Attached files
file | filename |
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EX-4.1 - EX-4.1 - JWC Acquisition Corp. | b82053a1exv4w1.htm |
S-1/A - JWC ACQUISITION CORP. - JWC Acquisition Corp. | b82053a1sv1za.htm |
EX-14 - EX-14 - JWC Acquisition Corp. | b82053a1exv14.htm |
EX-3.1 - EX-3.1 - JWC Acquisition Corp. | b82053a1exv3w1.htm |
EX-5.1 - EX-5.1 - JWC Acquisition Corp. | b82053a1exv5w1.htm |
EX-4.2 - EX-4.2 - JWC Acquisition Corp. | b82053a1exv4w2.htm |
EX-4.3 - EX-4.3 - JWC Acquisition Corp. | b82053a1exv4w3.htm |
EX-4.4 - EX-4.4 - JWC Acquisition Corp. | b82053a1exv4w4.htm |
EX-10.6 - EX-10.6 - JWC Acquisition Corp. | b82053a1exv10w6.htm |
EX-10.2 - EX-10.2 - JWC Acquisition Corp. | b82053a1exv10w2.htm |
EX-10.9 - EX-10.9 - JWC Acquisition Corp. | b82053a1exv10w9.htm |
EX-10.4 - EX-10.4 - JWC Acquisition Corp. | b82053a1exv10w4.htm |
EX-10.3 - EX-10.3 - JWC Acquisition Corp. | b82053a1exv10w3.htm |
EX-23.1 - EX-23.1 - JWC Acquisition Corp. | b82053a1exv23w1.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY LAWS
OF
JWC ACQUISITION CORP.,
a Delaware corporation
(the Corporation)
(Adopted as of ___, 2010)
Exhibit 3.2
AMENDED AND RESTATED
BY LAWS
OF
JWC ACQUISITION CORP.
ARTICLE I
OFFICES
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation within the State of
Delaware shall be located at either (a) the principal place of business of the Corporation in the
State of Delaware or (b) the office of the corporation or individual acting as the Corporations
registered agent in Delaware.
Section 1.2. Additional Offices. The Corporation may, in addition to its registered office in
the State of Delaware, have such other offices and places of business, both within and outside the
State of Delaware, as the Board of Directors of the Corporation (the Board) may from time to time
determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings. The annual meeting of stockholders shall be held at such place
and time and on such date as shall be determined by the Board and stated in the notice of the
meeting, provided that the Board 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 pursuant to
Section 9.5(a). At each annual meeting, the stockholders shall elect those directors of the
Corporation to fill any term of a directorship that expires on the date of such annual meeting and
may transact any other business as may properly be brought before the meeting.
Section 2.2. Special Meetings. Subject to the rights of the holders of any outstanding series
of the Preferred Stock, and to the requirements of applicable law, special meetings of
stockholders, for any purpose or purposes, may be called only by the Chairman of the Board, Chief
Executive Officer, or the Board pursuant to a resolution adopted by a majority of the Whole Board
(as defined below). Special meetings of stockholders shall be held at such place and time and on
such date as shall be determined by the Board and stated in the Corporations notice of the
meeting, provided that the Board 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 pursuant to
Section 9.5(a). Whole Board shall mean the total number of directors the Corporation
would have if there were no vacancies.
Section 2.3. Notices. Notice of each stockholders meeting stating the place, if any, date,
and time of the meeting, and the means of remote communication, if any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting, shall be given in the
manner permitted by Section 9.3 to each stockholder entitled to vote thereat by the
Corporation not less than 10 nor more than 60 days before the date of the meeting. If said notice
is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose
or purposes for which the meeting is called, and the business transacted at such meeting shall be
limited to the matters so stated in the Corporations notice of meeting (or any supplement
thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any
special meeting of stockholders as to which notice has been given may be cancelled, by the Board
upon public announcement (as defined in Section 2.7(c)) given before the date previously
scheduled for such meeting.
Section 2.4. Quorum. Except as otherwise provided by applicable law, the Corporations Second
Amended and Restated Certificate of Incorporation, dated as of ___, 2010, as the same may be
amended or restated from time to time (the Certificate of Incorporation) or these By Laws, the
presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding
capital stock of the Corporation representing a majority of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a
quorum for the transaction of business at such meeting, except that when specified business is to
be voted on by a class or series of stock voting as a class, the holders of shares representing a
majority of the voting power of the outstanding shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. If a quorum shall not be
present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman
of the meeting may adjourn the meeting from time to time in the manner provided in Section
2.6 until a quorum shall attend. The stockholders present at a duly convened meeting may
continue to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or
to another corporation, if a majority of the voting power of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation or any such other
corporation to vote shares held by it in a fiduciary capacity.
Section 2.5. Voting of Shares.
(a) Voting Lists. The Secretary shall prepare, or shall cause the officer or agent
who has charge of the stock ledger of the Corporation to prepare, at least 10 days before every
meeting of stockholders, a complete list of the stockholders of record entitled to vote thereat
arranged in alphabetical order and showing the address and the number of shares registered in the
name of each stockholder. Nothing contained in this Section 2.5(a) shall require the
Corporation to include electronic mail addresses or other electronic contact information on such
list. Such list 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 10 days prior to the
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meeting: (i)
on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or (ii)
during ordinary business hours, at the principal place of business of the Corporation. In the event
that the Corporation determines to make the list available on an electronic network, the
Corporation may take reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then the list shall 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. If a meeting of stockholders is to be held solely by
means of remote communication as permitted by Section 9.5(a), the list shall be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided with the
notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the list required by this Section 2.5(a) or to vote in person or by
proxy at any meeting of stockholders.
(b) Manner of Voting. At any stockholders meeting, every stockholder entitled to vote
may vote in person or by proxy. If authorized by the Board, the voting by stockholders or proxy
holders at any meeting conducted by remote communication may be effected by a ballot submitted by
electronic transmission (as defined in Section 9.3), provided that any such electronic
transmission must either set forth or be submitted with information from which the Corporation can
determine that the electronic transmission was authorized by the stockholder or proxy holder. The
Board, in its discretion, or the chairman of the meeting of stockholders, in such persons
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may authorize another
person or persons to act for such stockholder 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. Proxies need
not be filed with the Secretary of the Corporation until the meeting is called to order, but shall
be filed with the Secretary before being voted. Without limiting the manner in which a stockholder
may authorize another person or persons to act for such stockholder as proxy, either of the
following shall constitute a valid means by which a stockholder may grant such authority.
(i) A stockholder may execute a writing authorizing another person or persons
to act for such stockholder as proxy. Execution may be accomplished by the
stockholder or such stockholders authorized officer, director, employee or agent
signing such writing or causing such persons signature to be affixed to such
writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of an
electronic transmission to the person who will be the holder of the proxy or to a
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proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, provided that any such electronic transmission must either set
forth or be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote. Subject to the rights of the holders of one or more series of
preferred stock of the Corporation (Preferred Stock), voting separately by class or series, to
elect directors pursuant to the terms of one or more series of Preferred Stock, the election of
directors shall be determined by a plurality of the votes cast by the stockholders present in
person or represented by proxy at the meeting and entitled to vote thereon. All other matters shall
be determined by the vote of a majority of the votes cast by the stockholders present in person or
represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon
which, by applicable law, the Certificate of Incorporation, these By Laws or applicable stock
exchange rules, a different vote is required, in which case such provision shall govern and control
the decision of such matter.
(e) Inspectors of Election. The Board may, and shall if required by law, in advance
of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be
employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board
may appoint one or more persons as alternate inspectors to replace any inspector who fails to act.
If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his
or her duties, shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The inspectors shall ascertain
and report the number of outstanding shares and the voting power of each; determine the number of
shares present in person or represented by proxy at the meeting and the validity of proxies and
ballots; count all votes and ballots and report the results; 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. No person who is a candidate for an office at an election may serve as an
inspector at such election. Each report of an inspector shall be in writing and signed by the
inspector or by a majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report of the inspectors.
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Section 2.6. Adjournments. Any meeting of stockholders, annual or special, may be adjourned
by the chairman of the meeting, from time to time, whether or not there is a quorum, to reconvene
at the same or some other place. Notice need not be given of any such adjourned
meeting if the date, time, and place, if any, thereof, and the means of remote communication,
if any, by which stockholders and proxy holders 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. At the
adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote
separately as a class, as the case may be, may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.7. Advance Notice for Business.
(a) Annual Meetings of Stockholders. No business may be transacted at an annual
meeting of stockholders, other than business that is either (i) specified in the Corporations
notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii)
otherwise properly brought before the annual meeting by or at the direction of the Board or (iii)
otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who
is a stockholder of record on the date of the giving of the notice provided for in this Section
2.7(a) and on the record date for the determination of stockholders entitled to vote at such
annual meeting and (y) who complies with the notice procedures set forth in this Section
2.7(a). Notwithstanding anything in this Section 2.7(a) to the contrary, only persons
nominated for election as a director to fill any term of a directorship that expires on the date of
the annual meeting pursuant to Section 3.2 will be considered for election at such meeting.
(i) In addition to any other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation and such business must otherwise be a proper matter for
stockholder action. Subject to Section 2.7(a)(iii), a stockholders notice
to the Secretary with respect to such business, to be timely, must be received by
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 opening of business on
the 120th day before the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 45 days before or after such
anniversary date, notice by the stockholder to be timely must be so received not
earlier than the opening of business on the 120th day before the meeting and not
later than the later of (x) the close of business on the 90th day before the meeting
or (y) the close of business on the 10th day following the day on which public
announcement of the date of the annual meeting is first made by the Corporation.
Notwithstanding the previous sentence, for purposes of determining whether a
stockholders notice shall have been received in a timely
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manner for the annual
meeting of stockholders in 2011, to be timely, a stockholders notice must have been
received not later than the close of business on September 20, 2011 nor earlier than
the opening of business on August 20, 2011. The public announcement of an
adjournment of an annual meeting shall not
commence a new time period for the giving of a stockholders notice as
described in this Section 2.7(a).
(ii) To be in proper written form, a stockholders notice to the Secretary with
respect to any business (other than nominations) must set forth as to each such
matter such stockholder proposes to bring before the annual meeting (A) a brief
description of the business desired to be brought before the annual meeting, the
text of the proposal or business (including the text of any resolutions proposed for
consideration and in the event such business includes a proposal to amend these By
Laws, the language of the proposed amendment) and the reasons for conducting such
business at the annual meeting, (B) the name and record address of such stockholder
and the name and address of the beneficial owner, if any, on whose behalf the
proposal is made, (C) the class or series and number of shares of capital stock of
the Corporation that are owned beneficially and of record by such stockholder and by
the beneficial owner, if any, on whose behalf the proposal is made, (D) a
description of all arrangements or understandings between such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made and any other person
or persons (including their names) in connection with the proposal of such business
by such stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in such business and
(F) a representation that such stockholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting.
(iii) The foregoing notice requirements of this Section 2.7(a) shall be
deemed satisfied by a stockholder as to any proposal (other than nominations) if the
stockholder has notified the Corporation of such stockholders intention to present
such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor
thereof) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
and such stockholder has complied with the requirements of such Rule for inclusion
of such proposal in a proxy statement prepared by the Corporation to solicit proxies
for such annual meeting. No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance with
the procedures set forth in this Section 2.7(a), provided, however, that
once business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 2.7(a) shall be deemed to preclude
discussion by any stockholder of any such business. If the Board or the chairman of
the annual meeting determines that any stockholder proposal was not made in
accordance with the provisions of this Section 2.7(a) or that the
information provided in a stockholders notice does not
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satisfy the information
requirements of this Section 2.7(a), such proposal shall not be presented
for action at the annual meeting. Notwithstanding the foregoing provisions of this
Section 2.7(a), if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual meeting of stockholders of the
Corporation to present the proposed business, such proposed business shall not be
transacted, notwithstanding that proxies in respect of such matter may have
been received by the Corporation.
(iv) In addition to the provisions of this Section 2.7(a), a
stockholder shall also comply with all applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to the matters set forth
herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to the Corporations
notice of meeting only pursuant to Section 3.2.
(c) Public Announcement. For purposes of these By Laws, public announcement shall
mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 2.8. Conduct of Meetings. The chairman of each annual and special meeting of
stockholders shall be the Chairman of the Board or, in the absence (or inability or refusal to act)
of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in
the absence (or inability or refusal to act of the Chief Executive Officer or if the Chief
Executive Officer is not a director, the President (if he or she shall be a director) or, in the
absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting by the chairman of the meeting. The Board may adopt such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board,
the chairman of any meeting of stockholders shall have the right and authority to convene and to
adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts
as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the
meeting, may include, without limitation, the following: (a) the establishment of an agenda or
order of business for the meeting; (b) rules and procedures for maintaining order at
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the meeting
and the safety of those present; (c) limitations on attendance at or participation in the meeting
to stockholders of record of the Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted
to questions or comments by participants. Unless and to the extent determined by the Board or the
chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure. The secretary of each annual and
special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal
to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the
meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant
Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Consents in Lieu of Meeting. Unless otherwise provided by the Certificate of
Incorporation, and subject to the proviso in Section 2.1 until the corporation consummates
an initial public offering (Offering), any action required to be taken at any annual or special
meeting of stockholders, or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present and voted, and shall
be delivered to the Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporations
registered office shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the
consent, and no written consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated consent delivered in the manner required by this
section and Delaware Law to the Corporation, written consents signed by a sufficient number of
holders to take action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporations registered office shall be by hand or by certified or registered mail, return receipt
requested.
ARTICLE III
DIRECTORS
DIRECTORS
Section 3.1. Powers. The business and affairs of the Corporation shall be managed by or under
the direction of the Board, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By
Laws required to be exercised or done by the stockholders. Directors need not be stockholders or
residents of the State of Delaware.
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Section 3.2. Advance Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be otherwise provided by the
terms of one or more series of Preferred Stock with respect to the rights of holders of one or more
series of Preferred Stock to elect directors. Nominations of persons for election to the Board at
any annual meeting of stockholders, or at any special
meeting of stockholders called for the purpose of electing directors as set forth in the
Corporations notice of such special meeting, may be made (i) by or at the direction of the Board
or (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 3.2 and on the record date for the
determination of stockholders entitled to vote at such meeting and (y) who complies with the notice
procedures set forth in this Section 3.2.
(b) In addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a stockholders notice to the Secretary must be
received by the Secretary at the principal executive offices of the Corporation (i) in the case of
an annual meeting, not later than the close of business on the 90th day nor earlier than the
opening of business on the 120th day before the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 45 days before or after such anniversary date, notice by the
stockholder to be timely must be so received not earlier than the opening of business on the 120th
day before the meeting and not later than the later of (x) the close of business on the 90th day
before the meeting or (y) the close of business on the 10th day following the day on which public
announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the
case of a special meeting of stockholders called for the purpose of electing directors, not later
than the close of business on the 10th day following the day on which public announcement of the
date of the special meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting or special meeting commence a new time period
for the giving of a stockholders notice as described in this Section 3.2.
(c) Notwithstanding anything in paragraph (b) to the contrary, in the event that the number of
directors to be elected to the Board at an annual meeting is greater than the number of directors
whose terms expire on the date of the annual meeting and there is no public announcement by the
Corporation naming all of the nominees for the additional directors to be elected or specifying the
size of the increased Board before the close of business on the 90th day prior to the anniversary
date of the immediately preceding annual meeting of stockholders, a stockholders notice required
by this Section 3.2 shall also be considered timely, but only with respect to nominees for
the additional directorships created by such increase that are to be filled by election at such
annual meeting, if it shall be received by 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 was first made by the Corporation.
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(d) To be in proper written form, a stockholders notice to the Secretary must set forth (i)
as to each person whom the stockholder proposes to nominate for election as a director (A) the
name, age, business address and residence address of the person, (B) the principal occupation or
employment of the person, (C) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially or of record by the person and (D) any other information
relating to the person 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
election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder; and (ii) as to the stockholder giving the notice (A) the name and record
address of such stockholder and the name and address of the beneficial owner, if any, on whose
behalf the nomination is made, (B) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially and of record by such stockholder and the beneficial owner,
if any, on whose behalf the nomination is made, (C) a description of all arrangements or
understandings relating to the nomination to be made by such stockholder among such stockholder,
the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any
other person or persons (including their names), (D) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E)
any other information relating to such stockholder and the beneficial owner, if any, on whose
behalf the nomination is made 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 election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
(e) If the Board or the chairman of the meeting of stockholders determines that any nomination
was not made in accordance with the provisions of this Section 3.2, then such nomination
shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of
this Section 3.2, if the stockholder (or a qualified representative of the stockholder)
does not appear at the meeting of stockholders of the Corporation to present the nomination, such
nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may
have been received by the Corporation.
(f) In addition to the provisions of this Section 3.2, a stockholder shall also comply
with all of the applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in this Section 3.2 shall
be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the
Certificate of Incorporation.
Section 3.3. Compensation. Unless otherwise restricted by the Certificate of Incorporation or
these By Laws, the Board shall have the authority to fix the compensation of directors. The
directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and
may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as
director. No such payment shall preclude any director from serving the
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Corporation in any other
capacity and receiving compensation therefor. Members of committees of the Board may be allowed
like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
BOARD MEETINGS
Section 4.1. Annual Meetings. The Board shall meet as soon as practicable after the
adjournment of each annual stockholders meeting at the place of the annual stockholders meeting
unless the Board shall fix another time and place and give notice thereof in the manner required
herein for special meetings of the Board. No notice to the directors shall be necessary to legally
convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular Meetings. Regularly scheduled, periodic meetings of the Board may be
held without notice at such times, dates and places as shall from time to time be determined by the
Board.
Section 4.3. Special Meetings. Special meetings of the Board (a) may be called by the
Chairman of the Board or President and (b) shall be called by the Chairman of the Board, President
or Secretary on the written request of at least a majority of directors then in office, or the sole
director, as the case may be, and shall be held at such time, date and place as may be determined
by the person calling the meeting or, if called upon the request of directors or the sole director,
as specified in such written request. Notice of each special meeting of the Board shall be given,
as provided in Section 9.3, to each director (i) at least 24 hours before the meeting if
such notice is oral notice given personally or by telephone or written notice given by hand
delivery or by means of a form of electronic transmission and delivery; (ii) at least two days
before the meeting if such notice is sent by a nationally recognized overnight delivery service;
and (iii) at least five days before the meeting if such notice is sent through the United States
mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by
the officer who called the meeting or the directors who requested the meeting. Any and all business
that may be transacted at a regular meeting of the Board may be transacted at a special meeting.
Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation,
or these By Laws, neither the business to be transacted at, nor the purpose of, any special meeting
need be specified in the notice or waiver of notice of such meeting. A special meeting may be held
at any time without notice if all the directors are present or if those not present waive notice of
the meeting in accordance with Section 9.4.
Section 4.4. Quorum; Required Vote. A majority of the Whole Board shall constitute a quorum
for the transaction of business at any meeting of the Board, and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of the Board, except
as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or
these By Laws. If a quorum shall not be present at any meeting, a majority of the directors present
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum is present.
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Section 4.5. Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By Laws, any action required or permitted to be taken at any meeting of the
Board or any committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions (or paper reproductions thereof)
are filed with the minutes of proceedings of the Board or committee. Such
filing shall be in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section 4.6. Organization. The chairman of each meeting of the Board shall be the Chairman of
the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the
Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or
refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director,
the President (if he or she shall be a director) or in the absence (or inability or refusal to act)
of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or
inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of
the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary and
all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary
of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
COMMITTEES OF DIRECTORS
Section 5.1. Establishment. The Board may by resolution passed by a majority of the Whole
Board designate one or more committees, each committee to consist of one or more of the directors
of the Corporation. Each committee shall keep regular minutes of its meetings and report the same
to the Board when required. The Board shall have the power at any time to fill vacancies in, to
change the membership of, or to dissolve any such committee.
Section 5.2. Available Powers. Any committee established pursuant to Section 5.1
hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and
may exercise all of the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all
papers that may require it.
Section 5.3. Alternate Members. The Board 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.
Section 5.4. Procedures. Unless the Board otherwise provides, the time, date, place, if any,
and notice of meetings of a committee shall be determined by such committee. At meetings of a
committee, a majority of the number of members of the committee (but not including any alternate
member, unless such alternate member has replaced any absent or disqualified member at the time of,
or in connection with, such meeting) shall constitute a quorum for the transaction
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of business. The
act of a majority of the members present at any meeting at which a quorum is present shall be the
act of the committee, except as otherwise specifically provided by applicable law, the Certificate
of Incorporation, these By Laws or the Board. If a quorum is not present at a meeting of a
committee, the members present may adjourn the meeting from time to time, without notice other than
an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and
except as provided in these By Laws, each committee designated by the Board may make, alter, amend
and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the
Board is authorized to conduct its business pursuant to Article III and Article IV
of these By Laws.
ARTICLE VI
OFFICERS
OFFICERS
Section 6.1. Officers. The officers of the Corporation elected by the Board shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a
Secretary and such other officers (including without limitation, Vice Presidents, Assistant
Secretaries and a Treasurer) as the Board from time to time may determine. Officers elected by the
Board shall each have such powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this Article VI. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer
or President may also appoint such other officers (including without limitation one or more Vice
Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers shall have such powers and duties and shall hold their offices for
such terms as may be provided in these By Laws or as may be prescribed by the Board or, if such
officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the
appointing officer.
(a) Chairman of the Board. The Chairman of the Board shall preside when present at all
meetings of the stockholders and the Board. The Chairman of the Board shall have general
supervision and control of the acquisition activities of the Corporation subject to the ultimate
authority of the Board, and shall be responsible for the execution of the policies of the Board
with respect to such matters. In the absence (or inability or refusal to act) of the Chairman of
the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when
present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of
the Board shall not include supervision or control of the preparation of the financial statements
of the Company (other than through participation as a member of the Board).
(b) Chief Executive Officer. The Chief Executive Officer shall be the chief executive
officer of the Corporation, shall have general supervision of the affairs of the Corporation and
general control of all of its business subject to the ultimate authority of the Board, and shall be
responsible for the execution of the policies of the Board with respect to such matters, except to
the extent any such powers and duties have been prescribed to the Chairman of the Board pursuant to
Section 6.1(a) above. In the absence (or inability or refusal to act) of the Chairman of
the Board, the Chief Executive Officer (if he or she shall be a director) shall preside
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when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer
and President may be held by the same person.
(c) President. The President shall make recommendations to the Chief Executive Officer
on all operational matters that would normally be reserved for the final executive responsibility
of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of
the Board and Chief Executive Officer, the President (if he or she shall be a director) shall
preside when present at all meetings of the stockholders and the Board. The
President shall also perform such duties and have such powers as shall be designated by the
Board. The position of President and Chief Executive Officer may be held by the same person.
(d) Vice Presidents. In the absence (or inability or refusal to act) of the President,
the Vice President (or in the event there be more than one Vice President, the Vice Presidents in
the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the stockholders, the Board and
(as required) committees of the Board and shall record the proceedings of such
meetings in books to be kept for that purpose. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board and shall perform such other duties as may be prescribed by the Board, the
Chairman of the Board, Chief Executive Officer or President. The Secretary shall
have custody of the corporate seal of the Corporation and the Secretary, or any
Assistant Secretary, shall have authority to affix the same to any instrument
requiring it, and when so affixed, it may be attested by his or her signature or by
the signature of such Assistant Secretary. The Board may give general authority to
any other officer to affix the seal of the Corporation and to attest the affixing
thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept, at the principal executive
office of the Corporation or at the office of the Corporations transfer agent or
registrar, if one has been appointed, a stock ledger, or duplicate stock ledger,
showing the names of the stockholders and their addresses, the number and classes of
shares held by each and, with respect to certificated shares, the number and date of
certificates issued for the same and the number and date of certificates cancelled.
(f) Assistant Secretaries. The Assistant Secretary or, if there be more than one, the
Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or
refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
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(g) Chief Financial Officer. The Chief Financial Officer shall perform all duties
commonly incident to that office (including, without limitation, the care and custody of the funds
and securities of the Corporation, which from time to time may come into the Chief Financial
Officers hands and the deposit of the funds of the Corporation in such banks or trust companies as
the Board, the Chief Executive Officer or the President may authorize).
(h) Treasurer. The Treasurer shall, in the absence (or inability or refusal to act) of
the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial
Officer.
Section 6.2. Term of Office; Removal; Vacancies. The elected officers of the Corporation
shall be appointed by the Board and shall hold office until their successors are duly elected and
qualified by the Board or until their earlier death, resignation, retirement, disqualification, or
removal from office. Any officer may be removed, with or without cause, at any time by the Board.
Any officer appointed by the Chief Executive Officer or President may also be removed, with or
without cause, by the Chief Executive Officer or President, as the case may be, unless the Board
otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by
the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or
President may be filled by the Chief Executive Officer, or President, as the case may be, unless
the Board then determines that such office shall thereupon be elected by the Board, in which case
the Board shall elect such officer.
Section 6.3. Other Officers. The Board may delegate the power to appoint such other officers
and agents, and may also remove such officers and agents or delegate the power to remove same, as
it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders; Stockholder and Director Officers. Any number of offices
may be held by the same person unless the Certificate of Incorporation or these By Laws otherwise
provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII
SHARES
SHARES
Section 7.1. Certificated and Uncertificated Shares. The shares of the Corporation may be
certificated or uncertificated, subject to the sole discretion of the Board.
Section 7.2. Multiple Classes of Stock. If the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the Corporation shall (a) cause the
powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences or rights to be set forth in full or summarized on the face or back of any certificate
that the Corporation issues to represent shares of such class or series of stock or (b) in the case
of uncertificated shares, within a reasonable time after the issuance or transfer of such shares,
send to the registered owner thereof a written notice containing the information required to be set
15
forth on certificates as specified in clause (a) above; provided, however, that, except as
otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth
on the face or back of such certificate or, in the case of uncertificated shares, on such written
notice a statement that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
Section 7.3. Signatures. Each certificate representing capital stock of the Corporation shall
be signed by or in the name of the Corporation by (a) the Chairman of the Board, Chief Executive
Officer, the President or a Vice President and (b) the Treasurer, the Secretary or an
Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or registrar on the date
of issue.
Section 7.4. Consideration and Payment for Shares.
(a) Subject to applicable law and the Certificate of Incorporation, shares of stock may be
issued for such consideration, having in the case of shares with par value a value not less than
the par value thereof, and to such persons, as determined from time to time by the Board. The
consideration may consist of any tangible or intangible property or benefit to the Corporation
including cash, promissory notes, services performed, contracts for services to be performed or
other securities.
(b) Subject to applicable law and the Certificate of Incorporation, shares may not be issued
until the full amount of the consideration has been paid, unless upon the face or back of each
certificate issued to represent any partly paid shares of capital stock or upon the books and
records of the Corporation in the case of partly paid uncertificated shares, there shall have been
set forth the total amount of the consideration to be paid therefor and the amount paid thereon up
to and including the time said certificate representing certificated shares or said uncertificated
shares are issued.
Section 7.5. Lost, Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate representing shares claims that such certificate has been
lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing
such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate
before the Corporation has notice that the certificate representing such shares has been acquired
by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made against the Corporation
on account of the alleged loss, wrongful taking or destruction of such
16
certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements
imposed by the Corporation.
(b) If a certificate representing shares has been lost, apparently destroyed or wrongfully
taken, and the owner fails to notify the Corporation of that fact within a reasonable time after
the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded
from asserting against the Corporation any claim for registering such transfer or a claim to a new
certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing shares of the Corporation is presented to the Corporation
with an endorsement requesting the registration of transfer of such shares or an instruction is
presented to the Corporation requesting the registration of transfer of uncertificated shares, the
Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate representing such
shares has been surrendered;
(ii) (A) with respect to certificated shares, the endorsement is made by the
person specified by the certificate as entitled to such shares; (B) with respect to
uncertificated shares, an instruction is made by the registered owner of such
uncertificated shares; or (C) with respect to certificated shares or uncertificated
shares, the endorsement or instruction is made by any other appropriate person or by
an agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation has received a guarantee of signature of the person
signing such endorsement or instruction or such other reasonable assurance that the
endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate any restriction on transfer imposed by the
Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for such transfer as shall be provided for under
applicable law have been satisfied.
(b) Whenever any transfer of shares shall be made for collateral security and not absolutely,
the Corporation shall so record such fact in the entry of transfer if, when the certificate for
such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the
transferor and transferee request the Corporation to do so.
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Section 7.7. Registered Stockholders. Before due presentment for registration of transfer of
a certificate representing shares of the Corporation or of an instruction requesting registration
of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and
records of the Corporation, vote such shares, receive dividends or notifications with respect to
such shares and otherwise exercise all the rights and powers of the owner of such shares, except
that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee
on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such
shares and satisfying such other conditions as are provided under applicable law, may also so
inspect the books and records of the Corporation.
Section 7.8. Effect of the Corporations Restriction on Transfer.
(a) A written restriction on the transfer or registration of transfer of shares of the
Corporation or on the amount of shares of the Corporation that may be owned by any person or group
of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such
shares or, in the case of uncertificated shares, contained in a notice, offering circular or
prospectus sent by the Corporation to the registered owner of such shares within a reasonable time
prior to or after the issuance or transfer of such shares, may be enforced against the holder of
such shares or any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of
the holder.
(b) A restriction imposed by the Corporation on the transfer or the registration of shares of
the Corporation or on the amount of shares of the Corporation that may be owned by any person or
group of persons, even if otherwise lawful, is ineffective against a person without actual
knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted
conspicuously on the certificate; or (ii) the shares are uncertificated and such restriction was
contained in a notice, offering circular or prospectus sent by the Corporation to the registered
owner of such shares prior to or within a reasonable time after the issuance or transfer of such
shares.
Section 7.9. Regulations. The Board shall have power and authority to make such additional
rules and regulations, subject to any applicable requirement of law, as the Board may deem
necessary and appropriate with respect to the issue, transfer or registration of transfer of shares
of stock or certificates representing shares. The Board may appoint one or more transfer agents or
registrars and may require for the validity thereof that certificates representing shares bear the
signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
Section 8.1. Right to Indemnification. To the fullest extent permitted by applicable law, as
the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each
person who was or is made a party or is threatened to be made a party to or is
18
otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a proceeding), by reason of the fact that he or she
is or was a director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust, other enterprise or
nonprofit entity, 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, employee or agent, or in any other capacity while serving as a director,
officer, employee or agent, against all liability and loss suffered and expenses (including,
without limitation, attorneys fees, judgments, fines, ERISA excise taxes and penalties and amounts
paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 8.3 with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify an 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.
Section 8.2. Right to Advancement of Expenses. In addition to the right to indemnification
conferred in Section 8.1, an Indemnitee shall also have the right to be paid by the
Corporation to the fullest extent not prohibited by applicable law the expenses (including, without
limitation, attorneys fees) incurred in defending or otherwise participating in any such
proceeding in advance of its final disposition (hereinafter an advancement of expenses);
provided, however, that, if the Delaware General Corporation Law (DGCL) requires, an advancement
of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the
Corporation (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 the
Corporations receipt 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 that such
Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or
Section 8.2 is not paid in full by the Corporation within 60 days after a written claim
therefor 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 to recover the unpaid amount of the claim. 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 also be
entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by
the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an
Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) 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 judicial
decision from which there is no further right to appeal (hereinafter 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
19
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 a determination by 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, shall 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 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 Article VIII or otherwise shall be on the
Corporation.
Section 8.4. Non-Exclusivity of Rights. The rights provided to any Indemnitee pursuant to
this Article VIII shall not be exclusive of any other right, which such Indemnitee may have
or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an
agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance. The Corporation may maintain insurance, at its expense, to protect
itself and/or any director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
Section 8.6. Indemnification of Other Persons. This Article VIII shall not limit the
right of the Corporation to the extent and in the manner authorized or permitted by law to
indemnify and to advance expenses to persons other than Indemnitees. Without limiting the
foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any employee or agent of the
Corporation and to any other person who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, to the
fullest extent of the provisions of this Article VIII with respect to the indemnification
and advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments. Any repeal or amendment of this Article VIII by the Board or
the stockholders of the Corporation or by changes in applicable law, or the adoption of any other
provision of these By Laws inconsistent with this Article VIII, will, to the extent
permitted by applicable law, be prospective only (except to the extent such amendment or change in
applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on
a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely
affect any right or protection existing hereunder in respect of any act or omission occurring prior
to such repeal or amendment or adoption of such inconsistent provision.
20
Section 8.8. Certain Definitions. For purposes of this Article VIII, (a) references
to other enterprise shall include any employee benefit plan; (b) references to fines shall
include any excise taxes assessed on a person with respect to an employee benefit plan; (c)
references to serving at the request of the Corporation shall include any service that imposes
duties on, or involves services by, a person with respect to any employee benefit plan, its
participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner not opposed to the best interest
of the Corporation for purposes of Section 145 of the DGCL.
Section 8.9. Contract Rights. The rights provided to Indemnitees pursuant to this Article
VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased
to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitees
heirs, executors and administrators.
Section 8.10. Severability. If any provision or provisions of this Article VIII shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article VIII shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of
this Article VIII (including, without limitation, each such portion of this Article
VIII containing any such provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 9.1. Place of Meetings. If the place of any meeting of stockholders, the Board or
committee of the Board for which notice is required under these By Laws is not designated in the
notice of such meeting, such meeting shall be held at the principal business office of the
Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting
shall not be held at any place, but instead shall be held by means of remote communication pursuant
to Section 9.5 hereof, then such meeting shall not be held at any place.
Section 9.2. Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date,
which shall not precede the date upon which the resolution fixing the record date is adopted by the
Board, and which record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If no record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the business day next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business 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
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meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
(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 the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted, and which record date shall
be not more than 60 days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice.
(a) Notice to Directors. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to any director, such notice shall be
given either (i) in writing and sent by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day delivery, (ii) by means of
facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given
personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by
hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent
through the United States mail, when deposited in the United States mail, with postage and fees
thereon prepaid, addressed to the director at the directors address appearing on the records of
the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery
service, when deposited with such service, with fees thereon prepaid, addressed to the director at
the directors address appearing on the records of the Corporation, (iv) if sent by facsimile
telecommunication, when sent to the facsimile transmission number for such director appearing on
the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail
address for such director appearing on the records of the Corporation, or (vi) if sent by any other
form of electronic transmission, when sent to the address, location or number (as applicable) for
such director appearing on the records of the Corporation.
(b) Notice to Stockholders. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to any stockholder, such notice may
be given (i) in writing and sent either by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form
of electronic transmission consented to by the stockholder, to the extent permitted by, and subject
to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed
given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if
sent through the United States mail, when deposited in the United States mail, with postage and
fees thereon prepaid, addressed to the stockholder at the stockholders address appearing on the
stock ledger
of the Corporation, (iii) if sent for next day delivery by a nationally recognized
overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed
to the stockholder at the stockholders address appearing on the stock ledger
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of the Corporation,
and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the
notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile
transmission, when directed to a number at which the stockholder has consented to receive notice,
(B) if by electronic mail, when directed to an electronic mail address at which the stockholder has
consented to receive notice, (C) if by a posting on an electronic network together with separate
notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the
giving of such separate notice, and (D) if by any other form of electronic transmission, when
directed to the stockholder. A stockholder may revoke such stockholders consent to receiving
notice by means of electronic communication by giving written notice of such revocation to the
Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver
by electronic transmission two consecutive notices given by the Corporation in accordance with such
consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the
Corporations transfer agent, or other person responsible for the giving of notice; provided,
however, the inadvertent failure to treat such inability as a revocation shall not invalidate any
meeting or other action.
(c) Electronic Transmission. Electronic transmission means any form of
communication, not directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, including but not
limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and
cablegram.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which
notice otherwise may be given effectively by the Corporation to stockholders, any notice to
stockholders given by the Corporation under any provision of the DGCL, the Certificate of
Incorporation or these By Laws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the stockholders at that address to whom such
notice is given. A stockholder may revoke such stockholders consent by delivering written notice
of such revocation to the Corporation. Any stockholder who fails to object in writing to the
Corporation within 60 days of having been given written notice by the Corporation of its intention
to send such a single written notice shall be deemed to have consented to receiving such single
written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under
the DGCL, the Certificate of Incorporation or these By Laws, to any person with whom communication
is unlawful, the giving of such notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license or permit to give such notice
to such person. Any action or meeting that shall be taken or held without notice to any such person
with whom communication is unlawful shall have the same force and effect as if such notice had been
duly given. In the event that the action taken by the Corporation is such as to require the filing
of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is
the fact and if notice is required, that notice was
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given to all persons entitled to receive notice
except such persons with whom communication is unlawful.
Whenever notice is required to be given by the Corporation, under any provision of the DGCL,
the Certificate of Incorporation or these By Laws, to any stockholder to whom (1) notice of two
consecutive annual meetings of stockholders and all notices of stockholder meetings or of the
taking of action by written consent of stockholders without a meeting to such stockholder during
the period between such two consecutive annual meetings, or (2) all, and at least two payments (if
sent by first-class mail) of dividends or interest on securities during a 12-month period, have
been mailed addressed to such stockholder at such stockholders address as shown on the records of
the Corporation and have been returned undeliverable, the giving of such notice to such stockholder
shall not be required. Any action or meeting that shall be taken or held without notice to such
stockholder shall have the same force and effect as if such notice had been duly given. If any such
stockholder shall deliver to the Corporation a written notice setting forth such stockholders then
current address, the requirement that notice be given to such stockholder shall be reinstated. In
the event that the action taken by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the certificate need not state that notice was
not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the
DGCL. The exception in subsection (1) of the first sentence of this paragraph to the
requirement that notice be given shall not be applicable to any notice returned as
undeliverable if the notice was given by electronic transmission.
Section 9.4. Waiver of Notice. Whenever any notice is required to be given under applicable
law, the Certificate of Incorporation, or these By Laws, a written waiver of such notice, signed
before or after the date of such meeting by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent
to such required notice. All such waivers shall be kept with the books of the Corporation.
Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person
attends for the express purpose of objecting to the transaction of any business on the ground that
the meeting was not lawfully called or convened.
Section 9.5. Meeting Attendance via Remote Communication Equipment.
(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and
subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders
not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of stockholders, whether
such meeting is to be held at a designated place or solely by means of remote
communication, provided that (A) the Corporation shall implement reasonable measures
to verify that each person deemed present and permitted to vote at the meeting by
means of remote communication is a stockholder or proxy
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holder, (B) the Corporation
shall implement reasonable measures to provide such stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings, and (C)
if any stockholder or proxy holder votes or takes other action at the meeting by
means of remote communication, a record of such votes or other action shall be
maintained by the Corporation.
(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of
Incorporation or these By Laws, members of the Board or any committee thereof may participate in a
meeting of the Board or any committee thereof by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other. Such participation in a meeting shall constitute presence in person at the 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 was not lawfully called or convened.
Section 9.6. Dividends. The Board may from time to time declare, and the Corporation may pay,
dividends (payable in cash, property or shares of the Corporations capital
stock) on the Corporations outstanding shares of capital stock, subject to applicable law and
the Certificate of Incorporation.
Section 9.7. Reserves. The Board may set apart out of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 9.8. Contracts and Negotiable Instruments. Except as otherwise provided by applicable
law, the Certificate of Incorporation or these By Laws, any contract, bond, deed, lease, mortgage
or other instrument may be executed and delivered in the name and on behalf of the Corporation by
such officer or officers or other employee or employees of the Corporation as the Board may from
time to time authorize. Such authority may be general or confined to specific instances as the
Board may determine. The Chairman of the Board, the Chief Executive Officer, the President or any
Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other
instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the
Board, the Chairman of the Board Chief Executive Officer, President or any Vice President may
delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other
instrument in the name and on behalf of the Corporation to other officers or employees of the
Corporation under such persons supervision and authority, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with respect to the
exercise of such delegated power.
Section 9.9. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.
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Section 9.10. Seal. The Board may adopt a corporate seal, which shall be in such form as the
Board determines. The seal may be used by causing it or a facsimile thereof to be impressed,
affixed or otherwise reproduced.
Section 9.11. Books and Records. The books and records of the Corporation may be kept within
or outside the State of Delaware at such place or places as may from time to time be designated by
the Board.
Section 9.12. Resignation. Any director, committee member or officer may resign by giving
notice thereof in writing or by electronic transmission to the Chairman of the Board, the Chief
Executive Officer, the President or the Secretary. The resignation shall take effect at the time
specified therein, or at the time of receipt of such notice if no time is specified or the
specified time is earlier than the time of such receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 9.13. Surety Bonds. Such officers, employees and agents of the Corporation (if any)
as the Chairman of the Board, Chief Executive Officer, President or the Board may direct, from time
to time, shall be bonded for the faithful performance of their duties and for the restoration to
the Corporation, in case of their death, resignation, retirement, disqualification or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in their
possession or under their control belonging to the Corporation, in such amounts and by
such surety companies as the Chairman of the Board, Chief Executive Officer, President or the
Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so
furnished shall be in the custody of the Secretary.
Section 9.14. Securities of Other Corporations. Powers of attorney, proxies, waivers of
notice of meeting, consents in writing and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the
Board, Chief Executive Officer, President or any Vice President. Any such officer, may, in the name
of and on behalf of the Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any corporation in which the
Corporation may own securities, or to consent in writing, in the name of the Corporation as such
holder, to any action by such corporation, and at any such meeting or with respect to any such
consent shall possess and may exercise any and all rights and power incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and
possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments. The Board shall have the power to adopt, amend, alter or repeal the
By Laws. The affirmative vote of a majority of the Whole Board shall be required to adopt, amend,
alter or repeal the By Laws. The By Laws also may be adopted, amended, altered or repealed by the
stockholders; provided, however, that in addition to any vote of the holders of any class or series
of capital stock of the Corporation required by applicable law or the Certificate of Incorporation,
the affirmative vote of the holders of at least a majority of the voting
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power of all outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required for the stockholders to adopt, amend, alter or
repeal the By Laws.
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