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8-K - PURESPECTRUM, INC. | v164759_8k.htm |
EX-3.1 - PURESPECTRUM, INC. | v164759_ex3-1.htm |
EX-99.1 - PURESPECTRUM, INC. | v164759_ex99-1.htm |
EXHIBIT
3.2
AMENDED
AND RESTATED BYLAWS
OF
INTERNATIONAL
MEDICAL STAFFING, INC.
(a
Delaware Corporation)
ARTICLE I
OFFICES
Section 1.1 Registered Office.
The registered office of International Medical Staffing, Inc. (the “Corporation”) shall
be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 1.2 Other Offices. The
Corporation may also have offices at such other places both within and
without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS
OF STOCKHOLDERS
Section 2.1 Meetings of
Stockholders. All meetings of stockholders shall be held at any place
within or outside the State of Delaware designated by the Board of Directors. In
the absence of any such designation, stockholders’ meetings shall be held at the
principal executive office of the Corporation.
Section 2.2 Annual Stockholders’
Meeting. The annual meeting of stockholders shall be held each year on a
date and a time designated by the Board of Directors. At each annual meeting
directors shall be elected and any other proper business may be
transacted.
Section 2.3 Special Meeting of
Stockholders. Special meetings of the stockholders of the Corporation
may be called by (i) the Chairman, or (ii) the President, or
(iii) the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors, or (iv) stockholders who own more
than 30% of the outstanding shares of common stock of the
Corporation. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice to
stockholders.
Section 2.4 Quorum. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum, and the votes present
may continue to transact business until adjournment. If, however, such
quorum shall not be present or represented at any meeting of the stockholders, a
majority of the voting stock represented in person or by proxy may adjourn
the meeting, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote
thereat.
Section 2.5 Vote Required for
Stockholder Action. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the Delaware
General Corporation Law (the “DGCL”), or the
Certificate of Incorporation, or these Bylaws, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 2.6 Proxies. At each
meeting of the stockholders, each stockholder having the right to vote
may vote in person or may authorize another person or persons to act
for him by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three (3) years prior to said
meeting, unless said instrument provides for a longer period. All proxies must
be filed with the Secretary of the Corporation at the beginning of each meeting
in order to be counted in any vote at the meeting. Unless provided otherwise in
the Certificate of Incorporation or the Certificate of Designations for any
class or series of preferred stock of the Corporation, each
stockholder shall have one vote for each share of stock having voting power,
registered in his name on the books of the Corporation on the record date set by
the Board of Directors as provided in Section 2.8
hereof. If the Certificate of Incorporation or such Certificate of Designations
provides for more or less than one vote for any share on any matter, every
reference in these Bylaws to a majority or other proportion of stock shall refer
to such majority or other proportion of the votes of such stock.
Section 2.7 Notice of Meetings.
Whenever stockholders are required or permitted to take any action at a meeting,
a written notice of any such meeting shall be given which notice shall state 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. The written notice of any
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten (10) nor more than sixty (60) days before the date of the
meeting. If mailed, notice 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.
Section 2.8 Fixing Date for
Determination of Stockholders of Record. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
shall not be more than sixty (60) nor less than ten (10) days before the
date of any meeting of stockholders, nor more than sixty (60) days prior to any
other action requiring a record date, including, but not limited to, the
determination of stockholders entitled to receive payment of any dividend. If no
record date is fixed by the Board of Directors, then the record date shall be as
provided by applicable law. 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.
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Section 2.9 List of Stockholders
Entitled to Vote. The Secretary shall prepare, at least ten
(10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder; provided, however, that the Corporation 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
(10) days prior to the meeting: (a) 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 (b) during
ordinary business hours, at the principal place of business of the Corporation.
In the event that the Corporation determines to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure
that such information is available only to stockholders of the Corporation. 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.
The stock ledger shall be the only evidence as to who are the stockholders
entitled by this Section 2.9 to
examine the list required by this Section 2.9 or
to vote in person or by proxy at any meeting of stockholders.
Section 2.10 Nomination of
Directors.
(a) Except
for any directors elected in accordance with Section 3.4
hereof by the Board of Directors to fill a vacancy or newly created
directorships, only persons who are nominated in accordance with the procedures
in this Section 2.10
shall be eligible for election as directors. Nomination for election to the
Board of Directors of the Corporation at a meeting of stockholders may be
made (i) by or at the direction of the Board of Directors; or (ii) by
any stockholder of the Corporation who (x) complies with the notice procedures
set forth in Section 2.10(b) and
(y) is a stockholder of record on the date of the giving of such notice and on
the record date for the determination of stockholders entitled to vote at such
meeting.
(b) To
be timely, a stockholder’s notice must be received in writing by the
Corporation’s Secretary at the principal executive offices of the Corporation as
follows: (i) in the case of an election of directors at an annual meeting
of stockholders, not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the first anniversary of the preceding year’s annual
meeting; provided, however, that in the event that the date of the annual
meeting in any year is changed by more than thirty (30) days from the first
anniversary of the preceding year’s annual meeting, a stockholder’s notice must
be so received not earlier than the one hundred twentieth (120th) day prior to
such annual meeting and not later than the close of business on the later of
(A) the ninetieth (90th) day prior to such annual meeting and (B) the
tenth (10th) day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was
made, whichever first occurs; or (ii) in the case of an election of
directors at a special meeting of stockholders, not earlier than the one hundred
twentieth (120th) day prior to such special meeting and not later than the close
of business on the later of (x) the ninetieth (90th) day prior to such special
meeting and (y) the tenth (10th) day following the day on which notice of the
date of such special meeting was mailed or public disclosure of the date of such
special meeting was made, whichever first occurs.
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Such
stockholder’s notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as to
the stockholder giving the notice (A) the name and address, as they appear
on the Corporation’s books, of such stockholder and (B) the class and
number of shares of the Corporation which are beneficially owned by such
stockholder and also which are owned of record by such stockholder; and
(iii) as to the beneficial owner, if any, on whose behalf the nomination is
made, (A) the name and address of such person and (B) the
class and number of shares of the Corporation which are beneficially owned
by such person. At the request of the Board of Directors, any person nominated
by the Board of Directors for election as a director shall furnish to the
Secretary of the Corporation that information required to be set forth in a
stockholder’s notice of nomination which pertains to the nominee.
(c) The
chairman of any meeting shall, if the facts warrant, determine that a nomination
was not made in accordance with the provisions of this Section 2.10
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination is made solicited (or is part of a group which solicited) or
did not so solicit, as the case may be, proxies in support of such
stockholder’s nominee in compliance with the representations with respect
thereto required by this Section 2.10).
(d) Except
as otherwise required by law, nothing in this Section 2.10
shall obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
Corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
(e) Notwithstanding
the foregoing provisions of this Section 2.10, if
the stockholder (or a qualified representative of the stockholder) does not
appear at the annual or special meeting of stockholders of the Corporation to
present a nomination, such nomination shall be disregarded, notwithstanding that
proxies in respect of such vote may have been received by the
Corporation.
(f) For
purposes of this Section 2.10,
“public disclosure” shall include disclosure in a press release reported by the
Dow Jones New 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 Section 13, 14 or 15(d) of the Exchange
Act.
Section 2.11 Notice of Business at Annual
Meetings.
(a) At
any annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors; (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors; or (iii) properly brought before the
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, (i) if such business relates to the nomination of
a person for election as a director of the Corporation, the procedures in Section 2.10
must be complied with; and (ii) if such business relates to any other
matter, the stockholder must (x) have given timely notice thereof in writing to
the Secretary in accordance with the procedures set forth in Section 2.11(b) and
(y) be a stockholder of record on the date of the giving of such notice and on
the record date for the determination of stockholders entitled to vote at such
annual meeting.
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(b) To
be timely, a stockholder’s notice must be received in writing by the Secretary
at the principal executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) days prior to the first anniversary
of the preceding year’s annual meeting; provided, however, that in the event
that the date of the annual meeting in any year is changed by more than thirty
(30) days from the first anniversary of the preceding year’s annual meeting, a
stockholder’s notice must be so received not earlier than the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close
of business on the later of (A) the ninetieth (90th) day prior to such
annual meeting and (B) the tenth (10th) day following the day on which
notice of the date of such annual meeting was mailed or public disclosure of the
date of such annual meeting was made, whichever first occurs.
The
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting; (ii) the
name and address, as they appear on the Corporation’ s books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made; (iii) the class and number
of shares of stock of the Corporation which are owned, of record and
beneficially, by the stockholder and beneficial owner, if any; (iv) a
description of all arrangements or understandings between such stockholder or
such beneficial owner, if any, and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder and
any material interest of the stockholder or such beneficial owner, if any, in
such business; (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting; and (vi) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends
(a) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital stock required to
approve or adopt the proposal and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at any annual meeting of
stockholders except in accordance with the procedures set forth in this Section 2.11;
provided that any stockholder proposal which complies with Rule 14a-8 of
the proxy rules (or any successor provision) promulgated under the
Securities Exchange Act of 1934, as amended, and is to be included in the
Corporation’s proxy statement for an annual meeting of stockholders shall be
deemed to comply with the requirements of this Section 2.11.
(c) The
chairman of any meeting shall, if the facts warrant, determine that business was
not properly brought before the meeting in accordance with the provisions of
this Section 2.11
(including whether the stockholder or beneficial owner, if any, on whose behalf
the proposal is made solicited (or is part of a group which solicited) or
did not so solicit, as the case may be, proxies in support of such
stockholder’s proposal in compliance with the representation with respect
thereto required by this Section 2.11),
and if the chairman should so determine, the chairman shall so declare to the
meeting and such business shall not be brought before the
meeting.
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(d) Notwithstanding
the foregoing provisions of this Section 2.11, if
the stockholder (or a qualified representative of the stockholder) does not
appear at the annual meeting of stockholders of the Corporation to present
business, such business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the
Corporation.
(e) For
purposes of this Section 2.11,
“public disclosure” shall include disclosure in a press release reported by the
Dow Jones New 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 Section 13, 14 or 15(d) of the Exchange
Act.
Section 2.12 Conduct of
Meetings.
(a) Meetings
of stockholders shall be presided over by the Chairman, if any, or in the
Chairman’s absence by the Chief Executive Officer, or in the Chief Executive
Officer’s absence by the President (if the President shall be a different
individual than the Chief Executive Officer), or in the President’s absence by a
Vice President, or in the absence of all of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen by vote of the stockholders at the meeting. The Secretary shall
act as secretary of the meeting, but in the Secretary’s absence the chairman of
the meeting may appoint any person to act as secretary of the
meeting.
(b) The
Board of Directors of the Corporation may adopt by resolution such rules,
regulations and procedures for the conduct of any meeting of stockholders of the
Corporation as it shall deem appropriate including, without limitation, such
guidelines and procedures as it may deem appropriate regarding the
participation by means of remote communication of stockholders and proxyholders
not physically present at a meeting. Except to the extent inconsistent with such
rules, regulations and procedures as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as shall be determined; (iv) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary
procedure.
(c) The
chairman of the meeting shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be opened and closed. If no
announcement is made, the polls shall be deemed to have opened when the meeting
is convened and closed upon the final adjournment of the meeting. After the
polls close, no ballots, proxies or votes or any revocations or changes thereto
may be accepted.
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(d) In
advance of any meeting of stockholders, the Board of Directors, the Chairman or
the Chief Executive Officer shall appoint one or more inspectors of election to
act at the meeting and make a written report thereof. One or more other persons
may be designated as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is present, ready and willing to act
at a meeting of stockholders, the chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by law,
inspectors may be officers, employees or agents of the Corporation. Each
inspector, before entering upon the discharge of such inspector’s duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such inspector’s ability. The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote is completed, shall make a certificate of the result of
the vote taken and of such other facts as may be required by
law.
Section
2.13 Stockholder Action Without
Meeting. Any action required by the DGCL to be taken at any
annual or special meeting of stockholders, or any action which may be taken at
any annual special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Action taken
pursuant to this paragraph shall be subject to the provisions of Section 228 of
the General Corporation Law.
ARTICLE III
DIRECTORS
Section 3.1 Number;
Qualification. The Board of Directors shall consist of no less
than three (3) and no more than fifteen (15) members. The total number of
authorized directors shall be fixed from time to time within such range by a
duly adopted resolution of the Board of Directors (subject to change by the
stockholders in accordance with Article VII of the Certificate of
Incorporation). Directors need not be stockholders of the
Corporation.
Section 3.2 Terms. The
term of office of each director shall expire at the next succeeding annual
meeting of stockholders after the election of such director. Subject
to the provisions of the Certificate of Incorporation, each director shall serve
until his or her successor is elected and qualified or until his or her earlier
resignation or removal. No decrease in the total number of authorized
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 3.3 Chairman. The Board
shall elect from its members a Chairman, which Chairman shall preside at all
meetings of the stockholders and the directors. The Chairman shall serve in such
capacity until his or her successor is elected by the Board or until his or her
earlier resignation or removal from the Board. He or she shall also
perform such other duties the Board may assign to him or her from time
to time.
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Section 3.4 Resignation; Removal;
Vacancies. Any director may resign at any time upon written notice
to the Corporation. Unless otherwise specified in such written notice, a
resignation shall take effect upon delivery of such written notice to the
Corporation. It shall not be necessary for a resignation to be accepted before
it becomes effective. Subject to the rights of any holders of any preferred
stock of the Corporation then outstanding and the Certificate of
Incorporation:
(a) Any
director may be removed from office at any time, with cause, but only by
the affirmative vote of the holders of at least two-thirds (2/3) of all of the
outstanding shares of capital stock of the Corporation entitled to vote for that
purpose, except that if the Board of Directors recommends removal of a director
to the stockholders, such removal may be effected by a majority of the
outstanding shares of capital stock of the Corporation entitled to vote on the
election of directors at a meeting of stockholders called for that
purpose;
(b) except
as otherwise required by law, vacancies and newly created directorships
resulting from any increase in the total number of authorized directors
may be filled by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director; and
(c) any
director elected to fill a vacancy not resulting from an increase in the total
number of authorized directors shall have the same remaining term as that of his
or her predecessor. Any director elected to fill a vacancy resulting from an
increase in the total number of authorized directors shall hold office for a
term expiring at the next annual meeting of stockholders and until such
director’s respective successor is elected, except in the case of the death,
resignation, or removal of such director.
Section 3.5 Management of
Corporation. The property and business of the Corporation shall be
managed by or under the direction of its Board of Directors. In addition to the
powers and authorities expressly conferred upon them by these Bylaws, the Board
of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by the DGCL, the Certificate of
Incorporation, or by these Bylaws directed or required to be exercised or done
by the stockholders.
Section 3.6 Location of Meetings; Books
and Records. The directors may hold their meetings and have one or
more offices, and keep the books and records of the Corporation outside of the
State of Delaware.
Section 3.7 Regular Meetings.
Regular meetings of the Board of Directors may be held without notice at
such time and place as shall from time to time be determined by the
Board.
Section 3.8 Special Meetings.
Special meetings of the Board of Directors may be called by the Chairman,
or the President or the Secretary on written request of two directors on
forty-eight (48) hours’ notice to each director, either personally or by mail or
by electronic transmission;
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Section 3.9 Quorum. At all
meetings of the Board of Directors a majority of the authorized number of
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the vote 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, by
the Certificate of Incorporation or by these Bylaws. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting, without notice other than announcement at the
meeting, until a quorum shall be present. If only one director is authorized,
such sole director shall constitute a quorum.
Section 3.10 Action Without
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 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.
Section 3.11 Telephonic Meetings
Permitted. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar 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 such meeting.
Section 3.12 Compensation. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, the
Board of Directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
ARTICLE IV
COMMITTEES
Section 4.1 Creation. The Board
of Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each such 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.
Section 4.2 Powers. Any such
committee, to the extent provided by the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, 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 or the Certificate of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
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Section 4.3 Committee Rules. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required. Each committee of the Board of Directors shall
effect its own organization by the appointment of a Secretary and such other
officers, as it may deem necessary. The Secretary of any committee need not
be the Secretary of the Corporation.
Section 4.4 Standing Committees.
The following committees of the Board of Directors shall be established by the
Board of Directors in addition to any other committee the Board of Directors
may in its discretion establish: (a) Executive Committee;
(b) Audit Committee; (c) Compensation Committee; (d) Nominating
and Corporate Governance Committee; and (e) Compliance, Sustainability and
Public Policy Committee.
Section 4.5 Executive Committee.
The Executive Committee shall consist of at least three (3) directors.
Meetings of the Executive Committee may be called at any time by the
Chairman or Secretary of the Committee, and shall be called whenever two or more
members of the Committee so request in writing. The Executive Committee shall
have the authority, powers and responsibilities as set forth in the Charter of
the Executive Committee.
Section 4.6 Audit Committee. The
Audit Committee shall consist of at least three (3) directors. The members
shall be independent to the extent required by applicable law or the standards
of any exchange on which the Corporation’s common stock is listed. Meetings of
the Audit Committee may be called at any time by the Chairman or Secretary
of the Audit Committee, and shall be called whenever two or more members of the
Audit Committee so request in writing. The Audit Committee shall have the
authority, powers and responsibilities as set forth in the Charter of the Audit
Committee.
Section 4.7 Compensation
Committee. The Compensation Committee shall consist of at least three
(3) directors. The members shall be independent to the extent required by
applicable law or the standards of any exchange on which the Corporation’s
common stock is listed. Meetings of the Compensation Committee may be
called at any time by the Chairman or Secretary of the Committee, and shall be
called whenever two or more members of the Committee so request in writing. The
Compensation Committee shall have the authority, powers and responsibilities as
set forth in the Charter of the Compensation Committee.
Section 4.8 Nominating and Corporate
Governance Committee. The Nominating and Corporate Governance Committee
shall consist of at least three (3) directors. The members shall be
independent to the extent required by applicable law or the standards of any
exchange on which the Corporation’s common stock is listed. Meetings of the
Nominating and Corporate Governance Committee may be called at any time by
the Chairman or Secretary of the Committee, and shall be called whenever two or
more members of the Committee so request in writing. The Nominating and
Corporate Governance Committee shall have the authority, powers and
responsibilities as set forth in the Charter of the Nominating and Corporate
Governance Committee.
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Section 4.9 Compliance, Sustainability
and Public Policy Committee. The Compliance Committee shall consist of at
least three (3) directors. Meetings of the Compliance Committee may be
called at any time by the Chairman or Secretary of the Committee, and shall be
called whenever two or more members of the Committee so request in writing. The
Compliance Committee shall have the authority, powers and responsibilities as
set forth in the Charter of the Compliance Committee.
Section 4.10 Appointment of Committee
Members. The Board of Directors shall appoint or shall establish a method
of appointing the members of committees established by the Board of Directors,
and the Chairman of each such committee, to serve until the next annual meeting
of stockholders.
Section 4.11 Appointment of Absentee
Committee Members. In the absence or disqualification of any member of
any committee established by the Board of Directors, the members thereof who are
present at any meeting of such committee and are not disqualified from voting,
provided they constitute a quorum, may unanimously appoint another director
to act at such meeting in the place of such absent or disqualified member
provided that such director meets applicable legal standards. In the event that
the absence or disqualification of any member of any committee established by
the Board of Directors results in any committee having less than a quorum, the
Board of Directors may designate another director to replace any absent or
disqualified member at any meeting of the committee.
ARTICLE V
OFFICERS
Section 5.1 Designations. The
officers of this Corporation shall be chosen by the Board of Directors and shall
include a Chief Executive Officer, President, Chief Financial Officer and
Secretary. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Treasurer,
Controller, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Article 5 hereof. In the event there are
two or more Vice Presidents, then one or more may be designated as
Executive Vice President, Senior Vice President, or other similar or dissimilar
title. At the time of the election of officers, the directors may by
resolution determine the order of their rank. Any number of offices may be
held by the same person unless the Certificate of Incorporation or these Bylaws
otherwise provide.
Section 5.2 Election and Term of
Office. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall choose the officers of the Corporation. The
officers of the Corporation shall hold office until their successors are chosen
and qualify in their stead. Any officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority
of the Board of Directors. If the office of any officer or officers becomes
vacant for any reason, the vacancy shall be filled by the Board of
Directors.
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Section 5.3 Compensation. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section 5.4 Chief Executive
Officer. The Chief Executive Officer shall, in the absence of the
Chairman, preside at all meetings of the stockholders. Subject to such
supervisory powers, if any, as may be given by the Board to the Chairman,
the Chief Executive Officer shall, subject to the control of the Board, have
general supervision, direction, and control of the business and the officers of
the corporation. He or she shall keep the Board appropriately informed of the
business and affairs of the Corporation. The Chief Executive Officer shall have
the general powers and duties of management usually vested in the Chief
Executive Officer of a corporation and shall have such other powers and duties
as may be prescribed by the Board or these Bylaws.
Section 5.5 President. Subject to
such supervisory powers, if any, as may be given by the Board to the Chief
Executive Officer, the President shall have general supervision, direction, and
control of the business and other officers of the corporation. The President
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 or these Bylaws. If, for any reason, the
Corporation does not have a Chairman or Chief Executive Officer, or such
officers are unable to act, the President shall assume the duties of those
officers.
Section 5.6 Chief Financial
Officer. The Chief Financial Officer shall have general supervision,
direction and control of the financial affairs of the Corporation. He or she
shall provide for the establishment of internal controls and see that adequate
audits are currently and regularly made. He or she shall submit to the Chief
Executive Officer, the President, the Chief Operating Officer, the Chairman and
the Board timely statements of the accounts of the corporation and the financial
results of the operations thereof. The Chief Financial Officer shall
perform such other duties and have such other powers as may be
prescribed by the Board or these Bylaws, all in accordance with basic policies
as established by and subject to the oversight of the Board and the Chief
Executive Officer. In the absence of a named Treasurer, the Chief Financial
Officer shall also have the powers and duties of the Treasurer as hereinafter
set forth and shall be authorized and empowered to sign as Treasurer in any case
where such officer’s signature is required.
Section 5.7 Vice Presidents. In
the absence or disability of the President, the Vice Presidents in order of
their rank as fixed by the Board of Directors, or if not ranked, the 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 duties as from time to time may be prescribed for them,
respectively, by the Board of Directors.
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Section 5.8 Secretary. The
Secretary shall attend all sessions of the Board of Directors and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose; and shall perform like duties for the
standing committees when required by the Board of Directors. He or she shall
give, or cause to be given, notice of all meetings of the stockholders and of
the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or these Bylaws. He or she shall keep in
safe custody the seal of the Corporation, and when authorized by the Board of
Directors, affix the same to any instrument requiring it, and when so affixed it
shall be attested by his signature or by the signature of an Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
Section 5.9 Treasurer. The
Treasurer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys, and other valuable effects in
the name and to the credit of the Corporation, in such depositories as
may be designated by the Board of Directors. He or she shall disburse the
funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the Board of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition
of the Corporation.
Section 5.10 Assistant Secretary.
The Assistant Secretary, or if there be more than one, the Assistant Secretaries
in the order determined by the Board of Directors, or if there be no such
determination, the Assistant Secretary designated by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the duties
and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
Section 5.11 Assistant Treasurer.
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors, or if there be no
such determination, the Assistant Treasurer designated by the Board of
Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES
OF STOCK
Section 6.1 Certificates; Direct
Registration System. Shares of the Corporation’s stock may be
evidenced by certificates for shares of stock or may be issued in
uncertificated form in accordance with the DGCL. The Board of Directors
may resolve to adopt a system of issuance, recordation and transfer of its
shares by electronic or other means not involving any issuance of certificates
(a “Direct
Registration System”), including provisions for notice to purchasers in
substitution for any required statements on certificates, and as may be
required by applicable corporate securities laws or stock exchange listing
rules. Any Direct Registration System so adopted shall not become effective as
to issued and outstanding certificated securities until the certificates
therefor have been surrendered to the Corporation.
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Section 6.2 Transfers of Stock; Lost,
Stolen or Destroyed Certificates. Transfers of shares of stock of the
Corporation shall be made on the books of the Corporation after receipt of a
request with proper evidence of succession, assignment, or authority to transfer
by the record holder of such stock, or by an attorney lawfully constituted in
writing, and in the case of stock represented by a certificate, upon surrender
of the certificate. The Board of Directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to indemnify the Corporation in such
manner as it shall require and/or to give the Corporation a surety bond in such
form and amount as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed. Subject to the foregoing, the Board of
Directors shall have power and authority to make such rules and regulations
as it shall deem necessary or appropriate concerning the issue, transfer, and
registration of shares of stock of the Corporation, and to appoint and remove
transfer agents and registrars of transfers.
Section 6.3 Registered
Stockholders. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix
a record date which shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty days prior
to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
The
Corporation shall be entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and accordingly shall not be bound
to recognize any equitable or other claim or interest in such share on the
part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnitees. The
Corporation shall indemnify each person described below (each an “Indemnitee”)
to the fullest extent permitted under the Act, as it exists on the date hereof
or as it may hereafter be amended. Specifically:
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(a) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that the
person is or was a director or officer, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of 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 the person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful; and
(b) The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery 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.
Section 7.2 Successful
Defense. To the extent that an Indenmitee has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 7.1, 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.
Section
7.3 Determination That
Indemnification Is Proper Any indemnification under
subsections (a) and (b) of Section 7.1 (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the Indemnitee is proper in the circumstances because
the person has met the applicable standard of conduct set forth in subsections
(a) and (b) of this Section 7.1. Such determination shall be made, with respect
to a person who is a director or officer at the time of such determination, (1)
by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
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Section
7.4 Advance Payment of
Expenses Expenses (including attorneys' fees) incurred by an
Indemnitee in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Indemnitee to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in Section 7.1. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.
Section
7.5 Preservation of Other
Rights The indemnification and advancement of expenses
provided by or granted pursuant to this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any 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.
Section
7.6 Insurance The
Corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under Section 7.1.
Section
7.7 Survival The
indemnification and advancement of expenses provided by or granted pursuant to
this Article VII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7.8 Severability. If this
Article VII or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each Indemnitee as to costs, charges and expenses (including
attorneys’ fees), judgment, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article VII that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
Section 7.9 Subrogation. In the
event of payment of indemnification to an Indemnitee, the Corporation shall be
subrogated to the extent of such payment to any right of recovery such person
may have and such person, as a condition of receiving indemnification from
the Corporation, shall execute all documents and do all things that the
Corporation may deem necessary or desirable to perfect such right of
recovery, including the execution of such documents necessary to enable the
Corporation to effectively enforce any such recovery.
Section 7.10 No Duplication of
Payments. The Corporation shall not be liable under this Article VII
to make any payment in connection with any claim made against an Indemnitee to
the extent such person has otherwise received payment (under any insurance
policy, bylaw, or otherwise) of the amounts otherwise indemnifiable
hereunder.
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Section 7.11 Effect of Amendment.
Any amendment, repeal, or modification of any provision of this Article VII
shall be prospective only, and shall not adversely affect any right or
protection conferred on any person pursuant to this Article VII existing at
the time that the events giving rise to the protections conferred pursuant to
this Article VII have occurred, regardless of whether the events giving
rise to such protections are the subject of any proceeding described in Section 7.1 or
whether any person has sought the protections of this Article VII, prior to
any such amendment repeal or modification of this Article VII.
ARTICLE VIII
GENERAL
PROVISIONS
Section 8.1 Dividends. Dividends
upon the capital stock of the Corporation, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to applicable law.
Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Certificate of
Incorporation.
Section 8.2 Reserve for
Dividends. Before payment of any dividend there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interests of the
Corporation, and the directors may abolish any such reserve.
Section 8.3 Checks. All checks or
demands for money and notes of the Corporation shall be signed by such officer
or officers as the Board of Directors may from time to time
designate.
Section 8.4 Fiscal Year. The
fiscal year of the Corporation shall be the calendar year.
Section 8.5 Corporate Seal. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal, Delaware”. Said seal
may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 8.6 Notice. Whenever,
under the provisions of the DGCL, the Certificate of Incorporation or of these
Bylaws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given
by electronic transmission.
Section 8.7 Waiver of Notice.
Whenever any notice is required to be given under the provisions of the DGCL,
the Certificate of Incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto. 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.
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Section 8.8 Annual Report. The
Board of Directors shall present at each annual meeting, and at any special
meeting of the stockholders when called for by vote of the stockholders, a full
and clear statement of the business and condition of the
Corporation.
Section 8.9 Interested Director or
Officer Transactions. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or her or their votes are counted for such
purpose, if: (a) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (b) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board, a committee thereof or the
stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendment or Repeal by Board
of Directors. Except as provided by applicable law, these Bylaws
may be amended or repealed, in whole or in part, by a majority vote of the
members of the Board of Directors present and voting at any duly convened
regular or special meeting of the Board of Directors.
Section 9.2 Amendment or Repeal by
Stockholders. These Bylaws may be amended or repealed, in whole or
in part, by the stockholders of the Corporation by a vote of the majority of the
outstanding shares of capital stock of the Corporation entitled to cast a vote
thereon at any duly convened annual or special meeting of the stockholders,
except for any amendment or repeal, in whole or in part, of
Section 3.4(a) of these Bylaws, which
Section 3.4(a) may only be amended or repealed, directly or
indirectly, in whole or in part, by a vote of the stockholders entitled to cast
at least two-thirds (2/3) of the votes which all stockholders are entitled to
cast thereon at any annual or special meeting of the stockholders.
Effective
as of October 29, 2009
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