OF
APPLIED MATERIALS, INC.
(a Delaware corporation)
(As amended to December 7, 1999)
1.1
Registered Office
1.2
Other Offices
2.1
Place of Meetings
2.2
Annual Meeting
2.3
Special Meeting
2.4
Notice of Stockholders’ Meetings
2.5
Advance Notice of Stockholder Nominees
2.6
Manner of Giving Notice; Affidavit of Notice
2.7
Quorum
2.8
Adjourned Meeting; Notice
2.9
Conduct of Business
2.10
Voting
2.11
Waiver of Notice
2.12
Record Date for Stockholder Notice; Voting; Giving Consents
2.13
Proxies
3.1
Powers
3.2
Number of Directors
3.3
Election, Qualification and Term of Office of Directors
3.4
Resignation and Vacancies
3.5
Place of Meetings; Meetings by Telephone
3.6
Regular Meetings
3.7
Special Meetings; Notice
3.8
Quorum
3.9
Waiver of Notice
3.10
Board Action by Written Consent Without a Meeting
3.11
Fees and Compensation of Directors
3.12
Approval of Loans to Officers
3.13
Removal of Directors
3.14
Chairman of the Board of Directors
3.15
Retirement of Directors
4.1
Committees of Directors
4.2
Committee Minutes
4.3
Meetings and Action of Committees
5.1
Officers
5.2
Election of Officers
5.3
Appointed Officers
5.4
Removal and Resignation of Officers
5.5
Vacancies in Offices
5.6
Chairman of the Board
5.7
President
5.8
Senior Vice Presidents and Vice Presidents
5.9
Secretary
5.10
Chief Financial Officer
5.11
Representation of Shares of Other Corporations
5.12
Authority and Duties of Officers
6.1
Maintenance and Inspection of Records
6.2
Inspection by Directors
7.1
Execution of Corporate Contracts and Instruments
7.2
Stock Certificates; Partly Paid Shares
7.3
Special Designation on Certificates
7.4
Lost Certificates
7.5
Construction; Definitions
7.6
Dividends
7.7
Fiscal Year
7.8
Seal
8.1
Amendments
OF
APPLIED MATERIALS, INC.
OFFICES
1.1 Registered Office. The registered office of
the corporation in the State of Delaware shall be Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the registered agent of the
corporation at such location is The Corporation Trust Company.
1.2 Other Offices. The corporation may also
have offices at such other places both within and without the
State of Delaware as the board of directors may from time to time
determine or the business of the corporation may require.
STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders
shall be held at such place, either, within or without the State
of Delaware, as may be designated by the board of directors. In
the absence of any such designation, stockholders’ meetings
shall be held at the corporation’s principal executive
offices.
2.2 Annual Meeting. The annual meeting of
stockholders shall be held each year on a date and at a time
designated by the board of directors. At the meeting, directors
shall be elected and any other proper business may be transacted.
2.3 Special Meeting. Special meetings of the
stockholders may be called at any time by the board of directors,
or by the chairman of the board, or by the president of the
corporation.
If a special meeting is called by any person or persons other
than the board of directors, the request shall be in writing,
specifying the time of such meeting and the general nature of the
business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other
facsimile transmission to the chairman of the board, the
president, any vice president, or the secretary of the
corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The officer
receiving the request shall cause notice to be promptly given to
the stockholders entitled to vote, in accordance with the
provisions of Sections 4 and 5 of this Article II, that
a meeting will be held at the time requested by the person or
persons calling the meeting, not less than 35 nor more than 60
days after the receipt of the request. If the notice is not given
within 20 days after the receipt of the request, the person
or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 3 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.
2.4 Notice of Stockholders’ Meetings. All
notices of meetings with stockholders shall be in writing and
shall be sent or otherwise given in accordance with
Section 2.5 of these bylaws not less than 10 nor more than
60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notice shall specify the
place, date, and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is
called.
2.5 Advance Notice of Stockholder Nominees. No
nominations for director of the corporation by any person other
than the board of directors shall be presented to any meeting of
stockholders unless the person making the nomination is a record
stockholder and shall have delivered a written notice to the
secretary of the corporation no later than the close of business
forty-five days prior to the month and day of mailing the prior
year’s proxy statement. Such notice shall (i) set forth
the name and address of the person advancing such nomination and
the nominee, together with such information concerning the
person making the nomination
and the nominee as would be required by the appropriate Rules and
Regulations of the Securities and Exchange Commission to be
included in a proxy statement soliciting proxies for the election
of such nominee, and (ii) shall include the duly executed
written consent of such nominee to serve as director if elected.
No proposal by any person other than the board of directors shall
be submitted for the approval of the stockholders at any regular
or special meeting of the stockholders of the corporation unless
the person advancing such proposal shall have delivered a
written notice to the secretary of the corporation no later than
the close of business forty-five days prior to the month and day
of mailing the prior year’s proxy statement. Such notice
shall set forth the name and address of the person advancing the
proposal, any material interest of such person in the proposal,
and such other information concerning the person making such
proposal and the proposal itself as would be required by the
appropriate Rules and Regulations of the Securities and Exchange
Commission to be included in a proxy statement soliciting proxies
for the proposal.
2.6 Manner of Giving Notice; Affidavit of Notice.
Written notice of any meeting of stockholders, if mailed, is
given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the
records of the corporation. 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.
2.7 Quorum. 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. Except as otherwise required by
law, the certificate of incorporation or these bylaws, the
affirmative vote of the majority of such quorum shall be deemed
the act of the stockholders. If, however, such quorum is not
present or represented at any meeting of the stockholders, then
either (i) the chairman of the meeting or (ii) the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such
adjourned meeting at which a quorum is present or represented,
any business may be transacted that might have been transacted at
the meeting as originally noticed.
2.8 Adjourned Meeting; Notice. When a meeting
is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At
the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. 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 of
record entitled to vote at the meeting.
2.9 Conduct of Business. The chairman of any
meeting of stockholders shall determine the order of business and
the procedure at the meeting, including such regulation of the
manner of voting and the conduct of business.
2.10 Voting. Except as may be otherwise
provided in the certificate of incorporation, each stockholder
shall be entitled to one vote for each share of capital stock
held by such stockholder. Voting may be by voice or by ballot as
the presiding officer of the meeting of the stockholders shall
determine. On a vote by ballot, each ballot shall be signed by
the stockholder voting, or by such stockholder’s proxy, and
shall state the number of shares voted.
2.11 Waiver of Notice. Whenever notice is
required to be given under any provision of the General
Corporation Law of Delaware or of the certificate of
incorporation or these bylaws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
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 written waiver of
notice unless so required by the certificate of incorporation or
these bylaws.
2.12 Record Date for Stockholder Notice; Voting;
Giving Consents. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may
fix, 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 action.
If the board of directors does not so fix a record date:
(i) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting
is held.
(ii) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating
thereto.
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.
2.13 Proxies. Each stockholder entitled to vote
at a meeting of stockholders may authorize another person or
persons to act for him by a written proxy, signed by the
stockholder and filed with the secretary of the corporation, but
no such proxy shall be voted or acted upon after one year from
its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder’s name is placed
on the proxy (whether by manual signature, typewriting,
telegraphic transmission or otherwise) by the stockholder or the
stockholder’s attorney-in-fact. A duly executed 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. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the corporation
generally.
DIRECTORS
3.1 Powers. The business and affairs of the
corporation shall be managed by or under the direction of the
board of directors, except as otherwise provided in the General
Corporation Law of the State of Delaware or in the certificate of
incorporation.
3.2 Number of Directors. The board of directors
shall consist of ten (10) persons until changed by a proper
amendment of this Section 3.2.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director’s term
of office expires.
3.3 Election, Qualification and Term of Office of
Directors. Except as provided in Section 3.4 of these
bylaws, directors shall be elected at each annual meeting of
stockholders. Directors need not be stockholders. Each director,
including a director elected to fill a vacancy, shall hold office
until his successor is elected and qualified or until his
earlier resignation or removal.
Elections of directors need not be by written ballot.
3.4 Resignation and Vacancies. Any director may
resign at any time upon written notice to the attention of the
secretary of the corporation. When one or more directors so
resigns and the resignation is effective at a future date, a
majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so
chosen shall hold office as provided in this section in the
filling of other vacancies.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of
the stockholders having the right to vote as a single class may
be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the
provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series
may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any
officer or any stockholder or an executor, administrator, trustee
or guardian of a stockholder, or other fiduciary entrusted with
like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the
provisions of the certificate of incorporation or these bylaws,
or may apply to the Court of Chancery for a decree summarily
ordering an election as provided in Section 211 of the
General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a
majority of the whole board (as constituted immediately prior to
any such increase), then the Court of Chancery may, upon
application of any stockholder or stockholders holding at least
ten percent (10%) of the total number of the shares at the time
outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies
or newly created directorships, or to replace the directors
chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211
of the General Corporation Law of Delaware as far as applicable.
The stockholders may elect a director at any time to fill any
vacancy not filled by the directors.
If a vacancy is the result of action taken by the shareholders
under Section 3.13 of these bylaws, then the vacancy shall
be filled by the holders of a majority of the shares then
entitled to vote at an election of directors.
3.5 Place of Meetings; Meetings by Telephone.
The board of directors of the corporation may hold meetings, both
regular and special, either within or outside the State of
Delaware.
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 similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this bylaw shall
constitute presence in person at the meeting.
3.6 Regular Meetings. Regular meetings of the
board of directors may be held without notice at such time and at
such place as shall from time to time be determined by the
board.
3.7 Special Meetings; Notice. Special meetings
of the board of directors for any purpose or purposes may be
called at any time by the chairman of the board, the president,
any vice president, the secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by
first-class mail or telegram, charges prepaid, addressed to each
director at that director’s address as it is shown on the
records of the corporation. If the notice is mailed, it shall be
deposited in the United States mail at least four days before the
time of the holding of the meeting. If the notice is delivered
personally or by telephone or by telegram, it shall be delivered
personally or by telephone or to the telegraph company at least
48 hours before the time of the holding of the meeting. Any
oral notice given personally or by telephone may be communicated
either to the director or to a person at the office of the
director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not
specify the purpose or the place of the meeting, if the meeting
is to be held at the principal executive office of the
corporation.
3.8 Quorum. At all meetings of the board of
directors, a majority of the authorized number of 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 is not present at any meeting of the
board of directors, then the directors present thereat may
adjourn the meeting from time to time, without notice other than
the announcement at the meeting, until a quorum is present.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the
required quorum for that meeting.
3.9 Waiver of Notice. Whenever notice is
required to be given under any provision of the General
Corporation Law of Delaware or of the certificate of
incorporation or these bylaws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice.
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 directors, or members of a committee of directors, need
be specified in any written waiver of notice unless so required
by the certificate of incorporation or these bylaws.
3.10 Board Action by Written Consent Without a
Meeting. Any action required or permitted to be taken at any
meeting of the board of directors, or of any committee thereof,
may be taken without a meeting if all members of the board or
committee, as the case may be, consent thereto in writing and the
writing or writings are filed with the minutes of proceedings of
the board or committee.
3.11 Fees and Compensation of Directors. The
board of directors shall have the authority to fix the
compensation of directors.
3.12 Approval of Loans to Officers. The
corporation may lend money to, or guarantee any obligations of,
or otherwise assist any officer or other employee of the
corporation or any of its subsidiaries, including any officer or
employee who is a director of the corporation or any of its
subsidiaries, whenever, in the judgment of the directors, such
loan, guaranty or assistance, or an employee benefit or employee
financial assistance plan adopted by the board of directors or
any committee thereof authorizing any such loan, guaranty or
assistance, may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with
or without interest and may be unsecured, or secured in such a
manner as the board of directors shall approve, including,
without limitation, a pledge of shares of stock of the
corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of
the corporation at common law or under any statute.
3.13 Removal of Directors. Any director or the
entire board of directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote
at an election of directors.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such
director’s term of office.
3.14 Chairman of the Board of Directors. The
corporation may also have, at the discretion of the board of
directors, a chairman of the board of directors who may be
considered an officer of the corporation.
3.15 Retirement of Directors. No member of the
board of directors shall stand for reelection to membership on
the board of directors after attaining age 70. The provisions of
Section 3.15 of these bylaws may be waived under
extraordinary circumstances as to specific members by action of
the board of directors.
COMMITTEES
4.1 Committees of Directors. The board of
directors may, by resolution passed by a majority of the whole
board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. 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 the committee. In the absence or
disqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of
the board of directors, or in the bylaws of the corporation,
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
amending the certificate of incorporation (except that a
committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of
the General Corporation Law of Delaware, 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 or any other
series of the same or 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
Sections 251 or 252 of the General Corporation Law of
Delaware, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation’s
property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation; and, unless the
resolution, bylaws or certificate of incorporation expressly so
provides, 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 of Delaware.
4.2 Committee Minutes. Each committee shall
keep regular minutes of its meetings and report the same to the
board of directors when required.
4.3 Meetings and Action of Committees. Meetings
and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of
these bylaws, Section 3.5 (place of meetings and meetings by
telephone), Section 3.6 (regular meetings),
Section 3.7 (special meetings and notice), Section 3.8
(quorum), Section 3.9 (waiver of notice), and
Section 3.10 (action without a meeting), with such changes
in the context of those bylaws as are necessary to substitute the
committee and its members for the board of directors and its
members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of
directors or by resolution of the committee, that special
meetings of committees may also be called by resolution of the
board of directors and that notice of special meetings of
committees shall also be given to all alternate members, who
shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
OFFICERS
5.1 Officers. The officers of the corporation
shall be a president, a chief financial officer (who may be a
vice president or treasurer of the corporation) and a secretary.
The corporation may also have, at the discretion of the board of
directors, a chairman of the board of directors, one or more
senior vice presidents and one or more other officers. One or
more officers may be appointed in accordance with the provisions
of Section 5.3 of these bylaws. Any number of offices may be
held by the same person.
5.2 Election of Officers. The officers of the
corporation, except such officers as may be appointed in
accordance with the provisions of Sections 5.3 or 5.5 of
these bylaws, shall be elected by the board of directors.
5.3 Appointed Officers. The chief executive
officer of the corporation, or such other officer as the board of
directors shall select, may appoint, or the board of directors
may appoint, such officers and agents of the corporation as, in
his or their judgment, are necessary to conduct the business of
the corporation. Each such officer shall hold office for such
period, have such authority, and perform such duties as are
provided in these bylaws or as the board of directors or the
chief executive officer may from time to time determine.
5.4 Removal and Resignation of Officers. Any
officer may be removed, either with or without cause, by an
affirmative vote of the majority of the board of directors at any
regular or special meeting of the board or, except in the case
of an officer elected by the board of directors, by the chief
executive officer or such other officer upon whom such power of
removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to
the corporation. Any resignation shall take effect at the date of
the receipt of that notice or at any later time specified in
that notice; and, unless otherwise specified in that notice, the
acceptance of the resignation shall not be necessary to make it
effective. Any resignation is without prejudice to the rights, if
any, of the corporation under any contract to which the officer
is a party.
5.5 Vacancies in Offices. Any vacancy occurring
in any office of the corporation shall be filled by the board of
directors, except for vacancies in the offices of subordinate
officers which may be filled pursuant to Section 5.3 hereof.
5.6 Chairman of the Board. The chairman of the
board, if such an officer be elected, shall, if present, preside
at meetings of the board of directors and the stockholders and
exercise and perform such other powers and duties as may be from
time to time assigned by the board of directors or prescribed by
the bylaws.
5.7 President. Subject to such supervisory
powers, if any, as may be given by the board of directors to the
chairman of the board, the president shall be the chief executive
officer of the corporation and shall, subject to the control of
the board of directors, have general supervision, direction, and
control of the business and the officers of the corporation. In
the absence or nonexistence of a chairman of the board, he shall
preside at all meetings of the stockholders and at all meetings
of the board of directors. He shall have the general powers and
duties of management usually vested in the office of president of
a corporation and shall have such other powers and duties as may
be prescribed by the board of directors or these bylaws.
5.8 Senior Vice Presidents and Vice Presidents.
In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the board
of directors or, if not ranked, a vice president designated by
the board of directors, shall perform all 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 have such other powers and perform such other
duties as from time to time may be prescribed for them
respectively by the board of directors, these bylaws, the
president or the chairman of the board.
5.9 Secretary. The secretary shall keep or
cause to be kept, at the principal executive office of the
corporation or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes
shall show the time and place of each meeting, the names of
those present at directors’ meetings or committee meetings,
the number of shares present or represented at stockholders’
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the
corporation’s transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a
duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares,
and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the board of directors
required to be given by law or by these bylaws. He shall keep the
seal of the corporation, if one be adopted, in safe custody and
shall have such other powers and perform such other duties as may
be prescribed by the board of directors or by these bylaws.
5.10 Chief Financial Officer. 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.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with
such depositories as may be designated by the board of directors.
He shall disburse the funds of the corporation as may be ordered
by the board of directors, shall render to the president and
directors, whenever they request it, an account of all his
transactions as chief financial officer and of the financial
condition of the corporation, and shall have other powers and
perform such other duties as may be prescribed by the board of
directors or the bylaws.
5.11 Representation of Shares of Other
Corporations. The chairman of the board, the president, any
vice president, the treasurer, the secretary or assistant
secretary of this corporation, or any other person authorized by
the board of directors or the president or a vice president, is
authorized to vote, represent, and exercise on behalf of this
corporation all rights incident to any and all shares of any
other corporation or corporations 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.
5.12 Authority and Duties of Officers. In
addition to the foregoing authority and duties, all officers of
the corporation shall respectively have such authority and
perform such duties in the management of the business of the
corporation as may be designated from time to time by the board
of directors.
RECORDS AND REPORTS
6.1 Maintenance and Inspection of Records. The
corporation shall, either at its principal executive offices or
at such place or places as designated by the board of directors,
keep a record of its stockholders listing their names and
addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date,
accounting books, and other records.
Any stockholder of record, in person or by attorney or other
agent, shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours for business to
inspect for any proper purpose the corporation’s stock
ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper
purpose shall mean a purpose reasonably related to such
person’s interest as a stockholder. In every instance where
an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing that authorizes the attorney
or other agent to so act on behalf of the stockholder. The demand
under oath shall be directed to the corporation at its
registered office in Delaware or at its principal place of
business.
6.2 Inspection by Directors. Any director shall
have the right to examine the corporation’s stock ledger, a
list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The
Court of Chancery is hereby vested with the exclusive
jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the corporation
to permit the director to inspect any and all books and records,
the stock ledger, and the stock list and to make copies or
extracts therefrom. The Court may, in its discretion, prescribe
any limitations or conditions with reference to the inspection,
or award such other and further relief as the Court may deem just
and proper.
GENERAL MATTERS
7.1 Execution of Corporate Contracts and
Instruments. The board of directors, except as otherwise
provided in these bylaws, may authorize any officer or officers,
or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation; such
authority may be general or confined to specific instances.
Unless so authorized or ratified by the board of directors or
within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or for any amount.
7.2 Stock Certificates; Partly Paid Shares. The
shares of a corporation shall be represented by certificates,
provided that the board of directors of the corporation may
provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by
the board of directors, every holder of stock represented by
certificates and upon request every holder of uncertificated
shares 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 vice president, and
by the chief financial officer, the treasurer, or an assistant
treasurer, or the secretary or an assistant secretary of such
corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate
may be a 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
were such officer, transfer agent or registrar at the date of
issue.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the
consideration to be paid therefor. Upon the face or back of each
stock certificate 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 stated. Upon the declaration of any dividend on fully
paid shares, the corporation shall declare a dividend upon partly
paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
7.3 Special Designation on Certificates. If the
corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the
designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the
corporation shall issue to represent such class or series of
stock; provided, however, that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that 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, the designations, the preferences, and
the 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.
7.4 Lost Certificates. The corporation may
issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to
have been lost, stolen or destroyed, and the corporation may
require the owner of the lost, stolen or destroyed certificate,
or his legal representative to give the corporation a bond
sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate
or uncertified shares.
7.5 Construction; Definitions. Unless the
context requires otherwise, the general provisions, rules of
construction, and definitions in the Delaware General Corporation
Law shall govern the construction of these bylaws. Without
limiting the generality of this provision, the singular number
includes the plural, the plural number includes the singular, and
the term “person” includes both a corporation and a
natural person.
7.6 Dividends. The directors of the
corporation, subject to any restrictions contained in the General
Corporation Law of Delaware or the certificate of incorporation,
may declare and pay dividends upon the shares of its capital
stock. Dividends may be paid in cash, in property, or in shares
of the corporation’s capital stock.
The directors of the corporation may set apart out of any of the
funds of the corporation available for dividends a reserve or
reserves for any proper purpose and may abolish any such reserve.
7.7 Fiscal Year. The fiscal year of the
corporation shall be fixed by resolution of the board of
directors and may be changed by the board of directors.
7.8 Seal. The board of directors may adopt a
corporate seal, and may use the same by causing it or a facsimile
thereof, to be impressed or affixed or in any other manner
reproduced.
AMENDMENTS
8.1 Amendments. The bylaws of the corporation
may be altered, amended or repealed or new bylaws may be adopted
by either the (i) board of directors or
(ii) stockholders upon the affirmative vote of the holders
of not less than a majority of the total voting power of all
issued and outstanding shares of stock in this corporation
entitled to vote thereon.