Attached files
Exhibit 3.5
BYLAWS
OF
IRONPLANET, INC.
(As Amended and Restated Effective , 2010)
TABLE OF CONTENTS
Page | ||||
ARTICLE I CORPORATE OFFICES |
1 | |||
1.1 REGISTERED OFFICE |
1 | |||
1.2 OTHER OFFICES |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
2.1 PLACE OF MEETINGS |
1 | |||
2.2 ANNUAL MEETING |
1 | |||
2.3 SPECIAL MEETING |
4 | |||
2.4 NOTICE OF STOCKHOLDERS MEETINGS; AFFIDAVIT OF NOTICE |
5 | |||
2.5 QUORUM |
6 | |||
2.6 ORGANIZATION |
6 | |||
2.7 CONDUCT OF BUSINESS |
6 | |||
2.8 VOTING |
6 | |||
2.9 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
6 | |||
2.10 WAIVER OF NOTICE |
7 | |||
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING |
7 | |||
2.12 PROXIES |
8 | |||
ARTICLE III DIRECTORS |
8 | |||
3.1 POWERS |
8 | |||
3.2 NUMBER OF DIRECTORS |
8 | |||
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS |
8 | |||
3.4 RESIGNATION AND VACANCIES |
8 | |||
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE |
9 | |||
3.6 REGULAR MEETINGS |
9 | |||
3.7 SPECIAL MEETINGS; NOTICE |
9 | |||
3.8 QUORUM AND VOTING |
10 | |||
3.9 WAIVER OF NOTICE |
10 | |||
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
10 | |||
3.11 FEES AND COMPENSATION OF DIRECTORS |
10 | |||
3.12 REMOVAL OF DIRECTORS |
11 | |||
3.13 CHAIRPERSON OF THE BOARD OF DIRECTORS |
11 | |||
3.14 EMERGENCY BYLAWS |
11 | |||
ARTICLE IV COMMITTEES |
11 | |||
4.1 COMMITTEES OF DIRECTORS |
11 | |||
4.2 COMMITTEE MINUTES |
11 | |||
4.3 MEETINGS AND ACTION OF COMMITTEES |
12 | |||
ARTICLE V OFFICERS |
12 | |||
5.1 OFFICERS |
12 | |||
5.2 APPOINTMENT OF OFFICERS |
12 | |||
5.3 SUBORDINATE OFFICERS |
12 | |||
5.4 REMOVAL AND RESIGNATION OF OFFICERS |
12 |
i
Page | ||||
5.5 VACANCIES IN OFFICES |
13 | |||
5.6 CHIEF EXECUTIVE OFFICER |
13 | |||
5.7 PRESIDENT |
13 | |||
5.8 VICE PRESIDENTS |
13 | |||
5.9 SECRETARY |
13 | |||
5.10 CHIEF FINANCIAL OFFICER |
14 | |||
5.11 REPRESENTATION OF SHARES OF OTHER CORPORATIONS |
14 | |||
5.12 AUTHORITY AND DUTIES OF OFFICERS |
14 | |||
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS |
15 | |||
6.1 RIGHT TO INDEMNIFICATION |
15 | |||
6.2 POWER TO ADVANCE EXPENSES |
15 | |||
6.3 RIGHT OF INDEMNITEE TO BRING SUIT |
16 | |||
6.4 NON-EXCLUSIVITY OF RIGHTS |
16 | |||
6.5 INSURANCE |
16 | |||
6.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION |
16 | |||
6.7 NATURE OF RIGHTS |
16 | |||
ARTICLE VII RECORDS AND REPORTS |
17 | |||
7.1 MAINTENANCE AND INSPECTION OF RECORDS; STOCKLIST |
17 | |||
ARTICLE VIII GENERAL MATTERS |
17 | |||
8.1 CHECKS |
17 | |||
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS |
17 | |||
8.3 STOCK CERTIFICATES |
18 | |||
8.4 LOST, STOLEN OR DESTROYED CERTIFICATES |
18 | |||
8.5 CONSTRUCTION; DEFINITIONS |
18 | |||
8.6 DIVIDENDS |
19 | |||
8.7 FISCAL YEAR |
19 | |||
8.8 SEAL |
19 | |||
8.9 TRANSFER OF STOCK |
19 | |||
8.10 REGISTERED STOCKHOLDERS |
19 | |||
8.11 TIME PERIODS |
19 | |||
ARTICLE IX NOTICE BY ELECTRONIC TRANSMISSION |
20 | |||
9.1 NOTICE BY ELECTRONIC TRANSMISSION |
20 | |||
ARTICLE X AMENDMENTS |
20 |
ii
BYLAWS
OF
IRONPLANET, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE.
The registered office of the Corporation shall be fixed in the Corporations Certificate of
Incorporation, as the same may be amended from time to time.
1.2 OTHER OFFICES.
The Board of Directors may at any time establish other offices, and keep the books and records
of the Corporation, except as may otherwise be required by law, at any place or places where the
Corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place, within or outside the State of Delaware,
designated by the Board of Directors. The Board of Directors may, in its sole discretion, determine
that a meeting of stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by the Delaware General Corporation Law (the
DGCL). In the absence of any such designation, stockholders meetings shall be held at
the registered office of the Corporation.
2.2 ANNUAL MEETING.
(a) The annual meeting of stockholders shall be held each year on a date and at a time
designated by resolution of the Board of Directors. The meeting shall be for the election of
directors to succeed those whose terms expire and for the transaction of such business as may
properly come before the meeting.
(b) Nominations of persons for election to the Board of Directors of the Corporation 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 proxy materials with respect to such meeting
(or any supplement thereto), (B) by or at the direction of the Board of Directors or (C) by any
stockholder of record (the Record Stockholder) of the Corporation who is a stockholder of
record at the time of giving such notice, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section. For the avoidance of
doubt, the foregoing clause (C) shall be the exclusive means for a stockholder to make
nominations or propose business (other than business included in the Corporations proxy materials
pursuant to Rule 14a-8 under the Securities Exchange Act, as amended (such act, and the rules and
regulations promulgated thereunder, the Exchange Act)) at an annual meeting of
stockholders.
(c) For nominations or other business to be properly brought before an annual meeting by a
Record Stockholder pursuant to clause (C) of the foregoing paragraph, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation, such business must be a
proper subject for stockholder action, and the Record Stockholder and the beneficial owner, if any,
on whose behalf any such proposal or nomination is made, must have acted in accordance with the
representations set forth in the Solicitation Statement required by these Bylaws. To be timely, a
Record Stockholders notice shall be received by the Secretary at the principal executive offices
of the Corporation not less than ninety (90) nor more than one hundred twenty (120) days prior to
the one-year anniversary of the preceding years annual meeting; provided, however, that, subject
to the last sentence of this Section 2.2(c), in the event that the annual meeting is convened more
than thirty (30) days before or after such anniversary date, notice by the Record Stockholder to be
timely must be so received not later than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or the tenth (10th) day following the date on which public
announcement (as defined below) of the date of such meeting is first made by the Corporation. In
no event shall an adjournment, or postponement of an annual meeting for which notice has been
given, commence a new time period (or extend any time period) for the giving of a Record
Stockholders notice as described above.
(d) Such Record Stockholders notice shall set forth:
(A) as to each person whom the Record Stockholder proposes to nominate for election or
re-election as a director (1) all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to and in accordance with Regulation 14A under the
Exchange Act, and (2) 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 business that the Record Stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the Bylaws of the Corporation, the language
of the proposed amendment), the reasons for conducting such business at the meeting and any
interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made;
(C) as to the Record Stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination is made or the business is proposed (each, a party):
(1) the name and address of each such party;
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(2) (A) the class, series and number of shares of capital stock of the Corporation which are
owned, directly or indirectly, beneficially and of record by each such party, (B) any option,
warrant, convertible security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to any class or series
of shares of the Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital stock of the Corporation or
otherwise (a Derivative Instrument) directly or indirectly owned beneficially by each
such party, and any other direct or indirect opportunity to profit or share in any profit derived
from any increase or decrease in the value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which either party has a right to vote,
directly or indirectly, any shares of any security of the Corporation, (D) any short interest in
any security of the Corporation held by each such party (for purposes of this Section 2.2, a person
shall be deemed to have a short interest in a security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the value of the subject security), (E)
any rights to dividends on the shares of the Corporation owned beneficially directly or indirectly
by each such party that are separated or separable from the underlying shares of the Corporation,
(F) any proportionate interest in shares of the Corporation or Derivative Instruments held,
directly or indirectly, by a general or limited partnership in which either party is a general
partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any
performance-related fees (other than an asset-based fee) that each such party is directly or
indirectly entitled to based on any increase or decrease in the value of shares of the Corporation
or Derivative Instruments, if any, as of the date of such notice, including without limitation any
such interests held by members of each such partys immediate family sharing the same household
(which information set forth in this paragraph shall be supplemented by such stockholder or such
beneficial owner, as the case may be, not later than ten (10) days after the record date for
determining the stockholders entitled to notice of the meeting and/or to vote at the meeting to
disclose such ownership as of such record date);
(4) any other information relating to each such party that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of
proxies for, as applicable, the proposal and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act; and
(5) a statement whether or not each such party will deliver a proxy statement and form of
proxy to holders of, in the case of a proposal, at least the percentage of voting power of all of
the shares of capital stock of the Corporation required under applicable law to carry the proposal
or, in the case of a nomination or nominations, at least the percentage of voting power of all of
the shares of capital stock of the Corporation reasonably believed by the Record Stockholder or
beneficial holder, as the case may be, to be sufficient to elect the nominee or nominees proposed
to be nominated by the Record Stockholder (such statement, a Solicitation Statement).
(e) The Corporation may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
3
proposed nominee to serve as a director of the Corporation, including information relevant to
a determination whether such proposed nominee can be considered an independent director.
(f) Only such business shall be conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in these Bylaws. The
chairperson of the meeting shall determine whether a nomination or any business proposed to be
transacted by the stockholders has been properly brought before the meeting and, if any proposed
nomination or business has not been properly brought before the meeting, the chairperson shall
declare that such proposed business or nomination shall not be presented for stockholder action at
the meeting.
(g) For purposes of this Article, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or a 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.
(h) Notwithstanding the foregoing provisions of this Section 2.2, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 2.2. Nothing in this Section 2.2
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.3 SPECIAL MEETING.
(a) A special meeting of the stockholders, other than those required by statute, may be called
at any time by the Board of Directors acting pursuant to a resolution adopted by a majority of the
Whole Board (for purposes of these Bylaws, the term Whole Board shall mean the total
number of authorized directors whether or not there exist any vacancies in previously authorized
directorships) and special meetings may not be called by any other person or persons. The Board of
Directors may postpone or reschedule any previously scheduled special meeting.
(b) Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting by or at the direction of the Board of Directors. The notice of a
special meeting shall include the purpose for which the meeting is called. 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 (i) by or at the direction of the Board of Directors or (ii) provided
that the Board of Directors has determined that directors shall be elected at such meeting, by any
stockholder of record of the Corporation who is a stockholder of record at the time of the giving
of the notice provided for in this paragraph, who is entitled to vote at the meeting and upon such
election and who delivers a written notice to the Secretary setting forth the information set forth
in Section 2.2(d)(A) and (C). Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders only if such stockholder of
records notice required by the preceding sentence shall be received by the Secretary at the
principal executive offices of the Corporation not later than the close of business on the later of
the ninetieth (90th) day prior to such special meeting or the tenth (10th) 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
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meeting. In no event shall an adjournment, or postponement of a special meeting for which
notice has been given, commence a new time period (or extend any time period) for the giving of a
stockholders notice as described above.
(c) Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting by or at the direction of the Board of Directors. The notice of
such special meeting shall include the purpose for which the meeting is called.
(d) Notwithstanding the foregoing provisions of this Section 2.3, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 2.3. Nothing in this Section 2.3
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.4 NOTICE OF STOCKHOLDERS MEETINGS; AFFIDAVIT OF NOTICE.
Notice of the place, if any, date, and time of all meetings of the stockholders, the means of
remote communications, if any, by which stockholders and proxyholders may be deemed to be present
in person and vote at such meeting, and the record date for determining the stockholders entitled
to vote at the meeting, if such date is different from the record date for determining stockholders
entitled to notice of the meeting, shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held, to each stockholder entitled to vote at
such meeting as of the record date for determining the stockholders entitled to notice of the
meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as
required from time to time by the DGCL or the Restated Certificate of Incorporation of the
Corporation).
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, thereof, and the means of remote communications,
if any, by which stockholders and proxyholders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days after the date for
which the meeting was originally noticed, notice of the place, if any, date, and time of the
adjourned meeting and the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such adjourned meeting, shall be
given to each stockholder in conformity herewith. If after the adjournment a new record date for
stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix
a new record date for notice of such adjourned meeting, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board of Directors and,
except as otherwise required by law, shall not be more than sixty (60) nor less than ten (10) days
before the date of such adjourned meeting, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for
notice of such adjourned meeting. At any adjourned meeting, any business may be transacted which
might have been transacted at the original meeting.
5
2.5 QUORUM.
At any meeting of stockholders, the holders of a majority of the voting power of all issued
and outstanding stock entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business, except to the extent that the presence of a
larger number may be required by law or the rules of any stock exchange upon which the
Corporations securities are listed. Where a separate vote by a class or classes or series is
required, a majority of the voting power of all issued and outstanding stock of such class or
series, present in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to such matter. If a quorum is not present or represented at any meeting of
stockholders, then the chairperson of the meeting or the holders of a majority in voting power of
the stock entitled to vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time in accordance with Section 2.4.
2.6 ORGANIZATION.
Such person as the Board of Directors may have designated or, in the absence of such a person,
the Chairman of the Board or, in his or her absence, the President of the Corporation or, in his or
her absence, such person as may be chosen by the holders of a majority of the voting of the shares
entitled to vote who are present, in person or by proxy, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the Secretary of the
Corporation, the secretary of the meeting shall be such person as the chairman of the meeting
appoints.
2.7 CONDUCT OF BUSINESS.
The chairperson of any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including the manner of voting and the conduct of business. The chairman
shall have the power to adjourn the meeting to another place, if any, date and time. The date and
time of the opening and closing of the polls for each matter upon which the stockholders will vote
at the meeting shall be announced at the meeting.
2.8 VOTING.
(a) Except as may be otherwise provided in the Restated Certificate of Incorporation or by
law, each stockholder shall be entitled to one vote for each share of capital stock held by such
stockholder.
(b) All elections shall be determined by a plurality of the votes cast, and except as
otherwise required by law or the rules of any stock exchange upon which the Corporations
securities are listed, all other matters shall be determined by a majority of the votes cast
affirmatively or negatively.
2.9 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Subject to the rights of the holders of the shares of any series of preferred stock, any
action required or permitted to be taken by the stockholders of the Corporation must be effected
6
at a duly called annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
2.10 WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the DGCL or of the Restated
Certificate of Incorporation or these Bylaws to a stockholder, a written waiver thereof, signed by
the person entitled to notice, whether before or after the time of the event for which notice is to
be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice unless so required by the Restated Certificate of Incorporation or these
Bylaws.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING.
In order that the Corporation may determine the stockholders entitled to notice of any meeting
of stockholders or any adjournment thereof, the Board of Directors may, except as otherwise
required by law, fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and which record date shall
not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the
Board of Directors so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time
it fixes such record date, that a later date on or before the date of the meeting shall be the date
for making such determination. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance with the foregoing provisions of this Section at the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
7
2.12 PROXIES.
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or
persons to act for such stockholder by a written proxy, signed by the stockholder and filed with
the secretary of the Corporation, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if
the stockholders name is placed on the proxy (whether by manual signature, typewriting, electronic
or telegraphic transmission or otherwise) by the stockholder or the stockholders attorney-in-fact.
The revocability of a proxy that states on its face that it is irrevocable shall be governed by
the provisions of Section 212(e) of the DGCL.
ARTICLE III
DIRECTORS
3.1 POWERS.
Subject to the provisions of the DGCL and any limitations in the Certificate of Incorporation
or these Bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the Corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors. In addition to the
powers and authorities these Bylaws expressly confer upon them, the Board of Directors may exercise
all such powers of the Corporation.
3.2 NUMBER OF DIRECTORS.
Subject to the rights of the holders of any series of preferred stock to elect directors under
specified circumstances, the number of directors shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.
The Board shall be divided into three (3) classes, Class I, Class II and Class III, effective
at the same time that the stockholders appoint and elect directors to the inaugural classes of
Class I, Class II and Class III. Each director shall serve for a term expiring at the third annual
meeting following his or her election; provided, that, with respect to the directors serving in the
inaugural classes of Class I, Class II and Class III, the terms of the directors serving in Class I
shall expire at the Corporations first annual meeting of stockholders held after the effectiveness
of the division of the Board into three (3) classes; the terms of the directors serving in Class II
shall expire at the Corporations second annual meeting of stockholders held after such
effectiveness; and the terms of the directors serving in Class III shall expire at the
Corporations third annual meeting of stockholders held after such effectiveness.
3.4 RESIGNATION AND VACANCIES.
Subject to the rights of the holders of any series of preferred stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
8
directors or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall, unless otherwise required
by law or by resolution of the Board of Directors, be filled only by a majority vote of the
directors then in office, though less than a quorum (and not by the stockholders), and directors so
chosen shall serve for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires or until such directors successor
shall have been duly elected and qualified. No decrease in the number of authorized directors
shall shorten the term of any incumbent director.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
The Board of Directors of the Corporation may hold meetings, both regular and special, either
within or outside the State of Delaware. Unless otherwise restricted by the Restated Certificate
of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or any committee,
by means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 REGULAR MEETINGS.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as shall from time to time be determined by the Board of Directors.
3.7 SPECIAL MEETINGS; NOTICE.
Special meetings of the Board of Directors for any purpose or purposes may be called at any
time by the chairperson of the board, the president, any vice president, the secretary or a
majority of the Whole Board.
Notice of the time and place of special meetings shall be (i) delivered personally by courier
or telephone to each director, (ii) sent by first-class mail, postage prepaid, (iii) sent by
facsimile, or (iv) by electronic mail, directed to each director at that directors address,
telephone number, facsimile number or electronic mail address as it is shown on the records of the
Corporation. If the notice is mailed, it shall be deposited in the United States mail at least
four (4) days before the time of the holding of the meeting. If the notice is (i) delivered
personally by hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic
mail, it shall be delivered at least twenty-four (24) hours before the time of the holding of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
and appropriate in the circumstances. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director who the person
giving the notice has reason to believe will promptly communicate it to the director. Notice of
any meeting need not be given to any director who shall, either before or after the meeting, submit
a waiver of such notice or who shall attend such meeting except attendance for the express purpose
of objecting at the beginning of the meeting to the transaction of business because the meeting is
not lawfully called or convened. The notice need not specify the purpose of the meeting, and
unless
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otherwise indicated in the notice thereof, any and all business may be transacted at a special
meeting.
3.8 QUORUM AND VOTING.
At all meetings of the Board of Directors, a majority of the Whole Board shall constitute a
quorum for the transaction of business and the vote of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Restated Certificate of Incorporation. If a
quorum is not present at any meeting of the Board of Directors, then the majority of directors
present thereat may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
3.9 WAIVER OF NOTICE.
Whenever notice is required to be given under any provision of the DGCL or of the Restated
Certificate of Incorporation or these Bylaws to a director, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice unless so required by the Restated
Certificate of Incorporation or these Bylaws.
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise restricted by the Restated Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee. Written consents representing actions taken by
the board or committee may be executed by telex, telecopy or other facsimile transmission, and such
facsimile shall be valid and binding to the same extent as if it were an original. Such action by
written consent shall have the same force and effect as a unanimous vote of the Board of Directors.
3.11 FEES AND COMPENSATION OF DIRECTORS.
Unless otherwise restricted by the Restated Certificate of Incorporation or these Bylaws, the
Board of Directors shall have the authority to fix the compensation of directors. No such
compensation shall preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
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3.12 REMOVAL OF DIRECTORS.
Unless otherwise restricted by statute, by the Restated Certificate of Incorporation or by
these Bylaws, any director or the entire Board of Directors may be removed, but only for cause, by
the holders of a majority of the shares then entitled to vote at an election of directors, voting
together as a single class.
No reduction of the authorized number of directors shall have the effect of removing any
director prior to the expiration of such directors term of office.
3.13 CHAIRPERSON OF THE BOARD OF DIRECTORS.
The Corporation may also have, at the discretion of the Board of Directors, a Chairperson of
the Board of Directors who shall not be considered an officer of the Corporation.
3.14 EMERGENCY BYLAWS.
To the fullest extent permitted by law, in the event of any emergency, disaster or
catastrophe, as referred to in Section 110 of the DGCL, or other similar emergency condition, the
Board of Directors may adopt emergency bylaws.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution passed by a majority of the Whole Board, designate
one or more committees, with each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors or in the Bylaws of the Corporation, shall
have and may exercise all the powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it; but no such committee shall have the power or authority
to (a) approve or adopt or recommend any action or matter (other than election or removal of
directors) expressly required by the DGCL to be submitted to stockholders or (b) amend the Bylaws
of the Corporation.
4.2 COMMITTEE MINUTES.
Each committee shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
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4.3 MEETINGS AND ACTION OF COMMITTEES.
Each committee may determine the procedural rules for meeting and conducting its business and
shall act in accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; one-third (1/3) of the
members shall constitute a quorum unless the committee shall consist of one or two members, in
which event one member shall constitute a quorum; and all matters shall be determined by a majority
vote of the members present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of the proceedings of such
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.
ARTICLE V
OFFICERS
5.1 OFFICERS.
The officers of the Corporation shall be a chief executive officer, a president, a secretary,
and a chief financial officer. The Corporation may also have, at the discretion of the Board of
Directors, one or more vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and any such other officers as may be appointed in accordance with the provisions of
Section 5.3 of these Bylaws. Any number of offices may be held by the same person.
5.2 APPOINTMENT OF OFFICERS.
The officers of the Corporation, except such officers as may be appointed in accordance with
the provisions of Sections 5.3 or 5.5 of these Bylaws, shall be appointed by the Board of
Directors, subject to the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS.
The Board of Directors may appoint, or empower the chief executive officer or the president to
appoint, such other officers and agents as the business of the Corporation may require, each of
whom shall hold office for such period, have such authority, and perform such duties as are
provided in these Bylaws or as the Board of Directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by an affirmative vote of the majority of the Board of
Directors or, except in the case of an officer chosen by the Board of Directors, by any officer
upon whom such power of removal may be conferred by the Board of Directors.
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Any officer may resign at any time by giving written notice to the attention of the secretary
of the Corporation. Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice; and, unless otherwise specified in that notice, the
acceptance of the resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Corporation under any contract to which the officer
is a party.
5.5 VACANCIES IN OFFICES.
Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors.
5.6 CHIEF EXECUTIVE OFFICER.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
chairperson of the board, if any, the chief executive officer of the Corporation shall, subject to
the control of the Board of Directors, have general supervision, direction, and control of the
business and the officers of the Corporation. He or she shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a chairperson of the board, at all meetings of
the Board of Directors and shall have the general powers and duties of management usually vested in
the office of chief executive officer of a corporation and shall have such other powers and duties
as may be prescribed or delegated by the Board of Directors or these Bylaws.
5.7 PRESIDENT.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
chairperson of the board (if any) or the chief executive officer, the president shall have general
supervision, direction, and control of the business and other officers of the Corporation. He or
she shall have the general powers and duties of management usually vested in the office of
president of a corporation and such other powers and duties as may be prescribed or delegated by
the Board of Directors or these Bylaws.
5.8 VICE PRESIDENTS.
In the absence or disability of the chief executive officer and president, the vice
presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a
vice president designated by the Board of Directors, shall perform all the duties of the president
and when so acting shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such other duties as from
time to time may be prescribed or delegated to them respectively by the Board of Directors, these
Bylaws, the president or the chairperson of the board.
5.9 SECRETARY.
The secretary shall keep or cause to be kept, at the principal executive office of the
Corporation or such other place as the Board of Directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors, and stockholders. The minutes shall
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show the time and place of each meeting, the names of those present at directors meetings or
committee meetings, the number of shares present or represented at stockholders meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
Corporation or at the office of the Corporations transfer agent or registrar, as determined by
resolution of the Board Of Directors, a share register, or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of shares held by each, the
number and date of certificates evidencing such shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required to be given by law or by these Bylaws. He or she shall keep the
seal of the Corporation, if one be adopted, in safe custody and shall have such other powers and
perform such other duties as may be prescribed or delegated by the Board of Directors or by these
Bylaws.
5.10 CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions of
the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital retained earnings, and shares. The books of account shall at all reasonable times
be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the name and to
the credit of the Corporation with such depositories as may be designated by the Board of
Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the president, the chief executive officer, or the directors, upon
request, an account of all his or her transactions as chief financial officer and of the financial
condition of the Corporation, and shall have other powers and perform such other duties as may be
prescribed or delegated by the Board of Directors or the Bylaws.
5.11 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chairperson of the board, the chief executive officer, the president, any vice president,
the chief financial officer, the secretary or assistant secretary of this Corporation, or any other
person authorized by the Board of Directors or the chief executive officer or the president or a
vice president, is authorized to vote, represent, and exercise on behalf of this Corporation all
rights incident to any and all shares of any other corporation or corporations held by this
Corporation. The authority granted herein may be exercised either by such person directly or by
any other person authorized to do so by proxy or power of attorney duly executed by the person
having such authority.
5.12 AUTHORITY AND DUTIES OF OFFICERS.
In addition to the foregoing authority and duties, all officers of the Corporation shall
respectively have such authority and perform such duties in the management of the business
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of the Corporation as may be designated or delegated from time to time by the Board of
Directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
6.1 RIGHT TO INDEMNIFICATION.
Each person who was or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a proceeding), by reason of the fact that he or she is or was
a director or an officer of the Corporation or is or was serving at the request of the Corporation
as a director, officer or trustee of another corporation or of a partnership, joint venture, trust
or other enterprise, including service with respect to an employee benefit plan (hereinafter an
indemnitee), whether the basis of such proceeding is alleged action in an official
capacity as a director, officer or trustee or in any other capacity while serving as a director,
officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided in Section 6.3 of
this Article VI with respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation.
6.2 POWER TO ADVANCE EXPENSES
The Corporation shall have the power to advance expenses to any person to the fullest extent
permitted by law.
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6.3 RIGHT OF INDEMNITEE TO BRING SUIT.
If a claim under Section 6.1 of this Article VI is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation, the indemnitee may at
any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim.
To the fullest extent permitted by law, if successful in whole or in part in any such suit, the
indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In
any suit brought by the indemnitee to enforce a right to indemnification hereunder it shall be a
defense that the indemnitee has not met any applicable standard for indemnification set forth in
the DGCL. Neither the failure of the Corporation (including its directors who are not parties to
such action, a committee of such directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification of the indemnitee
is proper in the circumstances because the indemnitee has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification hereunder, the burden of proving that the
indemnitee is not entitled to be indemnified, under this Article VI or otherwise shall be on the
Corporation.
6.4 NON-EXCLUSIVITY OF RIGHTS.
The rights to indemnification conferred in this Article VI shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, the Corporations Restated
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or directors or otherwise.
6.5 INSURANCE.
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 expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the
DGCL.
6.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification and to the advancement of expenses to any employee or agent of the
Corporation to the fullest extent permitted by law.
6.7 NATURE OF RIGHTS.
(a) The rights conferred upon indemnitees in this Article VI shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director, officer
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or trustee and shall inure to the benefit of the indemnitees heirs, executors and
administrators. Any amendment, alteration or repeal of this Article VI that adversely affects any
right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate,
or impair any such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment or repeal.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS; STOCKLIST.
The Corporation shall, either at its principal executive offices or at such place or places as
designated by the Board of Directors, keep a record of its stockholders listing their names and
addresses and the number and class of shares held by each stockholder, a copy of these Bylaws as
amended to date, accounting books, and other records.
The officer who has charge of the stock ledger of the Corporation shall, at least ten (10)
days before every meeting of stockholders, prepare and make a complete list of stockholders
entitled to vote at any meeting of stockholders, provided, however, if the record date for
determining the stockholders entitled to vote is less than ten (10) days before the meeting date,
the list shall reflect the stockholders entitled to vote as of the tenth (10th) day
before the meeting date, arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in his or her name. Such list
shall be open to the examination of any stockholder for a period of at least ten (10) days prior to
the meeting in the manner provided by law.
A stock list shall also be open to the examination of any stockholder during the whole time of
the meeting as provided by law. This list shall presumptively determine (a) the identity of the
stockholders entitled to examine such stock list and to vote at the meeting and (b) the number of
shares held by each of them.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS.
From time to time, the Board of Directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other
evidences of indebtedness that are issued in the name of or payable to the Corporation, and only
the persons so authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.
The Board of Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute any
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instrument in the name of and on behalf of the Corporation; such authority may be general or
confined to specific instances. Unless so authorized or ratified by the Board of Directors or
within the agency power of an officer, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES.
The shares of the Corporation shall be represented by certificates, provided 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 its stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate is surrendered to the
Corporation. Each holder of stock represented by certificates shall be entitled to a certificate
signed by, or in the name of the Corporation by, the President or a Vice President, and by the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the
number of shares owned by him or her. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has 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.
Notwithstanding any other provision in these Bylaws, the Corporation may adopt a system of
issuance, recordation and transfer of shares of the Corporation by electronic or other means not
involving any issuance of certificates, including provisions for notice to purchasers in
substitution for any required statements on certificates, and as may be required by applicable
corporate securities laws, which system has been approved by the Securities and Exchange
Commission. Any system so adopted shall not become effective as to issued and outstanding
certificated securities until the certificates therefor have been surrendered to the Corporation.
8.4 LOST, STOLEN OR DESTROYED CERTIFICATES.
Except as provided in this Section 8.4, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the Corporation and
canceled at the same time. The Corporation may issue a new certificate of stock or uncertificated
shares in the place of any certificate previously issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed
certificate, or the owners legal representative, to give the Corporation a bond sufficient to
indemnify it 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 such new certificate or uncertificated
shares.
8.5 CONSTRUCTION; DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of construction, and
definitions in the DGCL shall govern the construction of these Bylaws. Without limiting the
generality of this provision, the singular number includes the plural, the plural number includes
the singular, and the term person includes both a corporation and a natural person.
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8.6 DIVIDENDS.
The directors of the Corporation, subject to any restrictions contained in (a) the DGCL or (b)
the Restated Certificate of Incorporation, may declare and pay dividends upon the shares of its
capital stock. Dividends may be paid in cash, in property, or in shares of the Corporations
capital stock.
The directors of the Corporation may set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or
maintaining any property of the Corporation, and meeting contingencies.
8.7 FISCAL YEAR.
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and
may be changed by the Board of Directors.
8.8 SEAL.
The Corporation may adopt a corporate seal, which may be altered at pleasure, and may use the
same by causing it or a facsimile thereof, to be impressed or affixed or in any other manner
reproduced.
8.9 TRANSFER OF STOCK.
Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate
for shares, if one has been issued, duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate, and record the transaction
in its books.
8.10 REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled
to hold liable for calls and assessments the person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of another person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
8.11 TIME PERIODS.
In applying any provision of these Bylaws which requires that an act be done or not be done a
specified number of days prior to an event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the date of the event shall be included.
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ARTICLE IX
NOTICE BY ELECTRONIC TRANSMISSION
9.1 NOTICE BY ELECTRONIC TRANSMISSION.
Without limiting the manner by which notice otherwise may be given effectively to stockholders
pursuant to the DGCL, the Restated Certificate of Incorporation or these Bylaws, any notice shall
be effective if given by a form of electronic transmission in the manner provided in Section 232 of
the DGCL.
ARTICLE X
AMENDMENTS
In furtherance and not in limitation of the powers conferred by law, the Board of Directors is
expressly authorized to adopt, amend and repeal these Bylaws subject to the power of the holders of
capital stock of the Corporation to adopt, amend or repeal the Bylaws; provided, however, that,
with respect to the power of holders of capital stock to adopt, amend and repeal Bylaws of the
Corporation, notwithstanding any other provision of these Bylaws or any provision of law which
might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the capital stock of the Corporation required by law,
these Bylaws or any preferred stock, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (662/3)% of the voting power of all of the then-outstanding shares entitled to
vote generally in the election of directors, voting together as a single class, shall be required
to adopt, amend or repeal any provision of these Bylaws.
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