Attached files
EXHIBIT
3.2
AMENDED AND
RESTATED
BYLAWS
OF
BROOKDALE SENIOR LIVING
INC.
(as amended January 12,
2010)
TABLE OF CONTENTS
ARTICLE
I
OFFICES
Section
1.
|
Registered
Office
|
1
|
Section
2.
|
Other
Offices
|
1
|
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1.
|
Time
and Place of Meetings
|
1
|
Section
2.
|
Annual
Meetings
|
1
|
Section
3.
|
Notice
of Annual Meetings
|
1
|
Section
4.
|
Special
Meetings
|
1
|
Section
5.
|
Notice
of Special Meetings
|
2
|
Section
6.
|
Nature
of Business at Meetings of Stockholders
|
2
|
Section
7.
|
Quorum
|
3
|
Section
8.
|
Organization
|
3
|
Section
9.
|
Voting
|
3
|
Section
10.
|
Action
By Written Consent
|
4
|
Section
11.
|
List
of Stockholders
|
5
|
Section
12.
|
Conduct
of Meetings
|
5
|
Section
13.
|
Inspectors
of Votes
|
5
|
ARTICLE
III
BOARD OF
DIRECTORS
Section
1.
|
Powers
|
6
|
Section
2.
|
Number,
Qualification and Term of Office
|
6
|
Section
3.
|
Resignations
|
7
|
Section
4.
|
Nomination
of Directors
|
7
|
Section
5.
|
Removal
of Directors
|
8
|
Section
6.
|
Vacancies
|
8
|
ARTICLE
IV
MEETINGS
OF THE BOARD OF DIRECTORS
Section
1.
|
Place
of Meetings
|
8
|
Section
2.
|
Annual
Meetings
|
8
|
Section
3.
|
Regular
Meetings
|
9
|
Section
4.
|
Special
Meetings; Notice
|
9
|
Section
5.
|
Quorum
and Manner of Acting
|
9
|
Section
6.
|
Remuneration
|
9
|
Section
7.
|
Organization
|
9
|
ARTICLE
V
COMMITTEES
OF DIRECTORS
Section
1.
|
Executive
Committee; How Constituted and Powers
|
9
|
Section
2.
|
Organization
|
10
|
Section
3.
|
Meetings
|
10
|
Section
4.
|
Quorum
and Manner of Acting
|
10
|
Section
5.
|
Other
Committees
|
10
|
Section
6.
|
Alternate
Members of Committees
|
11
|
Section
7.
|
Minutes
of Committees
|
11
|
ARTICLE
VI
GENERAL
Section
1.
|
Actions
Without a Meeting
|
11
|
Section
2.
|
Presence
at Meetings by Means of Communications Equipment
|
11
|
ARTICLE
VII
NOTICES
Section
1.
|
Type
of Notice
|
12
|
Section
2.
|
Waiver
of Notice
|
12
|
Section
3.
|
When
Notice Unnecessary
|
12
|
ARTICLE
VIII
OFFICERS
Section
1.
|
General
|
13
|
Section
2.
|
Election
or Appointment
|
13
|
Section
3.
|
Salaries
of Elected Officers
|
13
|
Section
4.
|
Term
|
13
|
Section
5.
|
Chairman
of the Board
|
13
|
Section
6.
|
Chief
Executive Officer
|
14
|
Section
7.
|
President
|
14
|
Section
8.
|
Vice
Presidents
|
14
|
Section
9.
|
Assistant
Vice Presidents
|
14
|
Section
10.
|
Secretary
|
15
|
Section
11.
|
Assistant
Secretaries
|
15
|
Section
12.
|
Treasurer
|
15
|
Section
13.
|
Assistant
Treasurers
|
15
|
Section
14.
|
Controller
|
16
|
Section
15.
|
Assistant
Controllers
|
16
|
Section
16.
|
Other
Officers
|
16
|
ARTICLE
IX
INDEMNIFICATION
Section
1.
|
Power
to Indemnify in Actions, Suits or Proceedings other than Those by or in
the Right of the Corporation
|
16
|
Section
2.
|
Power
to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation
|
16
|
Section
3.
|
Authorization
of Indemnification
|
17
|
Section
4.
|
Good
Faith Defined
|
17
|
Section
5.
|
Indemnification
by a Court
|
18
|
Section
6.
|
Expenses
Payable in Advance
|
18
|
Section
7.
|
Nonexclusivity
of Indemnification and Advancement of Expenses
|
18
|
Section
8.
|
Insurance
|
18
|
Section
9.
|
Certain
Definitions
|
18
|
Section
10.
|
Survival
of Indemnification and Advancement of Expenses
|
19
|
Section
11.
|
Limitation
on Indemnification
|
19
|
Section
12.
|
Indemnification
of Employees and Agents
|
19
|
Section
13.
|
Savings
Provision
|
19
|
ARTICLE
X
STOCK
MATTERS
Section
1.
|
Shares
of Stock
|
19
|
Section
2.
|
Facsimile
Signatures
|
20
|
Section
3.
|
Lost,
Stolen or Destroyed Certificates
|
20
|
Section
4.
|
Transfers
|
20
|
Section
5.
|
Record
Date
|
21
|
Section
6.
|
Record
Owners
|
22
|
Section
7.
|
Transfer
and Registry Agents
|
22
|
ARTICLE
XI
GENERAL
PROVISIONS
Section
1.
|
Dividends
|
22
|
Section
2.
|
Reserves
|
22
|
Section
3.
|
Annual
Statement
|
22
|
Section
4.
|
Checks
|
22
|
Section
5.
|
Fiscal
Year
|
23
|
Section
6.
|
Corporate
Seal
|
23
|
ARTICLE
XII
AMENDMENTS
ARTICLE
I
OFFICES
Section
1. Registered
Office. The
registered office of Brookdale Senior Living Inc. (the “Corporation”) shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section
2. Other
Offices. The
Corporation may also have offices at such other place or places, both within and
without the State of Delaware, as the board of directors of the Corporation (the
“Board of Directors”) may from time to time determine or the business of the
Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section
1. Time and Place of
Meetings. All
meetings of the stockholders for the election of directors shall be held at such
time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof. The Board of Directors may, in its sole discretion,
determine that a meeting of the stockholders shall not be held at any place, but
may instead be held solely by means of remote communication in the manner
authorized by the General Corporation Law of the State of Delaware, as may be
amended and supplemented from time to time, or any successor thereto (the
“DGCL”).
Section
2. Annual
Meetings. Annual
meetings of stockholders shall be held on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, at which meeting the stockholders shall elect directors and
transact such other business as may properly be brought before the
meeting.
Section
3. Notice of Annual
Meetings. Written
notice of the annual meeting, stating the place, if any, date and hour of the
meeting, 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,
shall be given to each stockholder of record entitled to notice of and to vote
at such meeting not less than ten (10) or more than sixty (60) days before the
date of the meeting, unless otherwise required by law.
Section
4. Special
Meetings. Unless
otherwise required by law or by the certificate of incorporation of the
Corporation, as amended and restated from time to time (the “Certificate of
Incorporation”), special meetings of stockholders, for any purpose or purposes,
may be called by either (a) the Chairman of the Board of Directors, if there is
one, or (b) the Chief Executive Officer, and shall be called by any such officer
at the request in writing of the Board of Directors. If, and for so
long as, FIT-ALT Investor LLC, a Delaware limited liability company, Fortress
Brookdale Acquisition LLC, a Delaware limited liability company, Fortress
Investment Trust II, a Delaware business trust, Fortress Registered Investment
Trust, a Delaware business trust, Fortress Brookdale Investment Fund LLC, a
Delaware limited liability company, and Health Partners, a Bermuda exempted
partnership, and, in each case, their respective affiliates
(collectively,
the “Significant Stockholders”), collectively, beneficially own at least fifty
percent (50%) of the then issued and outstanding shares of all capital stock of
the Corporation that are entitled to vote generally in the election of
directors, then any authorized officer may call a special meeting at the request
in writing of the stockholders holding a majority of the then issued and
outstanding shares of all capital stock of the Corporation that are entitled to
vote generally in the election of directors may call a special
meeting. At any time after the Significant Stockholders cease,
collectively, to beneficially own at least fifty percent (50%) of the then
issued and outstanding shares of all capital stock of the Corporation that are
entitled to vote generally in the election of directors, the ability of the
stockholders to call a special meeting of stockholders is hereby specifically
denied.
Section
5. Notice of Special
Meetings. Written
notice of a special meeting, stating the place, if any, date and hour of the
meeting, 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 and
the purpose or purposes for which the meeting is called, shall be given to each
stockholder of record entitled to notice of and vote at such meeting not less
than ten (10) or more than sixty (60) days before the date of the meeting,
unless otherwise required by law. At a special meeting of
stockholders, only such business shall be conducted as shall be specified in the
notice of meeting (or any supplement thereto).
Section
6. Nature of Business at
Meetings of Stockholders. No
business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 6
and on the record date for the determination of stockholders entitled to notice
of and vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 6.
In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation.
To be
timely, a stockholder’s notice to the Secretary must be delivered to or mailed
and received 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
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within twenty-five (25) days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first
occurs.
To be in
proper written form, a stockholder’s notice to the Secretary must set forth as
to each matter such stockholder proposes to bring before the annual meeting (a)
a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and record address of such stockholder, (c) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (d) a description of all
arrangements or understandings between such
2
stockholder
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 such
stockholder in such business and (e) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
Once
business has been properly brought before the annual meeting in accordance with
the procedures set forth in this Section 6, nothing in this Section 6 shall be
deemed to preclude discussion by any stockholder of any such
business. If the chairman of an annual meeting determines that
business was not properly brought before the annual meeting in accordance with
the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not
be transacted.
Section
7. Quorum. Except
as otherwise provided by statute or the Certificate of Incorporation, the
holders of stock having a majority of the voting power of the stock entitled to
be voted thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of the
stockholders. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, the chairman of the meeting or the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice of such adjourned meeting (other
than announcement at the meeting at which the adjournment is taken of the time
and place, if any, 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 adjourned 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, notice of the adjourned meeting shall be
given to each stockholder of record entitled to notice of and to vote at the
meeting.
Section
8. Organization. At
each meeting of the stockholders, the Chairman of the Board, if there be one, or
the Chief Executive Officer, determined as provided in Article VIII of these
bylaws of the Corporation, as amended and restated from time to time (these
“Amended and Restated Bylaws”), or if those officers shall be absent therefrom,
another officer of the Corporation chosen as chairman by a majority of the votes
cast by the stockholders present in person or by proxy and entitled to vote
thereat, or if all the officers of the Corporation shall be absent therefrom, a
stockholder of record holding shares of stock of the Corporation so chosen,
shall act as chairman of the meeting and preside thereat. The
Secretary or, if the Secretary shall be absent from such meeting or shall be
required pursuant to the provisions of this Section 8 to act as chairman of such
meeting, the person whom the chairman of such meeting shall appoint shall act as
secretary of such meeting and keep the minutes thereof.
Section
9. Voting. Except
as otherwise provided in the Certificate of Incorporation, each stockholder
shall, at each meeting of the stockholders, be entitled to one (1) vote in
person or by proxy for each share of stock of the Corporation held by such
stockholder and registered in such stockholder’s name on the books of the
Corporation on the date fixed pursuant to the provisions of Section 5 of Article
X of these Amended and Restated Bylaws as the record date for the determination
of stockholders who shall be entitled to notice of and to vote at such
meeting. Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held directly or indirectly
by the Corporation, shall not be entitled to vote. Any vote by stock
of the Corporation may be given at any meeting of the stockholders by the
stockholder entitled thereto, in person or by
3
proxy
appointed by valid means of granting that authority, including, without
limitation, by an instrument in writing or by electronic transmission subscribed
by such stockholder or by such stockholder’s attorney or agent thereunto duly
authorized and delivered, either in original or reliable reproduction form, to
the Secretary of the Corporation or to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three (3) years from
its date, unless such proxy shall provide for a longer period. Each
proxy shall be revocable unless expressly provided therein to be irrevocable and
unless otherwise made irrevocable by law. At all meetings of the
stockholders, all matters, except where other provision is made by law, the
Certificate of Incorporation or these Amended and Restated Bylaws, other than
the election of directors, shall be decided by the vote of the holders of a
majority of the total number of votes of the Corporation’s capital stock
represented, in person or by proxy, and entitled to vote thereat, voting as a
single class, a quorum being present. Unless demanded by a
stockholder of the Corporation present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat, or so directed by the chairman of
the meeting, the vote thereat on any question other than the election or removal
of directors need not be by written ballot. Upon a demand of any such
stockholder for a vote by written ballot on any question or at the direction of
such chairman that a vote by written ballot be taken on any question, such vote
shall be taken by written ballot. On a vote by written ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder’s
proxy, if there be such proxy, and shall state the number of shares
voted.
Section
10. Action By Written
Consent. Unless
otherwise provided in the Certificate of Incorporation, if, and for so long as,
the Significant Stockholders, collectively, beneficially own at least fifty
percent (50%) of the then issued and outstanding shares of all capital stock of
the Corporation that are entitled to vote generally in the election of
directors, any action required or permitted to be taken at any annual or special
meeting of stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation’s registered office shall
be by hand or by certified or registered mail, return receipt
requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60) days
of the earliest dated consent delivered in the manner required by this Section
10 to the Corporation, written consents signed by a sufficient number of holders
to take action are delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. A telegram, cablegram or other
electronic transmission consenting to an action to be taken and transmitted by a
stockholder or proxyholder, or by a person or persons authorized to act for a
stockholder or proxyholder, shall be deemed to be written, signed and dated for
the purposes of this Section 10, provided that any such telegram, cablegram or
other electronic transmission sets forth or is delivered with information from
which the Corporation can determine (a) that the telegram, cablegram or other
electronic transmission was transmitted by the stockholder or proxyholder or by
a person or persons authorized to act for the stockholder or proxyholder and (b)
the date on which such stockholder or proxyholder or authorized person or
persons transmitted such telegram, cablegram or electronic
transmission. The date on which such telegram, cablegram or
electronic transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by telegram, cablegram or
other electronic transmission shall be deemed to have been delivered until
4
such
consent is reproduced in paper form and until such paper form shall be delivered
to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of the
stockholders are recorded. Delivery made to the Corporation’s
registered office shall be made by hand or by certified or registered mail,
return receipt requested. Any copy, facsimile or other reliable
reproduction of a consent in writing may be substituted or used in lieu of the
original writing for any and all purposes for which the original writing could
be used, provided that such copy, facsimile or other reproduction shall be a
complete reproduction of the entire original writing. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing and who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting if the record date for such meeting had been
the date that written consents signed by a sufficient number of holders to take
the action were delivered to the Corporation as provided above in this Section
10. Unless otherwise provided in the Certificate of Incorporation, at
any time after the Significant Stockholders cease, collectively, to beneficially
own at least fifty percent (50%) of the then issued and outstanding shares of
all capital stock of the Corporation that are entitled to vote generally in the
election of directors, then no action required or permitted at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting or without prior notice.
Section
11. List of
Stockholders. It
shall be the duty of the Secretary or other officer of the Corporation who shall
have charge of its stock ledger, either directly or through another officer of
the Corporation designated by such officer or through a transfer agent appointed
by the Board of Directors, to prepare and make, at least ten (10) days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote thereat, 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, during ordinary business
hours, for a period of at least ten (10) days before such meeting, at the
principal executive offices of the Corporation. The list shall also
be produced and kept at the time and place of such meeting during the whole time
thereof, and may be inspected by any stockholder of record who shall be present
thereat. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, such list or the books of
the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section
12. Conduct of
Meetings. The
Board of Directors may adopt by resolution such rules and regulations for the
conduct of any meeting of the stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of any meeting of
the 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, (a)
the establishment of an agenda or order of business for the meeting, (b) the
determination of when the polls shall open and close for any given matter to be
voted on at the meeting, (c) rules and procedures for maintaining order at the
meeting and the safety of those present, (d) 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 the chairman of
the meeting shall determine, (e) restrictions on entry to the meeting after the
time fixed for the commencement thereof and (f) limitations on the time allotted
to questions or comments by participants.
Section
13. Inspectors of
Votes. At
each meeting of the stockholders, the chairman of such meeting may appoint one
(1) or more inspectors of votes (the “Inspectors of
5
Votes”)
to act thereat, unless the Board of Directors shall have theretofore made such
appointments. Each Inspector of Votes so appointed shall first
subscribe an oath or affirmation faithfully to execute the duties of an
Inspector of Votes at such meeting with strict impartiality and according to the
best of the Inspector of Votes’ ability. Such Inspectors of Votes, if
any, shall take charge of the ballots, if any, at such meeting and, after the
balloting thereat on any question, shall count the ballots cast thereon and
shall make a report in writing to the secretary of such meeting of the results
thereof. An Inspector of Votes need not be a stockholder of the
Corporation, and any officer of the Corporation may be an Inspector of Votes on
any question other than a vote for or against such officer’s election to any
position with the Corporation or on any other question in which such officer may
be directly interested.
ARTICLE
III
BOARD OF
DIRECTORS
Section
1. Powers. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, which shall have and may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute, the Certificate of Incorporation or these Amended and Restated Bylaws
directed or required to be exercised or done by the stockholders.
Section
2. Number, Qualification and
Term of Office. The
number of directors which constitute the whole Board of Directors shall be not
less than three (3) or more than nine (9). The number of directors
which shall constitute the whole Board of Directors shall be determined from
time to time by resolution adopted by a majority of the Board of Directors then
in office. The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist,
as nearly as may be possible, of one-third of the total number of directors
constituting the whole Board of Directors. At the time of the
execution of these Amended and Restated Bylaws, the division of the Board of
Directors into classes shall be made by the decision of the affirmative vote of
a majority of the whole Board of Directors. The term of the Class I
directors in office at the time of the execution of these Amended and Restated
Bylaws shall terminate on the date of the 2008 annual meeting; the term of the
Class II directors in office at the time of the execution of these Amended and
Restated Bylaws shall terminate on the date of the 2007 annual meeting; and the
term of the Class III directors in office at the time of the execution of these
Amended and Restated Bylaws shall terminate on the date of the 2006 annual
meeting or, in each case, upon such director’s earlier death, resignation or
removal. At each succeeding annual meeting of stockholders beginning
in 2006, successors to the class of directors whose term expires at that annual
meeting shall be elected for a three (3)-year term and until their successors
are duly elected and qualified. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class or from the removal from office, death,
disability, resignation or disqualification of a director or other cause shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. Directors need not be
stockholders. The directors shall be elected at the annual meeting of
stockholders, except as provided in Sections 5 and 6 of this Article III, and
each director elected shall hold office until the third succeeding meeting next
after such director’s election and until such director’s successor is duly
elected and qualified, or until such director’s death or retirement or until
such director resigns or is removed in the manner hereinafter
provided. Directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy and
6
entitled
to vote on the election of directors at any annual or special meeting of
stockholders. Such election shall be by written
ballot.
Section
3. Resignations. Any
director may resign at any time by giving notice of such director’s resignation
in writing or by electronic transmission to the Chairman of the Board, if there
be one, the Chief Executive Officer or the Secretary of the
Corporation. Any such resignation shall take effect at the time
specified therein, or if the time when it shall become effective shall not be
specified therein, then it shall take effect immediately upon its receipt by the
Corporation. Unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section
4. Nomination of
Directors. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the right
of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 4 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 4.
In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation.
To be
timely, a stockholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation (a) in the
case of an annual meeting, not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within twenty-five (25)
days before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in
proper written form, a stockholder’s notice to the Secretary must set forth (a)
as to each person whom the stockholder proposes to nominate for election as a
director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and
regulations promulgated thereunder and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description
7
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, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person
shall be eligible for election as a director of the Corporation unless nominated
in accordance with the procedures set forth in this Section 4. If the
chairman of the meeting determines that a nomination was not made in accordance
with the foregoing procedures, the chairman shall declare to the meeting that
the nomination was defective and such defective nomination shall be
disregarded.
Section
5. Removal of
Directors. Any
director or the whole Board of Directors may be removed, but only for cause, at
any time, by the affirmative vote by written ballot of at least eighty percent
(80%) in voting interest of the stockholders of record of the Corporation
entitled to vote, given at an annual meeting or at a special meeting of
stockholders called for that purpose. The vacancy in the Board of
Directors caused by any such removal shall be filled by the stockholders at such
meeting or, if not so filled, by the Board of Directors as provided in Section 6
of this Article III.
Section
6. Vacancies. Unless
otherwise required by law or the Certificate of Incorporation, any vacancy on
the Board of Directors that results from newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, provided that a quorum is present, and
any other vacancies may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director. Any
director of any class elected to fill a vacancy resulting from an increase in
the number of directors of such class shall hold office for a term that shall
coincide with the remaining term of that class and until such director’s
successor is elected and qualified, unless sooner displaced. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of such director’s
predecessor and until such director’s successor is elected and qualified, unless
sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by
statute.
ARTICLE
IV
MEETINGS
OF THE BOARD OF DIRECTORS
Section
1. Place of
Meetings. The
Board of Directors may hold meetings, both regular and special, either within or
without the State of Delaware.
Section
2. Annual
Meetings. The
first meeting of each newly elected Board of Directors shall be held immediately
following the annual meeting of stockholders, and no notice of such meeting to
the newly elected directors shall be necessary in order legally to constitute
the meeting, provided a quorum shall be present. In the event such
meeting is not held immediately following the annual meeting of stockholders,
the meeting may be held at such time and place, if any, as shall be specified in
a notice given as hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by all of the
directors.
8
Section
3. Regular
Meetings. Regular
meetings of the Board of Directors may be held without notice at such time and
at such place, if any, as shall from time to time be determined by the Board of
Directors.
Section
4. Special Meetings;
Notice. Special
meetings of the Board of Directors may be called by the Chairman of the Board,
if there be one, the Chief Executive Officer or the Secretary on twenty-four
(24) hours’ notice to each director, either personally or by telephone or by
mail, telegraph, telex, cable, wireless or other form of recorded or electronic
communication, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances; special meetings
shall be called by the Chairman of the Board, if there be one, the Chief
Executive Officer or the Secretary in like manner and on like notice on the
written request of two (2) directors. Notice of any such meeting need
not be given to any director, however, if waived by such director in writing or
by telegraph, telex, cable, wireless or other form of recorded or electronic
communication, or if such director shall be present at such
meeting.
Section
5. Quorum and Manner of
Acting. At
all meetings of the Board of Directors, a majority of the directors at the time
in office (but not less than one-third of the whole Board of Directors) shall
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present.
Section
6. Remuneration. Unless
otherwise expressly provided by resolution adopted by the Board of Directors,
none of the directors shall, as such, receive any stated remuneration for such
director’s services; but the Board of Directors may at any time and from time to
time by resolution provide that a specified sum shall be paid to any director of
the Corporation, payable in cash or securities, either as such director’s annual
remuneration as such director or member of any special or standing committee of
the Board of Directors or as remuneration for such director’s attendance at each
meeting of the Board of Directors or any such committee. The Board of
Directors may also likewise provide that the Corporation shall reimburse each
director for any expenses paid by such director on account of such director’s
attendance at any meeting. Nothing in this Section 6 shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving remuneration therefor.
Section
7. Organization. At
each meeting of the Board of Directors, the Chairman of the Board of Directors,
if there be one, or, in the Chairman of the Board’s absence, a director chosen
by a majority of the directors present, shall act as chairman of the
meeting. The Secretary of the Corporation shall act as secretary at
each meeting of the Board of Directors. In case the Secretary shall
be absent from any meeting of the Board of Directors, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all the Assistant Secretaries, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
ARTICLE
V
COMMITTEES
OF DIRECTORS
Section
1. Executive Committee; How
Constituted and Powers. The
Board of Directors may in its discretion, by resolution passed by a majority of
the whole Board of Directors,
9
designate
an Executive Committee consisting of one (1) or more of the directors of the
Corporation. Subject to the provisions of Section 141(c)(2) of the
DGCL, the Certificate of Incorporation and these Amended and Restated Bylaws,
the Executive Committee shall have and may exercise, when the Board of Directors
is not in session, all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and shall have the
power to authorize the seal of the Corporation to be affixed to all papers which
may require it; but the Executive Committee shall not have the power to fill
vacancies in the Board of Directors, the Executive Committee or any other
committee of directors or to elect or approve officers of the
Corporation. The Executive Committee shall have the power and
authority to authorize the issuance of common stock and grant and authorize
options and other rights with respect to such issuance. The Board of
Directors shall have the power at any time, by resolution passed by a majority
of the whole Board of Directors, to change the membership of the Executive
Committee, to fill all vacancies in it, or to dissolve it, either with or
without cause.
Section
2. Organization. The
Chairman of the Executive Committee, to be selected by the Board of Directors,
shall act as chairman at all meetings of the Executive Committee and the
Secretary shall act as secretary thereof. In case of the absence from
any meeting of the Executive Committee of the Chairman of the Executive
Committee or the Secretary, the Executive Committee may appoint a chairman or
secretary, as the case may be, of the meeting.
Section
3. Meetings. Regular
meetings of the Executive Committee, of which no notice shall be necessary, may
be held on such days and at such places, if any, within or without the State of
Delaware, as shall be fixed by resolution adopted by a majority of the Executive
Committee and communicated in writing or by electronic transmission to all its
members. Special meetings of the Executive Committee shall be held
whenever called by the Chairman of the Executive Committee or a majority of the
members of the Executive Committee then in office. Notice of each
special meeting of the Executive Committee shall be given by mail, telegraph,
telex, cable, wireless or other form of recorded or electronic communication or
be delivered personally or by telephone to each member of the Executive
Committee not later than the day before the day on which such meeting is to be
held. Notice of any such meeting need not be given to any member of
the Executive Committee, however, if waived by such member in writing or by
telegraph, telex, cable, wireless or other form of recorded or electronic
communication, or if such member shall be present at such meeting; and any
meeting of the Executive Committee shall be a legal meeting without any notice
thereof having been given, if all the members of the Executive Committee shall
be present thereat. Subject to the provisions of this Article V, the
Executive Committee, by resolution adopted by a majority of the whole Executive
Committee, shall fix its own rules of procedure.
Section
4. Quorum and Manner of
Acting. A
majority of the Executive Committee shall constitute a quorum for the
transaction of business, and the act of a majority of those present at a meeting
thereof at which a quorum is present shall be the act of the Executive
Committee.
Section
5. Other
Committees. The
Board of Directors may, by resolution or resolutions passed by a majority of the
whole Board of Directors, designate one (1) or more other committees consisting
of one (1) or more directors of the Corporation, which, to the extent provided
in such resolution or resolutions, shall have and may exercise, subject to the
provisions of Section 141(c)(2) of the DGCL, and the Certificate of
Incorporation and these Amended and Restated Bylaws, the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have the power to authorize the seal of the Corporation
to be affixed to all papers which may require it; but no such committee shall
have the
10
power to
fill vacancies in the Board of Directors, the Executive Committee or any other
committee or in their respective membership, to appoint or remove officers of
the Corporation, or to authorize the issuance of shares of the capital stock of
the Corporation, except that such a committee may, to the extent provided in
such resolutions, grant and authorize options and other rights with respect to
the common stock of the Corporation pursuant to and in accordance with any plan
approved by the Board of Directors. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. A majority of all the
members of any such committee may determine its action and fix the time and
place, if any, of its meetings and specify what notice thereof, if any, shall be
given, unless the Board of Directors shall otherwise provide. The
Board of Directors shall have power to change the members of any such committee
at any time to fill vacancies, and to discharge any such committee, either with
or without cause, at any time.
Section
6. Alternate Members of
Committees. The
Board of Directors may designate one (1) or more directors as alternate members
of the Executive Committee or any other committee, who may replace any absent or
disqualified member at any meeting of the committee, or if none be so appointed
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Section
7. Minutes of
Committees. Each
committee shall keep regular minutes of its meetings and proceedings and report
the same to the Board of Directors at the next meeting thereof.
ARTICLE
VI
GENERAL
Section
1. Actions Without a
Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Amended and
Restated 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 of Directors or committee, as the case may
be, consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board of Directors or the committee. Such
filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic
form.
Section
2. Presence at Meetings by
Means of Communications Equipment. Unless
otherwise provided in the Certificate of Incorporation or these Amended and
Restated Bylaws, members of the Board of Directors, of the Executive Committee
or of any other committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
conducted pursuant to this Section 2 shall constitute presence in person at such
meeting.
11
ARTICLE
VII
NOTICES
Section
1. Type of
Notice. Whenever,
under the provisions of any applicable statute, the Certificate of Incorporation
or these Amended and Restated Bylaws, notice is required to be given to any
director, member of a committee or stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, in person or by
mail, addressed to such director or stockholder, at such person’s 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. Without limiting the manner by
which notice otherwise may be given effectively to stockholders, any notice to
stockholders given by the Corporation under applicable law, the Certificate of
Incorporation or these Amended and Restated Bylaws shall be effective if given
by a form of electronic transmission if consented to by the stockholder to whom
the notice is given. Any such consent shall be revocable by the
stockholder by written notice to the Corporation. Any such consent
shall be deemed to be revoked if (a) the Corporation is unable to deliver by
electronic transmission two (2) consecutive notices by the Corporation in
accordance with such consent and (b) such inability becomes known to the
Secretary or Assistant Secretary of the Corporation or to the transfer agent, or
other person responsible for the giving of notice; provided, however, that the
inadvertent failure to treat such inability as a revocation shall not invalidate
any meeting or other action. Notice given by electronic transmission,
as described above, shall be deemed given (a) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive
notice, (b) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice, (c) if by a posting on
an electronic network, together with separate notice to the stockholder of such
specific posting, upon the later of (i) such posting and (ii) the giving of such
separate notice and (d) if by any other form of electronic transmission, when
directed to the stockholder. Notice to directors or committee members
may also be given in any manner permitted by Article IV of these Amended and
Restated Bylaws and shall be deemed to be given at the time when first
transmitted by the method of communication so permitted.
Section
2. Waiver of
Notice. Whenever
any notice is required to be given under the provisions of any applicable
statute, the Certificate of Incorporation or these Amended and Restated Bylaws,
a waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto, and transmission of a waiver of notice by a director or
stockholder by mail, telegraph, telex, cable, wireless or other form of recorded
or electronic communication may constitute such a waiver. Attendance
of a person at a meeting, present in person or represented by proxy, shall
constitute a waiver of notice of such meeting, except where the person attends
the meeting for the express purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of stockholders or any regular or special
meeting of the directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by law, the
Certificate of Incorporation or these Amended and Restated Bylaws.
Section
3. When Notice
Unnecessary. Whenever,
under the provisions of the DGCL, the Certificate of Incorporation or these
Amended and Restated Bylaws, any notice is required to be given to any
stockholder, such notice need not be given to the stockholder if:
12
(a)
|
notice
(except notice given by electronic transmission) of two (2) consecutive
annual meetings and all notices of meetings held during the period between
those annual meetings, if any, or
|
(b)
|
all
(but in no event less than two (2)) payments (if sent by first class mail)
of distributions or interest on securities during a twelve (12) month
period,
|
have been
mailed to that person, addressed at such person’s address as shown on the
records of the Corporation, and have been returned undeliverable. Any
action or meeting taken or held without notice to such a person shall have the
same force and effect as if the notice had been duly given. If such a
person delivers to the Corporation a written notice setting forth such person’s
then current address, the requirement that notice be given to that person shall
be reinstated.
ARTICLE
VIII
OFFICERS
Section
1. General. The
elected officers of the Corporation shall be a Chief Executive Officer and a
Secretary. The Board of Directors, in its discretion, may also elect
or appoint a Chairman of the Board (who must be a director), if any, one (1) or
more Presidents, one (1) or more Vice Presidents, one (1) or more Assistant Vice
Presidents, one (1) or more Assistant Secretaries, a Treasurer, one (1) or more
Assistant Treasurers, a Controller, one (1) or more Assistant Controllers, and
such other officers and agents as may be deemed necessary or advisable from time
to time all of whom shall also be officers of the Corporation. Two
(2) or more offices may be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or these Amended and Restated
Bylaws.
Section
2. Election or
Appointment. The
Board of Directors at its annual meeting shall elect or appoint, as the case may
be, the officers of the Corporation to fill the positions designated in or
pursuant to Section 1 of this Article VIII. Officers of the
Corporation may also be elected or appointed, as the case may be, at any other
time.
Section
3. Salaries of Elected
Officers. The
salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section
4. Term. Each
officer of the Corporation shall hold such office for such term and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and each officer of the Corporation shall hold
such office until such officer’s successor is duly elected or appointed and
qualified or until such officer’s earlier death, resignation or
removal. Any officer may resign at any time upon written notice to
the Corporation. Any officer elected or appointed by the Board of
Directors or the Executive Committee may be removed at any time by the
affirmative vote of a majority of the whole Board of Directors. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise may be filled by the Board of Directors.
Section
5. Chairman of the
Board. The
Chairman of the Board, if any, shall preside when present at all meetings of the
Board of Directors. The Chairman of the Board shall preside when
present at all meetings of the stockholders of the Corporation unless the
Chairman of the Board delegates such authority to another officer of the
Corporation. The Chairman of the Board shall advise and counsel the
Chief Executive Officer and the other officers of the Corporation and shall
exercise such powers and perform such duties as shall be assigned to or
13
required
of the Chairman of the Board from time to time by the Board of Directors or by
these Amended and Restated Bylaws.
Section
6. Chief Executive
Officer. The
Chief Executive Officer, if any, shall, subject to the control of the Board of
Directors and if there be one, the Chairman of the Board, have general
supervision of the affairs of the Corporation and general and active control of
all its business. The Chief Executive Officer shall preside, in the
absence of the Chairman of the Board, if any, at all meetings of stockholders
and at all meetings of the Board of Directors. The Chief Executive
Officer shall see that all orders and resolutions of the Board of Directors and
the stockholders are carried into effect. The Chief Executive Officer
shall have general authority to execute bonds, deeds and contracts in the name
of the Corporation and affix the corporate seal thereto; to sign stock
certificates; to cause the employment or appointment of such employees and
agents of the Corporation as the proper conduct of operations may require, and
to fix their compensation, subject to the provisions of these Amended and
Restated Bylaws; to remove or suspend any employee or agent who shall have been
employed or appointed under the Chief Executive Officer’s authority or under
authority of an officer subordinate to the Chief Executive Officer; to suspend
for cause, pending final action by the authority which shall have elected or
appointed the Chief Executive Officer, any officer subordinate to the Chief
Executive Officer; and, in general, to exercise all the powers and authority
usually appertaining to the chief executive officer of a corporation, except as
otherwise provided in these Amended or Restated Bylaws.
Section
7. President. The
President (or in the event there be more than one President, the Presidents in
the order designated, or in the absence of any designation, then in the order of
their election) shall be the Chief Operating Officer or Officers of the
Corporation, shall in the absence or disability of the Chief Executive Officer
perform the duties and exercise the powers of the Chief Executive Officer and
shall have, subject to review and approval of the Chief Executive Officer, if
one is elected, responsibility for the general day-to-day operations of the
Corporation’s properties and facilities and such other duties and
responsibilities as (a) are customarily possessed by a chief operating officer
of a corporation similar in size and line of business as the Corporation and (b)
may be delegated to the President from time to time by the Board of Directors or
the Chief Executive Officer of the Corporation or by these Amended and Restated
Bylaws.
Section
8. Vice
Presidents. At
the request of or in the absence of the President or in the event of the
President’s inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
election), if any, shall perform 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 perform such other duties
and have such other powers as the Board of Directors or the President may from
time to time prescribe.
Section
9. Assistant Vice
Presidents. In
the absence of a Vice President or in the event of the Vice President’s
inability or refusal to act, the Assistant Vice President (or in the event there
shall be more than one, the Assistant Vice Presidents in the order designated by
the Board of Directors or in the absence of any designation, then in the order
of their appointment), if any, shall perform the duties and exercise the powers
of that Vice President, and shall perform such other duties and have such other
powers as the Board of Directors, the President or the Vice President under
whose supervision such Assistant Vice President is appointed may from time to
time prescribe.
14
Section
10. Secretary. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
Corporation and of the Board of Directors in a book to be kept for that purpose
and shall perform like duties for the Executive Committee or other standing or
special committees of the Board of Directors when required. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed from time to time by the Board of
Directors, the Chairman of the Board, if there be one, or the President, under
whose supervision the Secretary shall be. The Secretary shall have
custody of the corporate seal of the Corporation, and the Secretary, or an
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the signature of the
Secretary or by the signature of any such 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 such officer’s
signature. The Secretary shall keep and account for all books,
documents, papers, certificates and records of the Corporation required by law
to be kept or filed, except those for which some other officer or agent is
properly accountable. The Secretary shall have authority to sign
stock certificates and shall generally perform all the duties usually
appertaining to the office of the secretary of a corporation.
Section
11. Assistant
Secretaries. In
the absence of the Secretary or in the event of the Secretary’s inability or
refusal to act, the Assistant Secretary (or, if there shall be more than one,
the Assistant Secretaries in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their appointment), if
any, shall 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,
the President or the Secretary may from time to time prescribe.
Section
12. 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. The Treasurer 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 President and
the Board of Directors, at its regular meetings or when the Board of Directors
so requires, an account of all transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond (which shall be renewed every
six (6) years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of the office of the Treasurer and for the restoration to the
Corporation, in case of the Treasurer’s death, resignation, retirement or
removal from office, of all books, papers, vouchers, money, and other property
of whatever kind in the Treasurer’s possession or under the Treasurer’s control
belonging to the Corporation. The Treasurer shall be under the
supervision of the Vice President in charge of finance if one is so designated,
and the Treasurer shall perform such other duties as may be prescribed by the
Board of Directors, the President or any such Vice President in charge of
finance.
Section
13. Assistant
Treasurers. The
Assistant Treasurer or Assistant Treasurers, if any, shall assist the Treasurer,
and in the absence of the Treasurer or in the event of the Treasurer’s inability
or refusal to act, the Assistant Treasurer (or in the event there shall be more
than one, the Assistant Treasurers in the order designated by the Board of
Directors, or in the absence of any designation, then in the order of their
appointment) shall 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, the President or the Treasurer may from time to time
prescribe.
15
Section
14. Controller. The
Controller, if one is appointed, shall have supervision of the accounting
practices of the Corporation and shall prescribe the duties and powers of any
other accounting personnel of the Corporation. The Controller shall
cause to be maintained an adequate system of financial control through a program
of budgets and interpretive reports. The Controller shall initiate
and enforce measures and procedures whereby the business of the Corporation
shall be conducted with the maximum efficiency and economy. If
required, the Controller shall prepare a monthly report covering the operating
results of the Corporation. The Controller shall be under the
supervision of the Vice President in charge of finance, if one is so designated,
and the Controller shall perform such other duties as may from time to time be
prescribed by the Board of Directors, the President or any such Vice President
in charge of finance.
Section
15. Assistant
Controllers. The
Assistant Controller or Assistant Controllers, if any, shall assist the
Controller, and in the absence of the Controller or in the event of the
Controller’s inability or refusal to act, the Assistant Controller (or, if there
shall be more than one, the Assistant Controllers in the order designated by the
Board of Directors, or in the absence of any designation, then in the order of
their appointment) shall perform the duties and exercise the powers of the
Controller and perform such other duties and have such other powers as the Board
of Directors, the President or the Controller may from time to time
prescribe.
Section
16. Other
Officers. Such
other officers as the Board of Directors may choose shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE
IX
INDEMNIFICATION
Section
1. Power to Indemnify in
Actions, Suits or Proceedings other than Those by or in the Right of the
Corporation. Subject
to Section 3 of this Article IX, 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 such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any 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 such 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 such
person’s conduct was unlawful.
Section
2. Power to Indemnify in
Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject
to Section 3 of this Article IX, 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
16
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 such person is or was a director or officer
of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section
3. Authorization of
Indemnification. Any
indemnification under this Article IX (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director or officer is proper in
the circumstances because such person has met the applicable standard of conduct
set forth in Sections 1 or 2 of this Article IX, as the case may
be. Such determination shall be made, with respect to a person who is
a director or officer at the time of such determination, (a) by a majority vote
of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (b) by a committee of such directors designated by
a majority vote of such directors, even though less than a quorum, or (c) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (d) by the stockholders. Such
determination shall be made, with respect to former directors and officers, by
any person or persons having the authority to act on the matter on behalf of the
Corporation. To the extent, however, that a present or former
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, 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, without the necessity of authorization in
the specific case.
Section
4. Good Faith
Defined. For
purposes of any determination under Section 3 of this Article IX, a person shall
be deemed to have acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe such person’s conduct was unlawful, if such person’s action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term “another enterprise” as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Sections 1 or
2 of this Article IX, as the case may be.
17
Section
5. Indemnification by a
Court. Notwithstanding
any contrary determination in the specific case under Section 3 of this Article
IX, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery of the State of Delaware
or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Sections 1 and 2 of
this Article IX. The basis of such indemnification by a court shall
be a determination by such court that indemnification of the director or officer
is proper in the circumstances because such person has met the applicable
standards of conduct set forth in Sections 1 or 2 of this Article IX, as the
case may be. Neither a contrary determination in the specific case
under Section 3 of this Article IX nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that
the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section
6. Expenses Payable in
Advance. Expenses
(including attorneys’ fees) incurred by a director or officer in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized in this Article IX. Such expenses (including attorneys’
fees) incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.
Section
7. Nonexclusivity of
Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, these Amended and Restated Bylaws, 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, it being the policy of the Corporation that indemnification
of the persons specified in Sections 1 and 2 of this Article IX shall be made to
the fullest extent permitted by law. The provisions of this Article
IX shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article IX but whom the Corporation has the
power or obligation to indemnify under the provisions of the DGCL, or
otherwise.
Section
8. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan 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 or the obligation to indemnify such person against such
liability under the provisions of this Article IX.
Section
9. Certain
Definitions. For
purposes of this Article IX, references to “the Corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is
18
or was a
director or officer of such constituent corporation serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this
Article IX with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article IX, references
to “fines” shall include any excise taxes assessed on a person with respect to
an employee benefit plan; and references to “serving at the request of the
Corporation” shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the Corporation” as referred to in
this Article IX.
Section
10. Survival of Indemnification
and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article IX 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
11. Limitation on
Indemnification. Notwithstanding
anything contained in this Article IX to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5 of this
Article IX), the Corporation shall not be obligated to indemnify any director or
officer (or such director’s or such officer’s heirs, executors or personal or
legal representatives) or advance expenses in connection with a proceeding (or
part thereof) initiated by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors.
Section
12. Indemnification of Employees
and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article IX to directors and officers of the Corporation.
Section
13. Savings
Provision. If
this Article IX or any portion of this Article IX shall be invalidated on any
ground by a court of competent jurisdiction the Corporation shall nevertheless
indemnify each director or officer of the Corporation, former director or
officer of the Corporation or person serving at the request of the Corporation
as a director or officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, subject to
Section 3 of this Article IX, as to expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement with respect to any action,
suit, proceeding or investigation, whether civil, criminal or administrative,
including a grand jury proceeding or action or suit brought by or in the right
of the Corporation, to the full extent permitted by any applicable portion of
this Article IX that shall not have been invalidated.
ARTICLE
X
STOCK
MATTERS
Section
1. Shares of
Stock. The
shares of capital stock of the Corporation shall be represented by a
certificate, unless and until the Board of Directors of the Corporation adopts a
resolution permitting shares to be uncertificated. Notwithstanding
the adoption of any such
19
resolution
providing for uncertificated shares, every holder of capital stock of the
Corporation theretofore represented by certificates and, upon request, every
holder of uncertificated shares, shall be entitled to have a certificate for
shares of capital stock of the Corporation signed (by original signature or by
facsimile) by, or in the name of the Corporation by, (a) the Chairman of the
Board, if there be one, the Chief Executive Officer, a President or any
Executive Vice President and (b) the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such stockholder in the
Corporation. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, 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 or rights shall be set forth in
full or summarized on the face or back of any certificate which the Corporation
shall issue to represent such class or series of stock; provided, that except as
otherwise provided in Chapter 1 of Title 8 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of any certificate
which the Corporation shall issue to represent such class or series of stock a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, 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
or rights. Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to this section or applicable law or, with respect to
this section, a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section
2. Facsimile
Signatures. Any
or all of the signatures on any certificate may be facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
Section
3. Lost, Stolen or Destroyed Certificates. 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 and which is 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 (or uncertificated shares), 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 such
owner’s legal representative, to advertise the same in such manner as it shall
require (provided that if the holder is a financial institution or other
institutional investor then its own agreement will be satisfactory) or to give
the Corporation a bond in such sum 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 or the issuance of such new
certificate (or uncertificated shares).
Section
4. Transfers. Stock
of the Corporation shall be transferable in the manner prescribed by applicable
law and in these Bylaws. Transfers of stock shall be made on the
books of the Corporation, and in the case of certificated shares of stock, only
by the person named in the certificate or by such person’s attorney lawfully
constituted in writing and upon the surrender of the certificate therefor,
properly endorsed for transfer (or otherwise accompanied by proper evidence of
succession, assignation or authority to transfer), and upon payment of all
necessary
20
transfer
taxes; or, in the case of uncertificated shares of stock, upon receipt of proper
transfer instructions from the registered holder of the shares or by such
person’s attorney lawfully constituted in writing, and upon payment of all
necessary transfer taxes and compliance with appropriate procedures for
transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required
in any case in which the officers of the Corporation shall determine to waive
such requirement. With respect to certificated shares of stock, every
certificate exchanged, returned or surrendered to the Corporation shall be
marked “Cancelled,” with the date of cancellation, by the Secretary or an
Assistant Secretary of the Corporation or the transfer agent
thereof. No transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom
transferred.
Section
5. Record
Date. The
Board of Directors may fix in advance a date, not preceding the date on which
the resolution fixing the record date is adopted by the Board of Directors
and
(a)
|
not
more than sixty (60) days nor less than ten (10) days preceding the date
of any meeting of stockholders, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, any such meeting
and any adjournment thereof; provided, however, that if no such record
date is fixed by the Board of Directors, such record date shall be at the
close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is
held,
|
(b)
|
subject
to the last two sentences of this Section 5, not more than ten (10) days
after the date on which the resolution fixing the record date is adopted,
as a record date in connection with obtaining a consent of the
stockholders in writing to corporate action without a meeting as provided
in Section 10 of Article II of these Amended and Restated Bylaws;
provided, however, that if no such record date has been fixed by the Board
of Directors, such record date, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which
a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation as provided in Section 10 of Article
II of these Amended and Restated Bylaws; provided, further, if no such
record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by applicable law, such record date
shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action,
or
|
(c)
|
not
more than sixty (60) days before the date for payment of any dividend or
distribution, or the date for the allotment of rights, or the date when
any change, or conversion or exchange of capital stock shall go into
effect, or the date on which any other lawful action shall be taken,
as the record date for determining the stockholders entitled to receive
payment of any such dividend or distribution, or to receive any such
allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock or other lawful action of
the Corporation,
|
and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, any such meeting and any adjournment thereof (provided, however, that the
Board of Directors may fix a new record date for an adjourned meeting), or to
give such consent, or to receive payment of such dividend or
21
distribution,
or to receive such allotment of rights, or to exercise such rights, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent as provided in Section 10 of Article II of
these Amended and Restated Bylaws shall, by written notice to the Secretary of
the Corporation, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date.
Section
6. Record
Owners. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof
except as otherwise required by the laws of the State of Delaware.
Section
7. Transfer and Registry
Agents. The
Corporation may from time to time maintain one (1) or more transfer offices or
agencies and registry offices or agencies at such place or places as may be
determined from time to time by the Board of Directors.
ARTICLE
XI
GENERAL
PROVISIONS
Section
1. Dividends. Dividends
upon the capital stock of the Corporation, if any, subject to the requirements
of the DGCL and the provisions of the Certificate of Incorporation, may be
declared by the Board of Directors at any regular or special meeting of the
Board of Directors (or any action by written consent in lieu thereof in
accordance with Section 1 of Article VI of these Amended and Restated
Bylaws). Dividends may be paid in cash, in property, or in shares of
the capital stock of the Corporation, subject to the provisions of the
Certificate of Incorporation.
Section
2. Reserves. 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 Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
Section
3. Annual
Statement. The
Board of Directors shall present at each annual meeting of stockholders, and at
any special meeting of stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the
Corporation.
Section
4. Checks. All
checks or demands for money and promissory notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time prescribe.
22
Section
5. Fiscal
Year. The
fiscal year of the Corporation shall be determined by the Board of
Directors.
Section
6. Corporate
Seal. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the word “Delaware.” The seal may be used by
causing it or a facsimile thereof to be impressed, affixed, reproduced or
otherwise.
ARTICLE
XII
AMENDMENTS
These
Amended and Restated Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of
Directors at any regular meeting of stockholders or the Board of Directors or at
any special meeting of stockholders or the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such special meeting. All such amendments must be approved
by either the holders of at least sixty-six and two-thirds percent (66 2/3%) of
the voting power of the then issued and outstanding shares of all capital stock
of the Corporation that are entitled to vote generally in the election of
directors or by a majority of the whole Board of Directors then in office;
provided, however, that only stockholders of the Corporation may amend or repeal
any new Bylaws adopted by such stockholders; provided, further, that any
provision of these Amended and Restated Bylaws requiring a supermajority vote of
holders of greater than sixty-six and two-thirds percent (66 2/3%) of the voting
power of the then issued and outstanding shares of all capital stock of the
Corporation that are entitled to vote generally in the election of directors may
only be altered, amended or repealed by the same supermajority vote required to
act under such provision.
23