Attached files
file | filename |
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10-Q - FORM 10-Q - TreeHouse Foods, Inc. | q32009_form10q.htm |
EX-31.2 - 302 CFO CERTIFICATION - TreeHouse Foods, Inc. | q32009_31-2.htm |
EX-32.1 - 906 CEO CERTIFICATION - TreeHouse Foods, Inc. | q32009_32-1.htm |
EX-31.1 - 302 CEO CERTIFICATION - TreeHouse Foods, Inc. | q32009_31-1.htm |
EX-32.2 - 906 CFO CERTIFICATION - TreeHouse Foods, Inc. | q32009_32-2.htm |
EX-15.1 - AWARENESS LETTER - TreeHouse Foods, Inc. | q32009_exhibit15-1.htm |
Exhibit
3.2
AMENDED
AND RESTATED BY-LAWS
OF
TREEHOUSE
FOODS, INC.
TABLE
OF CONTENTS
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Page
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ARTICLE
1
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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
|
1
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1.3
|
Special
Meetings
|
1
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1.4
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Notice
of Meetings
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1
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1.5
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Voting
List
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2
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1.6
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Quorum
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2
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1.7
|
Adjournments
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2
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1.8
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Voting
and Proxies
|
2
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1.9
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Action
at Meeting
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2
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1.10
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Nomination
of Directors
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3
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1.11
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Notice
of Business at Annual Meetings
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5
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1.12
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Conduct
of Meetings
|
7
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1.13
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No
Action by Consent in Lieu of a Meeting
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8
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ATRICLE
II
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DIRECTORS
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8
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2.1
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General
Powers
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8
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2.2
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Number,
Election and Qualification
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8
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2.3
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Classes
of Directors
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8
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2.4
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Terms
of Office
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8
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2.5
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Quorum
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8
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2.6
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Action
at Meeting
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8
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2.7
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Removal
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8
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2.8
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Vacancies
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9
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2.9
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Resignation
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9
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2.10
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Regular
Meetings
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9
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2.11
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Special
Meetings
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9
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2.12
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Notice
of Special Meetings
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9
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2.13
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Meetings
by Conference Communications Equipment
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9
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2.14
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Action
by Consent
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9
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2.15
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Committees
|
10
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2.16
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Compensation
of Directors
|
10
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ARTICLE
III
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OFFICERS
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10
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3.1
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Titles
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10
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3.2
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Election
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10
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3.3
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Qualification
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11
|
i
3.4
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Tenure
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11
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3.5
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Resignation
and Removal
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11
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3.6
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Vacancies
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11
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3.7
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Chairman
of the Board
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11
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3.8
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President;
Chief Executive Officer
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11
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3.9
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Vice
Presidents
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12
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3.10
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Secretary
and Assistant Secretaries
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12
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3.11
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Treasurer
and Assistant Treasurers
|
12
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3.12
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Salaries
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12
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ARTICLE
IV
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CAPITAL
STOCK
|
13
|
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4.1
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Issuance
of Stock
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13
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4.2
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Certificates
of Stock
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13
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4.3
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Transfers
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13
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4.4
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Lost,
Stolen or Destroyed Certificates
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13
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4.5
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Record
Date
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14
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ARTICLE
V
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GENERAL
PROVISIONS
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14
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5.1
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Fiscal
Year
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14
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5.2
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Corporate
Seal
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14
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5.3
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Waiver
of Notice
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14
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5.4
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Voting
of Securities
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14
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5.5
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Evidence
of Authority
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15
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5.6
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Restated
Certificate of Incorporation
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15
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5.7
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Severability
|
15
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5.8
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Pronouns
|
15
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ARTICLE
VI
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AMENDMENTS
|
15
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ii
ARTICLE
I
STOCKHOLDERS
1.1 Place of
Meetings. All meetings of stockholders shall be held at such
place as may be designated from time to time by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President or, if not
so designated, at the principal office of the corporation.
1.2 Annual
Meeting. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated by
the Board of Directors, the Chairman of the Board, the Chief Executive Officer
or the President (which date shall not be a legal holiday in the place where the
meeting is to be held). If no annual meeting is held in accordance
with the foregoing provisions, a special meeting may be held in lieu of the
annual meeting, and any action taken at that special meeting shall have the same
effect as if it had been taken at the annual meeting, and in such case all
references in these By-laws to the annual meeting of the stockholders shall be
deemed to refer to such special meeting.
1.3 Special
Meetings. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President, but such special
meetings may not be called by any other person or persons. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of
meeting.
1.4 Notice of
Meetings. Except as otherwise provided by law, notice of each
meeting of stockholders, whether annual or special, 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. Without limiting the manner by
which notice otherwise may be given to stockholders, any notice shall be
effective if given by a form of electronic transmission consented to (in a
manner consistent with the General Corporation Law of the State of Delaware) by
the stockholder to whom the notice is given. Any such consent shall
be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (1) the
corporation is unable to deliver by electric transmission two consecutive
notices given by the corporation in accordance with such consent and (2) such
inability becomes known to the Secretary or an Assistant Secretary of the
corporation or to the transfer agent, or other person responsible for the giving
of notice; provided, however, the
inadvertent failure to treat such inability as a revocation shall not invalidate
any meeting or other action. The notices of all meetings shall state
the place, date and time of the meeting and the means of remote communications,
if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting. The notice of a special meeting
shall state, in addition, the purpose or purposes for which the meeting is
called. If notice is given by mail, such notice shall be deemed given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the
corporation. If notice is given by electronic transmission, such
notice shall be deemed given at the time specified in Section 232 of the General
Corporation Law of the State of Delaware.
1
1.5 Voting
List. The Secretary shall prepare, at least 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. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period of at least 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 notice of the meeting, or (b) during ordinary business hours, at the
principal place of business of the corporation. The list shall also
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.
1.6 Quorum. Except
as otherwise provided by law, the Restated Certificate of Incorporation or these
By-laws, the holders of a majority in voting power of the shares of the capital
stock of the corporation issued and outstanding and entitled to vote at the
meeting, present in person, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of
business. A quorum, once established at a meeting, shall not be
broken by the withdrawal of enough votes to leave less than a
quorum.
1.7 Adjournments. Any
meeting of stockholders may be adjourned from time to time to any other time and
to any other place at which a meeting of stockholders may be held under these
By-laws by the stockholders present or represented at the meeting and entitled
to vote, although less than a quorum, or, if no stockholder is present, by any
officer entitled to preside at or to act as secretary of such
meeting. It shall not be necessary to notify any stockholder of any
adjournment of less than 30 days if the time and place of the adjourned
meeting, and the means of remote communication, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, are announced at the meeting at which adjournment is taken,
unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
1.8 Voting and
Proxies. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided by applicable
law or the Restated Certificate of Incorporation. Each stockholder of
record entitled to vote at a meeting of stockholders may vote in person
(including by means of remote communications, if any, by which stockholders may
be deemed to be present in person and vote at such meeting) or may authorize
another person or persons to vote for such stockholder by a proxy executed or
transmitted in a manner permitted by the General Corporation Law of the State of
Delaware by the stockholder or such stockholder's authorized agent and delivered
(including by electronic transmission) to the Secretary of the corporation
before or at the time of the meeting. No such proxy shall be voted
upon after three years from the date of its execution, unless the proxy
expressly provides for a longer period.
1.9 Action at
Meeting. When a quorum is present at any meeting, any matter
other than the election of directors to be voted upon by the stockholders at
such meeting shall be decided by the affirmative vote of the holders of a
majority in voting power of the shares of stock present or represented and
voting on such matter (or if there are two or more classes of stock
2
entitled
to vote as separate classes, then in the case of each such class, the holders of
a majority in voting power of the shares of stock of that class present or
represented and voting on such matter), except when a different vote is required
by applicable law, the Restated Certificate of Incorporation or these
By-laws. When a quorum is present at any meeting, any election by
stockholders of directors shall be determined by a plurality of the votes cast
by the stockholders entitled to vote on the election.
1.10 Nomination of
Directors.
(a) Except
for (1) any directors entitled to be elected by the holders of preferred stock,
(2) any directors elected in accordance with Section 2.9 hereof by the Board of
Directors to fill a vacancy or newly-created directorships or (3) as otherwise
required by applicable law or stock market regulation, only persons who are
nominated in accordance with the procedures in this Section 1.10 shall be
eligible for election as directors. Nomination for election to the
Board of Directors 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
1.10(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 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
90 days nor more than 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 advanced by more than 20 days, or delayed by more
than 60 days, from the first anniversary of the preceding year’s annual meeting,
a stockholder’s notice must be so received not earlier than the 120th day prior
to such annual meeting and not later than the close of business on the later of
(A) the 90th day prior to such annual meeting and (B) the tenth 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, provided that the Board of Directors has determined that directors
shall be elected at such meeting, not earlier than the 120th day prior to such
special meeting and not later than the close of business on the later of (x) the
90th day prior to such special meeting and (y) the tenth 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. In no event shall the adjournment or postponement of an
annual meeting (or the public announcement thereof) commence a new time period
(or extend any time period) for the giving of a stockholder’s
notice.
The
stockholder’s notice to the Secretary shall set forth: (A) as to each proposed
nominee (1) such person’s name, age, business address and, if known, residence
address, (2) such person’s principal occupation or employment, (3) the class and
number of shares of stock of the corporation which are beneficially owned by
such person, and (4) any other information concerning such person that must be
disclosed as to nominees in proxy solicitations pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); (B)
as to the stockholder giving the notice (1) such stockholder’s name and address,
as they
3
appear on
the corporation’s books, (2) the class and number of shares of stock of the
corporation which are owned, beneficially and of record, by such stockholder,
(3) a description of all arrangements or understandings between such stockholder
and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such stockholder,
(4) a representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the person(s) named in its notice and (5) a
representation whether the stockholder intends or is part of a group which
intends (x) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the corporation’s outstanding capital stock required to
elect the nominee and/or (y) otherwise to solicit proxies from stockholders in
support of such nomination; and (C) as to the beneficial owner, if any, on whose
behalf the nomination is being made (1) such beneficial owner’s name and
address, (2) the class and number of shares of stock of the corporation which
are beneficially owned by such beneficial owner, (3) a description of all
arrangements or understandings between such beneficial owner and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made and (4) a representation whether the
beneficial owner intends or is part of a group which intends (x) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the corporation’s outstanding capital stock requirement to elect the nominee
and/or (y) otherwise to solicit proxies from stockholders in support of such
nomination. In addition, to be effective, the stockholder’s notice
must be accompanied by the written consent of the proposed nominee to serve as a
director if elected. The corporation may require any proposed nominee
to furnish such other information as may reasonably be required to determine the
eligibility of such proposed nominee to serve as a director of the
corporation. A stockholder shall not have complied with this Section
1.10(b) if the stockholder (or beneficial owner, if any, on whose behalf the
nomination is made) solicits or does not solicit, as the case may be, proxies in
support of such stockholder’s nominee in contravention of the representations
with respect thereto required by this Section 1.10.
(c) The
chairman of any meeting shall have the power and duty to determine whether a
nomination was made in accordance with the provisions of this Section 1.10
(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 1.10), and if the chairman should determine that a nomination was
not made in accordance with the provisions of this Section 1.10, the chairman
shall so declare to the meeting and such nomination shall be
disregarded.
(d) Except as
otherwise required by applicable law, nothing in this Section 1.10 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 1.10, 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. For purposes of this
Section 1.10, to be considered a qualified representative of the stockholder, a
person must be authorized by a written instrument executed by such
4
stockholder
or an electronic transmission delivered by such stockholder to act for such
stockholder as proxy at the meeting of stockholders and such person must produce
such written instrument or electronic transmission, or a reliable reproduction
of the written instrument or electronic transmission, at the meeting of
stockholders.
(f) For
purposes of this Section 1.10, “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.
1.11 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 (1) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (2) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (3) properly brought before the meeting
by a stockholder in accordance with the applicable provisions of these
By-laws. 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 1.10 must
be complied with and (ii) if such business relates to any other matter, the
business must constitute a proper matter under Delaware law for stockholder
action and the stockholder must (x) have given timely notice thereof in writing
to the Secretary in accordance with the procedures set forth in Section 1.11(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.
(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 90 days nor
more than 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 advanced by more than
20 days, or delayed by more than 60 days, from the first anniversary of the
preceding year’s annual meeting, a stockholder’s notice must be so received not
earlier than the 120th day prior to such annual meeting and not later than the
close of business on the later of (A) the 90th day prior to such annual meeting
and (B) the tenth 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. In no event shall the
adjournment or postponement of an annual meeting (or the public announcement
thereof) commence a new time period (or extend any time period) for the giving
of a stockholder’s notice.
The
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (1) a brief description
of the business desired to be brought before the annual meeting, the text
relating to the business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-laws, the language of the proposed amendment), and the reasons for
conducting such business at the annual meeting, (2) 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
5
beneficial
owner, if any, on whose behalf the proposal is made, (3) 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, (4) 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, (5) 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
(6) a representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends (x) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the corporation’s
outstanding capital stock required to approve or adopt the proposal and/or (y)
otherwise to solicit proxies from stockholders in support of such
proposal. Notwithstanding anything in these By-laws 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 1.11; 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 1.11. A stockholder shall not have complied with
this Section 1.11(b) if the stockholder (or beneficial owner, if any, on whose
behalf the nomination is made) solicits or does not solicit, as the case may be,
proxies in support of such stockholder’s proposal in contravention of the
representations with respect thereto required by this
Section 1.11.
(c) The
chairman of any meeting shall have the power and duty to determine whether
business was properly brought before the meeting in accordance with the
provisions of this Section 1.11 (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 1.11), and if the chairman should
determine that business was not properly brought before the meeting in
accordance with the provisions of this Section 1.11, the chairman shall so
declare to the meeting and such business shall not be brought before the
meeting.
(d) Notwithstanding
the foregoing provisions of this Section 1.11, 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 considered, notwithstanding that proxies in respect of such vote
may have been received by the corporation. For purposes of this
Section 1.11, to be considered a qualified representative of the stockholder, a
person must be authorized by a written instrument executed by the such
stockholder or an electronic transmission delivered by such stockholder to act
for such stockholder as a proxy at the meeting of stockholders and such person
must produce such written instrument or electronic transmission, or a reliable
reproduction of the written instrument or electronic transmission, at the
meeting of stockholders.
(e) For
purposes of this Section 1.11, “public disclosure” shall include disclosure in a
press release reported by the Dow Jones New Service, Associated Press
or
6
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.
1.12 Conduct of
Meetings.
(a) Meetings
of stockholders shall be presided over by the Chairman of the Board, if any, or
in the Chairman's absence by the Vice Chairman of the Board, if any, or in the
Vice Chairman's absence by the Chief Executive Officer, or in the Chief
Executive Officer’s absence, by the President, 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 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.
(d) In
advance of any meeting of stockholders, the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President 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.
7
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 in completed, shall make a
certificate of the result of the vote taken and of such other facts as may be
required by law.
1.13 No Action by Consent in Lieu
of a Meeting. Stockholders of the corporation may not take any
action by written consent in lieu of a meeting.
ARTICLE
II
DIRECTORS
2.1 General
Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by applicable law
or the Restated Certificate of Incorporation.
2.2 Number, Election and
Qualification. The number of directors of the Corporation
shall be established by a majority of the entire Board of Directors except that
such number shall be not less than three (3) nor more than fifteen (15), the
exact number to be nine (9) until otherwise determined by resolution adopted by
a majority of the entire Board of Directors. Election of directors
need not be by written ballot. Directors need not be stockholders of
the corporation.
2.3 Classes of
Directors. The Board of Directors shall be and is divided into
three classes: Class I, Class II and Class III. The
allocation of directors among classes shall be determined by resolution of the
Board of Directors.
2.4 Terms of
Office. Subject to the rights of holders of any series of
Preferred Stock to elect directors, each director shall serve for a term ending
on the date of the third annual meeting following the annual meeting at which
such director was elected; provided, that the
term of each director shall continue until the election and qualification of a
successor and be subject to such director's earlier death, resignation,
disqualification or removal.
2.5 Quorum. A
majority of the directors at any time in office shall constitute a
quorum. If at any meeting of the Board of Directors there shall be
less than such a quorum, a majority of the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.6 Action at
Meeting. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater number is
required by applicable law or by the Restated Certificate of
Incorporation.
2.7 Removal. Subject
to the rights of holder of any series of Preferred Stock, directors of the
corporation may be removed only for cause and only by the affirmative vote
of
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the
holders of at least 75% of the votes which all the stockholders would be
entitled to cast in any annual election of directors or class of
directors.
2.8 Vacancies. Subject
to the rights of holder of any series of Preferred Stock, any vacancy or
newly-created directorships on the Board of Directors, however occurring, shall
be filled only by vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director and shall not be filled by
the stockholders. A director elected to fill a vacancy shall hold
office until the next election of the class for which such director shall have
been chosen, subject to the election and qualification of a successor or until
such director's earlier death, resignation, disqualification or
removal.
2.9 Resignation. Any
director may resign by delivering a resignation in writing or by electronic
transmission to the corporation at its principal office or to the Chairman of
the Board, the Chief Executive Officer, the President or the
Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some later time or upon the happening of some
later event.
2.10 Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place as shall be determined from time to
time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given notice of the
determination. A regular meeting of the Board of Directors may be
held without notice immediately after and at the same place as the annual
meeting of stockholders.
2.11 Special
Meetings. Special meetings of the Board of Directors may be
held at any time and place designated in a call by the Chairman of the Board,
the Chief Executive Officer, the President, two or more directors, or by one
director in the event that there is only a single director in
office.
2.12 Notice of Special
Meetings. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each
director (a) in person or by telephone at least 24 hours in advance of
the meeting, (b) by sending written notice via reputable overnight courier,
telecopy or electronic mail, or delivering written notice by hand, to such
director's last known business, home or electronic mail address at least
48 hours in advance of the meeting, or (c) by sending written notice
via first-class mail to such director's last known business or home address at
least 72 hours in advance of the meeting. A notice or waiver of
notice of a meeting of the Board of Directors need not specify the purposes of
the meeting.
2.13 Meetings by Conference
Communications Equipment. Directors may participate in
meetings of the Board of Directors or any committee thereof by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation by
such means shall constitute presence in person at such meeting.
2.14 Action by
Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board of Directors or committee, as the
case may be, consent to the action in
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writing
or by electronic transmission, and the written consents or electronic
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee.
2.15 Committees. The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The Board
of Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee 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 of Directors to act
at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution
of the Board of Directors and subject to the provisions of law, 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. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the
Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the directors or in
such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these By-laws for the Board of
Directors. Except as otherwise provided in the Restated Certificate
of Incorporation, these Bylaws, or the resolution of the Board of Directors
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.
2.16 Compensation of
Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the
Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary entities in any other capacity and receiving compensation for such
service.
ARTICLE
III
OFFICERS
3.1 Titles. The
officers of the corporation shall consist of a Chief Executive Officer, a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2 Election. The
Chief Executive Officer, President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board
of Directors at such meeting or at any other meeting.
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3.3 Qualification. No
officer need be a stockholder. Any two or more offices may be held by
the same person.
3.4 Tenure. Except
as otherwise provided by law, by the Restated Certificate of Incorporation or by
these By-laws, each officer shall hold office until such officer's successor is
elected and qualified, unless a different term is specified in the resolution
electing or appointing such officer, or until such officer's earlier death,
resignation or removal.
3.5 Resignation and
Removal. Any officer may resign by delivering a written
resignation to the corporation at its principal office or to the Chief Executive
Officer, the President or the Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some later time
or upon the happening of some later event.
Any
officer may be removed at any time, with or without cause, by vote of a majority
of the directors then in office.
Except as
the Board of Directors may otherwise determine, no officer who resigns or is
removed shall have any right to any compensation as an officer for any period
following such officer's resignation or removal, or any right to damages on
account of such removal, whether such officer's compensation be by the month or
by the year or otherwise, unless such compensation is expressly provided for in
a duly authorized written agreement with the corporation.
3.6 Vacancies. The
Board of Directors may fill any vacancy occurring in any office for any reason
and may, in its discretion, leave unfilled for such period as it may determine
any offices other than those of Chief Executive Officer, President, Treasurer
and Secretary. Each such successor shall hold office for the
unexpired term of such officer's predecessor and until a successor is elected
and qualified, or until such officer's earlier death, resignation or
removal.
3.7 Chairman of the
Board. The Board of Directors may appoint from its members a
Chairman of the Board, who need not be an employee or officer of the
corporation. If the Board of Directors appoints a Chairman of the
Board, such Chairman shall perform such duties and possess such powers as are
assigned by the Board of Directors and, if the Chairman of the Board is also
designated as the corporation’s Chief Executive Officer, shall have the powers
and duties of the Chief Executive Officer prescribed in Section 3.8 of these
By-laws. Unless otherwise provided by the Board of Directors, the
Chairman of the Board shall preside at all meetings of the Board of Directors
and stockholders.
3.8 President; Chief Executive
Officer. Unless the Board of Directors has designated the
Chairman of the Board or another person as the corporation’s Chief Executive
Officer, the President shall be the Chief Executive Officer of the
corporation. The Chief Executive Officer shall have general charge
and supervision of the business of the Corporation subject to the direction of
the Board of Directors. The President shall perform such other duties
and shall have such other powers as the Board of Directors or the Chief
Executive Officer (if the President is not the Chief Executive Officer) may from
time to time prescribe. In the event of the absence, inability or
refusal to act of the Chief Executive Officer or the President (if the President
is not the Chief Executive Officer), the Vice President (or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors) shall perform the duties of the
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Chief
Executive Officer and when so performing such duties shall have all the powers
of and be subject to all the restrictions upon the Chief Executive
Officer.
3.9 Vice
Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. The Board of Directors may assign to any
Vice President the title of Executive Vice President, Senior Vice President or
any other title selected by the Board of Directors.
3.10 Secretary and Assistant
Secretaries. The Secretary shall perform such duties and shall
have such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In addition, the Secretary shall perform
such duties and have such powers as are incident to the office of the secretary,
including without limitation the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any
Assistant Secretary shall perform such duties and possess such powers as the
Board of Directors, the Chief Executive Officer or the Secretary may from time
to time prescribe. In the event of the absence, inability or refusal
to act of the Secretary, the Assistant Secretary (or if there shall be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the
Secretary.
In the
absence of the Secretary or any Assistant Secretary at any meeting of
stockholders or directors, the chairman of the meeting shall designate a
temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant
Treasurers. The Treasurer shall perform such duties and shall
have such powers as may from time to time be assigned by the Board of Directors
or the Chief Executive Officer. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The
Assistant Treasurers shall perform such duties and possess such powers as the
Board of Directors, the Chief Executive Officer or the Treasurer may from time
to time prescribe. In the event of the absence, inability or refusal
to act of the Treasurer, the Assistant Treasurer (or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers
of the corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
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ARTICLE
IV
CAPITAL
STOCK
4.1 Issuance of
Stock. Subject to the provisions of the Restated Certificate
of Incorporation, the whole or any part of any unissued balance of the
authorized capital stock of the corporation or the whole or any part of any
shares of the authorized capital stock of the corporation held in the
corporation’s treasury may be issued, sold, transferred or otherwise disposed of
by vote of the Board of Directors in such manner, for such lawful consideration
and on such terms as the Board of Directors may determine.
4.2 Certificates of
Stock. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and by
the Board of Directors, certifying the number and class of shares owned by such
holder in the corporation. Each such certificate shall be signed by,
or in the name of the corporation by, the Chairman or Vice Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each
certificate for shares of stock which are subject to any restriction on transfer
pursuant to the Restated Certificate of Incorporation, these By-laws, applicable
securities laws or any agreement among any number of stockholders or among such
holders and the corporation shall have conspicuously noted on the face or back
of the certificate either the full text of the restriction or a statement of the
existence of such restriction.
There
shall be set forth on the face or back of each certificate representing shares
of such class or series of stock of the corporation a statement that the
corporation will furnish without charge to each stockholder who so requests a
copy of the full text of 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.
4.3 Transfers. Except
as otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law, shares of stock may be transferred on
the books of the corporation by the surrender to the corporation or its transfer
agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and
with such proof of authority or the authenticity of signature as the corporation
or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Restated Certificate of Incorporation or by
these By-laws, the corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with respect to such
stock, regardless of any transfer, pledge or other disposition of such stock
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-laws.
4.4 Lost, Stolen or Destroyed
Certificates. The corporation may issue a new certificate of
stock in place of any previously issued certificate alleged to have been lost,
stolen or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including
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the
presentation of reasonable evidence of such loss, theft or destruction and the
giving of such indemnity and posting of such bond as the Board of Directors may
require for the protection of the corporation or any transfer agent or
registrar.
4.5 Record
Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action to which such record date relates.
If no
record date is fixed, 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 before the day on which notice is given, or, if notice is
waived, at the close of business on the day before the day on which the meeting
is held. If no record date is fixed, the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such
purpose.
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.
ARTICLE
V
GENERAL
PROVISIONS
5.1 Fiscal
Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January of each year and end on the last day of December in each
year.
5.2 Corporate
Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of
Notice. Whenever notice is required to be given by
law, by the Restated Certificate of Incorporation or by these By-laws, a written
waiver signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before, at or after the
time stated in such notice, 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.
5.4 Voting of
Securities. Except as the Board of Directors may otherwise
designate, the Chief Executive Officer, the President or the Treasurer may waive
notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this corporation (with or without power of substitution) at
any meeting of stockholders or securityholders of any other entity, the
securities of which may be held by this corporation.
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5.5 Evidence of
Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Restated Certificate of
Incorporation. All references in these By-laws to the Restated
Certificate of Incorporation shall be deemed to refer to the Restated
Certificate of Incorporation of the corporation, as amended and in effect from
time to time.
5.7 Severability. Any
determination that any provision of these By-laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-laws.
5.8 Pronouns. All
pronouns used in these By-laws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or persons
may require.
ARTICLE
VI
AMENDMENTS
These
By-laws may be altered, amended or repealed, in whole or in part, or new By-laws
may be adopted by the Board of Directors or by the stockholders as provided in
the Restated Certificate of Incorporation.
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