Attached files
| file | filename |
|---|---|
| 10-Q - Boomerang Systems, Inc. | v174307_10q.htm |
| EX-31.2 - Boomerang Systems, Inc. | v174307_ex31-2.htm |
| EX-3.1H - Boomerang Systems, Inc. | v174307_ex3-1h.htm |
| EX-31.1 - Boomerang Systems, Inc. | v174307_ex31-1.htm |
| EX-32.2 - Boomerang Systems, Inc. | v174307_ex32-2.htm |
| EX-32.1 - Boomerang Systems, Inc. | v174307_ex32-1.htm |
| EX-3.1I - Boomerang Systems, Inc. | v174307_ex3-1i.htm |
SECOND
RESTATED AND AMENDED BYLAWS
OF
DIGITAL
IMAGING RESOURCES, INC.
(the
“Corporation”)
ADOPTED: NOVEMBER
28, 2007
ARTICLE
I
Capital
Stock
Section
1. Share
Ownership. Shares
of the capital stock of the Corporation shall be represented by certificates in
such form as the Board of Directors may from time to time prescribe; provided, however, that the
Board of Directors of the Corporation may provide by resolution or resolutions
that some or all of any or all classes or series of the Corporation’s stock may
be uncertificated shares. Owners of shares of the capital stock of
the Corporation shall be recorded in the share transfer records of the
Corporation, and ownership of such shares shall be evidenced by a certificate or
book entry notation in the share transfer records of the
Corporation. Any certificates representing such shares shall be
signed by the Chairman of the Board, if there is one, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer at the date
of its issuance.
Section
2. Stockholders of
Record. The
Board of Directors of the Corporation may appoint one or more transfer agents or
registrars of any class of stock or other security of the
Corporation. The Corporation may be its own transfer agent if so
appointed by the Board of Directors. The Corporation shall be
entitled to treat the holder of record of any shares of the Corporation as the
owner thereof for all purposes, and shall not be bound to recognize any
equitable or other claim to, or interest in, such shares or any rights deriving
from such shares, on the part of any other person, including (but without
limitation) a purchaser, assignee or transferee, unless and until such other
person becomes the holder of record of such shares, whether or not the
Corporation shall have either actual or constructive notice of the interest of
such other person.
Section
3. Transfer of
Shares. The
shares of the capital stock of the Corporation shall be transferable in the
share transfer records of the Corporation by the holder of record thereof, or
his duly authorized attorney or legal representative. All
certificates representing shares surrendered for transfer, properly endorsed,
shall be canceled and new certificates for a like number of shares shall be
issued therefor. In the case of lost, stolen, destroyed or mutilated
certificates representing shares for which the Corporation has been requested to
issue new certificates, new certificates or other evidence of such new shares
may be issued upon such conditions as may be required by the Board of Directors
or the Secretary or an Assistant Secretary for the protection of the Corporation
and any transfer agent or registrar. Uncertificated shares shall be
transferred in the share transfer records of the Corporation upon the written
instruction originated by the appropriate person to transfer the
shares.
Section
4. Stockholders of
Record and Fixing of Record Date. For
the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or entitled to receive a
distribution by the Corporation (other than a distribution involving a purchase
or redemption by the Corporation of any of its own shares) or a share dividend,
or in order to make a determination of stockholders for any other proper
purpose, the Board of Directors may provide that the share transfer records
shall be closed for a stated period of not more than 60 days, and in the case of
a meeting of stockholders not less than ten days, immediately preceding the
meeting, or it may fix in advance a record date for any such determination of
stockholders, such date to be not more than 60 days, and in the case of a
meeting of stockholders not less than ten days, prior to the date on which the
particular action requiring such determination of stockholders is to be
taken. If the share transfer records are not closed and no record
date is fixed for the determination of stockholders entitled to notice of or to
vote at a meeting of stockholders, or stockholders entitled to receive a
distribution (other than a distribution involving a purchase or redemption by
the Corporation of any of its own shares) or a share dividend, the day next
preceding the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such distribution or share
dividend is adopted, as the case may be, shall be the record date for such
determination of stockholders. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as herein
provided, such determination shall apply to any adjournment thereof except where
the determination has been made through the closing of the share transfer
records and the stated period of closing has expired.
ARTICLE
II
Meetings
of Stockholders
Section
1. Place of
Meetings. All
meetings of stockholders shall be held at the principal office of the
Corporation, or at such other place within or without the State of Delaware as
may be designated by the Board of Directors or officer calling the
meeting.
Section
2. Annual
Meeting. The
annual meeting of the stockholders shall be held on such date and at such time
as shall be designated from time to time by the Board of Directors or as may
otherwise be stated in the notice of the meeting. Failure to
designate a time for the annual meeting or to hold the annual meeting at the
designated time shall not work a dissolution of the Corporation.
Section
3. Special
Meetings. Unless
otherwise provided by the General Corporation Law of the State of Delaware (the
“DGCL”), by the Certificate of Incorporation of the Corporation as filed with
the Secretary of State of the State of Delaware (as it may be amended or
restated from time to time, the “Certificate of Incorporation”) or by any
provisions established pursuant thereto with respect to the rights of holders of
one or more outstanding series of the Corporation’s preferred stock, special
meetings of the stockholders of the Corporation may be called at any time only
by the Chairman of the Board, if there is one, the President, if there is one,
or by the Board of Directors pursuant to a resolution approved by the
affirmative vote of at least a majority of the members of the Board of
Directors, and no such special meeting may be called by any other person or
persons.
2
Section
4. Notice of
Meeting. Notice
of all meetings stating the place, day and hour of the meeting, the means of
remote communications, if any, and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than 60 days before the date of the meeting, either personally or by
mail or in any other manner allowed by the DGCL, by or at the direction of the
Chairman of the Board, if there is one, the President, if there is one, or the
Board of Directors calling the meeting to each stockholder of record entitled to
vote at such meetings. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the stockholder at his address as it appears on the share transfer records of
the Corporation. To the fullest extent permitted by Section 233 of
the DGCL, if the stockholder consents, only one copy of such notice need be
delivered to stockholders who share an address. If sent by facsimile,
such notice shall be deemed to be delivered when directed to a number at which
the stockholder has consented to receive notice. If sent by
electronic mail, such notice shall be deemed to be delivered when directed to an
electronic mail address at which the stockholder has consented to receive
notice. If sent by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, such notice shall
be deemed to be delivered upon the later of such posting and the giving of such
separate notice. If by any other form of electronic transmission,
such notice shall be deemed to be delivered when directed to the
stockholder.
Any
notice required to be given to any stockholder, under any provision of the DGCL,
the Certificate of Incorporation or these Bylaws, need not be given to a
stockholder if notice of two consecutive annual meetings and all notices of
meetings held during the period between those annual meetings, if any, or all
(but in no event less than two) payments (if sent by first class mail) of
dividends or interest on securities during a 12-month period have been mailed to
that person, addressed to his address as shown on the share transfer records of
the Corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such 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 his then current
address, the requirement that notice be given to that person shall be
reinstated.
Section
5. Notice to
Stockholders by Electronic Transmission. Without
limiting the manner by which notice may be given effectively to stockholders,
any notice required to be given to stockholders by the provisions of these
Bylaws may be given by electronic transmission to an electronic address at which
the stockholder has consented to receive notice, to the fullest extent allowed
under Section 232 of the DGCL.
Section
6. Voting
List. The
officer or agent having charge of the share transfer records of the Corporation
shall make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, with the address of and the number of
shares registered in the name of each stockholder, which list, for a period of
ten days prior to such meeting, shall be kept on file at the principal place of
business of the Corporation and shall be subject to inspection by any
stockholder at any time during usual business hours for any purpose germane to
the meeting. Such list shall also be produced and kept open at the
time and place of the meeting and shall be subject to the inspection of any
stockholder during the whole time of the meeting. The original share
transfer records shall be the only evidence as to who are the stockholders
entitled to examine such list or to vote at any meeting of
stockholders. Failure to comply with any requirements of this Section
6 shall not affect the validity of any action taken at such
meeting.
3
Section
7. Voting;
Proxies. Except
as otherwise provided in the Certificate of Incorporation or as otherwise
provided under the DGCL, each holder of shares of capital stock of the
Corporation entitled to vote shall be entitled to one vote for each share held
in his name on the records of the Corporation, either in person or by proxy
executed in writing by him or by his duly authorized attorney-in-fact or, if the
proxy is not executed in writing, then in a manner approved by the Board of
Directors, a duly authorized committee of the Board, the Chairman of the Board,
or the Secretary or by any other means allowed under Section 212 of the
DGCL. A proxy shall be revocable unless expressly provided therein to
be irrevocable, and the proxy is coupled with an interest sufficient in law to
support an irrevocable power. At each election of directors, every
holder of shares of the Corporation entitled to vote shall have the right to
vote, in person or by proxy, the number of shares owned by him for as many
persons as there are directors to be elected, and for whose election he has a
right to vote, but in no event shall he be permitted to cumulate his votes for
one or more directors.
Section
8. Quorum and Vote
of Stockholders. Except
as otherwise provided by law, the Certificate of Incorporation or these Bylaws,
the holders of shares of capital stock entitled to cast a majority of all the
votes which could be cast at such meeting by the holders of all of the
outstanding shares of capital stock entitled to vote on any matter that is to be
voted on at such meeting, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders, provided that, where a
separate vote by a class or series or classes or series is required, a quorum
with respect to such matter shall consist of a majority of the shares of such
class or series or classes or series, and in such case the absence of a quorum
with respect to such matter shall not affect the existence of a quorum with
respect to any other matter. If a quorum is not represented, a
majority in interest of those represented may adjourn the meeting from time to
time. At all meetings of stockholders for the election of directors,
a plurality of the votes cast by holders of shares present in person or
represented by proxy at the meeting entitled to vote on the election of
directors at the meeting shall be sufficient to elect. In the case of
a matter submitted for action by the stockholders at the direction of the Board
of Directors as to which a stockholder approval requirement is applicable under
a rule or policy of a national stock exchange or quotation system or any
provision of the Internal Revenue Code or under Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), in each case for which no
higher voting requirement is specified by law, the Certificate of Incorporation
or these Bylaws, the vote required for approval shall be the requisite vote
specified in such rule or policy or Internal Revenue Code provision or Rule
16b-3, as the case may be (or the highest such requirement if more than one is
applicable). Except as provided in the foregoing sentence, unless
otherwise required by applicable law, the Certificate of Incorporation or these
Bylaws, for approval or ratification of any matter approved and recommended by
the Board of Directors, including, without limitation, the appointment of an
independent registered public accounting firm (if submitted for a vote at the
direction of the Board of Directors), the vote required for approval or
ratification shall be a majority of the votes cast on the matter, voted for or
against.
4
Section
9. Presiding
Officer and Conduct of Meetings. The
Chairman of the Board, or in his absence, the President, shall preside at all
meetings of the stockholders or, if such persons are not present at a meeting,
by such other person as the Board of Directors shall designate or if no such
person is designated by the Board of Directors, the most senior officer of the
Corporation present at the meeting. The Secretary of the Corporation,
if present, shall act as secretary of each meeting of stockholders; if he or she
is not present at a meeting, the Assistant Secretary, if present, shall act as
secretary of each meeting of stockholders; and if neither the Secretary nor the
Assistant Secretary is present, such person as may be designated by the
presiding officer shall act as secretary of the meeting. The conduct
of any meeting of stockholders and the determination of procedure and rules
shall be within the discretion of the officer presiding at such meeting (the
“Chairman of the Meeting”), and there shall be no appeal from any ruling of the
Chairman of the Meeting with respect to procedure or
rules. Accordingly, in any meeting of stockholders or part thereof,
the Chairman of the Meeting shall have the sole power to determine appropriate
rules or to dispense with theretofore prevailing rules.
Section
10. Proper
Business—Annual Meeting of Stockholders. At
any annual meeting of stockholders, only such business shall be conducted as
shall be a proper subject for the meeting and as shall have been properly
brought before the meeting. To be properly brought before an annual
meeting of stockholders, business (other than business relating to any
nomination of directors, which is governed by Article III, Section 4 of these
Bylaws) must (a) be specified in the notice of such meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (b) otherwise be properly brought before the
meeting by or at the direction of the Chairman of the Meeting or the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise (i) be
properly requested to be brought before the meeting by a stockholder of record
entitled to vote in the election of directors generally, in compliance with the
provisions of this Section 9 and (ii) constitute a proper subject to be brought
before such meeting. For business to be properly brought before an
annual meeting of stockholders, any stockholder who intends to bring any matter
(other than a matter relating to any nomination of directors, which is governed
by Article III, Section 4 of these Bylaws) before an annual meeting of
stockholders and is entitled to vote on such matter must deliver written notice
of such stockholder’s intent to bring such matter before the annual meeting of
stockholders, either by personal delivery or by United States mail, postage
prepaid, to the Corporate Secretary of the Corporation. Such notice
must be received by the Corporate Secretary not less than 120 days nor more than
180 days prior to the date on which the immediately preceding year’s annual
meeting of stockholders was held; provided, however, that in
the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
the 120th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public disclosure of an
adjournment of an annual meeting of stockholders commence a new time period for
the giving of a stockholder’s notice as described above.
5
To be in
proper written form, a stockholder’s notice to the Corporate Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting of stockholders (a) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (b) the name and address, as they appear on the Corporation’s books and
records, of the stockholder proposing such business, (c) evidence, reasonably
satisfactory to the Corporate Secretary of the Corporation, of such
stockholder’s status as such and of the number of shares of each class of
capital stock of the Corporation of which such stockholder is the beneficial
owner, (d) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names and the
number of shares beneficially owned by them) 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. No business shall be conducted at an annual meeting of
stockholders except in accordance with the procedures set forth in this Section
9. Beneficial ownership shall be determined in accordance with Rule
13d-3 under the Exchange Act. When used in these Bylaws, “person” has
the meaning ascribed to such term in Section 2(a)(2) of the Securities Act of
1933, as amended, as the context may require.
The
Chairman of the Meeting shall, if the facts warrant, determine and declare to
the meeting that a proposal made by a stockholder of the Corporation pursuant to
this Section 9 was not made in accordance with the procedures prescribed by
these Bylaws, and if he should so determine, he shall so declare to the meeting
and the defective proposal shall be disregarded.
Nothing
in this Section 9 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by, at
the direction of, or on behalf of, the Board of Directors of the
Corporation.
Section
11. Proper
Business—Special Meeting of Stockholders. At
any special meeting of stockholders, only such business shall be conducted as
shall have been set forth in the notice of such meeting required by Section 4 of
this Article II or shall otherwise have been properly brought before the meeting
by or at the direction of the Chairman of the Board, if there is one, the
President, if there is one, or the Board of Directors (or any duly authorized
committee thereof).
Section
12. Action by
Written Consent. Unless
otherwise provided in the DGCL or the Certificate of Incorporation, any action
required by the DGCL to be taken at any annual or special meeting of
stockholders of the Corporation or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted 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.
ARTICLE
III
Directors
Section
1. General. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the authority and
powers conferred on the Board of Directors by the DGCL or by the Certificate of
Incorporation, the Board of Directors is authorized and empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject to the provisions of the DGCL, the Certificate of
Incorporation and these Bylaws; provided, however, that no
Bylaws hereafter adopted, or any amendments thereto, shall invalidate any prior
act of the Board of Directors that would have been valid if such Bylaws or
amendment had not been adopted.
6
Section
2. Number;
Term. The
number of directors which shall constitute the whole Board of Directors shall be
fixed by the resolution of a majority of directors then in office, but in any
event shall not be less than one nor more than nine. Each director
elected solely by the holders of Preferred Stock pursuant Article FOUR of the
Certificate of Incorporation (or elected by such directors to fill a vacancy)
shall, except as otherwise provided pursuant to the Certificate of Designations
for such series of Preferred Stock, serve for a term ending upon the earlier of
the election of his or her successor, or his or her prior death, resignation,
disqualification or removal or the termination at any time of a right of the
holders of Preferred Stock to elect members of the Board of Directors and have
such voting powers as are set forth in the Certificate of
Designations. Except as provided in the foregoing sentence, each
director shall serve for a term ending upon the earlier or the election of his
or her successor, or his or her prior death, resignation, disqualification or
removal.
In the
event of any change in the authorized number of directors, each director then
continuing to serve as such shall nevertheless continue as a director until the
election of his or her successor or his or her prior death, resignation,
disqualification or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section
3. Newly Created
Directorships and Vacancies. Within
the limits specified in these Bylaws, the number of directors that shall
constitute the whole Board of Directors shall be fixed by, and may be increased
or decreased from time to time by, the affirmative vote of a majority of the
members at any time constituting the Board of Directors. Except as
provided in these Bylaws, newly created directorships resulting from any
increase in the number of directors and any vacancies on the Board of Directors
resulting from death, resignation, removal, disqualification or other cause
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding
sentence shall hold office until that director’s successor shall have been
elected and qualified or until his earlier death, resignation or
removal.
Notwithstanding
the foregoing paragraph of this Section 3, whenever holders of any outstanding
shares of Preferred Stock are entitled to elect members of the Board of
Directors pursuant to the provisions of the Certificate of Incorporation, any
vacancy or vacancies resulting by reason of the death, resignation,
disqualification or removal of any director or directors or any increase in the
number of directors shall be filled in accordance with the provisions of the
Certificate of Incorporation.
7
Section
4. Nominations of
Directors. . Nominations
for the election of directors may be made by the Board of Directors or by any
stockholder (each, a “Nominator”) entitled to vote in the election of
directors. Such nominations, other than those made by the Board of
Directors, shall be made in writing pursuant to timely notice delivered to or
mailed and received by the Corporate Secretary of the Corporation as set forth
in this Section 4 and shall include the information required under this Section
4. To be timely in connection with an annual meeting of stockholders,
a Nominator’s notice, setting forth the name and address of the person to be
nominated, shall be delivered to or mailed and received at the principal
executive offices of the Corporation not less than 120 days nor more than 180
days prior to the date on which the immediately preceding year’s annual meeting
of stockholders was held; provided, however, that in
the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
the 120th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by the
Corporation. To be timely in connection with any election of a
director at a special meeting of the stockholders, a Nominator’s notice, setting
forth the name of the person to be nominated, shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
40 days nor more than 60 days prior to the date of such meeting; provided, however, that in
the event that less than 55 days’ notice or prior public disclosure of the date
of the special meeting of the stockholders is given or made to the stockholders,
the Nominator’s notice 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 meeting was mailed or such public disclosure was made. At such time, the
Nominator shall also submit written evidence, reasonably satisfactory to the
Corporate Secretary of the Corporation, that the Nominator is a stockholder of
the Corporation and shall identify in writing (a) the name and address of the
Nominator, (b) the number of shares of each class or series of capital stock of
the Corporation owned beneficially by the Nominator, (c) the name and address of
each of the persons with whom the Nominator is acting in concert, (d) the number
of shares of capital stock beneficially owned by each such person with whom the
Nominator is acting in concert and (e) a description of all arrangements or
understandings between the Nominator and each nominee and any other persons with
whom the Nominator is acting in concert pursuant to which the nomination or
nominations are to be made. At such time, the Nominator shall also
submit in writing (i) the name, age, business address and residence address of
such proposed nominee, (ii) the principal occupation or employment of such
proposed nominee, (iii) the number of shares of each class of capital stock of
the Corporation beneficially owned by such proposed nominee, (iv) the written
consent of such proposed nominee to having such person’s name placed in
nomination at the meeting and to serve as a director if elected, (v) any other
information relating to such proposed nominee that is required to be disclosed
in solicitations of proxies for election of directors, or is otherwise required,
pursuant to Regulation 14A under the Exchange Act and (vi) a notarized affidavit
executed by each such proposed nominee to the effect that, if elected as a
member of the Board of Directors, he will serve and that he is eligible for
election as a member of the Board of Directors. Within 30 days (or
such shorter time period that may exist prior to the date of the meeting) after
the Nominator has submitted the aforesaid items to the Corporate Secretary of
the Corporation, the Corporate Secretary of the Corporation shall determine
whether the evidence of the Nominator’s status as a stockholder submitted by the
Nominator is reasonably satisfactory and shall notify the Nominator in writing
of his determination. The failure of the Corporate Secretary of the
Corporation to find such evidence reasonably satisfactory, or the failure of the
Nominator to submit the requisite information in the form or within the time
indicated, shall make the person to be nominated ineligible for nomination at
the meeting at which such person is proposed to be nominated. The
Chairman of the Meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be
disregarded. Beneficial ownership shall be determined in accordance
with Rule 13d-3 under the Exchange Act.
8
Section
5. Place of
Meetings and Meetings by Telephone. Meetings
of the Board of Directors may be held either within or without the State of
Delaware, at whatever place is specified by the officer calling the
meeting. Meetings of the Board of Directors may also be held by means
of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each
other. Participation in such a meeting by means of conference
telephone or other communications equipment shall constitute presence in person
at such meeting, except where a director participates in a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened. In the absence
of specific designation by the officer calling the meeting, the meetings shall
be held at the principal office of the Corporation.
Section
6. Regular
Meetings. The
Board of Directors shall meet each year immediately following the annual meeting
of the stockholders for the transaction of such business as may properly be
brought before the meeting. The Board of Directors shall also meet
regularly at such other times as shall be designated by the Board of
Directors. No notice of any kind to either existing or newly elected
members of the Board of Directors for such annual or regular meetings shall be
necessary. The time or place of holding regular meetings of the Board
of Directors may be changed by the Chairman of the Board of Directors or the
President and Chief Executive Officer by giving written notice thereof as
provided in Section 7 hereof.
Section
7. Special
Meetings. Special
meetings of the Board of Directors may be held at any time upon the call of the
Chairman of the Board, the President or the Secretary upon a request in writing
by any two directors. Written notice of the time and place of, and
general nature of the business to be transacted at, all special meetings of the
Board of Directors, shall be given to each director and may be given by any of
the following methods: (a) by mail or telegram sent to the last known
business address of such director at least four days before the meeting, (b) by
facsimile to the business facsimile number of such director transmitted at least
one day before the meeting or (c) orally at least one day before the
meeting. For purposes of the foregoing sentence, notice shall be
deemed given (i) by mail, when deposited in the U.S. mail, postage prepaid, or
by telegram, when the telegram is delivered to the telegraph company for
transmittal, (ii) by facsimile, when transmittal is confirmed by the sending
facsimile machine and (iii) orally, when communicated in person or by telephone
to the director or to a person at the business telephone number of the director
who may reasonably be expected to communicate it to the director. In
calculating the number of days notice received by a director, the date the
notice is given by any of the foregoing methods shall be counted, but the date
of the meeting to which the notice relates shall not be
counted. Notice of the time, place and purpose of a meeting may be
waived in writing before or after such meeting, and shall be equivalent to the
giving of notice. Participation in a meeting of the Board of
Directors shall constitute presence in person at such meeting, except when a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened. Except as otherwise herein provided, neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
9
Section
8. Quorum and
Voting. Except
as otherwise provided by law, a majority of the number of directors fixed in the
manner provided in these Bylaws shall constitute a quorum for the transaction of
business. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the affirmative vote of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. Any regular or special directors’ meeting may
be adjourned from time to time by those present, whether a quorum is present or
not.
Section
9. Compensation. Directors
shall receive such compensation for their services as shall be determined by the
Board of Directors.
Section
10. Removal. No
director of the Corporation may be removed from office as a director by vote or
other action of the stockholders or otherwise except by the affirmative vote of
the holders of at least a majority of the voting power of all outstanding shares
of capital stock of the Corporation generally entitled to vote in the election
of directors, voting together as a single class.
No
proposal by a stockholder to remove a director of the Corporation shall be voted
upon at a meeting of the stockholders unless such stockholder shall have
delivered or mailed in a timely manner (as set forth in this Section 10) and in
writing to the Secretary of the Corporation (a) notice of such proposal, (b) a
statement of the grounds, if any, on which such director is proposed to be
removed, (c) evidence, reasonably satisfactory to the Secretary of the
Corporation, of such stockholder’s status as such and of the number of shares of
each class of the capital stock of the Corporation beneficially owned by such
stockholder and (d) a list of the names and addresses of other beneficial owners
of shares of the capital stock of the Corporation, if any, with whom such
stockholder is acting in concert, and of the number of shares of each class of
the capital stock of the Corporation beneficially owned by each such beneficial
owner. To be timely in connection with an annual meeting of
stockholders, a stockholder’s notice and other aforesaid items shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 120 days nor more than 180 days prior to the date on
which the immediately preceding year’s annual meeting of stockholders was held;
provided, however, that
in the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
the 120th day prior to such annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made by the
Corporation. Within 30 days (or such shorter period that may exist
prior to the date of the meeting) after such stockholder shall have delivered
the aforesaid items to the Secretary of the Corporation, the Secretary and the
Board of Directors of the Corporation shall respectively determine whether the
items to be ruled upon by them are reasonably satisfactory and shall notify such
stockholder in writing of their respective determinations. If such
stockholder fails to submit a required item in the form or within the time
indicated, or if the Secretary or the Board of Directors of the Corporation
determines that the items to be ruled upon by them are not reasonably
satisfactory, then such proposal by such stockholder may not be voted upon by
the stockholders of the Corporation at such annual meeting of the
stockholders. The Chairman of the Meeting shall, if the facts
warrant, determine and declare to the meeting that a proposal to remove a
director of the Corporation was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective proposal shall be disregarded. Beneficial
ownership shall be determined as specified in accordance with Rule 13d-3 under
the Exchange Act.
10
All of
the foregoing provisions of this Section 10 are subject to the terms of any
series of Preferred Stock with respect to the directors to be elected solely by
the holders of such series of Preferred Stock.
Section
11. Committees. The
Board of Directors, by resolution or resolutions adopted by a majority of the
full Board of Directors, may designate one or more members of the Board of
Directors to constitute one or more committees, which shall in each case be
comprised of such number of directors as the Board of Directors may determine
from time to time. Subject to such restrictions as may be contained
in the Certificate of Incorporation or that may be imposed by the DGCL,
including Section 141(c)(1) of the DGCL, which the Corporation has elected to be
governed by, any such committee shall have and may exercise such powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation as the Board of Directors may determine by resolution
and specify in the respective resolutions appointing them, including, without
limitation, the power and authority to declare a dividend, to authorize the
issuance of stock or to adopt a certificate of ownership and merger pursuant to
Section 253 of the DGCL. Each duly authorized action taken with
respect to a given matter by any such duly appointed committee of the Board of
Directors shall have the same force and effect as the action of the full Board
of Directors and shall constitute for all purposes the action of the full Board
of Directors with respect to such matter.
The Board
of Directors shall have the power at any time to change the membership of any
such committee and to fill vacancies in it. A majority of the members
of any such committee shall constitute a quorum. The Board of
Directors shall name a chairman at the time it designates members to a
committee. Each such committee shall appoint such subcommittees and
assistants as it may deem necessary. Except as otherwise provided by
the Board of Directors, meetings of any committee shall be conducted in
accordance with the provisions of Sections 5 and 7 of this Article III as the
same shall from time to time be amended. Any member of any such
committee elected or appointed by the Board of Directors may be removed by the
Board of Directors whenever in its judgment the best interests of the
Corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of a member of a committee shall not of itself create contract
rights.
Section
12. Standing
Committees. The
committees of the Board of Directors may include an audit committee, a
compensation committee, a nominating and governance committee and an executive
committee and any other committees designated by the Board of
Directors.
Section
13. Board and
Committee Action Without a Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at a meeting of the Board of Directors
or any committee thereof may be taken without a meeting if a consent in writing
or by electronic transmission, setting forth the action so taken, is given by
all the members of the Board of Directors or such committee, as the case may be,
and shall be filed with the Secretary of the Corporation.
11
ARTICLE
IV
Officers
Section
1. Officers. The
officers of the Corporation shall consist of a Chairman of the Board of
Directors, President and Chief Executive Officer, one or more Executive Vice
Presidents, one or more Vice Presidents, Chief Financial Officer, Treasurer,
Secretary and Assistant Secretary and such other officers and agents as the
Board of Directors may from time to time elect or appoint. The Board
of Directors may delegate to the Chairman of the Board, if there is one, and/or
the President and Chief Executive Officer, if there is one, the authority to
appoint or remove additional officers and agents of the
Corporation. Each officer shall hold office until his successor shall
have been duly elected or appointed and shall qualify or until his death or
until he shall resign or shall have been removed in the manner hereinafter
provided. Any two or more offices may be held by the same
person.
Section
2. Vacancies;
Removal. Whenever
any vacancies shall occur in any office by death, resignation, increase in the
number of offices of the Corporation or otherwise, the officer so elected shall
hold office until his successor is chosen and qualified. The Board of
Directors may at any time remove any officer of the Corporation, whenever in its
judgment the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not
of itself create contract rights.
Section
3. Powers and
Duties of Officers. The
officers of the Corporation shall have such powers and duties as generally
pertain to their offices as well as such powers and duties as from time to time
shall be conferred by the Board of Directors. The Secretary shall
have the duty to record the proceedings of the meetings of the stockholders and
directors in a book to be kept for that purpose.
Section
4. Action with
Respect to Securities of Other Corporations and Entities. Unless
otherwise directed by the Board of Directors, the President, the Chief Executive
Officer, any Vice President and the Treasurer of the Corporation shall each have
power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of security holders of or with respect to any action of
security holders of any other corporation or entity in which the Corporation may
hold securities and otherwise to exercise any and all rights and powers that the
Corporation may possess by reason of its ownership of securities in such other
corporation or entity.
12
ARTICLE
V
Indemnification
Section
1. General. The
Corporation shall, to the fullest extent permitted by applicable law in effect
on the date of effectiveness of these Bylaws, and to such greater extent as
applicable law may thereafter permit, indemnify and hold the Indemnitee harmless
from and against any and all losses, liabilities, claims, damages and, subject
to Article V, Section 2 (Expenses), Expenses (as this and all other capitalized
words used in this Article V not previously defined in these Bylaws are defined
in Article V, Section 16 (Definitions)), whatsoever (including, without
limitation, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) arising out of any event or occurrence related to the fact that
the Indemnitee is or was a director or Officer of the Corporation or is or was
serving in another Corporate Status and such indemnification shall continue as
to an Indemnitee who has ceased to be a director, Officer, employee or agent,
and shall inure to the benefit of the Indemnitee’s heirs, executors and
administrators.
Section
2. Expenses. If
the Indemnitee is, by reason of his Corporate Status, a party to any Proceeding,
he shall, to the fullest extent permitted by applicable law in effect on the
date of effectiveness of these Bylaws, and to such greater extent as applicable
law may thereafter permit, be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith. To the extent that the Indemnitee is, by reason of his
Corporate Status, a witness in any Proceeding, he shall be indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section
3. Advances. In
the event of any threatened or pending Proceeding in which the Indemnitee is a
party or is involved and that may give rise to a right of indemnification under
this Article V, following written request to the Corporation by the Indemnitee,
the Corporation shall promptly pay to the Indemnitee amounts to cover Expenses
reasonably incurred by Indemnitee in such Proceeding in advance of its final
disposition upon the receipt by the Corporation of (i) a written undertaking
executed by or on behalf of the Indemnitee providing that the Indemnitee will
repay the advance if it shall ultimately be determined that the Indemnitee is
not entitled to be indemnified by the Corporation as provided in these Bylaws
and (ii) satisfactory evidence as to the amount of such Expenses.
Section
4. Repayment of
Advances or Other Expenses. The
Indemnitee agrees that the Indemnitee shall reimburse the Corporation for all
Expenses paid by the Corporation in defending any Proceeding against the
Indemnitee in the event and only to the extent that it shall be determined
pursuant to the provisions of this Article V or by final judgment or other final
adjudication under the provisions of any applicable law that the Indemnitee is
not entitled to be indemnified by the Corporation for such
Expenses.
Section
5. Request for
Indemnification. To
obtain indemnification, the Indemnitee shall submit to the Secretary of the
Corporation a written claim or request. Such written claim or request
shall contain sufficient information to reasonably inform the Corporation about
the nature and extent of the indemnification or advance sought by the
Indemnitee. The Secretary of the Corporation shall promptly advise
the Board of Directors of such request.
13
Section
6. Determination of
Entitlement; No Change of Control. If
there has been no Change of Control at the time the request for indemnification
is submitted, the Indemnitee’s entitlement to indemnification shall be
determined in accordance with Section 145(d) of the DGCL. If
entitlement to indemnification is to be determined by an Independent Counsel,
the Corporation shall furnish notice to the Indemnitee within ten days after
receipt of the request for indemnification, specifying the identity and address
of Independent Counsel. The Indemnitee may, within 14 days after
receipt of such written notice of selection, deliver to the Corporation a
written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the
requirements of Independent Counsel and the objection shall set forth with
particularity the factual basis for such assertion. If there is an
objection to the selection of Independent Counsel, either the Corporation or the
Indemnitee may petition the Court for a determination that the objection is
without a reasonable basis and/or for the appointment of Independent Counsel
selected by the Court.
Section
7. Determination of
Entitlement; Change of Control. If
a Change of Control shall have occurred within two years prior to the date of
the commencement of the Proceeding for which indemnification is submitted, the
Indemnitee’s entitlement to indemnification shall be determined in a written
opinion by the Independent Counsel selected by the Indemnitee. The
Indemnitee shall give the Corporation written notice advising of the identity
and address of the Independent Counsel so selected. The Corporation
may, within seven days after receipt of such written notice of selection,
deliver to the Indemnitee a written objection to such selection. The
Indemnitee may, within five days after the receipt of such objection from the
Corporation, submit the name of another Independent Counsel and the Corporation
may, within seven days after receipt of such written notice of selection,
deliver to the Indemnitee a written objection to such selection. Any
objections referred to in this Section 7 may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of an
Independent Counsel, and such objection shall set forth with particularity the
factual basis for such assertion. The Indemnitee may petition the
Court for a determination that the Corporation’s objection to the first and/or
second selection of Independent Counsel is without a reasonable basis and/or for
the appointment as Independent Counsel of a person selected by the
Court.
Section
8. Procedures of
Independent Counsel. If
a Change of Control shall have occurred before the request for indemnification
is sent by the Indemnitee, the Indemnitee shall be presumed (except as otherwise
expressly provided in this Article V) to be entitled to indemnification upon
submission of a request for indemnification in accordance with Article V,
Section 5 (Request for Indemnification), and thereafter the Corporation shall
have the burden of proof to overcome the presumption in reaching a determination
contrary to the presumption. The presumption shall be used by the
Independent Counsel as a basis for a determination of entitlement to
indemnification unless the Corporation provides information sufficient to
overcome such presumption by clear and convincing evidence or the investigation,
review and analysis of the Independent Counsel convinces him by clear and
convincing evidence that the presumption should not apply.
Except in
the event that the determination of entitlement to indemnification is to be made
by the Independent Counsel, if the person or persons empowered under Article V,
Section 6 (Determination of Entitlement; No Change of Control) or Section 7
(Determination of Entitlement; Change of Control) to determine entitlement to
indemnification shall not have made and furnished to the Indemnitee in writing a
determination within 60 days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and the Indemnitee shall be entitled to such
indemnification unless the Indemnitee knowingly misrepresented a material fact
in connection with the request for indemnification or such indemnification is
prohibited by applicable law. The termination of any Proceeding or of
any Matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise expressly
provided in this Article V) of itself adversely affect the right of the
Indemnitee to indemnification or create a presumption that the Indemnitee did
not act in good faith and in a manner that he reasonably believed to be in or
not opposed to the best interests of the Corporation, or with respect to any
criminal Proceeding, that the Indemnitee had reasonable cause to believe that
his conduct was unlawful. A person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan of the Corporation shall be deemed to
have acted in a manner not opposed to the best interests of the
Corporation.
14
For
purposes of any determination hereunder, a person shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal
Proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise or on information supplied to him 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
shall mean any other corporation or any partnership, limited liability company,
association, 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
paragraph shall not be deemed to be exclusive or to limit in any way the
circumstances in which an Indemnitee may be deemed to have met the applicable
standards of conduct for determining entitlement to rights under this Article
V.
Section
9. Independent
Counsel Expenses. The
Corporation shall pay any and all reasonable fees and expenses of the
Independent Counsel incurred acting pursuant to this Article V and in any
Proceeding to which it is a party or witness in respect of its investigation and
written report and shall pay all reasonable fees and expenses incident to the
procedures in which such Independent Counsel was selected or
appointed. No Independent Counsel may serve if a timely objection has
been made to his selection until a court has determined that such objection is
without a reasonable basis.
Section
10. Adjudication. In
the event that (i) a determination is made pursuant to Article V, Section 6
(Determination of Entitlement; No Change of Control) or Section 7 (Determination
of Entitlement; Change of Control) that the Indemnitee is not entitled to
indemnification under this Article V; (ii) advancement of Expenses is not timely
made pursuant to Article V, Section 3 (Advances); (iii) the Independent Counsel
has not made and delivered a written opinion determining the request for
indemnification (A) within 90 days after being appointed by the Court, (B)
within 90 days after objections to his selection have been overruled by the
Court or (C) within 90 days after the time for the Corporation or the Indemnitee
to object to his selection; or (iv) payment of indemnification is not made
within five days after a determination of entitlement to indemnification has
been made or deemed to have been made pursuant to Article V, Section 6
(Determination of Entitlement; No Change of Control), Section 7 (Determination
of Entitlement; Change of Control) or Section 8 (Procedures of Independent
Counsel), the Indemnitee shall be entitled to an adjudication in an appropriate
court of the State of Delaware, or in any other court of competent jurisdiction,
of his entitlement to such indemnification or advancement of
Expenses. In the event that a determination shall have been made that
the Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 10 shall be conducted in all
respects as a de novo trial on the merits and Indemnitee shall not be prejudiced
by reason of that adverse determination. If a Change of Control shall
have occurred, in any judicial proceeding commenced pursuant to this Section 10,
the Corporation shall have the burden of proving that the Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may
be. If a determination shall have been made or deemed to have been
made that the Indemnitee is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding commenced pursuant to
this Section 10, or otherwise, unless the Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification, or such
indemnification is prohibited by law.
15
The
Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to this Section 10 that the procedures and presumptions of
this Article V are not valid, binding and enforceable and shall stipulate in any
such proceeding that the Corporation is bound by all provisions of this Article
V. In the event that the Indemnitee, pursuant to this Section 10,
seeks a judicial adjudication to enforce his rights under, or to recover damages
for breach of, this Article V, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any and
all Expenses actually and reasonably incurred by him in such judicial
adjudication, but only if he prevails therein. If it shall be
determined in such judicial adjudication that the Indemnitee is entitled to
receive part but not all of the indemnification or advancement of Expenses
sought, the Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any and all Expenses actually
and reasonably incurred by him in such judicial adjudication.
Section
11. Participation
by the Corporation. With
respect to any such Proceeding as to which the Indemnitee notifies the
Corporation of the commencement thereof, (a) the Corporation will be entitled to
participate therein at its own expense and (b) except as otherwise provided
below, to the extent that it may wish, the Corporation (jointly with any other
indemnifying party similarly notified) will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to the
Indemnitee. After receipt of notice from the Corporation to the
Indemnitee of the Corporation’s election so to assume the defense thereof, the
Corporation will not be liable to the Indemnitee under this Article V for any
legal or other expenses subsequently incurred by the Indemnitee in connection
with the defense thereof other than reasonable costs of investigation or as
otherwise provided below. The Indemnitee shall have the right to
employ his own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the Corporation,
(ii) the Indemnitee shall have reasonably concluded that there is a conflict of
interest between the Corporation and the Indemnitee in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of counsel employed by the Indemnitee shall be subject to
indemnification pursuant to the terms of this Article V; provided that the Corporation
shall not be entitled to assume the defense of any Proceeding brought in the
name of or on behalf of the Corporation or as to which the Indemnitee shall have
made the conclusion provided for in clause (ii) of this sentence. The
Corporation shall not be liable to indemnify the Indemnitee under this Article V
for any amounts paid in settlement of any action or claim effected without its
written consent, which consent shall not be unreasonably
withheld. The Corporation shall not settle any action or claim in any
manner that would impose any limitation or unindemnified penalty on the
Indemnitee without the Indemnitee’s written consent, which consent shall not be
unreasonably withheld.
16
Section
12. Nonexclusivity
of Rights. The
rights of indemnification and advancement of Expenses as provided by this
Article V shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled to under applicable law, the Certificate of
Incorporation, these Bylaws, any agreement, a vote of stockholders or a
resolution of directors or otherwise. No amendment, alteration or
repeal of this Article V or any provision hereof shall be effective as to any
Indemnitee for acts, events and circumstances that occurred, in whole or in
part, before such amendment, alteration or repeal. The provisions of
this Article V shall be effective as to any Indemnitee for acts, events and
circumstances that occurred, in whole or in part, prior to or following the
adoption of this Article V. The provisions of this Article V shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of his heirs, executors and
administrators. Neither the provisions of this Article V nor those of
any agreement to which the Corporation is a party shall be deemed to preclude
the indemnification of any person who is not specified in this Article V as
having the right to receive indemnification or is not a party to any such
agreement, but whom the Corporation has the power or obligation to indemnify
under the provisions of the DGCL.
Section
13. Insurance and
Subrogation. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, Officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under applicable
law.
The
Corporation shall not be liable under this Article V to make any payment of
amounts otherwise indemnifiable hereunder if, but only to the extent that, the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
In the
event of any payment hereunder, the Corporation shall be subrogated to the
extent of such payment to all the rights of recovery of the Indemnitee, who
shall execute all papers required and take all action reasonably requested by
the Corporation to secure such rights, including execution of such documents as
are necessary to enable the Corporation to bring suit to enforce such
rights.
Section
14. Severability. If
any provision or provisions of this Article V shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Article V shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.
Section
15. Certain Actions
for Which Indemnification Is Not Provided. Notwithstanding
any other provision of this Article V, no person shall be entitled to
indemnification or advancement of Expenses under this Article V with respect to
any Proceeding, or any Matter therein, brought or made by such person against
the Corporation.
17
Section
16. Definitions. For
purposes of this Article V only:
“Change
of Control” means:
(i) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (1) the
then outstanding shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (2) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions shall not constitute
a Change of Control: (A) any acquisition directly from the Company, (B) any
acquisition by the Company, (C) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any entity controlled
by the Company or (D) any acquisition by any entity pursuant to a transaction
which complies with clauses (1), (2) and (3) of subsection (iii) of this
definition; or
(ii) Individuals
who, as of the date of effectiveness of these Bylaws, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided,
however, that any individual becoming a director subsequent to such date
whose election, or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
18
(iii) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (a “Business Combination”), in
each case, unless, following such Business Combination, (1) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the entity resulting from such Business
Combination (including, without limitation, an entity that as a result of such
transaction owns the Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (2) no Person (excluding any entity resulting
from such Business Combination or any employee benefit plan (or related trust)
of the Company or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 35% or more of, respectively, the
then outstanding shares of common equity of the entity resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such entity except to the extent that such ownership existed prior
to the Business Combination and (3) at least a majority of the members of the
board of directors of the corporation, or the similar managing body of a
non-corporate entity, resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination;
or
(iv) Approval
by the stockholders of the Company of a complete liquidation or dissolution of
the Company, other than a liquidation or dissolution in connection with a
transaction to which subsection (iii) applies.
“Corporate
Status” describes the status of Indemnitee as a director, Officer, employee,
agent or fiduciary of the Corporation or of any other corporation, partnership,
limited liability company, association, joint venture, trust, employee benefit
plan or other enterprise that Indemnitee is or was serving at the request of the
Corporation.
“Court”
means the Court of Chancery of the State of Delaware or any other court of
competent jurisdiction.
“Designated
Professional Capacity” shall include, but not be limited to, a physician, nurse,
psychologist or therapist, registered surveyor, registered engineer, registered
architect, attorney, certified public accountant or other person who renders
such professional services within the course and scope of his employment, who is
licensed by appropriate regulatory authorities to practice such profession and
who, while acting in the course of such employment, committed or is alleged to
have committed any negligent acts, errors or omissions in rendering such
professional services at the request of the Corporation or pursuant to his
employment (including, without limitation, rendering written or oral opinions to
third parties).
“Expenses”
shall include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a
Proceeding.
“Indemnitee”
includes any Officer (including an Officer acting in his Designated Professional
Capacity) or director of the Corporation who is, or is threatened to be made, a
witness in or a party to any Proceeding by reason of his Corporate Status
whether the basis of such proceeding is alleged action in an official capacity
as such an Officer or director or in any other capacity while serving as such an
Officer or director.
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“Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the five years
previous to his selection or appointment has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material
to either such party or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.
“Matter”
is a claim, a material issue or a substantial request for relief.
“Officer”
means the president, the treasurer, the secretary, and each vice president of
the Corporation and any other corporation, partnership, limited liability
company, association, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving in such position at the
request of the Corporation (and all variants of the preceding positions such as
assistant treasurer, assistant secretary, senior vice president, and similar
modifications), in each case elected or appointed pursuant to proper corporate
authority, and each other person designated by the President of the Corporation
from time to time as constituting an “Officer.”
“Proceeding”
includes any actual or threatened action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Article V, Section 10 (Adjudication) to
enforce his rights under this Article V.
Section
17. Notices. Promptly
after receipt by the Indemnitee of notice of the commencement of any Proceeding,
the Indemnitee shall, if he anticipates or contemplates making a claim for
Expenses or an advance pursuant to the terms of this Article V, notify the
Corporation of the commencement of such Proceeding; provided, however, that any
delay in so notifying the Corporation shall not constitute a waiver or release
by the Indemnitee of rights hereunder and that any omission by the Indemnitee to
so notify the Corporation shall not relieve the Corporation from any liability
that it may have to the Indemnitee otherwise than under this Article
V. Any communication required or permitted to the Corporation shall
be addressed to the Secretary of the Corporation, and any such communication to
the Indemnitee shall be addressed to the Indemnitee’s address as shown on the
Corporation’s records unless he specifies otherwise and shall be personally
delivered or delivered by overnight mail delivery. Any such notice
shall be effective upon receipt.
Section
18. Contractual
Rights. The
right to be indemnified or to the advancement or reimbursement of Expenses (i)
is a contract right based upon good and valuable consideration, pursuant to
which the Indemnitee may sue as if these provisions were set forth in a separate
written contract between the Indemnitee and the Corporation, and each person
entitled to rights under this Article V shall be presumed to have relied thereon
in serving or continuing to serve as a director or Officer (ii) is and is
intended to be retroactive and shall be available as to events occurring prior
to the adoption of these provisions and (iii) shall continue after any
rescission or restrictive modification of such provisions as to events occurring
prior thereto.
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Section
19. Indemnification
of Employees, Agents and Fiduciaries. The
Corporation, by adoption of a resolution of the Board of Directors, may
indemnify and advance Expenses to a person who is an employee (including an
employee acting in his Designated Professional Capacity), agent or fiduciary of
the Corporation including any such person who is or was serving at the request
of the Corporation as a director, Officer, employee, agent or fiduciary of any
other corporation, partnership, joint venture, limited liability company, trust,
employee benefit plan or other enterprise to the same extent and subject to the
same conditions (or to such lesser extent and/or with such other conditions as
the Board of Directors may determine) under which it may indemnify and advance
Expenses to an Indemnitee under this Article V.
ARTICLE
VI
Miscellaneous
Provisions
Section
1. Offices. Unless
and until changed by resolution of the Board of Directors, the address of the
registered office of the Corporation in the State of Delaware is The Corporation
Trust Center, 1209 Orange Street in the City of Wilmington, County of New
Castle, Delaware 19801, and the name of the registered agent of the Corporation
at such address is The Corporation Trust Company. The principal
office of the Corporation shall be located in Columbus, Mississippi, unless and
until changed by resolution of the Board of Directors. The
Corporation may also have offices at such other places as the Board of Directors
may designate from time to time, or as the business of the Corporation may
require. The principal office and registered office may be, but need
not be, the same.
Section
2. Resignations. Any
director or officer may resign at any time. Any resignation shall be
made in writing and shall take effect at the time specified therein or, if no
time is specified, at the time of its receipt by the Chairman of the Board, if
there is one, the Chief Executive Officer, if there is one, the President or the
Secretary. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
Section
3. Separability. If
one or more of the provisions of these Bylaws shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other provision hereof and these Bylaws shall be construed as if
such invalid, illegal or unenforceable provision or provisions had never been
contained herein.
ARTICLE
VII
Amendment
of Bylaws
Section
1. Vote
Requirements. Except
as otherwise required by law or the Certificate of Incorporation, these Bylaws
may be amended, in whole or in part, and new Bylaws may be adopted (i) by the
affirmative vote of the shares representing not less than 75% of the voting
power of all outstanding shares of capital stock of the Corporation generally
entitled to vote in the election of directors, voting together as a single
class; provided that in
the case of any such stockholder action at a meeting of stockholders, notice of
the proposed alteration, amendment, repeal or adoption of the new Bylaw or
Bylaws must be contained in the notice of such meeting; or (ii) by action of the
Board of Directors; provided,
however, that any proposed alteration, amendment or repeal of, or the
adoption of any Bylaw inconsistent with Section 3, 9, 10 or 11 of Article II,
Section 2, 4, 7, 10 or 11 of Article III, Article V or this sentence, by the
Board of Directors shall require the affirmative vote of not less than 75% of
all directors then in office at a regular or special meeting of the Board of
Directors called for that purpose.
Corporate\Bylaws(2007)\restated
and amended bylaws.11.13.07
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