Exhibit 3.2
BYLAWS OF
SUPER LEAGUE GAMING, INC.
Adopted October
2, 2014
Amended & Restated June 15, 2015
Amended & Restated August 15, 2018
TABLE OF CONTENTS
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Page
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Article I — MEETINGS OF STOCKHOLDERS
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1
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1.1
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Place of Meetings
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1
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1.2
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Annual Meeting
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1
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1.3
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Special Meeting
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1
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1.4
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Notice of Stockholders’ Meetings
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2
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1.5
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Quorum
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2
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1.6
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Adjourned Meeting; Notice
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2
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1.7
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Conduct of Business
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2
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1.8
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Voting
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3
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1.9
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Stockholder Action by Written Consent Without a
Meeting
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3
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1.1
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Record Date for Stockholder Notice; Voting; Giving
Consents
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4
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1.11
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Proxies
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5
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1.12
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List of Stockholders Entitled to Vote .
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5
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1.13
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Advance Notice of Business
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6
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Article II — DIRECTORS
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8
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2.1
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Powers
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8
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2.2
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Number of Directors
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8
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2.3
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Election, Qualification and Term of Office of
Directors
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8
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2.4
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Resignation and Vacancies
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8
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2.5
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Place of Meetings; Meetings by Telephone
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9
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2.6
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Conduct of Business
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10
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2.7
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Regular Meetings
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10
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2.8
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Special Meetings; Notice
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10
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2.9
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Quorum; Voting
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10
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2.1
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Board Action by Written Consent Without a Meeting
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11
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2.11
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Fees and Compensation of Directors
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11
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2.12
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Removal of Director
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11
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Article III — COMMITTEES
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11
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3.1
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Committees of Directors
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11
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3.2
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Committee Minutes
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12
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3.3
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Meetings and Actions of Committees
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12
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3.4
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Subcommittees
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12
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Article IV — OFFICERS
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13
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4.1
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Officers
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13
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4.2
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Appointment of Officers
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13
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4.3
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Subordinate Officers
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13
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4.4
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Removal and Resignation of Officers
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13
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4.5
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Vacancies in Offices
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13
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4.6
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Representation of Shares of Other Corporations
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13
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4.7
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Authority and Duties of Officers
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13
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Article V — INDEMNIFICATION
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14
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5.1
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Indemnification of Directors and Officers in Third Party
Proceedings
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14
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5.2
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Indemnification of Directors and Officers in Actions by or in the
Right of the Company
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14
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5.3
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Successful Defense
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14
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5.4
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Indemnification of Others
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15
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5.5
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Advanced Payment of Expenses
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15
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5.6
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Limitation on Indemnification
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15
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5.7
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Determination; Claim
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16
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5.8
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Non-Exclusivity of Rights
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16
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5.9
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Insurance
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16
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5.1
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Survival
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16
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5.11
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Effect of Repeal or Modification
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16
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5.12
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Certain Definitions
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17
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Article VI — STOCK
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17
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6.1
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Stock Certificates; Partly Paid Shares
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17
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6.2
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Special Designation on Certificates
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18
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6.3
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Lost Certificates
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18
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6.4
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Dividends
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18
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6.5
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Stock Transfer Agreements
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19
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6.6
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Registered Stockholders
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19
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6.7
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Transfers
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19
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Article VII — MANNER OF GIVING NOTICE AND WAIVER
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19
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7.1
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Notice of Stockholder Meetings
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19
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7.2
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Notice by Electronic Transmission
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19
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7.3
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Notice to Stockholders Sharing an Address
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20
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7.4
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Notice to Person with Whom Communication is Unlawful
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21
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7.5
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Waiver of Notice
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21
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Article VIII — EXCLUSIVE FORUM FOR LITIGATION
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21
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Article IX — GENERAL MATTERS
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21
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9.1
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Fiscal Year
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21
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9.2
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Seal
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22
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9.3
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Annual Report
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22
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9.4
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Construction; Definitions
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22
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Article X — AMENDMENTS
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22
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BYLAWS
Article I — MEETINGS OF
STOCKHOLDERS
1.1 Place of Meetings
.
Meetings of stockholders of Super League Gaming, Inc. (the
“Company”) shall
be held at any place, within or outside the State of Delaware, determined by the
Company’s board of directors (the “Board”). The Board may, in its sole discretion,
determine that a meeting of stockholders shall not be held at any
place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the Delaware
General Corporation Law (the “DGCL”). In the
absence of any such designation or determination,
stockholders’ meetings shall be held at the Company’s
principal executive office.
1.2 Annual
Meeting. An annual meeting of stockholders shall be
held for the election of directors at such date and time as may be
designated by resolution of the Board from time to time. Any other
proper business may be transacted at the annual meeting. The
Company shall not be required to hold an annual meeting of
stockholders, provided that
(i) the stockholders are permitted to act by written consent
under the Company’s certificate of incorporation and these
bylaws, (ii) the stockholders take action by written consent
to elect directors and (iii) the stockholders unanimously
consent to such action or, if such consent is less than unanimous,
all of the directorships to which directors could be elected at an
annual meeting held at the effective time of such action are vacant
and are filled by such action.
1.3 Special
Meeting. A special meeting of the stockholders may be
called at any time by the Board, Chairperson of the Board, Chief
Executive Officer or President (in the absence of a Chief Executive
Officer) or by one or more stockholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at that
meeting.
If any
person(s) other than the Board calls a special meeting, the request
shall:
(i)
be in
writing;
(ii)
specify the
time of such meeting and the general nature of the business
proposed to be transacted; and
(iii)
be delivered
personally or sent by registered mail or by facsimile transmission
to the Chairperson of the Board, the Chief Executive Officer, the
President (in the absence of a Chief Executive Officer) or the
Secretary of the Company.
The
officer(s) receiving the request shall cause notice to be promptly
given to the stockholders entitled to vote at such meeting, in
accordance with these bylaws, that a meeting will be held at the
time requested by the person or persons calling the meeting. No
business may be transacted at such special meeting other than the
business specified in such notice to stockholders. Nothing
contained in this paragraph of this Section 1.3
shall be construed as limiting, fixing, or affecting the time when
a meeting of stockholders called by action of the Board may be
held.
1.4 Notice
of Stockholders’ Meetings. Whenever stockholders
are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which shall state the
place, if any, date and hour of the meeting, the means of remote
communication, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such meeting, and, in
the case of a special meeting, the purpose or purposes for which
the meeting is called. Except as otherwise provided in the DGCL,
the certificate of incorporation or these bylaws, the written
notice of any meeting of stockholders shall be given not less than
10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting.
1.5 Quorum. Except
as otherwise provided by law, the certificate of incorporation or
these bylaws, at each meeting of stockholders the presence in
person or by proxy of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all
outstanding shares of stock entitled to vote at the meeting shall
be necessary and sufficient to constitute a quorum. Where a
separate vote by a class or series or classes or series is
required, a majority of the outstanding shares of such class or
series or classes or series, present in person or represented by
proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter, except as otherwise provided
by law, the certificate of incorporation or these
bylaws.
If,
however, such quorum is not present or represented at any meeting
of the stockholders, then either (i) the chairperson of the
meeting, or (ii) the stockholders entitled to vote at the
meeting, present in person or represented by proxy, shall have the
power to adjourn the meeting from time to time, in the manner
provided in Section 1.6,
until a quorum is present or represented.
1.6 Adjourned Meeting;
Notice. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or
some other place, and notice need not be given of the adjourned
meeting if the time, place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Company may
transact any business which 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.
1.7 Conduct of
Business. Meetings of stockholders shall be presided
over by the Chairperson of the Board, if any, or in his or her
absence by the Vice Chairperson of the Board, if any, or in the
absence of the foregoing persons by the Chief Executive Officer, or
in the absence of the foregoing persons by the President, or in the
absence of the foregoing persons by a Vice President, or in the
absence of the foregoing persons by a chairperson designated by the
Board, or in the absence of such designation by a chairperson
chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the meeting
may appoint any person to act as secretary of the meeting. The
chairperson 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.
1.8 Voting.
The stockholders entitled to vote at any meeting of stockholders
shall be determined in accordance with the provisions of
Section 1.10 of
these bylaws, subject to Section 217 (relating to voting
rights of fiduciaries, pledgors and joint owners of stock) and
Section 218 (relating to voting trusts and other voting
agreements) of the DGCL.
Except
as may be otherwise provided in the certificate of incorporation,
each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of capital stock held
by such stockholder which has voting power upon the matter in
question. Voting at meetings of stockholders need not be by written
ballot and, unless otherwise required by law, need not be conducted
by inspectors of election unless so determined by the holders of
shares of stock having a majority of the votes which could be cast
by the holders of all outstanding shares of stock entitled to vote
thereon which are present in person or by proxy at such meeting. If
authorized by the Board, such requirement of a written ballot shall
be satisfied by a ballot submitted by electronic transmission (as
defined in Section 7.2 of
these bylaws), provided
that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder or proxy
holder.
Except
as otherwise required by law, the certificate of incorporation or
these bylaws, in all matters other than the election of directors,
the affirmative vote of a majority of the voting power of the
shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the
stockholders. Except as otherwise required by law, the certificate
of incorporation or these bylaws, directors shall be elected by a
plurality of the voting power of the shares present in person or
represented by proxy at the meeting and entitled to vote on the
election of directors. Where a separate vote by a class or series
or classes or series is required, in all matters other than the
election of directors, the affirmative vote of the majority of
shares of such class or series or classes or series present in
person or represented by proxy at the meeting shall be the act of
such class or series or classes or series, except as otherwise
provided by law, the certificate of incorporation or these
bylaws.
1.9 Stockholder Action by
Written Consent Without a Meeting. Unless otherwise
provided in the certificate of incorporation, any action required
by the DGCL to be taken at any annual or special meeting of
stockholders of a corporation, or any action which may be taken at
any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
An
electronic transmission (as defined in Section 7.2)
consenting to an action to be taken and transmitted by a
stockholder or proxy holder, or by a person or persons authorized
to act for a stockholder or proxy holder, shall be deemed to be
written, signed and dated for purposes of this section,
provided that any such
electronic transmission sets forth or is delivered with information
from which the Company can determine (i) that the electronic
transmission was transmitted by the stockholder or proxy holder or
by a person or persons authorized to act for the stockholder or
proxy holder and (ii) the date on which such stockholder or
proxy holder or authorized person or persons transmitted such
electronic transmission.
In the
event that the Board shall have instructed the officers of the
Company to solicit the vote or written consent of the stockholders
of the Company, an electronic transmission of a stockholder written
consent given pursuant to such solicitation may be delivered to the
Secretary or the President of the Company or to a person designated
by the Secretary or the President. The Secretary or the President
of the Company or a designee of the Secretary or the President
shall cause any such written consent by electronic transmission to
be reproduced in paper form and inserted into the corporate
records.
Prompt
notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been
the date that written consents signed by a sufficient number of
holders to take the action were delivered to the Company as
provided in Section 228 of the DGCL. In the event that the
action which is consented to is such as would have required the
filing of a certificate under any provision of the DGCL, if such
action had been voted on by stockholders at a meeting thereof, the
certificate filed under such provision shall state, in lieu of any
statement required by such provision concerning any vote of
stockholders, that written consent has been given in accordance
with Section 228 of the DGCL.
1.10 Record Date for Stockholder
Notice; Voting; Giving Consents. In order that the
Company may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board may
fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the
Board and which record date:
(i) in the case of
determination of stockholders entitled to notice of or to vote at
any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty nor less than ten
days before the date of such meeting;
(ii) in
the case of determination of stockholders entitled to express
consent to corporate action in writing without a meeting, shall not
be more than ten days after the date upon which the resolution
fixing the record date is adopted by the Board; and
(iii) in
the case of determination of stockholders for any other action,
shall not be more than 60 days prior to such other
action.
If no
record date is fixed by the Board:
(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 entitled to express consent to corporate
action in writing without a meeting when no prior action of the
Board is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be
taken is delivered to the Company in accordance with applicable
law, or, if prior action by the Board is required by law, shall be
at the close of business on the day on which the Board adopts the
resolution taking such prior action; and
(iii)
the record date for
determining stockholders for any other purpose shall be at the
close of business on the day on which the Board 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 that
the Board may fix a new record date for the adjourned
meeting.
1.11 Proxies. Each
stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for such
stockholder by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the
procedure established for the meeting, but no such proxy shall be
voted or acted upon after three years from its date, unless the
proxy provides for a longer period. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by
the provisions of Section 212 of the DGCL.
1.12 List of Stockholders
Entitled to Vote. The officer who has charge of the
stock ledger of the Company shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder.
The Company shall not be required to include electronic mail
addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting for a period
of at
least ten days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours, at the
Company’s principal place of business. In the event that the
Company determines to make the list available on an electronic
network, the Company may take reasonable steps to ensure that such
information is available only to stockholders of the Company. If
the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of
the meeting.
1.13 Advance Notice of
Business. No business may be transacted at an annual meeting
of stockholders, other than business that is either (i) specified
in the Company’s’s notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the annual meeting by or at the direction
of the Board, or (iii) otherwise properly brought before the annual
meeting by any stockholder of the Company (x) who is a stockholder
of record on the date of the giving of the notice provided for in
this Section 1.13
and on the record date for the determination of stockholders
entitled to vote at such annual meeting, and (y) who complies with
the notice procedures set forth in this Section
1.13. Notwithstanding anything in this Section 1.13
to the contrary, only persons nominated for election as a director
to fill any directorship the term of which expires on the date of
the annual meeting (or which ended before such date but as to which
the Board did not fill the vacancy) pursuant to Section 2.4
will be considered for election at such meeting.
(i) In addition to any
other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary and such business must
otherwise be a proper matter for stockholder action. Subject to
Section
1.13(iii), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must be received by
the Secretary at the principal executive offices of the Company not
later than the close of business on the 90th day, and not
earlier than the opening of business on the 120th day, before the
anniversary date of the immediately preceding annual meeting of
stockholders; provided,
however, that if the annual
meeting is called for a date that is not within 45 days before or
after such anniversary date, notice by the stockholder to be timely
must be so received not earlier than the opening of business on the
120th day
before the meeting and not later than the later of (x) the close of
business on the 90th day before the
meeting or (y) the close of business on the tenth day following the
day on which public announcement of the date of the annual meeting
is first made by the Company.
(ii) To
be in proper written form, a stockholder’s notice to the
Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to
bring before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting, the text
of the proposal or business (including the text of any resolutions
proposed for consideration and in the event such business includes
a proposal to amend these Bylaws, the language of the proposed
amendment) and the reasons for conducting such business at the
annual meeting, (B) the name and record address of such stockholder
and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (C) the class or series and number of
shares of capital stock of the Company that are owned beneficially
and of record by such stockholder and by the beneficial owner, if
any, on whose behalf the proposal is made, (D) a description of all
arrangements or understandings between such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made and
any other person or persons (including their names) in connection
with the proposal of such business by such stockholder, (E) any
material interest of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made in such business and (F)
a representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before the
meeting. All references in these Bylaws to “beneficial” ownership of stock,
or stock “beneficially” owned, or words of
similar import, incorporate by reference the standards for
determining beneficial ownership as set forth in Rule 13d-3 (or any
successor rule or regulation) under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”).
(iii) The
foregoing notice requirements of this Section 1.13
shall be deemed satisfied by a stockholder as to any proposal
(other than nominations) if the stockholder has notified the
Company of such stockholder’s intention to present such
proposal at an annual meeting in compliance with Rule 14a-8 (or any
successor rule or regulation) under the Exchange Act, and such
stockholder has complied with the requirements of such Rule for
inclusion of such proposal in a proxy statement prepared by the
Company to solicit proxies for such annual meeting. No business
shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the
procedures set forth in this Section
1.13; provided,
however, that once business
has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section 1.13
shall preclude discussion by any stockholder of any such business.
If the Board or the chairman of the annual meeting determines that
any stockholder proposal was not made in accordance with the
provisions of this Section 1.13
or that the information provided in a stockholder’s notice
does not satisfy the information requirements of this Section
1.13, such proposal shall not be presented for action at the
annual meeting. Notwithstanding the foregoing provisions of this
Section
1.13, if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual meeting of
stockholders of the Company to present the proposed business, such
proposed business shall not be transacted, notwithstanding that
proxies in respect of such matter may have been received by the
Company.
(iv) In
addition to the provisions of this Section
1.13, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in
this Section 1.13
shall affect any rights of stockholders to request inclusion of
proposals in the Company’s proxy statement pursuant to Rule
14a-8 under the Exchange Act.
For
purposes of these Bylaws, “public announcement” means
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in
a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the
Exchange Act.
Article II — DIRECTORS
2.1 Powers. The
business and affairs of the Company shall be managed by or under
the direction of the Board, except as may be otherwise provided in
the DGCL or the certificate of incorporation.
2.2 Number of
Directors. The Board shall consist of one or more
members, each of whom shall be a natural person. Unless the
certificate of incorporation fixes the number of directors, the
number of directors shall be determined from time to time by
resolution of the Board. No reduction of the authorized number of
directors shall have the effect of removing any director before
that director’s term of office expires.
2.3 Election, Qualification and
Term of Office of Directors. Except as provided in
Section 2.4 of these bylaws, and subject to
Sections 1.2 and 1.9 of
these bylaws, directors shall be elected at each annual meeting of
stockholders. Directors need not be stockholders unless so required
by the certificate of incorporation or these bylaws. The
certificate of incorporation or these bylaws may prescribe other
qualifications for directors. Each director shall hold office until
such director’s successor is elected and qualified or until
such director’s earlier death, resignation or
removal.
2.4
Resignation and
Vacancies. Any director may resign at any time upon
notice given in writing or by electronic transmission to the
Company. A resignation is effective when the resignation is
delivered unless the resignation specifies a later effective date
or an effective date determined upon the happening of an event or
events. A resignation which is conditioned upon the director
failing to receive a specified vote for reelection as a director
may provide that it is irrevocable. Unless otherwise provided in
the certificate of incorporation or these bylaws, when one or more
directors resign from the Board, 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.
Unless
otherwise provided in the certificate of incorporation or these
bylaws:
(i) 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.
(ii) 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
Company 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 DGCL.
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), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the voting
stock 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 DGCL as far as applicable.
A
director elected to fill a vacancy shall be elected for the
unexpired term of his or her predecessor in office and until such
director’s successor is elected and qualified, or until such
director’s earlier death, resignation or
removal.
2.5 Place of Meetings; Meetings
by Telephone. The Board may hold meetings, both
regular and special, either within or outside the State of
Louisiana or Delaware.
Unless
otherwise restricted by the certificate of incorporation or these
bylaws, members of the Board, or any committee designated by the
Board, may participate in a meeting of the Board, or any committee,
by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute
presence in person at the meeting.
2.6 Conduct
of Business. Meetings of the Board shall be presided
over by the Chairperson of the Board, if any, or in his or her
absence by the Vice Chairperson of the Board, if any, or in the
absence of the foregoing persons by a chairperson designated by the
Board, or in the absence of such designation by a chairperson
chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the meeting
may appoint any person to act as secretary of the
meeting.
2.7 Regular
Meetings. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to
time be determined by the Board.
2.8 Special Meetings;
Notice. Special meetings of the Board for any purpose
or purposes may be called at any time by the Chairperson of the
Board, the Chief Executive Officer, the President, the Secretary or
any two directors.
Notice
of the time and place of special meetings shall be:
(i) delivered
personally by hand, by courier or by telephone;
(ii) sent
by United States first-class mail, postage prepaid;
(iii) sent
by facsimile; or
(iv) sent
by electronic mail,
directed
to each director at that director’s address, telephone
number, facsimile number or electronic mail address, as the case
may be, as shown on the Company’s records.
If the
notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic
mail, it shall be delivered or sent at least 24 hours before the
time of the holding of the meeting. If the notice is sent by United
States mail, it shall be deposited in the United States mail at
least four days before the time of the holding of the meeting. Any
oral notice may be communicated to the director. The notice need
not specify the place of the meeting (if the meeting is to be held
at the Company’s principal executive office) nor the purpose
of the meeting.
2.9 Quorum;
Voting. At all meetings of the Board, a majority of
the total authorized number of directors shall constitute a quorum
for the transaction of business. If a quorum is not present at any
meeting of the Board, then the directors present thereat may
adjourn the meeting from time to time, without notice other than
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.
The
vote of a majority of the directors present at any meeting at which
a quorum is present shall be the act of the Board, except as may be
otherwise specifically provided by statute, the certificate of
incorporation or these bylaws.
If the
certificate of incorporation provides that one or more directors
shall have more or less than one vote per director on any matter,
every reference in these bylaws to a majority or other proportion
of directors shall refer to a majority or other proportion of the
votes of the directors.
2.10 Board Action by Written
Consent Without a Meeting. Unless otherwise restricted
by the certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the Board, 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 or by electronic transmission and the writing or
writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or 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.
211 Fees and Compensation of
Directors. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board shall have
the authority to fix the compensation of directors.
2.12 Removal of
Directors. Unless otherwise restricted by statute, the
certificate of incorporation or these bylaws, any director or the
entire Board 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.
Article III — COMMITTEES
3.1 Committees of
Directors. The Board may designate one or more
committees, each committee to consist of one or more of the
directors of the Company. 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 thereof present at any meeting and not
disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the
Board 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 or in these bylaws, shall have and may
exercise all the powers and authority of the Board in the
management of the business and affairs of the Company, and may
authorize the seal of the Company to be affixed to all papers that
may require it; but no such committee shall have the power or
authority to (i) approve or adopt, or recommend to the
stockholders, any action or matter (other than the election or
removal of directors) expressly required by the DGCL to be
submitted to stockholders for approval, or (ii) adopt, amend
or repeal any bylaw of the Company.
3.2 Committee
Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the Board when
required.
3.3 Meetings and Actions of
Committees. Meetings and actions of committees shall
be governed by, and held and taken in accordance with, the
provisions of:
(i)
Section 2.5
(Place of Meetings; Meetings by Telephone);
(ii)
Section 2.7 (Regular Meetings);
(iii)
Section 2.8
(Special Meetings; Notice);
(iv)
Section 2.9
(Quorum; Voting);
(v)
Section 2.10
(Board Action by Written Consent Without a Meeting);
and
(vi)
Section 7.5
(Waiver of Notice) with such changes
in the context of those bylaws as are necessary to substitute the
committee and its members for the Board and its members.
However:
(i)
the
time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the
committee;
(ii)
special
meetings of committees may also be called by resolution of the
Board; and
(iii)
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 may adopt rules for the government of
any committee not inconsistent with the provisions of these
bylaws.
Any
provision in the certificate of incorporation providing that one or
more directors shall have more or less than one vote per director
on any matter shall apply to voting in any committee or
subcommittee, unless otherwise provided in the certificate of
incorporation or these bylaws.
3.4 Subcommittees.
Unless otherwise provided in the certificate of incorporation,
these bylaws or the resolutions of the Board designating the
committee, a committee may create one or more subcommittees, each
subcommittee to consist of one or more members of the committee,
and delegate to a subcommittee any or all of the powers and
authority of the committee.
Article
IV — OFFICERS
4.1 Officers. The
officers of the Company shall be a President and a Secretary. The
Company may also have, at the discretion of the Board, a
Chairperson of the Board, a Vice Chairperson of the Board, a Chief
Executive Officer, one or more Vice Presidents, a Chief Financial
Officer, a Treasurer, one or more Assistant Treasurers, one or more
Assistant Secretaries, and any such other officers as may be
appointed in accordance with the provisions of these bylaws. Any
number of offices may be held by the same person.
4.2 Appointment of
Officers. The Board shall appoint the officers of the
Company, except such officers as may be appointed in accordance
with the provisions of Section 4.3 of
these bylaws.
4.3 Subordinate
Officers. The Board may appoint, or empower the Chief
Executive Officer or, in the absence of a Chief Executive Officer,
the President, to appoint, such other officers and agents as the
business of the Company may require. Each of such officers and
agents shall hold office for such period, have such authority, and
perform such duties as are provided in these bylaws or as the Board
may from time to time determine.
4.4 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
at any regular or special meeting of the Board or, except in the
case of an officer chosen by the Board, by any officer upon whom
such power of removal may be conferred by the Board.
Any
officer may resign at any time by giving written notice to the
Company. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation,
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 Company under any contract to which the officer is a
party.
4.5 Vacancies in
Offices. Any vacancy occurring in any office of the
Company shall be filled by the Board or as provided in Section 4.3.
4.6 Representation of Shares of
Other Corporations. Unless otherwise directed by the
Board, the President or any other person authorized by the Board or
the President is authorized to vote, represent and exercise on
behalf of the Company all rights incident to any and all shares of
any other corporation or corporations standing in the name of the
Company. 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.
4.7 Authority and Duties of
Officers. Except as otherwise provided in these
bylaws, the officers of the Company shall have such powers and
duties in the management of the Company as may be designated from
time to time by the Board and, to the extent not so provided, as
generally pertain to their respective offices, subject to the
control of the Board.
Article V — INDEMNIFICATION
5.1 Indemnification of
Directors and Officers in Third Party Proceedings.
Subject to the other provisions of this Article V, the Company shall
indemnify, to the fullest extent permitted by the DGCL, as now or
hereinafter in effect, 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 (a “Proceeding”) (other than an action
by or in the right of the Company) by reason of the fact that such
person is or was a director or officer of the Company, or is or was
a director or officer of the Company serving at the request of the
Company 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 such person in connection with such Proceeding if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such person’s conduct
was unlawful.
5.2 Indemnification of
Directors and Officers in Actions by or in the Right of the
Company. Subject to the other provisions of this
Article V, the Company
shall indemnify, to the fullest extent permitted by the DGCL, as
now or hereinafter in effect, 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 Company to
procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Company, or is or was
a director or officer of the Company serving at the request of the
Company 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 such person in connection with the defense
or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the Company; 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 Company unless and only to the extent that the Court
of Chancery 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.
5.3 Successful
Defense. To the extent that a present or former
director or officer of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding
described in Section 5.1 or
Section 5.2, 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.
5.4 Indemnification
of Others. Subject to the other provisions of this
Article V, the Company
shall have power to indemnify its employees and agents to the
extent not prohibited by the DGCL or other applicable law. The
Board shall have the power to delegate to such person or persons
the determination of whether employees or agents shall be
indemnified.
5.5 Advanced Payment of
Expenses. Expenses (including attorneys’ fees)
incurred by an officer or director of the Company in defending any
Proceeding shall be paid by the Company in advance of the final
disposition of such Proceeding upon receipt of a written request
therefor (together with documentation reasonably evidencing such
expenses) and an undertaking by or on behalf of the person to repay
such amounts if it shall ultimately be determined that the person
is not entitled to be indemnified under this Article V or the DGCL. 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 Company deems
appropriate. The right to advancement of expenses shall not apply
to any claim for which indemnity is excluded pursuant to these
bylaws.
5.6 Limitation on
Indemnification. Subject to the requirements in
Section 5.3 and
the DGCL, the Company shall not be obligated to indemnify any
person pursuant to this Article V in connection with any
Proceeding (or any part of any Proceeding):
(i)
for which payment
has actually been made to or on behalf of such person under any
statute, insurance policy, indemnity provision, vote or otherwise,
except with respect to any excess beyond the amount
paid;
(ii)
for an accounting or disgorgement of profits pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as
amended, or similar provisions of federal, state or local statutory
law or common law, if such person is held liable therefor
(including pursuant to any settlement arrangements);
(iii)
for any
reimbursement of the Company by such person of any bonus or other
incentive-based or equity-based compensation or of any profits
realized by such person from the sale of securities of the Company,
as required in each case under the Securities Exchange Act of 1934,
as amended (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the
payment to the Company of profits arising from the purchase and
sale by such person of securities in violation of Section 306
of the Sarbanes-Oxley Act), if such person is held liable therefor
(including pursuant to any settlement arrangements);
(iv)
initiated by such
person, including any Proceeding (or any part of any Proceeding)
initiated by such person against the Company or its directors,
officers, employees, agents or other indemnitees, unless
(a) the Board authorized the Proceeding (or the relevant part
of the Proceeding) prior to its initiation, (b) the Company
provides the indemnification, in its sole discretion, pursuant to
the powers vested in the Company under applicable law,
(c) otherwise required to be made under Section 5.7 or
(d) otherwise required by applicable law; or
(v) if prohibited by
applicable law.
5.7 Determination;
Claim. If a claim for indemnification or advancement
of expenses under this Article V is not paid in full
within 90 days after receipt by the Company of the written request
therefor, the claimant shall be entitled to an adjudication by a
court of competent jurisdiction of his or her entitlement to such
indemnification or advancement of expenses. The Company shall
indemnify such person against any and all expenses that are
incurred by such person in connection with any action for
indemnification or advancement of expenses from the Company under
this Article V, to the
extent such person is successful in such action, and to the extent
not prohibited by law. In any such suit, the Company shall, to the
fullest extent not prohibited by law, have the burden of proving
that the claimant is not entitled to the requested indemnification
or advancement of expenses.
5.8 Non-Exclusivity of
Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article V shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
the certificate of incorporation or any statute, bylaw, 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. The Company
is specifically authorized to enter into individual contracts with
any or all of its directors, officers, employees or agents
respecting indemnification and advancement of expenses, to the
fullest extent not prohibited by the DGCL or other applicable
law.
5.9 Insurance. The
Company may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee 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 Company would have the power to
indemnify such person against such liability under the provisions
of the DGCL.
5.10 Survival. The
rights to indemnification and advancement of expenses conferred by
this Article V shall
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.
5.11 Effect of Repeal or
Modification. Any amendment, alteration or repeal of
this Article V shall
not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to such
amendment, alteration or repeal.
5.12 Certain
Definitions. For purposes of this Article V, references to the
“Company” 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, 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 V 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. For purposes of this Article V, 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
Company” shall include any service as a director,
officer, employee or agent of the Company which imposes duties on,
or involves services by, such director, officer, employee 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
Company” as referred to in this Article V.
Article
VI — STOCK
6.1 Stock Certificates; Partly
Paid Shares. The shares of the Company shall be
represented by certificates, provided that the Board 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 Company. Every holder
of stock represented by certificates shall be entitled to have a
certificate signed by, or in the name of the Company by the
Chairperson of the Board or Vice-Chairperson of the Board, or the
President or a Vice-President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
Company 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 has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the Company with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue. The
Company shall not have power to issue a certificate in bearer
form.
The
Company 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 Company 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 Company 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.
6.2 Special
Designation on Certificates. If the Company 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 Company shall issue to
represent such class or series of stock; provided that, except as otherwise
provided in Section 202 of the DGCL, in lieu of the foregoing
requirements there may be set forth on the face or back of the
certificate that the Company shall issue to represent such class or
series of stock, a statement that the Company will furnish without
charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights. Within a reasonable time after the issuance or
transfer of uncertificated stock, the Company shall send to the
registered owner thereof a written notice containing the
information required to be set forth or stated on certificates
pursuant to this Section 6.2 or Sections 156,
202(a) or 218(a) of the DGCL or with respect to this Section 6.2 a statement that the Company will
furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights. Except as otherwise expressly provided
by law, the rights and obligations of the holders of uncertificated
stock and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be
identical.
6.3 Lost
Certificates. Except as provided in this Section 6.3, no
new certificates for shares shall be issued to replace a previously
issued certificate unless the latter is surrendered to the Company
and cancelled at the same time. The Company 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 Company may require the owner of the
lost, stolen or destroyed certificate, or such owner’s legal
representative, to give the Company 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 uncertificated
shares.
6.4 Dividends. The
Board, subject to any restrictions contained in the certificate of
incorporation or applicable law, may declare and pay dividends upon
the shares of the Company’s capital stock. Dividends may be
paid in cash, in property, or in shares of the Company’s
capital stock, subject to the provisions of the certificate of
incorporation.
The
Board may set apart out of any of the funds of the Company
available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve.
6.5 Stock
Transfer Agreements. The Company shall have power to
enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the Company to
restrict the transfer of shares of stock of the Company of any one
or more classes owned by such stockholders in any manner not
prohibited by the DGCL.
6.6 Registered
Stockholders. The Company:
(i) shall be
entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote
as such owner;
(ii) shall
be entitled to hold liable for calls and assessments the person
registered on its books as the owner of shares; and
(iii) shall
not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of another person,
whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Louisiana.
6.7 Transfers.
Transfers of record of shares of stock of the Company shall be made
only upon its books by the holders thereof, in person or by an
attorney duly authorized, and, if such stock is certificated, upon
the surrender of a certificate or certificates for a like number of
shares, properly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer.
Article VII — MANNER OF GIVING NOTICE AND
WAIVER
7.1 Notice of Stockholder
Meetings. Notice of any meeting of stockholders, if
mailed, is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s
address as it appears on the Company’s records. An affidavit
of the Secretary or an Assistant Secretary of the Company or of the
transfer agent or other agent of the Company that the notice has
been given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
7.2 Notice by Electronic
Transmission. Without limiting the manner by which
notice otherwise may be given effectively to stockholders pursuant
to the DGCL, the certificate of incorporation or these bylaws, any
notice to stockholders given by the Company under any provision of
the DGCL, the certificate of incorporation or these bylaws shall be
effective if given by a form of electronic transmission consented
to by the stockholder to whom the notice is given. Any such consent
shall be revocable by the stockholder by written notice to the
Company. Any such consent shall be deemed revoked if:
(i) the Company is
unable to deliver by electronic transmission two consecutive
notices given by the Company in accordance with such consent;
and
(ii) such
inability becomes known to the Secretary or an Assistant Secretary
of the Company or to the transfer agent, or other person
responsible for the giving of notice.
However, the
inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(iii) if
by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice;
(iv) if
by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice;
(v) if by a posting on
an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of
(A) such posting and (B) the giving of such separate
notice; and
(vi) if
by any other form of electronic transmission, when directed to the
stockholder.
An
affidavit of the Secretary or an Assistant Secretary or of the
transfer agent or other agent of the Company that the notice has
been given by a form of electronic transmission shall, in the
absence of fraud, be prima
facie evidence of the facts stated therein.
An
“electronic
transmission” means any form of communication, not
directly involving the physical transmission of paper, that creates
a record that may be retained, retrieved, and reviewed by a
recipient thereof, and that may be directly reproduced in paper
form by such a recipient through an automated process.
Notice
by a form of electronic transmission shall not apply to
Sections 164, 296, 311, 312 or 324 of the DGCL.
7.3 Notice to Stockholders
Sharing an Address. Except as otherwise prohibited
under the DGCL, without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to
stockholders given by the Company under the provisions of the DGCL,
the certificate of incorporation or these bylaws shall be effective
if given by a single written notice to stockholders who share an
address if consented to by the stockholders at that address to whom
such notice is given. Any such consent shall be revocable by the
stockholder by written notice to the Company. Any stockholder who
fails to object in writing to the Company, within 60 days of having
been given written notice by the Company of its intention to send
the single notice, shall be deemed to have consented to receiving
such single written notice.
7.4 Notice
to Person with Whom Communication is Unlawful.
Whenever notice is required to be given, under the DGCL, the
certificate of incorporation or these bylaws, to any person with
whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to
any governmental authority or agency for a license or permit to
give such notice to such person. Any action or meeting which shall
be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as
if such notice had been duly given. In the event that the action
taken by the Company is such as to require the filing of a
certificate under the DGCL, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
7.5 Waiver of
Notice. Whenever notice is required to be given under
any provision of the DGCL, the certificate of incorporation or
these bylaws, a written waiver, signed by the person entitled to
notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time of the event
for which notice is to be given, 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 or any waiver by electronic transmission unless so required
by the certificate of incorporation or these bylaws.
Article
VIII —
EXCLUSIVE FORUM FOR LITIGATION
Unless
the corporation consents in writing to the selection of an
alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the
corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director or officer or other employee of
the corporation to the corporation or the corporation’s
stockholders, (iii) any action asserting a claim against the
corporation or any director or officer or other employee of the
corporation arising pursuant to any provision of the Delaware
General Corporation Law or the Certificate of Incorporation or
these Bylaws (in each case, as they may be amended from time to
time), or (iv) any action asserting a claim against the corporation
or any director or officer or other employee of the corporation
governed by the internal affairs doctrine shall be a state court
located within the State of Delaware (or, if no state court located
within the State of Delaware has jurisdiction, the federal district
court for the District of Delaware).
Article IX — GENERAL MATTERS
9.1 Fiscal Year.
The fiscal year of the Company shall be fixed by resolution of the
Board and may be changed by the Board.
9.2 Seal.
The Company may adopt a corporate seal, which shall be in such form
as may be approved from time to time by the Board. The Company may
use the corporate seal by causing it or a facsimile thereof to be
impressed or affixed or in any other manner
reproduced.
9.3 Annual Report.
The Company shall cause an annual report to be sent to the
stockholders of the Company to the extent required by applicable
law. If and so long as there are fewer than 100 holders of record
of the Company’s shares, the requirement of sending an annual
report to the stockholders of the Company is expressly waived (to
the extent permitted under applicable law).
9.4 Construction;
Definitions. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in
the DGCL 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.
Article X — AMENDMENTS
These
bylaws may be adopted, amended or repealed by the stockholders
entitled to vote. However, the Company may, in its certificate of
incorporation, confer the power to adopt, amend or repeal bylaws
upon the directors. The fact that such power has been so conferred
upon the directors shall not divest the stockholders of the power,
nor limit their power to adopt, amend or repeal
bylaws.
A bylaw
amendment adopted by stockholders which specifies the votes that
shall be necessary for the election of directors shall not be
further amended or repealed by the Board.