Attached files
file | filename |
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8-K - IMH Financial Corp | v188707_8-k.htm |
EX-3.1 - IMH Financial Corp | v188707_ex3-1.htm |
EX-4.1 - IMH Financial Corp | v188707_ex4-1.htm |
EX-99.1 - IMH Financial Corp | v188707_ex99-1.htm |
BYLAWS
OF IMH FINANCIAL CORPORATION,
a Delaware corporation (the
“Corporation”)
(As of
June 18, 2010)
ARTICLE
I
STOCKHOLDERS
Section
1.1 Annual
Meetings. An annual meeting of the stockholders of the
Corporation shall be held for the election of directors at such date, time and
place either within or without the State of Delaware as designated by the Board
of Directors of the Corporation (the “Board of
Directors”) from time to time; provided, however, that the
Board of Directors may, in its sole discretion, determine that the meeting 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”). Any
other business properly brought before the meeting may be transacted at the
annual meeting.
Section
1.2 Special
Meetings. Special meetings of stockholders, other than those
required by statute and except as otherwise set forth in this Section 1.2,
may be called at any time by, and only by (a) the Chief Executive Officer
of the Corporation (the “CEO”),
(b) the President of the Corporation (the “President”),
or (c) the Board of Directors pursuant to a resolution adopted by the Board
of Directors, with such meeting to be held at such date, time and place (if
applicable) either within or without the State of Delaware as shall be stated in
the notice of the meeting. In addition, holders of not less than ten
percent (10%) of the voting power of all of the outstanding shares of stock
entitled to vote at such meeting (the “10%
Holders”) may request that a special meeting of stockholders be called by
the Board of Directors for any purpose for which a special meeting is authorized
to be called under the DGCL by delivering to the Corporation a written request
for such meeting signed by all of the 10% Holders, which states the proposed
purpose of the meeting; any such meeting of the stockholders shall be held at
such date, time and place (if applicable) either within or without the State of
Delaware as shall be selected by the Board of Directors and stated in the notice
of the meeting. The Board of Directors may postpone or reschedule any
previously scheduled special meeting.
Section
1.3 Nominations and Stockholder
Business.
(a) To
properly be brought before an annual meeting of stockholders, nominations of
persons for election to the Board of Directors and the proposal of business to
be considered by the stockholders at an annual meeting of stockholders must be
(i) pursuant to the Corporation’s proxy materials with respect to such
meeting, (ii) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any duly
authorized committee thereof), (iii) brought before the annual meeting by
or at the direction of the CEO, the President or the Board of Directors pursuant
to a resolution adopted by a majority of the members of the Board of Directors,
or (iv) brought before the annual meeting by any stockholder of the
Corporation who is a stockholder of record at the time the notice required in
the following paragraph is given and who has complied with the notice procedures
set forth in Section 1.3(b) and who
is entitled to vote at the meeting. For the avoidance of doubt, the
foregoing clause (iv) shall be the exclusive means for a stockholder to make
nominations or propose business at an annual meeting of stockholders (other than
nominations or other business included in the Corporation’s proxy materials
pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended (such act, and the rules and regulations promulgated thereunder, the
“Exchange
Act”) or any similar rules subsequently adopted thereunder).
1
(b) For
nominations or business to be properly brought before an annual meeting of
stockholders by a stockholder of record under Section 1.3(a), the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation (the “Secretary”)
and such business must be a proper subject for stockholder action under the
DGCL, and the 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 (as defined below)
required by these bylaws. To be timely for purposes of this Section 1.3(b), a
stockholder’s notice must be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
first anniversary of the preceding year’s annual meeting; provided, however, that if
the date of the annual meeting is advanced by more than 30 days before or
delayed by more than 30 days after such anniversary date, or if no annual
meeting was held in the preceding year, then notice by the stockholder must, to
be timely hereunder, be delivered not later than the close of business on the
later of the 90th day prior to such meeting or the 10th day following the date
on which public announcement (as defined below) is first made of the date of
such meeting. 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 stockholder’s notice as described
above. Such stockholder’s notice must set forth:
(i) as
to each person whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for the election of
directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act (and such person’s written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected), and any other information that the Corporation may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation;
(ii) as
to any business that the stockholder proposes to bring before such meeting, a
brief description of the business desired to be brought before such 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 material
interest in such business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made;
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(iii) as
to the stockholder giving the notice and the beneficial owner(s) if any
(collectively, the “Parties”
and each, a “Party”),
on whose behalf the nomination or proposal is made, the name and address of such
stockholder and of all such beneficial owners, if any;
(iv) as
to each of the Parties (A) the class, series, and number of shares of the
Corporation that are owned, directly or indirectly, beneficially and of record
by such Party, and a representation that such stockholder will notify the
Corporation within five business days after the record date for determining the
stockholders entitled to notice of such meeting of the class, series and number
of shares of capital stock of the Corporation held by such Party as of such
record date (except as otherwise provided in Section 1.3(h) below),
(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 (any of the foregoing, a “Derivative
Instrument”) directly or indirectly owned beneficially by 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 such 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 such Party (for purposes hereof, a Party
shall be deemed to have a short interest in a security if such Party 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 with respect to which either Party is a general partner
or beneficially owns, directly or indirectly, an interest in a general partner
thereof and (G) any performance-related fees (other than asset-based fees)
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 Party’s immediate family sharing the same
household (which information set forth in clauses (A) through (G) shall be
supplemented by such stockholder or such beneficial owner, as the case may be,
not later than five business after the record date for determining the
stockholders entitled to notice of the meeting in order to disclose such
ownership as of the record date for such meeting (except as otherwise provided
in Section 1.3(h)
below);
(v) as
to each of the Parties, any other information relating to 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 of business and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act;
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(vi) as
to each of the Parties, a statement of whether or not such Party will deliver a
proxy statement and form of proxy to holders of, in the case of a proposal,
shares representing at least the percentage of voting power of all shares of
capital stock of the Corporation as is required under applicable law to carry
the proposal (such statement, a “Solicitation
Statement”); and
(vii) a
representation that such stockholder or its qualified representative (as defined
in Section 1.3(g))
intends to appear in person at the annual meeting to bring such nominations or
business before the meeting.
(c) A
person shall not be eligible for election or re-election as a director at an
annual meeting of stockholders unless (i) such person is nominated by a
stockholder of record in accordance with the notice procedures set forth in this
Section 1.3 unless
otherwise required by Rule 14a-8 under the Exchange Act or any similar
rules subsequently adopted thereunder, or (ii) such person is nominated by
or at the direction of the Board of Directors. At an annual meeting of
stockholders, only such business as shall have been brought before the meeting
in accordance with the procedures set forth in this Section 1.3 may be
conducted.
(d) Notwithstanding
anything in this Section 1.3 to the
contrary, if the number of directors to be elected to the Board of Directors is
increased and the Corporation does not make a public announcement specifying the
size of the increased Board of Directors at least 10 days before the last day on
which a stockholder of record may deliver a notice of nomination in accordance
with Section 1.3(b), then a
stockholder’s notice required by Section 1.3(b) shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it is delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the date on which such public announcement is
first made by the Corporation.
(e) At
a special meeting of stockholders, only such business as has been brought before
the meeting by or at the direction of the Board of Directors may be
considered. The notice of such 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 pursuant to the Corporation’s
notice of meeting (i) by or at the direction of the Board of Directors, or
(ii) provided that the Board of Directors has determined that directors
shall be elected at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving the notice provided for in this
paragraph, who is entitled to vote at the meeting and who delivers a written
notice to the Secretary setting forth the information set forth in Sections 1.3(b)(i) and
(b)(iii) through (b)(vii). Nominations by stockholders of persons for
election to the Board of Directors may be made at such a special meeting of
stockholders only if the stockholder’s 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 90th day
prior to such special meeting or the 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
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 stockholder’s notice as described
above. Except as otherwise provided by law, a person shall not be
eligible for election or re-election as a director at any meeting of
stockholders unless the person is nominated (i) by or at the direction of
the Board of Directors, or (ii) by a stockholder of record in accordance
with the notice procedures set forth in this Section 1.3.
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(f) The
chairman of the meeting has the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made in accordance
with the procedures set forth in this Section 1.3. If
any proposed nomination or business is not in compliance with this Section 1.3 or these
bylaws, then except as otherwise provided by law, the chairman of the meeting
shall have the power and duty to declare that such defective proposed nomination
or business shall not be presented for stockholder action at the meeting and
shall be disregarded.
(g) For
purposes of this Section 1.3, “public
announcement” shall include disclosure in a press release reported by the
Dow Jones News Service, The Associated Press, Business Wire, PR Newswire or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission (the “Commission”)
pursuant to the Exchange Act; and a “qualified
representative” of the stockholder shall be such stockholder’s agent or
designee or other persons authorized by a writing executed by such stockholder
(or a reliable reproduction or electronic transmission of the writing) delivered
to the Corporation prior to the making of such nomination or proposal at such
meeting by such stockholder stating that such person is authorized to act for
such stockholder as proxy at the meeting of stockholders.
(h) Notwithstanding
anything in this Section 1.3 to the
contrary, if the record date for determining the stockholders entitled to vote
at any meeting of stockholders is different from the record date for determining
the stockholders entitled to notice of the meeting, a stockholder’s notice
required by Section 1.3(b) shall
also set forth a representation that the stockholder will notify the Corporation
in writing within five business days after the record date for determining the
stockholders entitled to vote at the meeting, or by the opening of business on
the date of the meeting (whichever is earlier), of the information required
under Section 1.3(b)(iii),
clauses (A) through (G) of Section 1.3(b)(iv), and
Section 1.3(b)(v),
and such information when provided to the Corporation shall be current as of the
record date for determining the stockholders entitled to vote at the
meeting. This Section 1.3 shall not
apply to a proposal or nomination proposed to be made by a stockholder if the
stockholder has notified the Corporation of his or her intention to present the
proposal or nomination at a meeting of stockholders only pursuant to and in
compliance with Rule 14a-8 under the Exchange Act or any other rule
promulgated under Section 14 of the Exchange Act and such proposal or
nominee has been included in a proxy statement that has been prepared by the
Corporation to solicit proxies for such meeting. Nothing in this
Section 1.3 shall
be deemed to affect any rights of the holders of any series of preferred stock,
if any, to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
Section
1.4 Notice of
Meetings. Whenever stockholders are required or permitted to
take any action at a meeting, a notice of the meeting must be given, stating the
place, date and time of the meeting, the record date for determining the
stockholders entitled to vote at the meeting (if such date is different from the
record date for determining the stockholders entitled to notice of the meeting),
the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting, and
in the case of a special meeting, the purpose or purposes for which the meeting
is called also shall be set forth in the notice. Unless otherwise
required by the DGCL or the certificate of incorporation of the Corporation (as
it may be amended or amended and restated from time to time, the “Certificate of
Incorporation”), the notice of any stockholder meeting shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting as of the record date for
determining the stockholders entitled to notice of the meeting, except as
otherwise provided herein or required by applicable law. Any notice
shall be made in compliance with the notice provisions of this Section 1.4 and Section 5.2. An
affidavit of the mailing or other means of giving any notice of any
stockholders’ meeting, executed by the Secretary, Assistant Secretary or any
transfer agent of the Corporation giving the notice, shall be prima facie
evidence of the giving of such notice or report. Notice shall be deemed to have
been given to all stockholders of record who share an address if notice is
giving in accordance with the “householding” rules set forth in Rule 14a-3(e)
under the Exchange Act and Section 233 of the DGCL.
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Section
1.5 Adjournments. Any
annual or special meeting of stockholders may be adjourned from time to time for
any reason by the chairman of the meeting (determined in accordance with Section 1.8), to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place 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, are
announced at the meeting at which the adjournment is taken; provided, however, that if
the date of any adjourned meeting is more than 30 days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, notice of the place, date, and time of the adjourned meeting
shall be given to each stockholder of record entitled to vote at such
meeting. At the adjourned meeting the Corporation may transact any
business which might have been transacted at the original meeting. If
after the adjournment the Board of Directors fixes a new record date for
determination of stockholders entitled to vote at the adjourned meeting, the
Board of Directors shall also fix a new record date for stockholders entitled to
receive notice of such adjourned meeting, which date shall not be more than 60
nor less than 10 days before the date of such adjourned meeting, and the Board
of Directors shall give notice of the adjourned meeting to each stockholder of
record entitled to vote at such adjourned meeting as of the record date for
notice of such adjourned meeting.
Section
1.6 Quorum. At each
annual or special meeting of stockholders, except where otherwise required by
the DGCL, the Certificate of Incorporation or these bylaws, the holders of a
majority of the voting power of all of the outstanding shares of stock entitled
to vote at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate
vote by class or classes or series is required for any matter, the holders of a
majority of the voting power of all of the outstanding shares of such class or
classes or series, present in person or represented by proxy, shall constitute a
quorum to take action with respect to that vote on that matter. Two
or more classes or series of stock shall be considered a single class if the
holders of such classes or series of stock are entitled to vote together as a
single class at the meeting. In the absence of a quorum of the
holders of any class of stock entitled to vote on a matter, the chairman of the
meeting may adjourn the meeting to another place, if any, date or
time.
6
Section
1.7 Voting; Proxies.
(a) Unless
otherwise provided in the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders is entitled to one vote for each
share of stock held of record by such stockholder which has voting power upon
the matter in question. Each stockholder entitled to vote at a
meeting of stockholders may vote in person or by proxy, 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 duly executed proxy will be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power,
regardless of whether the interest with which it is coupled is an interest in
the stock itself or an interest in the Corporation generally. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the
Secretary. Voting at meetings of stockholders need not be by written
ballot unless so directed by the chairman of the meeting (determined in
accordance with Section 1.8) or the
Board of Directors.
(b) At
all meetings of stockholders for the election of directors at which a quorum is
present, each director shall be elected by the vote of a plurality of the votes
cast. In all other matters, unless otherwise required by law, the
Certificate of Incorporation or these bylaws, the affirmative vote of a majority
of the votes cast affirmatively or negatively will be the act of the
stockholders. Where a separate vote by class or classes is required,
the affirmative vote of a majority of the votes cast affirmatively or negatively
of such class or classes shall be the act of such class or classes, except as
otherwise required by law, the Certificate of Incorporation or these
bylaws.
Section
1.8 Organization. Meetings
of the stockholders of the Corporation shall be presided over by the Chairman of
the Board of Directors (the “Chairman”),
or in the absence of the Chairman, by the Deputy Chairman of the Board of
Directors (the “Deputy
Chairman”), or in the absence of the Deputy Chairman, such person as may
be chosen by the holders of a majority of the voting power of the shares
entitled to vote thereat who are present, in person or by proxy. Such presiding
person, with respect to any meeting of the stockholders, is referred to in this
Article I as the “chairman of the meeting”. The Secretary or, in
the absence of the Secretary, the Assistant Secretary, if any, or in the absence
of the Assistant Secretary, such other person as is designated by the chairman
of the meeting determined in accordance with this Section 1.8 shall act as
secretary of the meeting and keep a record of the proceedings
thereof. The order of business at each such meeting shall be as
determined by the chairman of the meeting. The chairman of the
meeting shall have the right and authority to adjourn a meeting of stockholders
without a vote of stockholders in accordance to Section 1.5 and to
prescribe such rules, regulations and procedures and to do all such acts and
things as are necessary or desirable for the proper conduct of the meeting and
are not inconsistent with any rules or regulations adopted by the Board of
Directors pursuant to the provisions of these bylaws, including the
establishment of procedures for the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls for each
item upon which a vote is to be taken.
7
Section
1.9 Inspectors. Prior
to any meeting of stockholders, the Board of Directors, or the chairman of the
meeting shall appoint one or more inspectors to act at such meeting and make a
written report of the meeting. If no inspector or alternate is able
to act at the meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Inspectors need
not be stockholders and no director or nominee for the office of director shall
be appointed such an inspector. The inspectors shall ascertain the
number of shares outstanding and the voting power of each, determine the shares
represented at the meeting and the validity of proxies and ballots, count all
votes and ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint
or retain other persons to assist them in the performance of their
duties. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxy or vote, nor any
revocation thereof or change thereto, may be accepted by the inspectors after
the closing of the polls. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted therewith, any information provided by a
stockholder who submits a proxy by telegram, cablegram or other electronic
transmission from which it can be determined that the proxy was authorized by
the stockholder, ballots and the regular books and records of the Corporation,
and they may also consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks, brokers,
their nominees or similar persons which represent more votes than the holder of
a proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record.
Section
1.10 Fixing Date for Determining
Stockholders of Record.
(a) 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 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, unless otherwise required by law, not be more than 60
nor less than 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 herewith at the
adjourned meeting.
8
(b) 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
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 may not precede the date upon which the
resolution fixing the record date is adopted, and which record date must be no
more than 60 days prior to the action for which a record date is being
established. If no such 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.
Section
1.11 List of Stockholders Entitled to
Vote. A complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order for each class of stock, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder, as prepared by the Secretary or other officer having charge
of the stock ledger, shall be open to the examination of any stockholder, for
any purpose germane to the meeting, either physically during ordinary business
hours or electronically, in the discretion of the Board of Directors, for a
period of at least 10 days prior to the meeting in the manner provided by law;
provided, however, if
the record date for determining stockholders entitled to vote is less than 10
days before the meeting date, the list shall reflect the stockholders entitled
to vote as of the 10th day before the meeting date. The 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 the identity of the stockholders entitled to vote at the meeting and
the number of shares held by each of them.
ARTICLE
II
DIRECTORS
Section
2.1 Powers; Number;
Qualifications. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, except as
may be otherwise required by law or provided in the Certificate of
Incorporation. 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 Board of
Directors. The number of directors which shall constitute the whole
Board of Directors shall not be less than seven (7) nor more than fifteen (15),
and shall initially be seven (7). Directors need not be stockholders
of the Corporation.
Section
2.2 Election; Term of Office;
Resignation; Vacancies.
(a) At
each annual meeting of the stockholders of the Corporation from and after the
first annual meeting of the stockholders, each director standing for election
shall be elected to hold office for a term expiring at the next annual meeting
of stockholders, with such director to hold office until his or her successor is
elected and qualified or until his or her earlier resignation or
removal. Notwithstanding the foregoing, for any director who is an
employee of the Corporation or any of its affiliates at the time of election or
appointment to the Board of Directors it is a qualification for service as a
director that such director remain so employed, so that such director shall no
longer be qualified to be a director and shall therefore automatically cease to
be a director upon termination of such director’s employment with the
Corporation or such affiliate for any reason.
9
(b) Any
director may resign at any time upon notice given in writing or by electronic
transmission to the Board of Directors or a person designated by the Board of
Directors. Such resignation shall take effect when the resignation is
delivered unless the resignation specifies a later effective date or an
effective date determined upon the happening of an event or events. A
resignation which is conditioned upon the director failing to receive a
specified vote for reelection as a director may provide that it is
irrevocable.
(c) Subject
to the rights of holders of any one or more series of preferred stock then
outstanding, vacancies and newly created directorships resulting from any
increase in the authorized number of directors (other than any directors elected
in the manner described in the next sentence) or from any other cause shall,
unless otherwise required by resolution of the Board of Directors, be filled by,
and only by, the Board of Directors pursuant to a resolution adopted by a
majority of the directors then in office, even if less than a quorum, or by the
sole remaining director. Whenever the holders of any class or classes
of stock or series thereof are entitled by the Certificate of Incorporation to
elect one or more directors, vacancies and newly created directorships of such
class or classes or series shall unless otherwise required by resolution of the
Board of Directors be filled by, and only by, the affirmative vote of a majority
of the directors elected by such class or classes or series then in office, or
by the sole remaining director so elected. A director elected to fill
a vacancy shall hold office until the next election of directors and until his
or her successor is elected and qualified or until his or her earlier
resignation or removal.
Section
2.3 Regular
Meetings. Regular meetings of the Board of Directors may be
held at such places within or without the State of Delaware and at such times as
the Board of Directors may from time to time determine and publicize among all
directors.
Section
2.4 Special
Meetings. Special meetings of the Board of Directors may be
held at any time or place within or without the State of Delaware whenever
called by the Chairman and the Deputy Chairman. Special meetings of
the Board of Directors may also be held at any time or place within or without
the State of Delaware if a majority of the members of the Board of Directors
then in office consents 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 the Board of Directors.
Section
2.5 Notices of Board of Directors
Meetings. Notice of any regular or special meeting, unless
waived, must be given by mail, electronic transmission, telephone or facsimile
or courier to each director at his or her address as the same appears on the
records of the Corporation not less than one (1) day prior to the day on which
such meeting is to be held if such notice is by electronic transmission,
telephone, facsimile or courier, and not less than five (5) business days prior
to the day on which the meeting is to be held if such notice is by
mail. If the Secretary fails or refuses to give such notice, then the
notice may be given by another officer or any one of the
directors. Any such meeting may be held at such place as the Board of
Directors may fix from time to time or as may be specified or fixed in such
notice. Notice may be waived in writing or by electronic transmission
by any director, either before or after the meeting. Any meeting of
the Board of Directors will be a legal meeting without any notice having been
given, if all the directors shall be present at the meeting, and no notice of a
meeting is required to be given to any director who shall attend such
meeting.
10
Section
2.6 Quorum and Manner of
Acting. Except as otherwise provided in the Certificate of
Incorporation or these bylaws, a majority of the members of the Board of
Directors then in office shall constitute a quorum for the transaction of
business at any regular or special meeting of the Board of Directors (except
that in no case shall a quorum be less than 1/3 of the total number of
authorized directors whether or not there exist any vacancies in previously
authorized directorships), and the vote of a majority of the directors present
at a duly held meeting at which a quorum is present shall be the act of the
Board of Directors. In the absence of a quorum, the chairman of the
meeting or a majority of the directors present may adjourn the meeting from time
to time until a quorum be had. Notice of any adjourned meeting need
not be given.
Section
2.7 Participation in Meetings by
Conference Telephone Permitted. 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 of such committee, as the
case may be, by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this bylaw shall constitute presence
in person at such meeting.
Section
2.8 Organization. Meetings
of the Board of Directors will be presided over by the Chairman, or in the
absence of the Chairman, the Deputy Chairman, or in the absence of the Deputy
Chairman, by a chairman chosen by the directors present at the
meeting. The Secretary shall act as secretary of the meeting, but in
the absence of the Secretary, the chairman of the meeting may appoint any person
to act as secretary of the meeting.
Section
2.9 Powers and Duties of the Chairman
and Deputy Chairman.
(a) Duties of the
Chairman. The Chairman, when present, shall preside at all
meetings of the stockholders and the Board of Directors. The Chairman
shall perform other duties commonly incident to his or her office, subject to
the control of the Board of Directors, and shall also perform such other duties
and have such other powers as the Board of Directors shall designate from time
to time. The Chairman must be a director of the
Corporation.
(b) Duties of the Deputy
Chairman. The Deputy Chairman shall perform the duties of the
Chairman when the Chairman of the Board of Directors is absent or unable to act
or during such time as no individual is serving as Chairman of the Board of
Directors, and the Deputy Chairman shall perform such other duties and have such
other powers as the Board of Directors shall designate from time to
time. The Deputy Chairman must be a director of the
Corporation.
Section
2.10 Committees of
Directors. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation which, to the extent provided by resolution of the Board of
Directors, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation; but no such
committee shall have the power or authority in reference to the following
matters: (a) approving or adopting, or recommending to the
stockholders, any action or matter (other than the election or removal of
directors) expressly required by the DGCL to be submitted to stockholders for
approval or (b) adopting, amending or repealing any bylaws of the
Corporation. Such committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors and, when
required by the Board of Directors, shall keep regular minutes of their
proceedings and report the same to the Board of Directors. In the
absence or disqualification of a member of a committee, the member or members of
such committee who are present at any meeting and not disqualified from voting,
whether or not he, she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. 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 or
the Certificate of Incorporation.
11
Section
2.11 Compensation of
Directors. Directors who are not employees shall receive
compensation for their services as directors, in such form and amounts as the
Board of Directors from time to time determines. Directors who are
employees shall not receive any stated salary for their services as directors,
but, pursuant to normal corporate expense reimbursement policies, shall receive
reimbursement for expenses of attendance at such meetings.
Section
2.12 Action by Directors Without a
Meeting. 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 of such committee,
as the case may be, then in office 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.
Section
2.13 Emergency
Bylaws. In the event of any emergency, disaster or
catastrophe, as referred to in Section 110 of the DGCL, or other similar
emergency condition, as a result of which a quorum of the Board of Directors or
a standing committee of the Board of Directors cannot readily be convened for
action, then the director or directors in attendance at the meeting shall
constitute a quorum. Such director or directors in attendance may
further take action to appoint one or more of themselves or other directors to
membership on any standing or temporary committees of the Board of Directors as
they shall deem necessary and appropriate.
ARTICLE
III
OFFICERS
Section
3.1 Officers
Designated. The officers of the Corporation shall include a
CEO, a President, a Chief Operating Officer, a Chief Financial Officer, a
Controller, a Treasurer, and a Secretary. Each such officer shall be
elected by the Board of Directors at its annual meeting or any special
meeting. One person may concurrently hold any two or more such
offices, except that the Secretary may not concurrently hold the office of CEO
or President.
12
Section
3.2 Additional
Officers. The CEO, the President and the Board of Directors
each may appoint, and may delegate power to appoint, such additional officers of
the Corporation, including without limitation one or more Vice Presidents,
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, and
other officers of the Corporation as it may determine from time to time, and
each such officer shall hold office for such term, have such authority and
perform such duties as may from time to time be determined by the CEO, the
President or the Board of Directors, as applicable (or by such person to whom
such appointment power has been delegated pursuant to this Section 3.2).
Section
3.3 Tenure of
Office. Each officer of the Corporation shall hold office
until their respective successors shall be duly elected or appointed and
qualified, except that (a) the term of office of any officer who is an
employee of the Corporation shall automatically terminate upon the termination
of such officer’s employment with the Corporation for any reason and (b) in
case of the officer’s prior resignation, death or removal. The Board
of Directors may remove any officer at any time with or without
cause. Officers appointed by or pursuant to a delegation from the CEO
or the President pursuant to Section 3.2 may be
removed by the CEO or the President, as applicable, at any time with or without
cause. The compensation of officers of the Corporation shall be fixed
from time to time by the Board of Directors, or a committee thereof, but this
power may be delegated by the Board of Directors to such officers as may be
designated by resolution of the Board of Directors, or a committee
thereof.
Section
3.4 Powers and Duties of
Officers. Subject to the direction and control of the Board of
Directors, the officers of the Corporation shall have such powers and duties in
the management and operation of the Corporation as are set forth in these bylaws
and as may be prescribed by the Board of Directors or delegated by the CEO or
the President and (to the extent consistent with the foregoing), as generally
pertain to their respective offices.
(a) Duties of the Chief Executive
Officer. The CEO shall be the chief executive officer of the
Corporation and shall, subject to the control of the Board of Directors, be
responsible for the general supervision, direction and control of the business
and affairs of the Corporation, and for the execution of the policies of the
Board of Directors. The CEO will have primary responsibility for
strategy, working in conjunction with the President. The
Corporation’s Chief Financial Officer, its general counsel, its head of investor
relations, the heads of all other corporate functions of the Corporation and its
subsidiaries and the President shall report to the CEO. The CEO will,
jointly with the President, manage integration of the operations of the
Corporation and its subsidiaries in a manner which is generally consistent with
their division of responsibilities . The CEO shall have power to sign all
contracts and other instruments of the Corporation which are authorized and
shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation. The CEO shall perform other
duties commonly incident to his or her office and shall also perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time.
(b) Duties of the
President. The President shall, subject to the control of the
Board of Directors, be responsible for the general management and control of the
business and affairs of the Corporation and shall perform all duties and have
all powers which are commonly incident to the office of president or which are
delegated to him or her by the Board of Directors from time to
time. The President shall have direct supervision over the business
of the Corporation and its several officers, subject to the authority of the
Board of Directors and the CEO, and shall consult with and report to the
CEO. The President will have primary profit and loss responsibility,
working in conjunction with the CEO. All line-of-business leaders and
geographic leaders of the Corporation and its subsidiaries will report to the
President. The President shall have power to sign all stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers (other than the CEO), employees and agents of the
Corporation.
13
(c) Duties of the Chief Operating
Officer. The Chief Operating Officer of the Corporation shall,
except for such matters as are expressly reserved to the CEO, the President, the
Board of Directors or as otherwise directed by the Board of Directors, have
responsibility for the day-to-day management and operation of the business of
the Corporation, general oversight of the operation of the Corporation’s
operations and employees, and other such duties and responsibilities as the CEO,
the President or the Board of Directors may determine from time to
time.
(d) Duties of the Chief Financial
Officer. The Chief Financial Officer shall be responsible for
the overall supervision of the financial operations and the general financial
affairs of the Corporation. The Chief Financial Officer shall keep or
cause to be kept the books of account of the Corporation in a thorough and
proper manner, and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors, the
CEO or the President. The Chief Financial Officer shall, when
requested, counsel with and advise the other officers of the Corporation with
respect to such matters. The Chief Financial Officer shall perform
other duties commonly incident to his or her office and shall also have such
other duties and responsibilities as the CEO, the President or the Board of
Directors may determine from time to time.
(e) Duties of the
Controller. The Controller of the Corporation (the “Controller”)
shall serve as the principal accounting officer of the
Corporation. The Controller shall perform such duties commonly
incident to his or her office and shall also have such other duties and
responsibilities as the CEO, the President, the CFO or the Board of Directors
may determine from time to time.
(f) Duties of the
Treasurer. The Treasurer of the Corporation (the “Treasurer”),
subject to the order of the Board of Directors, shall have custody of all funds
and securities of the Corporation. The Treasurer shall perform other
duties commonly incident to his or her office and shall also perform such other
duties and have such other powers as the Board of Directors, the CEO or the
President may designate from time to time. The Board of Directors,
the CEO or the President may direct any Assistant Treasurer to assume and
perform the duties of the Treasurer in the absence (or inability or refusal to
act) or disability of the Treasurer, and each Assistant Treasurer shall perform
other duties commonly incident to his or her office and shall also perform such
other duties and have such other powers as the Board of Directors, the CEO or
the President shall designate from time to time.
(g) Duties of the
Secretary. The Secretary or his or her designees shall attend
all meetings of the stockholders and of the Board of Directors, and shall record
all acts and proceedings thereof in the minute book of the
Corporation. The Secretary shall (i) give notice in conformity
with these bylaws of all meetings of the stockholders, and of all meetings of
the Board of Directors and any committee thereof requiring notice,
(ii) perform all other duties given him or her in these bylaws and other
duties commonly incident to his or her office and shall also perform such other
duties and have such other powers as the Board of Directors may designate from
time to time, (iii) act as custodian of the seal of the Corporation and
affix the seal or cause it to be affixed to all certificates of stock of the
Corporation, if any, and to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized in accordance with provisions
of these bylaws; (iv) have charge of the books, records and papers of the
Corporation and see that the reports, statements and other documents required by
law to be kept and filed are properly kept and filed; and (v) perform such
other duties incident to the office of Secretary and have such other powers as
the Board of Directors, the CEO or the President, as applicable, shall designate
from time to time. The Board of the Directors, the CEO or the
President may direct any Assistant Secretary to assume and perform the duties of
the Secretary in the absence (or inability or refusal to act) or disability of
the Secretary, and each Assistant Secretary shall perform other duties commonly
incident to such office and shall also perform such other duties and have such
other powers as the Board of Directors, the CEO or the President, as applicable,
shall designate from time to time.
14
(h) Discretion of the Board of Directors
as to Officer Duties. Notwithstanding the provisions of this
Section 3.4, the
Board of Directors in its discretion may, pursuant to a resolution adopted by a
majority of the members of the Board of Directors, alter the roles and
responsibilities of the officers of the Corporation from time to time, including
without limitation the CEO, President, Chief Financial Officer and Chief
Operating Officer, and the reporting structure among officers.
Section
3.5 Resignations. Any
officer may resign at any time by giving written notice to the Board of
Directors, the CEO or Secretary. Any such resignation will take effect at the
time specified in the notice of resignation. Unless otherwise
specified in the notice of resignation, the acceptance of such resignation shall
not be necessary to make it effective.
Section
3.6 Vacancies. A
vacancy in any office of the Corporation may be filled in the same manner in
which an officer to fill said office may be chosen pursuant to Sections 3.1, and 3.2.
Section
3.7 Delegation of
Duties. In case of the absence of any officer of the
Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may confer for the time being the powers or
duties, or any of them, of such officer upon any other officer or upon any
director.
ARTICLE
IV
SHARES
OF STOCK
Section
4.1 Certificates; Uncertificated
Shares. The shares of stock of the Corporation may be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
stock shall be uncertificated shares. Each holder of stock
represented by certificates shall be entitled to a certificate signed by, or in
the name of the Corporation by, the Chairman or Deputy Chairman, or the
President and Vice President, if any, on the one hand, and by the Secretary or
an Assistant Secretary, or the Treasurer or an Assistant Treasurer, on the other
hand, certifying the number of shares owned by the stockholder. Any
or all of the signatures on the certificate may be by facsimile.
15
Section
4.2 Lost, Stolen or Destroyed Stock
Certificates; Issuance of New Certificates. In the event of
the loss, theft or destruction of any certificate of stock, another certificate
or uncertificated shares may be issued in its place pursuant to such regulations
as the Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section
4.3 Transfer of
Stock. Transfers of stock shall be made only upon the transfer
books of the Corporation kept at an office of the Corporation or by transfer
agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with
Section 4.2, an
outstanding certificate for the number of shares involved, if one has been
issued, shall be surrendered for cancellation before a new certificate, if any,
is issued therefor.
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.1 Fiscal Year. The
fiscal year of the Corporation shall end on December 31 of each year or
such other date as the Board of Directors determines from time to
time.
Section
5.2 Notices. If
mailed, notice to stockholders shall be deemed given when deposited in the mail,
postage prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the Corporation. Without limiting the
manner by which notice otherwise may be given effectively to stockholders, any
notice to stockholders may be given by electronic transmission in the manner
provided in Section 232 of the DGCL.
Section
5.3 Waiver of Notice of Meetings of
Stockholders, Directors and Committees. Whenever notice is
required to be given by law or under any provision of the Certificate of
Incorporation or these bylaws, a written waiver thereof signed by, or waiver by
electronic transmission from, the person entitled to notice, whether before or
after the time stated therein, is deemed equivalent to
notice. Attendance of a person at a meeting constitutes a waiver of
notice of such meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders, the Board of
Directors or a committee of the Board of Directors need be specified in any
written waiver of notice or waiver by electronic transmission unless so required
by the Certificate of Incorporation or these bylaws.
Section
5.4 Facsimiles. Any
copy, facsimile telecommunication or other reliable reproduction of a writing,
transmission or signature may be substituted or used in lieu of the original
writing, transmission or signature for any and all purposes for which the
original writing, transmission or signature could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, transmission or signature, as the
case may be.
16
Section
5.5 Books and Records; Registered
Stockholders. The books of the Corporation may be kept
(subject to any provision contained in the DGCL) within or without the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
Section
5.6 Form of
Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and
minute books, may be kept on, or be in the form of, magnetic tape, photographs,
microphotographs or any other information storage device, provided that the
records so kept can be converted into clearly legible form within a reasonable
time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
Section
5.7 Reliance upon Books, Reports and
Records. Each director, each member of any committee
designated by the Board of Directors, and each officer of the Corporation shall,
in the performance of his or her duties, be fully protected in relying in good
faith upon the books of account or other records of the Corporation and upon
such information, opinions, reports or statements presented to the Corporation
by any of its officers or employees, or committees of the Board of Directors so
designated, or by any other person as to matters which such director or
committee member reasonably believes are within such other person’s professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation.
Section
5.8 Depositories. The
Board of Directors, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer and such other persons as may be delegated authority by any of the
foregoing, may designate the banks, trust companies, or other depositories in
which shall be deposited from time to time, the money or securities of the
Corporation.
Section
5.9 Contracts,
etc. The Board of Directors may authorize any officer, agent
or agents, to enter into any contract or execute and deliver any instrument in
the name and on behalf of the Corporation, and such authority may be general or
confined to specific instances.
Section
5.10 Stock in Other
Corporations. Any shares of stock in any other corporation
which may from time to time be held by the Corporation may be represented and
voted at any meeting of stockholders of such other corporation by the CEO, the
President, the Chief Financial Officer, the Treasurer, the Secretary or by any
other person or persons thereunto authorized by the Board of Directors or
designated by the CEO, or by any proxy designated by written instrument of
appointment executed in the name of the Corporation by the CEO or by such
officers as may be designated by him and attested by the Secretary or, if
applicable, Assistant Secretary.
Section
5.11 Indemnification.
(a) Each
person who was or is a party or is threatened to be made a party to or is
otherwise involved in any pending, threatened or completed action, suit or
proceeding or alternative dispute resolution procedure, whether civil, criminal,
administrative, investigative or otherwise (hereinafter a “proceeding”),
including, without limitation, an action by or in the right of the Corporation,
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, 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, manager, officer,
partner, trustee or member of another corporation or of a partnership, limited
liability company, 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 other indemnitee or in any other capacity while
serving as such, 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 costs, charges, expenses, liability and losses
(including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such indemnitee in connection with any such proceeding, and such indemnification
shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however,
that, except as provided in Section 5.11(c) with
respect to proceedings to enforce rights to indemnification or advancement of
expenses, 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. Notwithstanding any provision of this Section 5.11, no
indemnification shall be paid to any indemnitee: (i) on account
of any suit in which judgment is rendered against such indemnitee for
disgorgement of profits made from the purchase or sale by such indemnitee of
securities of the Company pursuant to the provisions of Section 16(b) of the
Exchange Act, or similar provisions of any federal, state or local statutory law
or (ii) on account of any suit in which judgment is rendered against such
indemnitee for any reimbursement of any bonus or other incentive-based or
equity-based compensation or of any profits realized by such indemnitee from the
sale of securities of the Company, as required in each case under the Exchange
Act (including any such reimbursements that arise from an accounting restatement
of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002,
or the payment to the Company of profits arising from the purchase and sale by
such indemnitee of securities in violation of Section 306 of the
Sarbanes-Oxley Act of 2002).
17
(b) In
addition to the right to indemnification conferred in Section 5.11(a), an
indemnitee shall also have the right to be paid by the Corporation the expenses
(including attorney’s fees) incurred in defending any such proceeding in advance
of its final disposition (hereinafter an “advancement of
expenses”); provided,
however, that, if the DGCL requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
“undertaking”),
by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final
adjudication”) that such indemnitee is not entitled to be indemnified for
such expenses under this Section 5.11(b) or
otherwise.
18
(c) If
a claim under Section 5.11(a) or (b) is not paid in full by
the Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation in a court of competent
jurisdiction in the State of Delaware 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, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication 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 or to
an advancement of expenses hereunder, or brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section 5.11 or
otherwise shall be on the Corporation.
(d) The
rights to indemnification and to the advancement of expenses conferred in this
Section 5.11 shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Certificate of Incorporation, bylaws, agreement,
vote of stockholders or directors or otherwise.
(e) The
Corporation may maintain insurance, at its expense, to protect itself and any
director, manager, officer, partner, trustee, employee or agent of the
Corporation or another corporation, partnership, limited liability company,
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.
(f) 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 of the provisions
of this Section 5.11 with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(g) The
rights conferred upon indemnitees in this Section 5.11 shall be
contract rights that shall vest upon commencement of service as a director or
officer or in any other capacity pursuant to which an indemnitee is entitled to
indemnification hereunder, and such rights shall continue as to an indemnitee
who has ceased to serve in such capacity and shall inure to the benefit of such
indemnitee’s heirs, executors and administrators. Any amendment,
alteration or repeal of this Section 5.11 that
adversely affects any right of an indemnitee or its successors shall be
prospective only and shall not limit or eliminate 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.
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(h) To
the extent that any director or officer of the Corporation is by reason of such
position, or a position with another entity at the request of the Corporation, a
witness in any proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her on his or her behalf in
connection therewith.
(i) In
the event of payment under this Section 5.11, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the indemnitee, who shall execute all papers required and
shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to
bring suit to enforce such rights.
(j) If
any provision or provisions of this Section 5.11 shall be
held to be invalid, illegal or unenforceable for any reason whatsoever
(i) the validity, legality and enforceability of the remaining provisions
of this Section 5.11 (including,
without limitation, all portions of any paragraphs of this Section 5.11 containing
any such provisions held to be invalid, illegal or unenforceable, that are not
by themselves invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby, and (ii) to the fullest extent possible, the
provisions of this Section 5.11 (including,
without limitation, all portions of any paragraph of this Section 5.11 containing
any such provision held to be invalid, illegal or unenforceable, that are not by
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section
5.12 Amendment of
Bylaws. These bylaws may be amended, modified or repealed, and
new bylaws may be adopted at any time, by the Board of
Directors. Stockholders of the Corporation may adopt additional
bylaws and amend, modify or repeal any bylaw whether or not adopted by them, but
only in accordance with Article 6 of the Certificate of
Incorporation.
Section
5.13 Seal. The
Corporation may have a corporate seal which shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors. The corporate seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
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