Attached files
file | filename |
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8-K - FORM 8-K - RSC Holdings Inc. | c95054e8vk.htm |
EX-4.7.2 - EXHIBIT 4.7.2 - RSC Holdings Inc. | c95054exv4w7w2.htm |
Exhibit 3.2
RSC HOLDINGS INC.
AMENDED AND RESTATED BY-LAWS
As Adopted on January 21, 2010
Table of Contents
Section | Page | |||
ARTICLE I STOCKHOLDERS |
1 | |||
Section 1.01. Annual Meetings |
1 | |||
Section 1.02. Special Meetings |
1 | |||
Section 1.03. Participation in Meetings by Remote Communication |
1 | |||
Section 1.04. Notice of Meetings; Waiver of Notice |
1 | |||
Section 1.05. Quorum |
2 | |||
Section 1.06. Voting |
2 | |||
Section 1.07. Voting Lists |
3 | |||
Section 1.08. Adjournment |
3 | |||
Section 1.09. Proxies |
3 | |||
Section 1.10. Organization; Procedure; Inspection of Elections |
4 | |||
Section 1.11. Stockholder Action by Written Consent |
4 | |||
Section 1.12. Notice of Stockholder Proposals and Nominations |
5 | |||
ARTICLE II BOARD OF DIRECTORS |
8 | |||
Section 2.01. General Powers |
8 | |||
Section 2.02. Number and Term of Office |
9 | |||
Section 2.03. Annual and Regular Meetings: Notice |
9 | |||
Section 2.04. Special Meetings; Notice |
9 | |||
Section 2.05. Quorum |
10 | |||
Section 2.06. Voting |
10 | |||
Section 2.07. Adjournment |
10 | |||
Section 2.08. Action Without a Meeting |
10 | |||
Section 2.09. Regulations; Manner of Acting |
10 | |||
Section 2.10. Action by Telephonic Communications |
11 | |||
Section 2.11. Resignations |
11 | |||
Section 2.12. Removal of Directors |
11 | |||
Section 2.13. Vacancies and Newly Created Directorships |
11 | |||
Section 2.14. Director Fees and Expenses |
11 | |||
Section 2.15. Reliance on Accounts and Reports, etc |
11 | |||
ARTICLE III EXECUTIVE AND GOVERNANCE COMMITTEE AND OTHER COMMITTEES |
12 | |||
Section 3.01. How Constituted |
12 | |||
Section 3.02. Powers |
12 | |||
Section 3.03. Proceedings |
13 | |||
Section 3.04. Quorum and Manner of Acting |
13 | |||
Section 3.05. Action by Telephonic Communications |
13 | |||
Section 3.06. Resignations |
13 | |||
Section 3.07. Removal |
14 | |||
Section 3.08. Vacancies |
14 |
i
Table of Contents
(continued)
(continued)
Section | Page | |||
ARTICLE IV OFFICERS |
14 | |||
Section 4.01. Number |
14 | |||
Section 4.02. Election |
14 | |||
Section 4.03. Compensation |
14 | |||
Section 4.04. Removal and Resignation; Vacancies |
14 | |||
Section 4.05. Authority and Duties of Officers |
15 | |||
Section 4.06. President and Chief Executive Officer |
15 | |||
Section 4.07. Vice President |
15 | |||
Section 4.08. Corporate Secretary |
15 | |||
Section 4.09. Chief Financial Officer |
16 | |||
Section 4.10. Treasurer |
17 | |||
Section 4.11. Additional Officers |
17 | |||
Section 4.12. Security |
17 | |||
ARTICLE V CAPITAL STOCK |
17 | |||
Section 5.01. Certificates of Stock, Uncertificated Shares |
17 | |||
Section 5.02. Signatures; Facsimile |
18 | |||
Section 5.03. Lost, Stolen or Destroyed Certificates |
18 | |||
Section 5.04. Transfer of Stock |
18 | |||
Section 5.05. Registered Stockholders |
18 | |||
Section 5.06. Transfer Agent and Registrar |
18 | |||
ARTICLE VI INDEMNIFICATION |
19 | |||
Section 6.01. Nature of Indemnity |
19 | |||
Section 6.02. Successful Defense |
19 | |||
Section 6.03. Determination That Indemnification Is Proper |
20 | |||
Section 6.04. Advance of Expenses |
20 | |||
Section 6.05. Procedure for Indemnification of Directors and Officers |
20 | |||
Section 6.06. Contract Right; Non-Exclusivity; Survival |
21 | |||
Section 6.07. Insurance |
21 | |||
Section 6.08. Subrogation |
21 | |||
Section 6.09. Employees and Agents |
21 | |||
Section 6.10. Interpretation, Severability |
22 | |||
ARTICLE VII OFFICES |
22 | |||
Section 7.01. Registered Office |
22 | |||
Section 7.02. Other Offices |
22 |
ii
Table of Contents
(continued)
(continued)
Section | Page | |||
ARTICLE VIII GENERAL PROVISIONS |
22 | |||
Section 8.01. Dividends |
22 | |||
Section 8.02. Reserves |
23 | |||
Section 8.03. Execution of Instruments |
23 | |||
Section 8.04. Voting as Stockholder |
23 | |||
Section 8.05. Fiscal Year |
23 | |||
Section 8.06. Seal |
23 | |||
Section 8.07. Books and Records; Inspection |
23 | |||
Section 8.08. Electronic Transmission |
23 | |||
ARTICLE IX AMENDMENT OF BY-LAWS |
24 | |||
Section 9.01. Amendment |
24 | |||
ARTICLE X CONSTRUCTION |
24 | |||
Section 10.01. Construction |
24 |
iii
RSC HOLDINGS INC.
BY-LAWS
As amended and restated on January 21, 2010
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the stockholders of RSC
Holdings Inc. (the Corporation) for the election of directors (each, a
Director) to succeed Directors whose terms expire and for the transaction of such other
business as properly may come before such meeting shall be held each year, either within or without
the State of Delaware, at such place, if any, and on such date and at such time, as may be fixed
from time to time by resolution of the Board of Directors and set forth in the notice or waiver of
notice of the meeting, unless, subject to Section 1.11 of these By-Laws and the Amended and
Restated Certificate of Incorporation of the Corporation, the stockholders have acted by written
consent to elect Directors as permitted by the General Corporation Law of the State of Delaware, as
amended from time to time (the DGCL).
Section 1.02. Special Meetings. Special meetings of the stockholders for any purpose
may be called at any time only by or at the direction of the Board of Directors pursuant to a
resolution adopted by a majority of the total number of Directors then in office. Any special
meeting of the stockholders shall be held at such place, if any, within or without the State of
Delaware, and on such date and at such time, as shall be specified in such resolution. The
stockholders of the Corporation do not have the power to call a special meeting.
Section 1.03. Participation in Meetings by Remote Communication. The Board of
Directors, acting in its sole discretion, may establish guidelines and procedures in accordance
with applicable provisions of the DGCL and any other applicable law for the participation by
stockholders and proxyholders in a meeting of stockholders by means of remote communications, and
may determine that any meeting of stockholders will not be held at any place but will be held
solely by means of remote communication. Stockholders and proxyholders complying with such
procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be
deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is
to be held at a designated place or solely by means of remote communication.
Section 1.04. Notice of Meetings; Waiver of Notice.
(a) The Corporate Secretary or any Assistant Secretary shall cause notice of each meeting of
stockholders to be given in writing in a manner permitted by the DGCL not less than ten nor more
than 60 days prior to the meeting, to each stockholder of record entitled to vote at such meeting,
subject to such exclusions as are then permitted by the DGCL. The notice shall specify (i)
the place, if any, date and time of such meeting of the stockholders, (ii) the means of
remote communications, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such meeting, (iii) in the case of a special meeting, the purpose or
purposes for which such meeting is called and (iv) such other information as may be
required by law or as may be deemed appropriate by the Board of Directors, the President and Chief
Executive Officer or the Corporate Secretary of the Corporation. If the stockholder list referred
to in Section 1.07 of these By-Laws is made accessible on an electronic network, the notice of
meeting must indicate how the stockholder list can be accessed. If a stockholder meeting is to be
held solely by means of electronic communications, the notice of such meeting must provide the
information required to access such stockholder list.
1
(b) A written waiver of any notice of any annual or special meeting signed by a stockholder
or a waiver by electronic transmission by a stockholder, whether given before or after the meeting,
is deemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in a waiver of notice. The
attendance of any stockholder at a meeting of stockholders is a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business at the meeting on the ground that the
meeting is not lawfully called or convened.
Section 1.05. Quorum. Except as otherwise required by law or by the Amended and
Restated Certificate of Incorporation, the presence in person or by proxy of the holders of record
of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum
for the transaction of business at such meeting, provided, however, that where a
separate vote by a class or series is required, the holders of a majority in voting power of all
issued and outstanding stock of such class or series entitled to vote on such matter, present in
person or represented by proxy, shall constitute a quorum entitled to take action with respect to
such matter. In the absence of a quorum, the stockholders so present may, by a majority in voting
power thereof, adjourn the meeting from time to time in the manner provided in Section 1.08 of
these By-Laws until a quorum shall attend.
Section 1.06. Voting. Except as otherwise provided in the Amended and Restated
Certificate of Incorporation or by law, every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote for each such share outstanding in his or her
name on the books of the Corporation at the close of business on the record date for such vote. If
no record date has been fixed for a meeting of stockholders, then every holder of record of shares
entitled to vote at a meeting of stockholders shall be entitled to one vote (unless otherwise
provided by the Amended and Restated Certificate of Incorporation or by law) for each such share of
stock outstanding in his or her name on the books of the Corporation at the close of business on
the day next preceding the day on which notice of the meeting 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. Except as
otherwise required by law, the Amended and Restated Certificate of Incorporation, these By-Laws,
the rules and regulations of any stock exchange applicable to the Corporation or pursuant to any
other rule or regulation applicable to the Corporation or its stockholders, the vote of a majority
of the shares entitled to vote at a meeting of stockholders on the subject matter in question
represented in person or by proxy at any meeting at which a quorum is present shall be sufficient
for the transaction of any business at such meeting. The stockholders do not have the right to
cumulate their votes for the election of Directors.
2
Section 1.07. Voting Lists. The officer of the Corporation who has charge of the
stock ledger of the Corporation shall prepare, at least 10 days before every meeting of the
stockholders (and before any adjournment thereof for which a new record date has been set), a
complete list of the stockholders of record entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. This list, which may be in an format, including electronic
format, shall be open to the examination of any stockholder prior to and during the meeting for any
purpose germane to the meeting in the manner required by the DGCL and other applicable law. The
stock ledger shall be the only evidence as to who are the stockholders entitled by this section to
examine the list required by this section or to vote in person or by proxy at any meeting of
stockholders.
Section 1.08. Adjournment. Any meeting of stockholders may be adjourned from time to
time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present
in person or represented by proxy at the meeting, to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the place, if any, and date and time
thereof are announced at the meeting at which the adjournment is taken unless the adjournment is
for more than 30 days or a new record date is fixed for the adjourned meeting after the
adjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of these
By-Laws shall be given to each stockholder of record entitled to vote at the meeting. At the
adjourned meeting, the Corporation may transact any business that might have been transacted at the
original meeting.
Section 1.09. Proxies. Any stockholder entitled to vote at any meeting of the
stockholders or to express consent to or dissent from corporate action in writing without a meeting
may authorize another person or persons to act for such stockholder by proxy. A stockholder may
authorize a valid proxy by executing a written instrument signed by such stockholder, or by causing
his or her signature to be affixed to such writing by any reasonable means including, but not
limited to, by facsimile signature, or by transmitting or authorizing an electronic transmission
setting forth an authorization to act as proxy to the person designated as the holder of the proxy,
a proxy solicitation firm or a like authorized agent. No proxy may be voted or acted upon after
the expiration of three years from the date of such proxy, unless such proxy provides for a longer
period. Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy
states that it is irrevocable and applicable law makes it irrevocable. A stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later
date with the Corporate Secretary. Proxies by electronic transmission must either set forth or be
submitted with information from which it can be determined that the electronic transmission was
authorized by the stockholder. Any copy, facsimile telecommunication or other reliable
reproduction of a writing or transmission created pursuant to this section may be substituted or
used in lieu of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
3
Section 1.10. Organization; Procedure; Inspection of Elections. At every meeting of
stockholders the presiding officer shall be the Chairman of the Board or, in the event of his or
her absence, disability or decision not to preside, the President and Chief Executive Officer or,
in the event of his or her absence or disability, a presiding officer chosen by resolution of the
Board of Directors. The Corporate Secretary, or in the event of his or her absence or disability,
the Assistant Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Corporate Secretary, an appointee of the presiding officer, shall act as secretary of the meeting.
The Board of Directors may make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject to any such rules and
regulations, the presiding officer of any meeting shall have the right and authority to prescribe
rules, regulations and procedures for such meeting and to take all such actions as in the judgment
of the presiding officer are appropriate for the proper conduct of such meetings. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding
officer of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and procedures
for maintaining order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the presiding person of the
meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; and (v) limitations on the time allotted to questions or comments
by participants. The presiding officer at any meeting of stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting, shall, if the facts
warrant, determine and declare to the meeting that a matter or business was not properly brought
before the meeting and if such presiding person should so determine, such presiding person shall so
declare to the meeting and any such matter of business not properly brought before the meeting
shall not be transacted or considered. Unless and to the extent determined by the Board of
Directors or the person presiding over the meeting, meetings of stockholders shall not be required
to be held in accordance with the rules of parliamentary procedure.
(a) Preceding any meeting of the stockholders, the Board of Directors may, and when required
by law shall, appoint one or more persons to act as inspectors of elections, and may designate one
or more alternate inspectors. If no inspector or alternate so appointed by the Board of Directors
is able to act, or if no inspector or alternate has been appointed and the appointment of an
inspector is required by law, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. No Director or nominee for the office of Director shall be
appointed as an inspector of elections. Each inspector, before entering upon the discharge of the
duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of his or her ability. The inspectors shall
discharge their duties in accordance with the requirements of applicable law.
Section 1.11. Stockholder Action by Written Consent.
(a) For so long as RSC Acquisition LLC, RSC Acquisition II LLC, OHCP II RSC, LLC, OHCMP II
RSC, LLC, OHCP RSC COI, LLC and their respective affiliates (collectively, the Sponsors)
collectively own more than 50.0% of the voting power of all outstanding shares of the capital stock
of the Corporation, then, to the fullest extent permitted by law and except as otherwise provided
in the Amended and Restated Certificate of Incorporation, any action required or permitted to be
taken at an annual or special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth
the action so taken, are: (i) 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 (but not less than the
minimum number of votes otherwise prescribed by law) and (ii) 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 within 60 days of the earliest dated consent so delivered to the
Corporation.
4
(b) Except as otherwise provided in the Amended and Restated Certificate of Incorporation, if
the Sponsors collectively own 50.0% or less of the voting power of all outstanding shares of
capital stock of the Corporation, then any action required or permitted to be taken at any annual
or special meeting of stockholders of the Corporation may be taken only upon the vote of the
stockholders at an annual or special meeting duly called and may not be taken by written consent of
the stockholders.
(c) If a stockholder action by written consent is permitted under these By-Laws and the
Amended and Restated Certificate of Incorporation, and the Board of Directors has not fixed a
record date for the purpose of determining the stockholders entitled to participate in such consent
to be given, then: (i) if the DGCL does not require action by the Board of Directors prior
to the proposed stockholder action, the record date 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 at any of the locations referred to in Section 1.11(a)(ii) of these By-Laws; and
(ii) if the DGCL requires action by the Board of Directors prior to the proposed
stockholder action, the 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. Every written consent to action
without a meeting shall bear the date of signature of each stockholder who signs the consent, and
shall be valid if timely delivered to the Corporation at any of the locations referred to in
Section 1.11(a)(ii) of these By-Laws.
(d) The Corporate Secretary shall give prompt notice of the taking of an action without a
meeting by less than unanimous written consent 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 stockholders to take the action were delivered to the Corporation in
accordance with the DGCL.
Section 1.12. Notice of Stockholder Proposals and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of stockholders only
(A) pursuant to the Corporations notice of the meeting (or any supplement thereto),
(B) by or at the direction of the Board of Directors or a Committee appointed by the Board
for such purpose, or (C) by any stockholder of the Corporation who is entitled to vote at
the meeting, who complies with the notice procedures set forth in clauses (ii) and (iii) of this
Section 1.12(a) and who was a stockholder of record at the time such notice is delivered and at the
date of the meeting.
5
(ii) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to subclause (C) of Section 1.12(a)(i) of these By-Laws, the stockholder must
have given timely notice thereof in writing to the Corporate Secretary and any such proposed
business other than nominations must constitute a proper matter for stockholder action. To be
timely, a stockholders notice shall be delivered to the Corporate Secretary at the principal
executive offices of the Corporation not fewer than 90 days nor more than 120 days prior to the
first anniversary of the preceding years annual meeting (which anniversary date, in the case of
the first annual meeting of stockholders following the closing of the Corporations initial
underwritten public offering of common stock, shall be deemed to be May 21, 2008); provided
that if the date of the annual meeting is advanced by more than 30 days or delayed by more than 70
days from such anniversary date of the preceding years annual meeting, notice by the stockholder
to be timely must be so delivered not earlier than 120 days prior to such annual meeting and not
later than the close of business on the later of the ninetieth day prior to such annual meeting and
the tenth day following the day on which public announcement of the date of such meeting is first
made. Such stockholders notice shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director all information relating to such
person that is required to be disclosed in solicitations of proxies for election of Directors, or
is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the Exchange Act), including such persons written consent to being
named in the proxy statement as a nominee and to serving as a Director if elected; (B) as
to any other business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting (including the text of any
resolution proposed for consideration and if such business includes proposed amendments to the
Amended and Restated Certificate of Incorporation or By-Laws, the text of the proposed amendments),
the reasons for conducting such business at the meeting and any material interest in such business
of such stockholder and of any beneficial owner on whose behalf the proposal is made; and
(C) as to the stockholder giving the notice and any beneficial owner on whose behalf the
nomination or proposal is made (1) the name and address of such stockholder, as they appear
on the Corporations books, and of such beneficial owner, (2) the class or series and
number of shares of the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (3) a representation that the stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to propose such business or nomination, and (4) a representation
whether the stockholder or the beneficial owner, if any, intends or is part of a group which
intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporations outstanding capital stock required to approve or adopt the proposal
or elect the nominee and/or (y) otherwise to solicit proxies from stockholders in support
of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his or her intention to present a
proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated
under the Exchange Act, and such stockholders proposal has been included in a proxy statement that
has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation
may require any proposed nominee to furnish such other information as it may reasonably require to
determine the eligibility of such proposed nominee to serve as a Director of the Corporation. In
addition, a stockholder seeking to bring an item of business before the annual meeting shall
promptly provide any other information reasonably requested by the Corporation.
6
(iii) Notwithstanding anything in the second sentence of Section 1.12(a)(ii) of these By-Laws
to the contrary, in the event that the number of Directors to be elected to the Board of Directors
is increased and there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by the Corporation at least 70 days
prior to the first anniversary of the preceding years annual meeting (which anniversary date, in
the case of the first annual meeting of stockholders following the closing of the Corporations
initial underwritten public offering of common stock, shall be deemed to be May 21, 2008), a
stockholders notice under this Section 1.12(a) shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall be delivered to the
Corporate Secretary at the principal executive offices of the Corporation not later than the close
of business on the tenth day following the day on which such public announcement is first made by
the Corporation.
(b) Special Meetings of Stockholders. Only such business as shall have been brought before
the special meeting of the stockholders pursuant to the Corporations notice of meeting shall be
conducted at such meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which Directors are to be elected pursuant to the
Corporations notice of meeting (i) by or at the direction of the Board of Directors or
(ii) provided that the Board of Directors has determined that the Directors shall be
elected at such meeting, by any stockholder of the Corporation who is entitled to vote at the
meeting, who complies with the notice procedures set forth in this Section 1.12(b) and who is a
stockholder of record at the time such notice is delivered to the Corporate Secretary. In the
event the Corporation calls a special meeting of stockholders for the purpose of electing one or
more Directors of the Corporation, any stockholder entitled to vote at such meeting may nominate a
person or persons, as the case may be, for election to such position(s) as specified by the
Corporation, if the stockholders notice as required by Section 1.12(a)(ii) of these By-Laws shall
be delivered to the Corporate Secretary at the principal executive offices of the Corporation not
earlier than the 120 days prior to such special meeting and not later than the close of business on
the later of the ninetieth day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting.
(c) General.
(i) Except as otherwise provided by law, the Amended and Restated Certificate of
Incorporation or these By-Laws, the presiding officer of a meeting of stockholders shall have the
power and duty (x) to determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set forth in this Section 1.12
(including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholders nominee or proposal in compliance with such
stockholders representation as required by clause (a)(ii)(C)(4) of this Section 1.12), and (y) if
any proposed nomination or business is not in compliance with this Section 1.12, to declare that
such defective nomination shall be disregarded or that such proposed business shall not be
transacted.
7
(ii) If the stockholder (or a qualified representative of the stockholder) making a nomination
or proposal under this Section 1.12 does not appear at a meeting of stockholders to present such
nomination or proposal, the nomination shall be disregarded and/or the proposed business shall not
be transacted, as the case may be, notwithstanding that proxies in favor thereof may have been
received by the Corporation. For purposes of this Section 1.12, to be considered a qualified
representative of the stockholder, a person must be authorized by a writing executed by such
stockholder or an electronic transmission delivered by such stockholder to act for such stockholder
as proxy at the meeting of stockholders and such person must produce such writing or electronic
transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting
of stockholders.
(iii) For purposes of this Section 1.12, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iv) Notwithstanding the foregoing provisions of this Section 1.12, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 1.12. Nothing in this Section
1.12 shall be deemed to affect any rights of (x) stockholders to request inclusion of proposals in
the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or (y) the holders
of any series of preferred stock to elect Directors pursuant to any applicable provisions of the
Amended and Restated Certificate of Incorporation or of the relevant preferred stock certificate of
designation.
(v) The announcement of an adjournment or postponement of an annual or special meeting does
not commence a new time period (and does not extend any time period) for the giving of notice of a
stockholder nomination or a stockholder proposal as described above.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law, by the
Amended and Restated Certificate of Incorporation or by these By-Laws, the property, affairs and
business of the Corporation shall be managed by or under the direction of the Board of Directors
and the Board of Directors may exercise all the powers and authority of the Corporation.
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Section 2.02. Number and Term of Office. The number of Directors, subject to any
rights of the holders of shares of any class or series of Preferred Stock, shall initially be 11,
classified (including Directors in office as of the date hereof) with respect to the time for which
they severally hold office into three classes, as nearly equal in number as possible, which number
may be modified (but not reduced to less than three) from time to time exclusively by resolution of
the Board of Directors, subject to the terms of the Amended and Restated Stockholders Agreement
among the Corporation and certain of its stockholders, dated as of May 29, 2007 (as amended from
time to time, the Stockholders Agreement) and any rights of the holders of shares of any
class or series of Preferred Stock, if in effect. One classs initial term will expire at the
first annual meeting of the stockholders following the date hereof, another classs initial term
will expire at the second annual meeting of the stockholders following the date hereof and another
classs initial term will expire at the third annual meeting of stockholders following the date
hereof, with Directors of each class to hold office until their successors are duly elected and
qualified, provided that the term of each Director shall continue until the election and
qualification of a successor and be subject to such Directors earlier death, resignation or
removal. At each annual meeting of stockholders of the Corporation beginning with the first annual
meeting of stockholders following the date hereof, subject to any rights of the holders of shares
of any class or series of Preferred Stock, the successors of the Directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. In the case of any
increase or decrease, from time to time, in the number of Directors of the Corporation, the number
of Directors in each class shall be apportioned as nearly equal as possible. No decrease in the
number of Directors shall shorten the term of any incumbent Director. At each meeting of the
stockholders for the election of Directors, provided a quorum is present, the Directors shall be
elected by a plurality of the votes validly cast in such election.
Section 2.03. Annual and Regular Meetings: Notice. The annual meeting of the Board
of Directors for the purpose of electing officers and for the transaction of such other business as
may come before the meeting shall be held as soon as possible following adjournment of the annual
meeting of the stockholders either (i) at the place of such annual meeting of the
stockholders, in which event notice of such annual meeting of the Board of Directors need not be
given, or (ii) at such other time and place as shall have been specified in advance notice
given to members of the Board of Directors of the date, place and time of such meeting. Any such
notice, which may be given by electronic transmission, shall be given at least 48 hours in advance
to each Director. Any such notice need not be given to any Director who attends such meeting
without protesting the lack of notice to him or her, prior to or at the commencement of such
meeting, or to any Director who submits a signed waiver of notice, whether before or after such
meeting.
The Board of Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or without the State of Delaware) and the date and
time of such meetings. Advance notice of regular meetings need not be given; provided if
the Board of Directors shall fix or change the time or place of any regular meeting, notice of such
action shall be given to each member of the Board of Directors of the place, date and time of such
meetings which shall be at least 48 hours notice. Notice of such a meeting need not be given to
any Director who attends such meeting without protesting the lack of notice to him or her, prior to
or at the commencement of such meeting, or to any Director who submits a signed waiver of notice,
whether before or after such meeting.
Section 2.04. Special Meetings; Notice. Special meetings of the Board of Directors
shall be held whenever called by the President and Chief Executive Officer or any Investor Nominee
(as defined in the Stockholders Agreement), at such place (within or without the State of
Delaware), date and time as may be specified in the respective notices or waivers of notice of such
meetings. Special meetings of the Board of Directors, which notice may be given by electronic
transmission, may be called on 48 hours notice. Notice of any special meeting need not be given
to any Director who attends such meeting without protesting the lack of notice to him or her, prior
to or at the commencement of such meeting, or to any Director who submits a signed waiver of notice
(including by electronic transmission), whether before or after such meeting. Any business may be
conducted at a special meeting.
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Section 2.05. Quorum. A quorum for meetings of the Board of Directors shall consist
of a majority of the total authorized membership of the Board of Directors, subject to the
requirements under the Stockholders Agreement (if in effect).
Section 2.06. Voting. Except as otherwise required by law, the Amended and Restated
Certificate of Incorporation or these By-Laws, the vote of a majority of the Directors present at
any meeting at which a quorum is present and any other approval that may be required under the
Stockholders Agreement (if in effect) shall be the act of the Board of Directors.
Section 2.07. Adjournment. A majority of the Directors present, whether or not a
quorum is present, may adjourn any meeting of the Board of Directors to another date, time or
place, provided that if a quorum is present at any meeting of the Board of Directors, such
meeting may not be adjourned without the approval of a majority of the Investor Nominees (as
defined in the Stockholders Agreement) present at such meeting, and provided
further that such adjourned meeting is no earlier than 48 hours after written notice (in
accordance with these By-Laws) of such postponement has been given to the Directors (or such notice
is waived in accordance with these By-Laws), and, at any such postponed meeting, a quorum shall
consist of a majority of the total authorized membership of the Board of Directors, subject to the
requirements under the Stockholders Agreement (if in effect).
Section 2.08. Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if all members of the Board
of Directors consent thereto in writing or by facsimile or by any form of electronic transmission
previously approved by a Director, which approval has not been revoked (Approved Electronic
Transmission), and such writing or writings or Approved Electronic Transmissions are filed
with the minutes of proceedings of the Board of Directors. 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 2.09. Regulations; Manner of Acting. To the extent consistent with
applicable law, the Amended and Restated Certificate of Incorporation and these By-Laws, the Board
of Directors may adopt such rules and regulations for the conduct of meetings of the Board of
Directors and for the management of the property, affairs and business of the Corporation as the
Board of Directors may deem appropriate. In addition to the election of the Chairman of the Board,
the Board of Directors may elect one or more vice-chairpersons or lead Directors to perform such
other duties as may be designated by the Board of Directors. The Chairman of the Board shall
preside at all meetings of the Board of Directors at which he or she is present. In the event of
his or her absence or disability at any meeting, any Director designated by a majority of the
Directors present shall preside at such meeting.
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Section 2.10. Action by Telephonic Communications. Members of the Board of Directors
may participate in a meeting of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this provision shall constitute presence in
person at such meeting.
Section 2.11. Resignations. Any Director may resign at any time by submitting an
electronic transmission or by delivering a written notice of resignation to the Chairman of the
Board, the President and Chief Executive Officer or the Corporate Secretary. Such resignation
shall take effect upon delivery unless the resignation specifies a later effective date or an
effective date determined upon the happening of a specific event.
Section 2.12. Removal of Directors. Subject to the rights of the holders of shares
of any class or series of Preferred Stock, if any, to elect additional Directors pursuant to the
Amended and Restated Certificate of Incorporation (including any certificate of designation
thereunder), any Director may be removed only for cause, upon affirmative vote of holders of at
least a majority of the votes to which all the stockholders of the Corporation would be entitled to
cast in any election of Directors or class of Directors, acting at a meeting of the stockholders or
by written consent (if permitted) in accordance with the DGCL, the Amended and Restated Certificate
of Incorporation and these By-Laws.
Section 2.13. Vacancies and Newly Created Directorships. Subject to the rights of
the holders of shares of any class or series of Preferred Stock, if any, to elect additional
Directors pursuant to the Amended and Restated Certificate of Incorporation (including any
certificate of designation thereunder) and to the Stockholders Agreement (if in effect), any
vacancy in the Board of Directors that results from the death, disability, resignation,
disqualification, removal of any Director or from any other cause shall be filled solely by the
affirmative vote of a majority of the total number of Directors then in office, even if less than a
quorum, or by a sole remaining Director. Any Director filling a vacancy shall be of the same class
as that of the Director whose death, resignation, disqualification, removal or other event caused
the vacancy, and any Director filling a newly created directorship shall be of the class specified
by the Board of Directors at the time the newly created directorship was created. A Director
elected to fill a vacancy or newly created Directorship shall hold office until his or her
successor has been elected and qualified or until his or her earlier death, resignation or removal.
Section 2.14. Director Fees and Expenses. The amount, if any, which each Director
shall be entitled to receive as compensation for his or her services shall be fixed from time to
time by the Board of Directors, subject to the Stockholders Agreement (if in effect). The
Corporation will cause each non-employee Director serving on the Board of Directors to be
reimbursed for all reasonable out-of-pocket costs and expenses incurred by him or her in connection
with such service.
Section 2.15. Reliance on Accounts and Reports, etc. A Director, or a member of any
Committee designated by the Board of Directors shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the records of the Corporation and upon information,
opinions, reports or statements presented to the Corporation by any of the Corporations officers
or employees, or Committees designated by the Board of Directors, or by any other person as to the
matters the member reasonably believes are within such other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation.
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ARTICLE III
EXECUTIVE AND GOVERNANCE COMMITTEE
AND OTHER COMMITTEES
AND OTHER COMMITTEES
Section 3.01. How Constituted. The Board of Directors shall have an Executive
Committee, a Nominating and Corporate Governance Committee, a Compensation Committee, an Audit and
Risk Committee and such other committees as the Board of Directors may determine (collectively, the
Committees). The Audit Committee shall consist of at least three Directors and each other
Committee shall consist of at least two directors, selected in accordance with the Stockholders
Agreement (if in effect, otherwise selected by the majority of the Board). Subject to this Section
3.01, each Committee shall consist of such number of Directors as from time to time may be fixed by
a majority of the total authorized membership of the Board of Directors, and any Committee may be
abolished or re-designated from time to time by the Board of Directors. Each member of any such
Committee (whether designated at an annual meeting of the Board of Directors or to fill a vacancy
or otherwise) shall hold office until his or her successor shall have been designated or until he
or she shall cease as a Director, or until his or her earlier death, resignation or removal.
Section 3.02. Powers. Each Committee shall have such powers and responsibilities as
the Board of Directors may from time to time authorize. During the intervals between the meetings
of the Board of Directors, the Executive and Governance Committee, except as otherwise provided in
this Section 3.02 or required by the DGCL, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the property, affairs and business of the
Corporation. Each such other Committee, except as otherwise provided in this Section 3.02, shall
have and may exercise such powers of the Board of Directors as may be provided by resolution or
resolutions of the Board of Directors. Neither the Executive and Governance Committee nor any
other Committee shall have the power or authority:
(a) to amend the Amended and Restated Certificate of Incorporation (except that a
Committee may, to the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a)
of the DGCL, fix the designations and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or classes of stock of
the Corporation or fix the number of shares of any series of stock or authorize the increase
or decrease of the shares of any series);
(b) to adopt an agreement of merger or consolidation or a Amended and Restated
Certificate of ownership and merger;
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(c) to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporations property and assets;
(d) to recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution; or
(e) to amend these By-Laws of the Corporation.
The Executive and Governance Committee shall have, and any such other Committee may be granted
by the Board of Directors, power to authorize the seal of the Corporation to be affixed to any or
all papers which may require it.
Section 3.03. Proceedings. Each Committee may fix its own rules of procedure and may
meet at such place (within or without the State of Delaware), at such time and upon such notice, if
any, as it shall determine from time to time, provided that the Board of Directors may not
adopt other rules and regulations for the governance of any Committee that are inconsistent with
the provisions of these By-Laws and the Stockholders Agreement (if in effect). Each such Committee
shall keep minutes of its proceedings and shall report such proceedings to the Board of Directors
at the meeting of the Board of Directors following any such proceedings.
Section 3.04. Quorum and Manner of Acting. Except as may be otherwise provided in
the resolution creating such Committee, at all meetings of any Committee the presence of members
constituting a majority of the total authorized membership of such Committee shall constitute a
quorum for the transaction of business. The act of the majority of the members present at any
meeting at which a quorum is present shall be the act of such Committee. Any action required or
permitted to be taken at any meeting of any such Committee may be taken without a meeting, if all
members of such Committee shall consent to such action in writing or by electronic transmission,
and such writing or writings or electronic transmission or transmissions are filed with the minutes
of the proceedings of 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. The members of any such Committee shall act only as a Committee, and the
individual members of such Committee shall have no power as such.
Section 3.05. Action by Telephonic Communications. Members of any Committee
designated by the Board of Directors may participate in a meeting of 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 pursuant to this
provision shall constitute presence in person at such meeting.
Section 3.06. Resignations. Any member of any Committee may resign at any time by
submitting an electronic transmission or by delivering a written notice of resignation to the
Chairman of the Board, the President and Chief Executive Officer or the Corporate Secretary.
Unless otherwise specified therein, such resignation shall take effect upon delivery.
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Section 3.07. Removal. Any member of any Committee may be removed from his or her
position as a member of such Committee at any time, either for or without cause, by resolution
adopted by a majority of the whole Board of Directors, provided that for so long as the
Stockholders Agreement is in effect, the removal of any member of a Committee designated by any
Principal Investor (as defined in the Stockholders Agreement) shall require the approval of such
Principal Investor (as defined in the Stockholders Agreement).
Section 3.08. Vacancies. If any vacancy shall occur in any Committee, by reason of
disqualification, death, resignation, removal or otherwise, the remaining members shall continue to
act, and any such vacancy may be filled by the Board of Directors subject to Section 3.01 of these
By-Laws and the Stockholders Agreement (if in effect).
ARTICLE IV
OFFICERS
Section 4.01. Number. The officers of the Corporation shall be elected by the Board
of Directors and shall be a President and Chief Executive Officer, one or more Vice Presidents, a
Corporate Secretary, a Chief Financial Officer and a Treasurer, and any other officers appointed
pursuant to Section 4.11. The Board of Directors also may elect and the President and Chief
Executive Officer may appoint one or more Assistant Secretaries and Assistant Treasurers in such
numbers as the Board of Directors or the President and Chief Executive Officer may determine who
shall have such authority, exercise such powers and perform such duties as may be specified in
these By-Laws or determined by the Board of Directors. Any number of offices may be held by the
same person, except that one person may not hold both the office of President and Chief Executive
Officer and Corporate Secretary. No officer need be a Director of the Corporation.
Section 4.02. Election. Unless otherwise determined by the Board of Directors, the
officers of the Corporation shall be elected by the Board of Directors at the annual meeting of the
Board of Directors, and shall be elected to hold office until the next succeeding annual meeting of
the Board of Directors at which his or her successor has been elected and qualified. In the event
of the failure to elect officers at such annual meeting, officers may be elected at any regular or
special meeting of the Board of Directors. Each officer shall hold office until his or her
successor has been elected and qualified, or until his or her earlier death, resignation or
removal.
Section 4.03. Compensation. The salaries and all other compensation of all officers,
agents and employees of the corporation shall be fixed by the Board of Directors or in the manner
established by the Board of Directors.
Section 4.04. Removal and Resignation; Vacancies. Any officer may be removed for or
without cause at any time solely by the Board of Directors. Any officer may resign at any time by
delivering notice of resignation, either in writing signed by such officer or by electronic
transmission, to the Chairman of the Board, the President and Chief Executive Officer or the
Corporate Secretary. Unless otherwise specified therein, such resignation shall take effect upon
delivery. Any vacancy occurring in any office of the Corporation by death, resignation, removal or
otherwise, shall be filled by the Board of Directors.
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Section 4.05. Authority and Duties of Officers. The officers of the Corporation
shall have such authority and shall exercise such powers and perform such duties as may be
specified in these By-Laws or in a resolution of the Board of Directors, except that in any event
each officer shall exercise such powers and perform such duties as may be required by law.
Section 4.06. President and Chief Executive Officer. The President and Chief
Executive Officer shall, subject to the direction of the Board of Directors, be the chief executive
officer of the Corporation, shall have general control and supervision of the policies and
operations of the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He or she shall manage and administer the Corporations
business and affairs and shall also perform all duties and exercise all powers usually pertaining
to the office of a chief executive officer, president or chief operating officer, of a corporation,
including, without limitation under the DGCL. He or she shall have the authority to sign, in the
name and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts and any
other documents and instruments in connection with the business of the Corporation, and together
with the Corporate Secretary or an Assistant Secretary, conveyances of real estate and other
documents and instruments to which the seal of the Corporation may need to be affixed. Except as
otherwise determined by the Board of Directors, he or she shall have the authority to cause the
employment or appointment of such employees (other than the President and Chief Executive Officer)
and agents of the Corporation as the conduct of the business of the Corporation may require, to fix
their compensation and to remove or suspend any such employees or agents elected or appointed by
the President and Chief Executive Officer or the Board of Directors. The President and Chief
Executive Officer shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 4.07. Vice President. Except as otherwise determined by the Board of
Directors, each Vice President shall perform such duties and exercise such powers as may be
assigned to him or her from time to time by the President and Chief Executive Officer. Except as
otherwise determined by the Board of Directors, in the absence of the President and Chief Executive
Officer, the duties of the President and Chief Executive Officer shall be performed and his or her
powers may be exercised by such Vice President as shall be designated by the President and Chief
Executive Officer, or failing such designation, such duties shall be performed and such powers may
be exercised by each Vice President in the order of their earliest election to that office; subject
in any case to review and superseding action by the President and Chief Executive Officer.
Section 4.08. Corporate Secretary. Except as otherwise determined by the Board of
Directors, the Corporate Secretary shall have the following powers and duties:
(a) He or she shall keep or cause to be kept a record of all the proceedings of the
meetings of the stockholders and of the Board of Directors and all Committees of which a
secretary has not been appointed in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
15
(c) Whenever any Committee shall be appointed pursuant to a resolution of the Board of
Directors, he or she shall furnish a copy of such resolution to the members of such
Committee.
(d) He or she shall be the custodian of the records and of the seal of the Corporation
and cause such seal (or a facsimile thereof) to be affixed to all certificates representing
shares of the Corporation prior to the issuance thereof and to all instruments the execution
of which on behalf of the Corporation under its seal shall have been duly authorized in
accordance with these By-Laws, and when so affixed he or she may attest the same.
(e) He or she shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the Amended and Restated
Certificate of Incorporation or these By-Laws.
(f) He or she shall have charge of the stock books and ledgers of the Corporation and
shall cause the stock and transfer books to be kept in such manner as to show at any time
the number of shares of stock of the Corporation of each class issued and outstanding, the
names (alphabetically arranged) and the addresses of the holders of record of such shares,
the number of shares held by each holder and the date as of which each became such holder of
record.
(g) He or she shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant
Secretary shall have signed) certificates representing shares of the Corporation the
issuance of which shall have been authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties incident to the office of
secretary and such other duties as may be specified in these By-Laws or as may be assigned
to him or her from time to time by the Board of Directors, or the President and Chief
Executive Officer.
Section 4.09. Chief Financial Officer. Except as otherwise determined by the Board
of Directors, the Chief Financial Officer shall be the chief financial officer of the Corporation
and shall have the following powers and duties:
(a) He or she shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation, and shall keep or cause
to be kept full and accurate records of all receipts of the Corporation.
(b) He or she shall render to the Board of Directors, whenever requested, a statement
of the financial condition of the Corporation and of all his or her transactions as Chief
Financial Officer, and render a full financial report at the annual meeting of the
stockholders, if called upon to do so.
(c) He or she shall be empowered from time to time to require from all officers or
agents of the Corporation reports or statements giving such information as he or she may
desire with respect to any and all financial transactions of the Corporation.
16
(d) He or she shall perform, in general, all duties incident to the office of chief
financial officer and such other duties as may be specified in these By-Laws or as may be
assigned to him or her from time to time by the Board of Directors.
Section 4.10. Treasurer. Except as otherwise determined by the Board of Directors,
the Treasurer shall have the following powers and duties:
(a) He or she may sign (unless an Assistant Treasurer or the Corporate Secretary or an
Assistant Secretary shall have signed) certificates representing stock of the Corporation
the issuance of which shall have been authorized by the Board of Directors.
(b) He or she shall perform, in general, all duties incident to the office of
treasurer and such other duties as may be specified in these By-Laws or as may be assigned
to him or her from time to time by the Board of Directors or the Chief Financial Officer.
Section 4.11. Additional Officers. The Board of Directors may appoint such other
officers and agents as it may deem appropriate, and such other officers and agents shall hold their
offices for such terms and shall exercise such powers and perform such duties as may be determined
from time to time by the Board of Directors. The Board of Directors from time to time may delegate
to any officer or agent the power to appoint subordinate officers or agents and to prescribe their
respective rights, terms of office, authorities and duties. Any such officer or agent may remove
any such subordinate officer or agent appointed by him or her, for or without cause.
Section 4.12. Security. The Board of Directors may require any officer, agent or
employee of the Corporation to provide security for the faithful performance of his or her duties,
in such amount and of such character as may be determined from time to time by the Board of
Directors.
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares. The shares of the
Corporation shall be represented by certificates, except to the extent that the Board of Directors
has provided by resolution or resolutions that some or all of any or all classes or series of the
stock of the Corporation shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the Corporation.
Every holder of stock in the Corporation represented by certificates shall be entitled to have, and
the Board may in its sole discretion permit a holder of uncertificated shares to receive upon
request a certificate signed by the appropriate officers of the Corporation, representing the
number of shares registered in certificate form. Such certificate shall be in such form as the
Board of Directors may determine, to the extent consistent with applicable law, the Amended and
Restated Certificate of Incorporation and these By-Laws.
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Section 5.02. Signatures; Facsimile. All signatures on the certificates referred to
in Section 5.01 of these By-Laws may be in facsimile, engraved or printed form, to the extent
permitted by law. In case any officer, transfer agent or registrar who has signed, or whose
facsimile, engraved or printed signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if he or she were such officer, transfer agent or registrar
at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. A new certificate may be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, only upon delivery to the Corporation of an affidavit of the owner or owners
(or their legal representatives) of such certificate, setting forth such allegation, and a bond or
undertaking as may be satisfactory to a financial officer of the Corporation to indemnify the
Corporation against any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of any such new certificate.
Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books. Within a reasonable time after the 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 Sections 151, 156, 202(a) or 218(a)
of the DGCL. Subject to the provisions of the Amended and Restated Certificate of Incorporation
and these By-Laws, the Board of Directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares of the Corporation.
Section 5.05. Registered Stockholders. Prior to due surrender of a certificate for
registration of transfer, the Corporation may treat the registered owner as the person exclusively
entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to
exercise all the rights and powers of the owner of the shares represented by such certificate, and
the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such
shares on the part of any other person, whether or not the Corporation shall have notice of such
claim or interests, provided that if a transfer of shares shall be made for collateral
security, and not absolutely, this fact shall be so expressed in the entry of the transfer if, when
the certificates are presented to the Corporation for transfer or uncertificated shares are
requested to be transferred, both the transferor and transferee request the Corporation to do so.
Section 5.06. Transfer Agent and Registrar. The Board of Directors may appoint one
or more transfer agents and one or more registrars, and may require all certificates representing
shares to bear the signature of any such transfer agents or registrars.
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ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity. The Corporation shall indemnify, to the fullest
extent permitted by the DGCL and other applicable law, 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 (each, a proceeding), by reason of the
fact that he or she is or was or has agreed to become a Director or officer of the Corporation, or
while serving as a Director or officer of the Corporation, is or was serving or has agreed to serve
at the request of the Corporation as a Director, officer, employee, manager or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such capacity, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her or on his or her behalf in connection with such proceeding and any appeal therefrom, if he or
she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal proceeding had no
reasonable cause to believe his or her conduct was unlawful; provided that in the case of an action
or suit by or in the right of the Corporation to procure a judgment in its favor (i) such
indemnification shall be limited to expenses (including attorneys fees) actually and reasonably
incurred by such person in the defense or settlement of such action or suit, and (ii) 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
Delaware Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper. Notwithstanding the foregoing,
but subject to Section 6.05 of these By-Laws, the Corporation shall not be obligated to indemnify a
Director or officer of the Corporation in respect of a proceeding (or part thereof) instituted by
such Director or officer, unless such proceeding (or part thereof) has been authorized by the Board
of Directors or the Corporation has separately agreed to indemnify such Director or officer
pursuant to an agreement authorized by the Board of Directors.
The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to any criminal
proceeding, had reasonable cause to believe that his or her conduct was unlawful.
Section 6.02. Successful Defense. To the extent that a present or former Director or
officer of the Corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in Section 6.01 of these By-Laws or in defense of any claim, issue or matter
therein, he or she shall be indemnified by the Corporation against expenses (including attorneys
fees) actually and reasonably incurred by him or her in connection therewith.
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Section 6.03. Determination That Indemnification Is Proper. Any indemnification of a
present or former Director or officer of the Corporation under Section 6.01 of these By-Laws
(unless ordered by a court) shall be made by the Corporation only upon a determination that
indemnification of such person is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 6.01 of these By-Laws. Any such determination
shall be made, with respect to a person who is a Director or officer at the time of such
determination (i) by a majority vote of the Directors who are not parties to such
proceeding, even though less than a quorum, or (ii) by a Committee of such Directors
designated by majority vote of such Directors, even though less than a quorum, or (iii) if
there are no such Directors, or if such Directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders.
Section 6.04. Advance of Expenses. Expenses (including attorneys fees) incurred by
a present or former Director or officer in defending any civil, criminal, administrative or
investigative proceeding shall be paid by the Corporation prior to the final disposition of such
proceeding upon written request by such person and delivery of an undertaking by such person to
repay such amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation under this Article or applicable law; provided that the
Board of Directors may not require such Director or officer to post any bond or otherwise provide
any security for such undertaking. The Corporation or, in respect of a present Director or
officer, the Board of Directors may authorize the Corporations counsel to represent (subject to
applicable conflict of interest considerations) such present or former Director or officer in any
proceeding, whether or not the Corporation is a party to such proceeding.
Section 6.05. Procedure for Indemnification of Directors and Officers. Any
indemnification of a Director or officer of the Corporation under Sections 6.01 and 6.02 of these
By-Laws, or advance of expenses to such persons under Section 6.04 of these By-Laws, shall be made
promptly, and in any event within 30 days, upon the written request by or on behalf of such person
(together with supporting documentation). If a determination by the Corporation that such person
is entitled to indemnification pursuant to this Article is required, and the Corporation fails to
respond within 60 days to a written request for indemnity, the Corporation shall be deemed to have
approved such request. If the Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30
days, the right to indemnification or advances as granted by this Article shall be enforceable by
such person in any court of competent jurisdiction. Such persons costs and expenses incurred in
connection with successfully establishing his or her right to indemnification, in whole or in part,
in any such action shall also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of costs, charges and
expenses under Section 6.04 of these By-Laws where the required undertaking, if any, has been
received by or tendered to the Corporation) that the claimant has not met the standard of conduct
set forth in Section 6.01 of these By-Laws, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of Directors or any
Committee thereof, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in Section 6.01 of these By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors or any Committee thereof, its independent legal
counsel, and its stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
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Section 6.06. Contract Right; Non-Exclusivity; Survival.
(a) The rights to indemnification and advancement of expenses provided by this Article shall
be deemed to be separate contract rights between the Corporation and each Director and officer who
serves in any such capacity at any time while these provisions as well as the relevant provisions
of the DGCL are in effect and any repeal or modification thereof shall not adversely affect any
right or obligation then existing with respect to any state of facts then or previously existing or
any proceeding previously or thereafter brought or threatened based in whole or in part upon any
such state of facts. Such contract rights may not be modified retroactively as to any present or
former Director or officer without the consent of such Director or officer.
(b) The rights to indemnification and advancement of expenses provided by this Article shall
continue as to a person who has ceased to be a Director or officer and shall not be deemed
exclusive of any other rights to which a present or former Director or officer of the Corporation
seeking indemnification or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested Directors, or otherwise.
(c) The rights to indemnification and advancement of expenses provided by this Article to any
present or former Director or officer shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 6.07. Insurance. The Corporation shall purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a Director or officer of the
Corporation, or is or was serving at the request of the Corporation as a Director or officer of
another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against him or her and incurred by him or her or on his or her behalf in any such
capacity, or arising out of his or her status as such, whether or not the Corporation would have
the power to indemnify him or her against such liability under the provisions of this Article,
provided that such insurance is available on commercially reasonable terms consistent with
then prevailing rates in the insurance market.
Section 6.08. Subrogation. In the event of payment under this Article VI, the
Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of
the indemnitee, who shall execute all documents, and do all acts, as the Corporation may reasonably
request to secure such rights, including the execution of such documents as the Corporation may
reasonably request to enable the Corporation effectively to bring suit to enforce such rights.
Section 6.09. Employees and Agents. The Board, or any officer authorized by the
Board of Directors generally or in the specific case to make indemnification decisions, may cause
the Corporation to indemnify any present or former employee or agent of the Corporation in such
manner and for such liabilities as the Board of Directors may determine, up to the fullest extent
permitted by the DGCL and other applicable law.
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Section 6.10. Interpretation, Severability. Terms defined in Sections 145(h) or (i)
of the DGCL have the meanings set forth in such sections when used in this Article. If this
Article or any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director or officer as to
costs, charges and expenses (including attorneys fees), judgments, fines and amounts paid in
settlement with respect to any proceeding, whether civil, criminal, administrative, investigative
or otherwise, including an action by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Article that shall not have been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.01. Registered Office. The registered office of the Corporation in the
State of Delaware shall be located at the location provided in the Amended and Restated Certificate
of Incorporation of the Corporation.
Section 7.02. Other Offices. The Corporation may maintain offices or places of
business at such other locations within or without the State of Delaware as the Board of Directors
may from time to time determine or as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law and the Amended
and Restated Certificate of Incorporation, dividends upon the shares of the Corporation may be
declared by the Board of Directors at any regular or special meeting of the Board of Directors and
any such dividend may be paid in cash, property, or shares of the Corporations capital stock.
A member of the Board of Directors, or a member of any Committee designated by the Board of
Directors shall be fully protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the Corporation by any of its
officers or employees, or Committees of the Board of Directors, or by any other person as to
matters the Director reasonably believes are within such other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation, as to
the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
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Section 8.02. Reserves. 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, thinks proper as a reserve or reserves to meet contingencies, 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 Corporations stockholders and the Board of Directors may similarly modify or abolish any
such reserve.
Section 8.03. Execution of Instruments. Except as otherwise provided by law or the
Amended and Restated Certificate of Incorporation, the Board of Directors or the President and
Chief Executive Officer may authorize the President and Chief Executive Officer or any other
officer or agent to enter into any contract or execute and deliver any instrument in the name and
on behalf of the Corporation. Any such authorization may be general or limited to specific
contracts or instruments.
Section 8.04. Voting as Stockholder. Unless otherwise determined by resolution of
the Board of Directors, the President and Chief Executive Officer or any Vice President shall have
full power and authority on behalf of the Corporation to attend any meeting of stockholders of any
corporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote)
and exercise in person or by proxy all other rights, powers and privileges incident to the
ownership of such stock at any such meeting, or through action without a meeting. The Board of
Directors may by resolution from time to time confer such power and authority (in general or
confined to specific instances) upon any other person or persons.
Section 8.05. Fiscal Year. The fiscal year of the Corporation shall commence on the
first day of January of each year and shall terminate in each case on December 31.
Section 8.06. Seal. The seal of the Corporation shall be circular in form and shall
contain the name of the Corporation, the year of its incorporation and the words Corporate Seal
and Delaware. The form of such seal shall be subject to alteration by the Board of Directors.
The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,
or may be used in any other lawful manner.
Section 8.07. Books and Records; Inspection. Except to the extent otherwise required
by law, the books and records of the Corporation shall be kept at such place or places within or
without the State of Delaware as may be determined from time to time by the Board of Directors.
Section 8.08. Electronic Transmission. Electronic transmission, as used in these
By-Laws, means any form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof,
and that may be directly reproduced in paper form by such a recipient through an automated process.
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ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.01. Amendment. Subject to the provisions of the Amended and Restated
Certificate of Incorporation, these By-Laws may be amended, altered or repealed:
(a) by resolution adopted by a majority of the Board of Directors if at any special or
regular meeting of the Board of Directors if, in the case of such special meeting only, notice of
such amendment, alteration or repeal is contained in the notice or waiver of notice of such
meeting, or
(b) at any regular or special meeting of the stockholders upon the affirmative vote of the
holders of a majority of the combined voting power of the outstanding shares of the Corporation
entitled to vote in any election of Directors or class of Directors if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver
of notice of such meeting, provided, that Sections 1.02, 1.11, 1.12, 2.02, 2.12, 2.13,
Article VI and this Section 9.01 shall not be amended, altered or repealed pursuant to this Section
9.01(b) without the affirmative vote of holders of at least two-thirds of the votes to which all
the stockholders of the Corporation would be entitled to cast in any election of Directors or class
of Directors.
Notwithstanding the foregoing, (x) no amendment to the Stockholders Agreement (whether
or not such amendment modifies any provision of the Stockholders Agreement to which these By-Laws
are subject) shall be deemed an amendment of these By-Laws for purposes of this Section 9.01 and
(y) no amendment, alteration or repeal of Article VI shall adversely affect any right or
protection existing under these By-Laws immediately prior to such amendment, alteration or repeal,
including any right or protection of a Director thereunder in respect of any act or omission
occurring prior to the time of such amendment.
ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the provisions of
these By-Laws as in effect from time to time and the provisions of the Amended and Restated
Certificate of Incorporation of the Corporation as in effect from time to time, the provisions of
such Amended and Restated Certificate of Incorporation shall be controlling.
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