Attached files
file | filename |
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EX-3.1 - EX-3.1 - DELL INC | d74314exv3w1.htm |
EX-31.1 - EX-31.1 - DELL INC | d74314exv31w1.htm |
EX-32.1 - EX-32.1 - DELL INC | d74314exv32w1.htm |
EX-31.2 - EX-31.2 - DELL INC | d74314exv31w2.htm |
EX-12.1 - EX-12.1 - DELL INC | d74314exv12w1.htm |
10-Q - FORM 10-Q - DELL INC | d74314e10vq.htm |
Exhibit 3.2
RESTATED BYLAWS
OF
DELL INC.
OF
DELL INC.
A Delaware Corporation
Date of Adoption October 22, 1987
Date of Restatement August 16, 2010
RESTATED BYLAWS
of
DELL INC.
of
DELL INC.
Table of Contents
ARTICLE I OFFICES |
1 | |||
Section 1. Registered Office |
1 | |||
Section 2. Other Offices |
1 | |||
ARTICLE II STOCKHOLDERS |
1 | |||
Section 1. Place of Meetings |
1 | |||
Section 2. Quorum; Adjournment and Postponement of Meetings; Vote Required |
1 | |||
Section 3. Annual Meetings |
2 | |||
Section 4. Special Meetings |
2 | |||
Section 5. Record Date |
3 | |||
Section 6. Notice of Meetings |
3 | |||
Section 7. Stock List |
3 | |||
Section 8. Proxies |
4 | |||
Section 9. Voting; Elections; Inspectors |
4 | |||
Section 10. Conduct of Meetings |
5 | |||
Section 11. Treasury Stock |
5 | |||
Section 12. Action Without Meeting |
5 | |||
ARTICLE III BOARD OF DIRECTORS |
5 | |||
Section 1. Power; Number; Term of Office |
5 | |||
Section 2. Quorum |
6 | |||
Section 3. Place of Meeting; Order of Business |
6 | |||
Section 4. First Meeting |
6 | |||
Section 5. Regular Meetings |
6 | |||
Section 6. Special Meetings |
6 | |||
Section 7. Removal |
6 | |||
Section 8. Vacancies; Increases in the Number of Directors |
7 | |||
Section 9. Compensation |
7 | |||
Section 10. Action Without a Meeting; Telephone Conference Meeting |
7 |
Section 11. Approval or Ratification of Acts or Contract by Stockholders |
7 | |||
Section 12. Nomination of Directors; Stockholder Business at Annual Meetings |
8 | |||
ARTICLE IV COMMITTEES |
10 | |||
Section 1. Designation; Powers |
10 | |||
Section 2. Procedure; Meetings; Quorum |
10 | |||
Section 3. Substitution of Members |
10 | |||
ARTICLE V OFFICERS |
11 | |||
Section 1. Number, Titles and Term of Office |
11 | |||
Section 2. Salaries |
11 | |||
Section 3. Removal |
11 | |||
Section 4. Vacancies |
11 | |||
Section 5. Powers and Duties of the Chief Executive Officer |
11 | |||
Section 6. Powers and Duties of the Chairman of the Board |
11 | |||
Section 7. Powers and Duties of the President |
12 | |||
Section 8. Vice Presidents |
12 | |||
Section 9. Treasurer |
12 | |||
Section 10. Assistant Treasurers |
12 | |||
Section 11. Secretary |
12 | |||
Section 12. Assistant Secretaries |
12 | |||
Section 13. Action with Respect to Securities of Other Corporations |
13 | |||
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS |
13 | |||
Section 1. Right to Indemnification |
13 | |||
Section 2. Indemnification of Employees and Agents |
14 | |||
Section 3. Right of Claimant to Bring Suit |
14 | |||
Section 4. Nonexclusivity of Rights |
14 | |||
Section 5. Insurance |
14 | |||
Section 6. Savings Clause |
15 | |||
ARTICLE VII CAPITAL STOCK |
15 | |||
Section 1. Issuance of Shares |
15 | |||
Section 2. Transfer of Shares |
15 | |||
Section 3. Ownership of Shares |
16 | |||
Section 4. Regulations Regarding Shares |
16 | |||
Section 5. Lost or Destroyed Certificates |
16 |
ii
ARTICLE VIII MISCELLANEOUS PROVISIONS |
16 | |||
Section 1. Fiscal Year |
16 | |||
Section 2. Corporate Seal |
16 | |||
Section 3. Notice and Waiver of Notice |
16 | |||
Section 4. Resignations |
17 | |||
Section 5. Facsimile Signatures |
17 | |||
Section 6. Reliance upon Books, Reports and Records |
17 | |||
ARTICLE IX AMENDMENTS |
18 |
iii
RESTATED BYLAWS
OF
DELL INC.
OF
DELL INC.
A Delaware Corporation
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the Corporation required by the
General Corporation Law of the State of Delaware to be maintained in the State of Delaware shall be
the registered office named in the original Certificate of Incorporation of the Corporation, or
such other office as may be designated from time to time by the Board of Directors in the manner
provided by law. Should the Corporation maintain a principal office within the State of Delaware
such registered office need not be identical to such principal office of the Corporation.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. All meetings of the stockholders shall be held at the
principal office of the Corporation, or, if the meeting is called by the Chairman of the Board, or
by a majority of the Board of Directors, at the principal office of the Corporation or at such
other place within or without the State of Delaware as shall be specified or fixed in the notices
or waivers of notice thereof.
Section 2. Quorum; Adjournment and Postponement of Meetings; Vote Required. Unless
otherwise required by law or provided in the Certificate of Incorporation or these bylaws, the
presence, in person or represented by proxy, of the holders of a majority of the voting power of
the shares of capital stock of the Corporation entitled to vote on any matter shall constitute a
quorum for the purpose of considering such matter at a meeting of the stockholders.
If a meeting of stockholders cannot be organized because a quorum has not attended, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have the
power to adjourn such meeting from time to time, without notice
other than announcement at the meeting at which the adjournment is taken of the time and place of
the adjourned meeting, until a quorum shall be present and represented. Furthermore, after a
meeting has been duly organized, the chairman of the meeting or the holders of a majority of the
voting power of the shares of capital stock of the Corporation present in person or represented by
proxy at the meeting shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting at which the adjournment is taken of the time and place of
the adjourned meeting. When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at such meeting. At any adjourned
meeting at which a quorum shall be present or represented, the Corporation may transact any
business which might have been transacted at the original meeting. The stockholders present at a
duly organized meeting may continue to transact business until adjournment, notwithstanding the
withdrawal from the meeting of a sufficient number of stockholders such that the number of
stockholders that continue to be present or represented by proxy at the meeting is less than a
quorum. Any previously scheduled meeting of stockholders may be postponed by resolution of the
Board of Directors upon public notice given prior to the date previously scheduled for such meeting
of stockholders.
Unless otherwise required by law or provided in the Certificate of Incorporation or these
bylaws, the affirmative vote of the holders of a majority of the voting power of the shares of
capital stock of the Corporation present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders.
Section 3. Annual Meetings. An annual meeting of the stockholders shall be held for the
election of directors on such date in each year and at such time as shall be designated by the
Board of Directors. An annual meeting shall be held at such place, within or without the State of
Delaware, as shall be determined by the Board of Directors. At each annual meeting, the
stockholders shall elect the directors of the Corporation by the affirmative vote of the holders of
a majority of the voting power of the shares of capital stock of the Corporation present in person
or represented by proxy at the meeting and entitled to vote for the election of directors; provided
that if the number of nominees exceeds the number of directors to be elected, the stockholders
shall instead elect the directors by plurality vote. The stockholders shall also transact such
other business as may be properly brought before the meeting. A failure to hold the annual meeting
at the designated time or to elect a sufficient number of directors to conduct the business of the
Corporation shall not affect otherwise valid corporate acts or work a forfeiture or dissolution of
the Corporation, except as otherwise required by law.
Section 4. Special Meetings. Unless otherwise provided in the Certificate of
Incorporation, special meetings of the stockholders for any purpose or purposes may be called at
any time by the Chairman of the Board (if any), or by a majority of the Board of Directors, and
shall be called by the Chief Executive Officer, the President or the
2
Secretary upon the written request therefor, stating the purpose or purposes of the meeting,
delivered to such officer, signed by the holders of at least fifty percent (50%) of the issued and
outstanding stock entitled to vote at such meeting.
Section 5. Record Date. For the purpose of determining stockholders entitled to notice of
or to vote at any meeting of stockholders, or any adjournment thereof, or entitled to express
consent to corporate action in writing without a meeting, or 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 of the Corporation may fix, in advance, a date as the record date
for any such determination of stockholders, which date shall not be more than sixty (60) days nor
less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any
other action. If the Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of or to vote at such
meeting shall be at the close of business on the day next preceding the day on which notice is
given, or, if in accordance with Article VIII, Section 3 of these bylaws notice is waived, at the
close of business on the day next preceding the day on which the meeting is held. If, in accordance
with Section 12 of this Article II, corporate action without a meeting of stockholders is to be
taken, the record date for determining stockholders entitled to express consent to such corporate
action in writing, when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
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 the adjourned meeting.
Section 6. Notice of Meetings. Written notice of the place, date and hour of all
meetings, and, in case of a special meeting, the purpose or purposes for which the meeting is
called, shall be given by or at the direction of the Chairman of the Board (if any) or the
President, the Secretary or the other person(s) calling the meeting to each stockholder entitled to
vote thereat not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Such notice may be delivered either personally or by mail. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the stockholder at his address as
it appears on the records of the Corporation.
Section 7. Stock List. A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing the address of
each such stockholder and the number of shares registered in the name of such stockholder, shall be
open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified,
3
at the place where the meeting is to be held. The stock list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 8. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to a corporate action in writing without a meeting may authorize another
person or persons to act for him by proxy. Proxies for use at any meeting of stockholders shall be
filed with the Secretary, or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies shall be received and
taken charge of and all ballots shall be received and canvassed by the secretary of the meeting who
shall decide all questions touching upon the qualification of voters, the validity of the proxies,
and the acceptance or rejection of votes, unless an inspector or inspectors shall have been
appointed by the chairman of the meeting, in which event such inspector or inspectors shall decide
all such questions.
No proxy shall be valid after three (3) years from its date, unless the proxy provides
for a longer period. Each proxy shall be revocable unless expressly provided therein to be
irrevocable and coupled with an interest sufficient in law to support an irrevocable power.
Should a proxy designate two or more persons to act as proxies, unless such instrument
provides to the contrary a majority of such persons present at any meeting at which their powers
thereunder are to be exercised shall have and may exercise all the powers of voting or giving
consents thereby conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular issue, each proxy
so attending shall be entitled to exercise such powers in respect of the same portion of the shares
as he is of the proxies representing such shares.
Section 9. Voting; Elections; Inspectors. Unless otherwise required by law or provided in
the Certificate of Incorporation, each stockholder shall have one vote for each share of stock
entitled to vote which is registered in his name on the record date for the meeting. Shares
registered in the name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the bylaw (or comparable instrument) of such corporation may prescribe, or in the
absence of such provision, as the Board of Directors (or comparable body) of such corporation may
determine. Shares registered in the name of a deceased person may be voted by his executor or
administrator, either in person or by proxy.
All voting, except as required by the Certificate of Incorporation or where otherwise
required by law, may be by a voice vote; provided, however, that upon demand therefor by
stockholders holding a majority of the issued and outstanding stock present in person or by proxy
at any meeting a stock vote shall be taken. Every stock vote shall be taken by written ballots,
each of which shall state the name of the stockholder or proxy voting and such other information as
may be required under the procedure established for the
4
meeting. All elections of directors shall be by ballot, unless otherwise provided in the
Certificate of Incorporation. The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at the meeting.
At any meeting at which a vote is taken by ballots, the chairman of the meeting may
appoint one or more inspectors, each of whom shall subscribe an oath or affirmation to execute
faithfully the duties of inspector at such meeting with strict impartiality and according to the
best of his ability. Such inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any person to serve as
inspector, except no candidate for the office of director shall be appointed as an inspector.
Unless otherwise provided in the Certificate of Incorporation, cumulative voting for the election
of directors shall be prohibited.
Section 10. Conduct of Meetings. Unless otherwise determined by resolution of the Board
of Directors, the Chairman of the Board shall, or shall designate an appropriate officer of the
Corporation to, call any annual or special meeting of stockholders to order, act as chairman of any
such meeting and determine the rules of order and procedure to be followed in the conduct of any
such meeting. The Secretary or an Assistant Secretary (if the Secretary is absent, is otherwise
unable to act or delegates such duties to such Assistant Secretary) shall act as secretary of each
meeting of stockholders.
Section 11. Treasury Stock. The Corporation shall not vote, directly or indirectly,
shares of its own stock owned by it and such shares shall not be counted for quorum purposes.
Section 12. Action Without Meeting. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
ARTICLE III
Board of Directors
Section 1. Power; Number; Term of Office. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, and subject to the
restrictions imposed by law or the Certificate of Incorporation, they may exercise all the powers
of the Corporation.
The number of directors which shall constitute the whole Board of Directors shall be
determined from time to time by resolution of the Board of Directors (provided that no decrease in
the number of directors which would have the effect of shortening the term of an incumbent director
may be made by the Board of Directors). If the Board of Directors makes no such determination, the
number of directors shall be the number set forth in the
5
Certificate of Incorporation. Each director shall hold office for the term for which he is elected,
and until his successor shall have been elected and qualified or until his earlier death,
resignation or removal.
Unless otherwise provided in the Certificate of Incorporation, directors need not be
stockholders nor residents of the State of Delaware.
Section 2. Quorum. Unless otherwise provided in the Certificate of Incorporation, a
majority of the total number of directors shall constitute a quorum for the transaction of business
of the Board of Directors and the vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
Section 3. Place of Meeting; Order of Business. The directors may hold their meetings and
may have an office and keep the books of the Corporation, except as otherwise provided by law, in
such place or places, within or without the State of Delaware, as the Board of Directors may from
time to time determine by resolution. At all meetings of the Board of Directors, business shall be
transacted in such order as shall from time to time be determined by the Chairman of the Board (if
any), or by resolution of the Board of Directors.
Section 4. First Meeting. Each newly elected Board of Directors may hold its first
meeting for the purpose of organization and the transaction of business, if a quorum is present,
immediately after and at the same place as the annual meeting of the stockholders. Notice of such
meeting shall not be required. At the first meeting of the Board of Directors in each year at which
a quorum shall be present, held next after the annual meeting of stockholders, the Board of
Directors shall proceed to the election of the officers of the Corporation.
Section 5. Regular Meetings. Regular meetings of the Board of Directors shall be held at
such times and places as shall be designated from time to time by resolution of the Board of
Directors. Notice of such regular meetings shall not be required.
Section 6. Special Meetings. Special Meetings of the Board of Directors may called by the
Chairman of the Board (if any), or, on the written request of any two directors, by the Secretary,
in each case upon the giving of personal, written, telephone, telegraphic, or facsimile notice to
each director. Such notice, or any waiver thereof pursuant to Article VIII, Section 3 hereof, need
not state the purpose or purposes of such meeting, except as may otherwise be required by law or
provided for in the Certificate of Incorporation or these bylaws.
Section 7. Removal. Any director or the entire Board of Directors may be removed, but
only for cause, by a vote of the holders of a majority of the shares then issued and outstanding.
Cause shall mean willful and gross misconduct by the director that is materially adverse to the
best interests of the Corporation, as determined conclusively by a majority of the disinterested
directors of the Corporation.
6
Section 8. Vacancies; Increases in the Number of Directors. Unless otherwise provided in
the Certificate of Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of the directors then in
office, although less than a quorum, or a sole remaining director; and any director so chosen shall
hold office until the next annual election and until his successor shall be duly elected and shall
qualify, unless sooner displaced.
If the directors of the Corporation are divided into classes, any directors elected to
fill vacancies or newly created directorships shall hold office until the next election of the
class for which such directors shall have been chosen, and until their successors shall be duly
elected and shall qualify.
Section 9. Compensation. Unless otherwise restricted by the Certificate of Incorporation,
the Board of Directors shall have the authority to fix the compensation of directors.
Section 10. Action Without a Meeting; Telephone Conference Meeting. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted to be taken at any
meeting of the Board of Directors, or any committee designated by the Board of Directors, 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, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee. Such consent shall have the same force and effect as a
unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the
Secretary of State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation, subject to the
requirement for notice of meetings, members of the Board of Directors, or members of any committee
designated by the Board of Directors, may participate in a meeting of such Board of Directors or
committee, as the case may be, by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Section 11. Approval or Ratification of Acts or Contract by Stockholders. The Board of
Directors in its discretion may submit any act or contract for approval or ratification at any
annual meeting of the stockholders, or at any special meeting of the stockholders called for the
purpose of considering any such act or contract, and any act or contract that shall be approved or
be ratified by the vote of the stockholders holding a majority of the issued and outstanding shares
of stock of the Corporation entitled to vote and present in person or by proxy at such meeting
(provided that a quorum is present), shall be as valid and as binding upon the Corporation and upon
all the stockholders as if it
7
has been approved or ratified by every stockholder of the Corporation. In addition, any such act or
contract may be approved or ratified by the written consent of stockholders holding a majority of
the issued and outstanding shares of capital stock of the Corporation entitled to vote and such
consent shall be as valid and as binding upon the Corporation and upon all the stockholders as if
it had been approved or ratified by every stockholder of the Corporation.
Section 12. Nomination of Directors; Stockholder Business at Annual Meetings. Subject to
the rights of holders of any class or series of stock having a preference over the Common Stock as
to dividends or upon liquidation, nominations for the election of Directors may be made by the
Board of Directors or any Nominating Committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of Directors generally. However, any stockholder
generally entitled to vote in the election of Directors may nominate one or more persons for
election as Directors at a meeting only if written notice of such stockholders intent to make such
nomination or nominations has been given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i) with respect to an election
to be held at an annual meeting of stockholders, 60 days in advance of such meeting, and (ii) with
respect to an election to be held at a special meeting of stockholders for the election of
Directors, the close of business on the seventh day following the date on which notice of such
meeting is first given to stockholders. Each such notice shall set forth: (a) the name and address
of the stockholder who intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all arrangements or
understandings between the stockholder, each nominee or any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by
the Board of Directors; and (e) the consent of each nominee to serve as a Director of the
Corporation if so elected. At the request of the Board of Directors any person nominated by the
Board of Directors for election as a Director shall furnish to the Secretary of the Corporation
that information required to be set forth in a stockholders notice of nomination which pertains to
the nominee. No person shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth herein. A majority of the Board of Directors
may reject any nomination by a stockholder not timely made or otherwise not in accordance with the
terms of this Section 12. If a majority of the Board of Directors reasonably determines that the
information provided in a stockholders notice does not satisfy the informational requirements of
this Section 12 in any material respect, the Secretary of the Corporation shall promptly notify
such stockholder of the deficiency in writing. The stockholder shall have an opportunity to cure
the deficiency by providing additional information to the Secretary within such period of time, not
to exceed ten days from the date such deficiency notice is given to the stockholder, as a majority
of the Board of
8
Directors shall reasonably determine. If the deficiency is not cured within such period, or if a
majority of the Board of Directors reasonably determines that the additional information provided
by the stockholder, together with the information previously provided, does not satisfy the
requirements of this Section 12 in any material respect, then a majority of the Board of Directors
may reject such stockholders nomination. The Secretary of the Corporation shall notify a
stockholder in writing whether the stockholders nomination has been made in accordance with the
time and information requirements of this Section 12.
At an annual meeting of the stockholders only such business shall be conducted as shall
have been brought before the meeting (a) by or at the direction of the chairman of the meeting or
(b) by any stockholder of the Corporation who complies with the notice procedures set forth in this
Section 12. For business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholders notice must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than 60 days prior to the meeting; provided, however
that in the event that less than 70 days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the tenth day following the earlier of the day on which
such notice of the date of the annual meeting was mailed or such public disclosure was made. A
stockholders notice to the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporations books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are beneficially owned by the
stockholder and (d) any material direct or indirect interest, financial or otherwise of the
stockholder or its affiliates or associates in such business. The Board of Directors may reject any
stockholder proposal not timely made in accordance with this Section 12. If the Board of Directors
determines that the information provided in a stockholders notice does not satisfy the
informational requirements hereof, the Secretary of the Corporation shall promptly notify such
stockholder of the deficiency in the notice. The stockholder shall then have an opportunity to cure
the deficiency by providing additional information to the Secretary within such period of time, not
to exceed ten days from the date such deficiency notice is given to the stockholder, as the Board
of Directors shall determine. If the deficiency is not cured within such period, or if the Board of
Directors determines that the additional information provided by the stockholder, together with the
information previously provided, does not satisfy the requirements of this Section 12, then the
Board of Directors may reject such stockholders proposal. The Secretary of the Corporation shall
notify a stockholder in writing whether the stockholders proposal has been made in accordance with
the time and information requirements hereof.
This provision shall not prevent the consideration and approval or disapproval at an
annual meeting of reports of officers, directors and committees of the Board of Directors, but in
connection therewith no new business shall be acted upon at any such meeting unless stated, filed
and received as herein provided. Notwithstanding anything
9
in these bylaws to the contrary, no business shall be conducted at an annual meeting except in
accordance with procedures set forth in this Section 12.
ARTICLE IV
Committees
Section 1. Designation; Powers. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, including, if they shall so
determine, an executive committee, each such committee to consist of one or more of the directors
of the Corporation and the Board of Directors shall designate the chairman of such committee. Any
such designated committee shall have and may exercise such of the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation as may be provided in
such resolution, except that no such committee shall have the power or authority of the Board of
Directors in reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporations property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution of the Corporation, or amending,
altering or repealing the bylaws or adopting new bylaws for the Corporation and, unless such
resolution or the Certificate of Incorporation expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of stock. Any such
designated committee may authorize the seal of the Corporation to be affixed to all papers which
may require it. In addition to the above such committee or committees shall have such other powers
and limitations of authority as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 2. Procedure; Meetings; Quorum. Any committee designated pursuant to Section 1 of
this Article shall keep regular minutes of its proceedings and report the same to the Board of
Directors when requested, shall fix its own rules or procedures, and shall meet at such times and
at such place or places as may be provided by such rules, or by resolution of the such committee or
resolution of the Board of Directors. At every meeting of any such committee, the presence of a
majority of all the members thereof shall constitute a quorum and the affirmative vote of a
majority of the members present shall be necessary for the adoption by it of any resolution.
Section 3. Substitution of Members. 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 such committee. In the absence or disqualification of a member of a committee,
the member or members present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of the absent or disqualified member.
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ARTICLE V
Officers
Section 1. Number, Titles and Term of Office. The officers of the Corporation shall be a
Chief Executive Officer, President, one or more Vice Presidents (any one or more of whom may be
designated Executive Vice President or Senior Vice President), a Treasurer, a Secretary and, if the
Board of Directors so elects, a Chairman of the Board and such other officers as the Board of
Directors may from time to time elect or appoint. Each officer shall hold office until his
successor shall be duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of offices may he held by
the same person, unless the Certificate of Incorporation provides otherwise. Except for the
Chairman of the Board, if any, no officer need be a director.
Section 2. Salaries. The salaries or other compensation of the officers and agents of the
Corporation shall be fixed from time to time by the Board of Directors.
Section 3. Removal. Any officer or agent elected or appointed by the Board of Directors
may be removed, either with or without cause, by the vote of a majority of the whole Board of
Directors at a special meeting called for the purpose, or at any regular meeting of the Board of
Directors, provided the notice for such meeting shall specify that the matter of any such proposed
removal will be considered at the meeting but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 4. Vacancies. Any vacancy occurring in any office of the Corporation may be
filled by the Board of Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The Chairman of the Board
shall be the chief executive officer of the Corporation unless the Board of Directors designates
the President as chief executive officer. Subject to the control of the Board of Directors and the
executive committee (if any), the chief executive officer shall have general executive charge,
management and control of the properties, business and operations of the Corporation with all such
powers as may be reasonably incident to such responsibilities; he may agree upon and execute all
leases, contracts, evidences of indebtedness and other obligations in the name of the Corporation
and may sign all certificates for shares of capital stock of the Corporation; and shall have such
other powers and duties as designated in accordance with these bylaws and as from time to time may
be assigned to him by the Board of Directors.
Section 6. Powers and Duties of the Chairman of the Board. If elected, the Chairman of
the Board shall preside at all meetings of the stockholders and of the Board of Directors; and he
shall have such other powers and duties as designated in these bylaws and as from time to time may
be assigned to him by the Board of Directors.
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Section 7. Powers and Duties of the President. Unless the Board of Directors otherwise
determines, the President shall have the authority to agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation; and, unless the
Board of Directors otherwise determines, he shall, in the absence of the Chairman of the Board and
the Chief Executive Officer or if there be no Chairman of the Board or Chief Executive Officer,
preside at all meetings of the stockholders and (should he be a director) of the Board of
Directors; and he shall have such other powers and duties as designated in accordance with these
bylaws and as from time to time may be assigned to him by the Board of Directors.
Section 8. Vice Presidents. The Vice Presidents shall perform such duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 9. Treasurer. The Treasurer shall have responsibility for the custody and control
of all the funds and securities of the Corporation, and he shall have such other powers and duties
as designated in these bylaws and as from time to time may be assigned to him by the Board of
Directors. He shall perform all acts incident to the position of Treasurer, subject to the control
of the chief executive officer and the Board of Directors; and he shall, if required by the Board
of Directors, give such bond for the faithful discharge of his duties in such form as the Board of
Directors may require.
Section 10. Assistant Treasurers. Each Assistant Treasurer shall have the usual powers
and duties pertaining to his office, together with such other powers and duties as designated in
these bylaws and as from time to time may be assigned to him by the chief executive officer or the
Board of Directors.
Section 11. Secretary. The Secretary shall keep the minutes of all meetings of the Board
of Directors, committees of directors and the stockholders in books provided for that purpose; he
shall attend to the giving and serving of all notices; he may in the name of the Corporation affix
the seal of the Corporation to all contracts of the Corporation and attest the affixation of the
seal of the Corporation thereto; he may sign with the other appointed officers all certificates for
shares of capital stock of the Corporation; he shall have charge of the certificate books, transfer
books and stock ledgers, and such other books and papers as the Board of Directors may direct, all
of which shall at all reasonable times be open to inspection of any director upon application at
the office of the Corporation during business hours; he shall have such other powers and duties as
designated in these bylaws and as from time to time may be assigned to him by the Board of
Directors; and he shall in general perform all acts incident to the office of Secretary, subject to
the control of the chief executive officer and the Board of Directors.
Section 12. Assistant Secretaries. Each Assistant Secretary shall have the usual powers
and duties pertaining to his office, together with such other powers and duties designated in these
bylaws and as from time to time may be assigned to him by the chief executive officer or the Board
of Directors. The Assistant Secretaries shall
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exercise the powers of the Secretary during that officers absence or inability or refusal to act.
Section 13. Action with Respect to Securities of Other Corporations. Unless otherwise
directed by the Board of Directors, the chief executive officer shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of security
holders of or with respect to any action of security holders of any other corporation in which this
Corporation may hold securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other corporation.
ARTICLE VI
Indemnification of Directors, Officers, Employees and Agents
Section 1. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is 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, or a person of whom he or she is the legal representative, is or was or has agreed to
become a director or officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving or having agreed to serve as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation 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 said law permitted the Corporation to provide prior to such
amendment) against all expense, liability and loss (including, without limitation, attorneys fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to serve in the capacity which initially entitled such
person to indemnity hereunder and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of directors of the Corporation. The
right to indemnification conferred in this Article VI shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a current, former or proposed director or
officer in his or her capacity as a director or officer or proposed director or officer (and not in
any other capacity in which service was or is or has been agreed to be rendered by such person
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while a director or officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such indemnified person, to repay all amounts so
advanced if it shall ultimately be determined that such indemnified person is not entitled to be
indemnified under this Section or otherwise.
Section 2. Indemnification of Employees and Agents. The Corporation may, by action of its
Board of Directors, provide indemnification to employees and agents of the Corporation,
individually or as a group, with the same scope and effect as the indemnification of directors and
officers provided for in this Article.
Section 3. Right of Claimant to Bring Suit. If a written claim received by the
Corporation from or on behalf of an indemnified party under this Article VI is not paid in full by
the Corporation within ninety days after such receipt, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth
in the Delaware General Corporation Law, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 4. Nonexclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article VI shall not be exclusive of any other right which
any person may have or hereafter acquire under any law (common or statutory), provision of the
Certificate of incorporation of the Corporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and any person who is or was serving as a director, officer, employee or agent of the
Corporation or is or was Serving at the request of the Corporation as a director, officer, employee
or agent of 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 Delaware General Corporation Law.
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Section 6. Savings Clause. If this Article VI or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify and hold harmless each director and officer of the Corporation as to costs, charges and
expenses (including attorneys fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the
full extent permitted by any applicable portion of this Article VI that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE VII
Capital Stock
Section 1. Issuance of Shares. The shares of the capital stock of the Corporation may be
certificated or uncertificated. If shares are certificated, the Corporation shall cause to be
issued to the holder of such shares one or more certificates in such form, not inconsistent with
that required by law and the Certificate of Incorporation, as shall be approved by the Board of
Directors. Each such certificate shall be issued under the seal of the Corporation or a facsimile
thereof (if the Board of Directors shall have provided for such seal); shall be signed by the
Chairman of the Board (if any), the President or a Vice President and the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer; and shall specify the number of shares (and, if
the stock of the Corporation shall be divided into classes or series, the class and series of such
shares) represented by such certificate; provided, however, that any or all of the signatures on
the certificate may be facsimile. The stock record books and the blank stock certificate books
shall be kept by the Secretary, or at the office of such transfer agent or transfer agents as the
Board of Directors may from time to time by resolution determine. In case any officer, transfer
agent or registrar who shall have signed or whose facsimile signature or signatures shall have been
placed upon any such certificate or certificates shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued by the Corporation, such certificate may
nevertheless be issued by the Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue. The stock certificates shall be consecutively
numbered and shall be entered in the books of the Corporation as they are issued and shall exhibit
the holders name and number of shares.
Section 2. Transfer of Shares. The shares of stock of the corporation shall be
transferable only on the books of the Corporation by the holders thereof in person or by their duly
authorized attorneys or legal representatives and, in the case of shares represented by
certificates, upon surrender and cancellation of certificates for a like number of shares. Upon
surrender to the Corporation or a transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer,
it shall be the duty of the Corporation
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to issue a new certificate to the person entitled thereto, cancel the old certificate and record
the transaction upon its books.
Section 3. Ownership of Shares. The Corporation shall be entitled to treat the holder of
record of any share or shares of capital stock of the Corporation as the holder in fact thereof
and, accordingly, 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 the laws of the State of Delaware.
Section 4. Regulations Regarding Shares. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient concerning the issue,
transfer and registration of certificates and uncertificated shares and, in the case of shares
represented by certificates, the replacement of certificates.
Section 5. Lost or Destroyed Certificates. The Board of Directors may determine the
conditions upon which a new certificate of stock or uncertificated shares may be issued in place of
a certificate which is alleged to have been lost, stolen or destroyed; and may, in their
discretion, require the owner of such certificate or his legal representative to give bond, with
sufficient surety, to indemnify the Corporation and each transfer agent and registrar against any
and all losses or claims which may arise by reason of the issue of a new certificate or
uncertificated shares in the place of the certificate so lost, stolen or destroyed.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation shall be such as established
from time to time by the Board of Directors.
Section 2. Corporate Seal. The Board of Directors may provide a suitable seal containing
the name of the Corporation. The Secretary shall have charge of the seal (if any). If and when so
directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and
used by the Treasurer or by the Assistant Secretary or Assistant Treasurer.
Section 3. Notice and Waiver of Notice. Whenever any notice is required to be given by
law, the Certificate of Incorporation or under the provisions of these bylaws, said notice shall be
deemed to be sufficient if given (i) by telegraphic, cable or wireless transmission or (ii) by
deposit of the same in a post office box in a sealed prepaid wrapper addressed to the person
entitled thereto at his post office address, as it appears on the records of the Corporation, and
such notice shall be deemed to have been given on the day of such transmission or mailing, as the
case may be.
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Whenever notice is required to be given by law, the Certificate of Incorporation or under
any of the provisions of these bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, 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, directors, or members of a committee of directors need be specified in any written
waiver of notice unless so required by the Certificate of incorporation or the bylaws.
Section 4. Resignations. Any director, member of a committee or officer may resign at any
time. Such resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the chief executive officer or
secretary. The acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
Section 5. Facsimile Signatures. In addition to the provisions for the use of facsimile
signatures elsewhere specifically authorized in these bylaws, facsimile signatures of any officer
or officers of the Corporation may be used whenever and as authorized by the Board of Directors.
Section 6. Reliance upon Books, Reports and Records. Each director and each member of any
committee designated by the Board of Directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or reports made to the Corporation by
any of its officers, or by an independent certified public accountant, or by an appraiser selected
with reasonable care by the Board of Directors or by any such committee, or in relying in good
faith upon other records of the Corporation.
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ARTICLE IX
Amendments
The Board of Directors is hereby expressly authorized to adopt, amend or repeal the
bylaws of the Corporation or adopt new bylaws, without any action on the part of the stockholders,
by the vote of a majority of the directors; provided, however, that no such adoption, amendment, or
repeal shall be valid with respect to bylaw provisions which have been adopted, amended, or
repealed by the stockholders; and further provided, that bylaws adopted or amended by the Directors
and any powers thereby conferred may be amended, altered, or repealed by the stockholders.
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