Attached files
file | filename |
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8-K - FORM 8-K - Hicks Acquisition CO II, Inc. | d76943e8vk.htm |
EX-3.1 - EX-3.1 - Hicks Acquisition CO II, Inc. | d76943exv3w1.htm |
EX-4.1 - EX-4.1 - Hicks Acquisition CO II, Inc. | d76943exv4w1.htm |
EX-10.1 - EX-10.1 - Hicks Acquisition CO II, Inc. | d76943exv10w1.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY LAWS
OF
HICKS ACQUISITION COMPANY II, INC.,
a Delaware corporation
(the Corporation)
(Adopted as of October 8, 2010)
AMENDED AND RESTATED
BY LAWS
OF
HICKS ACQUISITION COMPANY II, INC.
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. Prior to the Corporations consummation of
an initial public offering (Offering), stockholders may, unless the Corporations Amended and
Restated Certificate of Incorporation, dated as of October 8, 2010, as the same may be amended or
restated from time to time (the Certificate of Incorporation) otherwise provides, act by written
consent to elect directors.
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.
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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 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 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
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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 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
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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.
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.
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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
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
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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 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
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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 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 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.
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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.
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.
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Notwithstanding the previous sentence, for purposes of determining whether a stockholders
notice shall have been received in a timely 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. 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.
(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
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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 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
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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.
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
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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 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
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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 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.
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(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.
(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
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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
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 certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements
imposed by the Corporation.
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(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 indorsement 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 indorsement 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 indorsement 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
indorsement or instruction or such other reasonable assurance that the indorsement 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.
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
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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 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
17
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 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.
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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.
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.
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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 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
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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 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
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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 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
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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 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,
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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.
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
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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 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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