incorporation and the words “Corporate Seal Delaware”.
15
ARTICLE
X
FISCAL
YEAR
SECTION
10.01. Fiscal Year. The fiscal year of the Corporation shall begin on the first
day in January of each year and end on the following thirty-first day of
December unless changed by resolution of the Board.
ARTICLE
XI
EXECUTION
OE INSTRUMENTS
SECTION
11.01. Execution of Instruments. All deeds, leases, transfers, contracts, bonds,
notes and other obligations authorized to be executed by an officer of the
corporation in its behalf shall be signed by the Chairman, the Chief Executive
Officer, or the Treasurer except as the Board of Directors may generally or
in
particular cases otherwise determine.
ARTICLE
XII
VOTING
OE SECURITIES
SECTION
12.01. Voting of Securities. Except as the Board of Directors may otherwise
designate, the Chairman, or Treasurer may waive notice of, and appoint any
person or persons to act as proxy or attorney in fact for this corporation
(with
or without power of substitution) at any meeting of stockholders or shareholders
of any other corporation or organization, the securities of which may be held
by
this corporation.
ARTICLE
XIII
DEPOSITORY
AUTHORITY
SECTION
13.01. Depository Authority. Any Chairman, Chief Executive Officer, President,
Vice President or Treasurer, together with the Secretary or any Assistant
Secretary, shall designate the banks and the name, whether it be the Corporate
name or the name of one of them or the name of other persons connected with
the
Corporation or trade names, in which such accounts shall be opened and kept
and
shall designate the persons who shall have authority on behalf of the
Corporation to sign checks against such funds, to the extent of such funds
in
said accounts only, and the persons who shall have authority to endorse and
make
payable to the order of said banks, checks, drafts and other negotiable
instruments, for deposit in said banks, and to deposit such checks, drafts
and
other negotiable instruments in said accounts.
16
ARTICLE
XIV
INDEMNIFICATION
AND INSURANCE
SECTION
14.01. Indemnification. (a) The Corporation shall indemnify any person who
was
or is a party or is threatened to be made a party to any threatened, pending
or
completed action, suit or proceeding, whether civil, criminal, administrative
or
investigative (other than an action by or in the right of the Corporation)
by
reason of the fact that the person is or was a director, officer, employee,
advisor, or agent of the Corporation, or is or was serving at the request of
the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolocontendere
or its
equivalent, shall not, of itself, create a presumption that the person did
not
act in good faith and in a manner which the person reasonably believed to be
in
or not opposed to the best interests of the Corporation, and, with respect
to
any criminal action or proceeding, had reasonable cause to believe that the
person’s conduct was unlawful.
(b)
The
Corporation shall indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action or suit by or
in
the right of the Corporation to procure a judgment in its favor by reason of
the
fact that the person is or was a director, officer, employee, advisor, or agent
of the Corporation, or is or was serving at the request of the Corporation
as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense
or
settlement of such action or suit if the person acted in good faith and in
a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made
in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the
Court of Chancery of the State of Delaware or the court in which such action
or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person
is
fairly and reasonably entitled to indemnity for such expenses which the Court
of
Chancery or such other court shall deem proper.
(c)
To
the extent that a present or former director or officer of the Corporation
has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 14.01(a) and (b) of these Bylaws, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection therewith.
17
(d) Any
indemnification under Section 14.01(a) and (b) of these Bylaws (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because
the
person has met the applicable standard of conduct set forth in Section 14.01(a)
and (b) of these Bylaws. Such determination shall be made, with respect to
a
person who is a director or officer at the time of such determination, (i)
by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by majority vote of such directors, even though less than
a
quorum, or (iii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (iv) by the stockholders
of the Corporation.
(e)
Expenses (including attorneys’ fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit
or
proceeding may be paid by the Corporation in advance of the final disposition
of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
pursuant to this Article XIV. Such expenses (including attorneys’ fees) incurred
by former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the Corporation deems
appropriate.
(f)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other Sections of this Article XIV shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any law, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office.
(g)
For
purposes of this Article XIV, references to “the Corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers, and employees or agents so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under
the provisions of this Article XIV with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(h)
For
purposes of this Article XIV, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to
“serving at the request of the Corporation” shall include any service as a
director, officer, employee, advisor, or agent of the Corporation which imposes
duties on, or involves service by, such director, officer, employee, advisor,
or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred to in this Article
XIV.
18
(i)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article XIV shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
SECTION
14.02. Insurance for Indemnification. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
advisor, or agent of the Corporation, or is or was serving at the request of
the
Corporation as a director, officer, employee, advisor, or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person’s status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of Section 145 of the General Corporation Law.
ARTICLE
XV
AMENDMENTS
SECTION
15.01. Amendments. Any Bylaw (including these Bylaws) may be altered, amended
or
repealed by the vote of the recordholders of a majority of the shares then
entitled to vote at an election of directors or by written consent of
stockholders pursuant to Section 2.09 hereof, or by vote of the Board or by
a
written consent of directors pursuant to Section 3.08 hereto.
