Attached files
file | filename |
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8-K - FORM 8-K - LoopNet, Inc. | f58197e8vk.htm |
EX-10.1 - EX-10.1 - LoopNet, Inc. | f58197exv10w1.htm |
Exhibit 3.1
BYLAWS
OF
LOOPNET, INC.
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 2, 2011)
TABLE OF CONTENTS
Page | ||||||
ARTICLE I CORPORATE OFFICES | 1 | |||||
1.1 |
Registered Office | 1 | ||||
1.2 |
Other Offices | 1 | ||||
ARTICLE II MEETINGS OF STOCKHOLDERS | 1 | |||||
2.1 |
Annual Meetings | 1 | ||||
2.2 |
Special Meetings | 5 | ||||
2.3 |
Notice of Stockholders Meetings | 9 | ||||
2.4 |
Quorum | 9 | ||||
2.5 |
Organization; Conduct of Business | 9 | ||||
2.6 |
Proxies and Voting | 10 | ||||
2.7 |
Waiver of Notice | 11 | ||||
2.8 |
Record Date for Stockholder Notice | 11 | ||||
ARTICLE III DIRECTORS | 12 | |||||
3.1 |
Number of Directors | 12 | ||||
3.2 |
Election and Term of Office of Directors | 12 | ||||
3.3 |
Director Resignations, Newly Created Directors and Vacancies | 12 | ||||
3.4 |
Participation in Meetings by Conference Telephone | 13 | ||||
3.5 |
Regular Meetings | 13 | ||||
3.6 |
Special Meetings | 13 | ||||
3.7 |
Quorum | 14 | ||||
3.8 |
Waiver of Notice | 14 | ||||
3.9 |
Conduct of Business; Board Action by Written Consent Without a Meeting | 14 | ||||
3.10 |
Compensation of Directors | 15 | ||||
3.11 |
Approval of Loans to Officers | 15 | ||||
3.12 |
Removal of Directors | 15 | ||||
3.13 |
Chairman of the Board of Directors | 15 | ||||
3.14 |
Lead Independent Director | 15 | ||||
ARTICLE IV COMMITTEES | 16 | |||||
4.1 |
Committees of Directors | 16 | ||||
4.2 |
Committee Minutes | 16 |
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
4.3 |
Conduct of Business | 16 | ||||
ARTICLE V OFFICERS | 17 | |||||
5.1 |
Officers | 17 | ||||
5.2 |
Appointment of Officers | 17 | ||||
5.3 |
Subordinate Officers | 17 | ||||
5.4 |
Removal and Resignation of Officers | 17 | ||||
5.5 |
Vacancies in Offices | 17 | ||||
5.6 |
Chief Executive Officer | 18 | ||||
5.7 |
President | 18 | ||||
5.8 |
Vice Presidents | 18 | ||||
5.9 |
Secretary | 18 | ||||
5.10 |
Chief Financial Officer | 19 | ||||
5.11 |
Action with Respect to Securities of Other Corporations | 19 | ||||
5.12 |
Delegation of Authority | 19 | ||||
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS | 19 | |||||
6.1 |
Indemnification of Directors and Officers | 19 | ||||
6.2 |
Indemnification of Others | 20 | ||||
6.3 |
Payment of Expenses in Advance | 21 | ||||
6.4 |
Indemnity Not Exclusive | 21 | ||||
6.5 |
Insurance | 21 | ||||
ARTICLE VII RECORDS AND REPORTS | 21 | |||||
7.1 |
Maintenance and Inspection of Records | 21 | ||||
7.2 |
Inspection by Directors | 22 | ||||
ARTICLE VIII GENERAL MATTERS | 22 | |||||
8.1 |
Checks | 22 | ||||
8.2 |
Execution of Corporate Contracts and Instruments | 22 | ||||
8.3 |
Stock Certificates | 22 | ||||
8.4 |
Special Designation on Certificates | 23 | ||||
8.5 |
Lost Certificates | 23 | ||||
8.6 |
Construction; Definitions | 23 |
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
8.7 |
Fiscal Year | 23 | ||||
8.8 |
Seal | 24 | ||||
8.9 |
Transfers of Stock | 24 | ||||
8.10 |
Registered Stockholders | 24 | ||||
8.11 |
Facsimile Signatures | 24 | ||||
8.12 |
Forum Selection | 24 | ||||
ARTICLE IX AMENDMENTS | 24 |
BYLAWS
OF
LOOPNET, INC.
ARTICLE I
CORPORATE OFFICES
1.1 Registered Office.
The registered office of the Corporation shall be in the City of Wilmington, County of
Newcastle, State of Delaware. The name of the registered agent of the Corporation at such location
is The Corporation Trust Company.
1.2 Other Offices.
The Board of Directors may at any time establish other offices at any place or places where
the Corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Annual Meetings.
(a) Unless otherwise provided by resolution of the Board of Directors, an annual meeting of
stockholders shall be held on the third Tuesday of May in each year, if not a legal holiday, and if
a legal holiday, then on the next business day following, and at such time as may be designated by
the Board of Directors. The Board of Directors may, in its sole discretion, determine that the
meeting may be held solely by means of remote communication, as permitted by Section 211 of the
Delaware General Corporation Law (DGCL). At the meeting, directors shall be elected and any
other proper business may be transacted. The Board of Directors may postpone or reschedule any
previously scheduled annual meeting.
(b) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of stockholders only (i)
pursuant to the Corporations notice with respect to such annual meeting (or any supplement
thereto), (ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of the notice provided for in
this Section 2.1, who is entitled to vote for the election of directors or such other business at
the annual meeting and who has complied with the notice procedures set forth in this Section 2.1.
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(c) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (b) of this Section 2.1:
(i) the stockholder must have given timely notice thereof in writing to the
secretary of the Corporation, as provided in this Section 2.1; and
(ii) if business other than nominations is proposed, such business must be a
proper matter for stockholder action under the DGCL;
(iii) if no Solicitation Notice relating thereto has been timely provided
pursuant to this section, the stockholder or beneficial owner proposing such
business or nomination must not have solicited a number of proxies sufficient to
have required the delivery of such a Solicitation Notice under this section.
(d) To be timely, a stockholders notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 120 or more than 150 days before the first
anniversary (the Anniversary) of the date of the preceding years annual meeting of stockholders;
provided, however, that if the date of the annual meeting is advanced more than 30 days before or
delayed by more than 30 days after the anniversary of the preceding years annual meeting, notice
by the stockholder to be timely must be so delivered not later than the close of business on the
later of the 90th day before such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. In no event shall the public announcement
of an adjournment of the annual meeting commence a new time period or extend any time period for
the giving of a stockholders notice as described above. Such stockholders notice shall set
forth:
(i) as to each person whom the stockholder proposes to nominate for election or
reelection as a director (A) all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (the Exchange Act), including such persons written consent to
serve as a director if elected, and (B) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings
during the past three years, and any other material relationships, between or among
such stockholder and beneficial owner, if any, on whose behalf the nomination is
being made, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and his or her
respective affiliates and associates, or others acting in concert therewith, on the
other hand, including without limitation all information that would be required to
be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the
stockholder making the nomination and any beneficial owner on whose behalf the
nomination is made, if any, or any affiliate or associate thereof or person acting
in concert therewith, were the registrant for purposes of such rule and the
nominee were a director or executive officer of such registrant; and
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(ii) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of such business, 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 the Certificate of Incorporation or the
Bylaws of the Corporation, the text of such amended Certificate or Bylaw), the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and
(iii) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (A) the name and address of such
stockholder, as they appear on the Corporations books, and of such beneficial
owner, (B) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, (C) the
disclosure of any short positions or any derivative positions relating to the
Corporations shares of such stockholder and such beneficial owner, or the
disclosure of any other agreement, arrangement or understanding which has been made,
the effect or intent of which is to increase or decrease the voting power of, such
stockholder and any such beneficial owner, such information to be updated to reflect
any material change in such positions through the date of the annual meeting, (D)
any rights to dividends on the shares of the Corporation owned beneficially by such
stockholder and such beneficial owner that are separated or separable from the
underlying shares of the Corporation, (E) any performance-related fees (other than
an asset-based fee) that such stockholder and such beneficial owner are entitled to
based on any increase or decrease in the value of shares of the Corporation or
derivative instruments, if any, as of the date of such notice, including without
limitation any such interests held by members of such stockholders or beneficial
owners immediate family sharing the same household (which information shall be
supplemented by such stockholder and beneficial owner not later than 10 days after
the record date for the meeting to disclose such ownership as of the record date),
and (F) any other information relating to such stockholder and such beneficial owner
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for, as applicable,
the proposal and/or for the election of directors in a contested election pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; and
(iv) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and any other person or persons
(including their names) in connection with the proposal of such business by the
stockholder; and
(v) a representation that the stockholder is a holder of record of stock of the
Corporation, entitled to vote at such meeting, and intends to appear in person or by
proxy at the meeting to propose such nomination or business; and
3
(vi) a representation as to whether the stockholder or the beneficial owner, if
any, intends, or is or intends to be part of a group that intends, (A) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of the
Corporations outstanding capital stock required to elect the nominee or approve or
adopt the proposal and/or (B) otherwise to solicit proxies from stockholders in
support of such nomination or proposal.
(e) Each prospective nominee for election or reelection as a director, or someone acting on
such prospective nominees behalf, must deliver (in accordance with the same time periods
prescribed for delivery of a stockholders notice under this Section 2.1) to the Secretary at the
principal executive offices of the Corporation:
(i) a written questionnaire providing such information with respect to the
background and qualification of such person and the background of any other person
or entity on whose behalf the nomination is being made that would be required to be
disclosed to stockholders pursuant to applicable law or the rules and regulations of
any stock exchange applicable to the Corporation, including without limitation all
information concerning such persons as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant to
Regulation 14A under the Exchange Act; and
(ii) a written representation and agreement that such prospective nominee: (A)
is not and will not become a party to (1) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any person or
entity as to how such prospective nominee, if elected as a director of the
Corporation, will act or vote on any issue or question (a Voting Commitment) that
has not been disclosed to the Corporation or (2) any Voting Commitment that could
limit or interfere with such prospective nominees ability to comply, if elected as
a director of the Corporation, with such prospective nominees fiduciary duties
under applicable law; (B) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the Corporation
with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been
disclosed therein; and (C) would be in compliance if elected as a director of the
Corporation, and will comply with all applicable corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies and guidelines of
the Corporation; and
(iii) such other information as the Corporation may reasonably require to
determine the eligibility of such proposed nominees to serve as a director of the
Corporation.
(f) Notwithstanding anything in this Section 2.1 to the contrary, in the event that the number
of directors to be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of the increased Board
of Directors made by the Corporation at least 55 days before the Anniversary, a stockholders
notice required by this Bylaw shall also be considered timely, but only with
4
respect to nominees for any new positions created by such increase, if it shall be delivered
to the Secretary at the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is first made by the
Corporation.
(g) Only persons nominated in accordance with the procedures set forth in this Section 2.1
shall be eligible to serve as directors and only such business shall be conducted at an annual
meeting of stockholders as shall have been brought before the annual meeting in accordance with the
procedures set forth in this section. The chairman of the annual meeting shall have the power and
the duty to determine whether a nomination or any business proposed to be brought before the
meeting has been made in accordance with the procedures set forth in these Bylaws and, if any
proposed nomination or business is not in compliance with these Bylaws, to declare that such
defectively proposed business or nomination shall not be presented for stockholder action at the
meeting and shall be disregarded.
(h) For purposes of these Bylaws, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) The requirements of this Section 2.1 shall apply to any nominations or business to be
brought before an annual meeting by a stockholder, whether such nomination or other business is to
be included in the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or
presented to stockholders by means of an independently financed proxy solicitation. Nothing in
this Section 2.1 shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.2 Special Meetings.
(a) Special meetings of the stockholders, other than those required by statute, may be called
at any time by the Board of Directors acting pursuant to a resolution adopted by a majority of the
Whole Board. For purposes of these Bylaws, the term Whole Board shall mean the total number of
authorized directors last fixed by directors in accordance with these bylaws, provided, however,
that if fewer than all the number of directors have been so elected (by the Stockholders or the
Board), the Whole Board shall mean the greatest number of directors so elected to hold office at
any one time pursuant to such authorization. The Board of Directors may postpone or reschedule any
previously scheduled special meeting.
(b) Only such business shall be conducted at a special meeting of the stockholders as shall
have been brought before the meeting pursuant to the Corporations notice of the meeting.
(c) Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders only (i) pursuant to the Corporations notice with respect to such meeting
(or any supplement thereto), (ii) by or at the direction of the Board of Directors or (iii) by any
stockholder of the Corporation who was a stockholder of record at the
5
time of giving of the notice provided for in this Section 2.2, who is entitled to vote for the
election of directors or such other business at the special meeting and who has complied with the
notice procedures set forth in this Section 2.2.
(d) For nominations to be properly brought before a special meeting by a stockholder pursuant
to clause (iii) of paragraph (c) of this Section 2.2, the stockholder must have given timely notice
thereof in writing to the secretary of the Corporation, as provided in this Section 2.2.
(e) To be timely, a stockholders notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the later of the 90th
day before such special meeting or the 10th day following the day on which public announcement of
the date of such special meeting is first made. In no event shall the public announcement of an
adjournment of the special meeting commence a new time period or extend any time period for the
giving of a stockholders notice as described above. Such stockholders notice shall set forth:
(i) as to each person whom the stockholder proposes to nominate for election or
reelection as a director (A) all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such
nominees as directors pursuant to Regulation 14A under the Exchange Act, including
such persons written consent to serve as a director if elected, and (B) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any
other material relationships, between or among such stockholder and beneficial
owner, if any, on whose behalf the nomination is being made, and their respective
affiliates and associates, or others acting in concert therewith, on the one hand,
and each proposed nominee, and his or her respective affiliates and associates, or
others acting in concert therewith, on the other hand, including without limitation
all information that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K if the stockholder making the nomination and any
beneficial owner on whose behalf the nomination is made, if any, or any affiliate or
associate thereof or person acting in concert therewith, were the registrant for
purposes of such rule and the nominee were a director or executive officer of such
registrant; and
(ii) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (A) the name and address of such
stockholder, as they appear on the Corporations books, and of such beneficial
owner, (B) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, (C) the
disclosure of any short positions or any derivative positions relating to the
Corporations shares of such stockholder and such beneficial owner, or the
disclosure of any other agreement, arrangement or understanding which has been made,
the effect or intent of which is to increase or decrease the voting power of, such
stockholder and any such beneficial owner, such information to be updated to reflect
any material change in such
6
positions through the date of the special meeting, (D) any rights to dividends
on the shares of the Corporation owned beneficially by such stockholder and such
beneficial owner that are separated or separable from the underlying shares of the
Corporation, (E) any performance-related fees (other than an asset-based fee) that
such stockholder and such beneficial owner are entitled to based on any increase or
decrease in the value of shares of the Corporation or derivative instruments, if
any, as of the date of such notice, including without limitation any such interests
held by members of such stockholders or beneficial owners immediate family sharing
the same household (which information shall be supplemented by such stockholder and
beneficial owner not later than 10 days after the record date for the meeting to
disclose such ownership as of the record date), and (F) any other information
relating to such stockholder and such beneficial owner that would be required to be
disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for, as applicable, the proposal and/or for the
election of directors in a contested election pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder; and
(iv) a representation that the stockholder is a holder of record of stock of
the Corporation, entitled to vote at such meeting, and intends to appear in person
or by proxy at the meeting to propose such nomination; and
(v) a representation as to whether the stockholder or the beneficial owner, if
any, intends, or is or intends to be part of a group that intends, (A) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of the
Corporations outstanding capital stock required to elect the nominee and/or (B)
otherwise to solicit proxies from stockholders in support of such nomination.
(f) Each prospective nominee for election or reelection as a director, or someone acting on
such prospective nominees behalf, must deliver (in accordance with the same time periods
prescribed for delivery of a stockholders notice under this Section 2.2) to the Secretary at the
principal executive offices of the Corporation:
(i) a written questionnaire providing such information with respect to the
background and qualification of such person and the background of any other person
or entity on whose behalf the nomination is being made that would be required to be
disclosed to stockholders pursuant to applicable law or the rules and regulations of
any stock exchange applicable to the Corporation, including without limitation all
information concerning such persons as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant to
Regulation 14A under the Exchange Act; and
(ii) a written representation and agreement that such prospective nominee: (A)
is not and will not become a party to (1) any Voting Commitment that has not been
disclosed to the Corporation or (2) any Voting Commitment that could limit or
interfere with such prospective nominees ability to comply,
7
if elected as a director of the Corporation, with such prospective nominees
fiduciary duties under applicable law; (B) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been
disclosed therein; and (C) would be in compliance if elected as a director of the
Corporation, and will comply with all applicable corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies and guidelines of
the Corporation; and
(iii) such other information as the Corporation may reasonably require to
determine the eligibility of such proposed nominees to serve as a director of the
Corporation.
(g) Notwithstanding anything in this Section 2.2 to the contrary, in the event that the number
of directors to be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of the increased Board
of Directors made by the Corporation at least 55 days before the Anniversary, a stockholders
notice required by this Bylaw shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the Corporation.
(h) Only persons nominated in accordance with the procedures set forth in this Section 2.2
shall be eligible to serve as directors and only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this section. The chairman of the meeting shall have the power and the
duty to determine whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these Bylaws and, if any proposed
nomination or business is not in compliance with these Bylaws, to declare that such defectively
proposed business or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
(i) For purposes of these Bylaws, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(j) The requirements of this Section 2.2 shall apply to any nominations to be brought before a
special meeting by a stockholder, whether such nomination is to be included in the Corporations
proxy statement pursuant to Rule 14a-8 under the Exchange Act or presented to stockholders by means
of an independently financed proxy solicitation. Nothing in this Section 2.2 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
8
2.3 Notice of Stockholders Meetings.
(a) Notice of the place, if any, date and time of all meetings of stockholders, and the means
of remote communication, if any, by which stockholders and proxyholders may be deemed to be present
in person and vote at such meeting, shall be given not less than 10 nor more than 60 days before
the date of the meeting to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law or the Certificate of Incorporation. Written notice of any
meeting of stockholders, if mailed, is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records of the
Corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders may be given by electronic mail or other electronic
transmission, in the manner provided in Section 232 of the DGCL. An affidavit of the secretary or
an assistant secretary or of the transfer agent of the Corporation that the notice has been given
shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
(b) When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, thereof, and the means of remote communications,
if any, by which stockholders and proxyholders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is taken; provided,
however, that if the date of any adjourned meeting is more than 30 days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting,
notice of the place, if any, date, and time of the adjourned meeting and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting, shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the original meeting.
2.4 Quorum.
At any meeting of the stockholders, the holders of a majority of the shares of stock entitled
to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes,
except as otherwise provided by the DGCL or by the Certificate of Incorporation. Where a separate
vote by a class or classes or series is required, a majority of the shares of such class or classes
or series present in person or by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting may adjourn the
meeting to another place, if any, date or time.
2.5 Organization; Conduct of Business.
(a) The chief executive officer of the Corporation or in his or her absence, the chairman of
the Board of Directors, shall call to order any meeting of the stockholders and act as chairman of
the meeting. In the absence of the secretary of the Corporation, the secretary of the meeting
shall be such person as the chairman of the meeting appoints.
9
(b) Except to the extent inconsistent with such rules and regulations adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate or convenient for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman
of the meeting, may include, without limitation, the order of business and the procedure at the
meeting, the manner of voting and the conduct of business, and the adjournment of the meeting to
another place, if any, date and time. The date and time of opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
(c) Notwithstanding anything to the contrary in these Bylaws, unless otherwise required by
law, if a stockholder (or qualified representative) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination or business proposed by such
stockholder pursuant to Section 2.1 or 2.2 of this Article II, such nomination shall be disregarded
and such proposed business shall not be transacted, even though proxies in respect of such vote may
have been received by the Corporation. In order to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or
must be authorized by a writing executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders,
and such person must produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of stockholders.
2.6 Proxies and Voting.
(a) At any meeting of the stockholders, every stockholder entitled to vote may vote in person
or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in
accordance with the procedure established for the meeting. Any copy, facsimile telecommunication
or other reliable reproduction of the writing or transmission created pursuant to this paragraph
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.
(b) The Corporation may, and to the extent required by law, shall, in advance of any meeting
of stockholders, appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the
chairman of the meeting may, and to the extent required by law, shall, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the discharge of 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. Every vote taken by ballots shall be
counted by a duly appointed inspector or inspectors.
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(c) All elections of directors shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a majority of the
votes cast affirmatively or negatively.
2.7 Waiver of Notice.
Whenever notice is required to be given under any provision of the DGCL or of the Certificate
of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to
notice, or waiver by electronic mail or other electronic transmission by such person, whether
before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice, or any waiver of notice by
electronic transmission, unless so required by the Certificate of Incorporation or these Bylaws.
2.8 Record Date for Stockholder Notice.
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 or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date
on which the resolution fixing the date is adopted and which record date shall not be more than 60
nor less than 10 days before the date of such meeting, nor more than 60 days before any other
action.
If the Board of Directors does not so fix a record date:
(a) 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 day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(b) The record date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, if such adjournment is for 30 days or
less; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
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ARTICLE III
DIRECTORS
3.1 Number of Directors.
The number of directors constituting the Whole Board shall be seven (7); provided, however,
that the number of directors that shall constitute the Whole Board shall be fixed from time to time
by resolution adopted by a majority of the entire Board and subject to the rights of the holders of
the shares of any series of preferred stock. The classes of directors that shall constitute the
Whole Board shall be as provided in the certificate of incorporation of the corporation.
The directors shall be elected at the annual meetings of the stockholders, except as otherwise
provided in Section 3.3 below, and each director elected shall hold office until such directors
successor is elected and qualified, unless sooner displaced.
Subject to the rights of the holders of any series of preferred stock to elect directors under
specified circumstances, this number may be changed from time to time by a resolution adopted by a
majority of the Whole Board. No decrease in the number of authorized directors shall shorten the
term of any incumbent director.
3.2 Election and Term of Office of Directors.
Except as provided in Section 3.3 of these Bylaws, and unless otherwise provided in the
Certificate of Incorporation, directors shall be elected at each annual meeting of stockholders to
hold office until the next annual meeting at which the term of office of the class to which they
have been elected expires. Each director, including a director elected to fill a vacancy, shall
hold office until his or her successor is elected or until his or her earlier resignation or
removal.
3.3 Director Resignations, Newly Created Directors and
Vacancies.
(a) Any director may resign at any time upon written notice to the attention of the secretary
of the Corporation or, if there is no secretary in office, then to the attention of any other
corporate officer or to the Board of Directors as a whole. When one or more directors so resigns
and the resignation is effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in the filling of other vacancies.
(b) Subject to the rights of the holders of any series of preferred stock then outstanding,
newly created directorships resulting from any increase in the authorized number of directors or
any vacancies in the Board of Directors resulting from death, resignation, retirement, removal from
office or other cause shall, unless otherwise required by law or by resolution of the Board of
Directors, be filled only by a majority vote of the directors then in office, though less than a
quorum, and directors so chosen shall serve for a term expiring at the
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next annual meeting of stockholders at which the term of office of the class to which they
have been elected expires or until such directors successor shall have been duly elected.
(c) Whenever the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by a majority of the
directors elected by such class or classes or series thereof then in office, or by a sole remaining
director so elected.
(d) If at any time, by reason of death or resignation or other cause, the Corporation should
have no directors in office, then any officer or any stockholder or an executor, administrator,
trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211 of the DGCL.
(e) If, at the time of filling any vacancy or any newly created directorship, the directors
then in office constitute less than a majority of the Whole Board (as constituted immediately
before any such increase), then the Court of Chancery may, upon application of any stockholder or
stockholders holding at least 10% of the total number of the shares at the time outstanding having
the right to vote for such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors chosen by the directors then
in office as aforesaid, which election shall be governed by the provisions of Section 211 of the
DGCL far as applicable.
3.4 Participation in Meetings by Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting
of the Board of Directors, or any committee, by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other, and such participation in a meeting shall constitute presence in person at the meeting.
3.5 Regular Meetings.
Regular meetings of the Board of Directors may be held at such place, date and time as shall
from time to time be determined by the Board of Directors. A notice of each regular meeting shall
not be required.
3.6 Special Meetings.
Special meetings of the Board of Directors may be called by the chairman of the board, the
Lead Independent Director, if any, or by a majority of the Whole Board, and shall be held at such
place, date and time as he, she or they shall fix.
Notice of the place, date and time of special meetings shall be delivered personally or by
telephone to each director or sent by first-class mail, charges prepaid, or by
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facsimile or electronic mail, addressed to each director at that directors address as it is
shown on the records of the Corporation. If the notice is mailed, it shall be deposited in the
United States mail at least four days before the time of the holding of the meeting. If the notice
is delivered personally, or by facsimile, electronic mail or telephone, it shall be delivered at
least 24 hours before the time of the holding of the meeting. The notice need not specify the
place of the meeting, if the meeting is to be held at the principal executive office of the
Corporation. Any and all business may be transacted at a special meeting, unless otherwise
indicated in the notice thereof.
3.7 Quorum.
At any meeting of the Board of Directors, a majority of the Whole Board shall constitute a
quorum for all purposes, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall fail to attend any meeting, then a majority of the
directors present may adjourn the meeting to another place, date or time, without further notice or
waiver thereof.
A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for that meeting.
3.8 Waiver of Notice.
Whenever notice of a Board of Directors meeting is required to be given under any provision of
the DGCL or of the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed
by the person entitled to notice, or waiver by electronic mail or other electronic transmission by
such person, whether before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of
the directors, or members of a committee of directors, need be specified in any written waiver of
notice or any waiver by electronic transmission unless so required by the Certificate of
Incorporation or these Bylaws.
3.9 Conduct of Business; Board Action by Written Consent
Without a Meeting.
At any meeting of the Board of Directors, business shall be transacted in such order and
manner as the Board of Directors may from time to time determine, and all matters shall be
determined by the vote of a majority of the directors present, except as otherwise provided in
these Bylaws or by law.
Any action required or permitted to be taken at any meeting of the Board of Directors, or of
any committee thereof, may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee. Such filings shall be in
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paper form if the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form. Such action by written consent shall have the same
force and effect as a unanimous vote of the Board of Directors.
3.10 Compensation of Directors.
The Board of Directors shall have the authority to fix the compensation of the directors. The
directors may be paid their expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid a fixed sum for attendance at each meeting of the Board of Directors, or
paid a stated salary or paid other compensation as director. No such compensation shall preclude
any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed compensation for attending
committee meetings.
3.11 Approval of Loans to Officers.
Subject to applicable law, including Section 13(k) of the Exchange Act, the Corporation may
lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of
the Corporation or of its subsidiary, including any officer or employee who is a director of the
Corporation or of its subsidiary, whenever, in the judgment of the directors, such loan, guaranty
or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other
assistance may be with or without interest and may be unsecured, or secured in such manner as the
Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the
Corporation. Nothing in this section shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the Corporation at common law or under any statute.
3.12 Removal of Directors.
Unless otherwise restricted by statute, the Certificate of Incorporation or these Bylaws, any
director or the entire Board of Directors may be removed, but only for cause, by the holders of a
majority of the shares then entitled to vote at an election of directors, voting together as a
single class. No reduction of the authorized number of directors shall have the effect of removing
any director prior to the expiration of such directors term of office.
3.13 Chairman of the Board of Directors.
A chairman of the board shall be chosen from among the directors and shall not be considered
an officer of the Corporation solely by virtue of holding such position. The chairman of the board
shall perform such duties as may be assigned to the chairman by these Bylaws or by the Board of
Directors.
3.14 Lead Independent Director.
When the chairman of the board is the Chief Executive Officer or is otherwise not an
independent director as defined under the rules of the principal market upon which shares of the
Corporations common stock is then traded (an Independent Director), the Board of Directors shall
select a director from among the Independent Directors to serve as the
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Lead Independent Director. The Lead Independent Director shall perform such duties as may be
assigned to the Lead Independent Director by these Bylaws or by the Board of Directors.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors.
The Board of Directors may from time to time designate committees of the Board of Directors,
with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board of Directors and shall, for those committees and any others provided for herein, elect a
director or directors to serve as the member or members, designating, if it desires, other
directors as alternate members who may replace any absent members at any meeting of the committee.
In the absence of any member of any committee and any alternate member in his or her place, the
member or members of the committee present at the meeting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act
at the meeting in the place of the absent member. Any Board committee may create one or more
subcommittees, each subcommittee to consist of one or more members of such committee, and delegate
to the subcommittee any or all of the powers of the committee.
4.2 Committee Minutes.
Each committee shall keep regular minutes of its meetings and maintain them in the
Corporations official minute book.
4.3 Conduct of Business.
Each committee may determine the procedural rules for meeting and conducting its business and
shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate
provision shall be made for notice to members of all meetings; one-half of the members shall
constitute a quorum; and all matters shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all members thereof consent thereto in
writing or by electronic transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of the proceedings of such committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
The Board of Directors may adopt rules for the governance of any committee not inconsistent
with these Bylaws.
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ARTICLE V
OFFICERS
5.1 Officers.
The officers of the Corporation shall be a chief executive officer, a president, a secretary,
and a chief financial officer. The Corporation may also have, at the discretion of the Board of
Directors, one or more vice presidents, one or more assistant secretaries, a treasurer and one or
more assistant treasurers, and any such other officers as may be appointed in accordance with these
Bylaws. Any number of offices may be held by the same person.
5.2 Appointment of Officers.
The officers of the Corporation, except such officers as may be appointed in accordance with
the provisions of Sections 5.3 or 5.5 of these Bylaws, shall be appointed by the Board of
Directors.
5.3 Subordinate Officers.
The Board of Directors may appoint, or empower the chief executive officer or the president to
appoint, such other officers and agents as the business of the Corporation may require, each of
whom shall hold office for such period, have such authority, and perform such duties as are
provided in these Bylaws or as the Board of Directors or such other officer may from time to time
determine. The Board of Directors may empower the chief executive officer or the president to
define the authority and duties of such subordinate officers.
5.4 Removal and Resignation of Officers.
Subject to the rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by an affirmative vote of the majority of the Board of
Directors at any regular or special meeting of the Board of Directors or, except in the case of an
officer chosen by the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the secretary of the
Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any
later time specified in that notice; and, unless otherwise specified in that notice, the acceptance
of the resignation shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to which the officer is a
party.
5.5 Vacancies in Offices.
Any vacancy occurring in any office of the Corporation shall be filled in the manner
prescribed in these Bylaws for regular appointments to that office.
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5.6 Chief Executive Officer.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
chairman of the board, the chief executive officer of the Corporation, the chief executive officer
shall be the principal executive officer of the company and shall, subject to the control of the
Board of Directors, have general supervision, direction, and control of the business and the
officers of the Corporation. He or she shall preside at all meetings of the stockholders and, in
the absence of a chairman of the board, at all meetings of the Board of Directors, shall have the
general powers and duties of management usually vested in the office of chief executive officer of
a Corporation and shall have such other powers and duties as may be prescribed by the Board of
Directors or these Bylaws.
5.7 President.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
chairman of the board or the chief executive officer, the president shall be the principal
operating officer of the company and shall, subject to the control of the Board of Directors, have
general supervision, direction, and control of the business and other officers of the Corporation.
He or she shall have the general powers and duties of management usually vested in the office of
president of a Corporation and such other powers and duties as may be prescribed by the Board of
Directors or these Bylaws.
5.8 Vice Presidents.
In the absence or disability of the chief executive officer and president, the vice
presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, a
vice president designated by the Board of Directors, shall perform all the duties of the president
and when so acting shall have all the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively (in order of priority) by the Board of
Directors, the chief executive officer, or the president.
5.9 Secretary.
The secretary shall keep or cause to be kept, at the principal executive office of the
Corporation or such other place as the Board of Directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors, and stockholders. The minutes shall
show the time and place of each meeting, the names of those present at directors meetings or
committee meetings, the number of shares present or represented at stockholders meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive office of the
Corporation or at the office of the Corporations transfer agent or registrar, as determined by
resolution of the Board of Directors, a share register, or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of shares held by each, the
number and date of certificates evidencing such shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
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The secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required to be given by law or by these Bylaws. He or she shall keep the
seal of the Corporation, if one be adopted, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by these Bylaws.
5.10 Chief Financial Officer.
The chief financial officer shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions of
the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital retained earnings, and shares.
The chief financial officer shall deposit all moneys and other valuables in the name and to
the credit of the Corporation with such depositories as may be designated by the Board of
Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the president, the chief executive officer, or the directors, upon
request, an account of all his or her transactions as chief financial officer and of the financial
condition of the Corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
5.11 Action with Respect to Securities of Other
Corporations.
Unless otherwise directed by the Board of Directors, the chief executive officer, the
president or any officer of the Corporation authorized by the chief executive officer or the
president is authorized to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other
corporation in which the Corporation may hold securities and otherwise to exercise any and all
rights and powers which the Corporation may possess by reason of its ownership of securities in
such other corporation.
5.12 Delegation of Authority.
Notwithstanding any other provision in these Bylaws, the Board of Directors may from time to
time delegate the powers or duties of any officer to any other officers or agents.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND OTHER AGENTS
AND OTHER AGENTS
6.1 Indemnification of Directors and Officers.
Each person who was or is made a party to or is threatened to be made a party to, witness or
other participant in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a Proceeding), by reason of the fact that he or she is or was a
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director or officer of the Corporation (an Indemnitee), whether the basis of the Proceeding
is alleged action in an official capacity as a director or officer or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation to provide before
such amendment), against all expense, liability and loss (including attorneys fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by Indemnitee in connection therewith; provided, however, the Corporation shall not
indemnify any such Indemnitee in connection with a Proceeding (or part thereof) (i) initiated by
such Indemnitee against the Corporation or any director or officer of the Corporation unless the
Corporation has joined in or consented to the initiation of such Proceeding or (ii) made on account
of Indemnitees conduct which constitutes a breach of Indemnitees duty of loyalty to the
Corporation or its stockholders, or is an act or omission not in good faith which involves
intentional misconduct or a knowing violation of the law. For purposes of this Section 6.1, a
director or officer of the Corporation includes any person who (i) is or was a director or
officer of the Corporation , (ii) is or was serving at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii)
was a director or officer of a corporation that was a predecessor corporation of the Corporation or
of another enterprise at the request of such predecessor corporation.
6.2 Indemnification of Others.
The Corporation shall have the power, to the maximum extent and in the manner permitted by the
DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide before such amendment), to indemnify each of its
employees and agents against all expense, liability and loss (including attorneys fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such employees and agents in connection therewith; provided, however, the Corporation
shall not indemnify any such employee or agent in connection with a Proceeding (or part thereof)
(i) initiated by such employee or agent against the Corporation or any director or officer of the
Corporation unless the Corporation has joined in or consented to the initiation of such Proceeding
or (ii) made on account of such employees or agents conduct which constitutes a breach of such
employees or agents duty of loyalty to the Corporation or its stockholders, or is an act or
omission not in good faith which involves intentional misconduct or a knowing violation of the law.
For purposes of this Section 6.2, an employee or agent of the Corporation includes any person
other than a director or officer (i) who is or was an employee or agent of the Corporation, (ii)
who is or was serving at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or
agent of a corporation which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation.
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6.3 Payment of Expenses in Advance.
Expenses incurred in defending any Proceeding for which indemnification is required pursuant
to Section 6.1 shall be, or for which indemnification is permitted pursuant to Section 6.2
following authorization thereof by the Board of Directors may be, paid by the Corporation in
advance of the final disposition of such Proceeding upon receipt of an undertaking, by or on behalf
of the indemnified party to repay such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified as authorized in this Article VI.
6.4 Indemnity Not Exclusive.
The indemnification provided by this Article VI shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an official capacity and
as to action in another capacity while holding such office.
6.5 Insurance.
The Corporation may purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability under the
provisions of the DGCL.
ARTICLE VII
RECORDS AND REPORTS
7.1 Maintenance and Inspection of Records.
The Corporation shall, either at its principal executive offices or at such place or places as
designated by the Board of Directors, keep a record of its stockholders listing their names and
addresses and the number and class of shares held by each stockholder, a copy of these Bylaws as
amended to date, accounting books and other records.
Any stockholder of record, in person or by attorney or other agent, shall, upon written demand
under oath stating the purpose thereof, have the right during the usual hours for business to
inspect for any proper purpose the Corporations stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such persons interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing that authorizes the attorney or
other agent to so act on behalf of the stockholder.
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The demand under oath shall be directed to the Corporation at its registered office in
Delaware or at its principal place of business.
A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order for each class of stock and showing the address of each such stockholder and the
number of shares registered in each such stockholders name, shall be open to the examination of
any such stockholder for a period of at least ten days before the meeting in the manner provided by
law. The stock list shall also be open to the examination of any stockholder during the whole time
of the meeting as provided by law. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by each of them.
7.2 Inspection by Directors.
Any director shall have the right to examine the Corporations stock ledger, a list of its
stockholders, and its other books and records for a purpose reasonably related to his or her
position as a director.
ARTICLE VIII
GENERAL MATTERS
8.1 Checks.
From time to time, the Board of Directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other
evidences of indebtedness that are issued in the name of or payable to the Corporation, and only
the persons so authorized shall sign or endorse those instruments.
8.2 Execution of Corporate Contracts and Instruments.
The Board of Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute any instrument in
the name of and on behalf of the Corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the Board of Directors or within the agency power
of an officer, no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
8.3 Stock Certificates.
The shares of the Corporation shall, unless determined otherwise by the board of directors, be
represented by certificates. Every stockholder shall be entitled to have a certificate signed by,
or in the name of the Corporation by the chairman or vice-chairman of the Board of Directors, or
the president or vice-president, and by the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the Corporation. Any or all of the signatures on the certificate may
be a facsimile. In case any officer, transfer agent or registrar
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who has signed or whose facsimile signature has been placed upon a certificate has ceased to
be such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if he or she were such officer, transfer agent or registrar
at the date of issue.
No stock certificates will be issued in bearer form.
8.4 Special Designation on Certificates.
If the Corporation is authorized to issue more than one class of stock or more than one series
of any class, then the powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall issue to represent
such class or series of stock; provided, however, that, except as otherwise provided in Section 202
of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of
the certificate that the Corporation shall issue to represent such class or series of stock a
statement that the Corporation will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences, and the relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
8.5 Lost Certificates.
Except as provided in this Section 8.5, no new certificates for shares shall be issued to
replace a previously issued certificate unless the latter is surrendered to the Corporation and
canceled at the same time. The Corporation may issue a new certificate of stock in the place of
any certificate previously issued by it, alleged to have been lost, stolen, mutilated or destroyed,
and the Corporation may require the owner of the lost, stolen, mutilated or destroyed certificate,
or the owners legal representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss, theft, mutilation or
destruction of any such certificate or the issuance of such new certificate.
8.6 Construction; Definitions.
Unless the context requires otherwise, the general provisions, rules of construction and
definitions in the DGCL shall govern the construction of these Bylaws. Without limiting the
generality of this provision, the singular number includes the plural, the plural number includes
the singular, and the term person includes both a corporation and a natural person.
8.7 Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors and
may be changed by the Board of Directors.
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8.8 Seal.
The Corporation may adopt a corporate seal, which may be altered at pleasure, and may use the
same by causing it or a facsimile thereof, to be impressed or affixed or in any other manner
reproduced.
8.9 Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an
office of the Corporation or by transfer agents designated to transfer shares of the stock of the
Corporation.
8.10 Registered Stockholders.
The Corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote as such owner and shall not be
bound to recognize any equitable or other claim to or interest in such share or shares on the part
of another person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
8.11 Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere specifically
authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may
be used whenever and as authorized by the Board of Directors or a committee thereof.
8.12 Forum Selection
The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i)
any derivative action or proceeding brought on behalf of the Corporation against directors or
officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such
directors or officers, (ii) any action asserting a claim for breach of fiduciary duty owed by any
director or officer of the Corporation to the Corporation or the Corporations stockholders, (iii)
any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL
or the Certificate of Incorporation or these Bylaws, (iv) any action to interpret, apply, enforce,
or determine the validity of the Certificate of Incorporation or these Bylaws, or (v) any action
asserting a claim against the Corporation governed by the internal affairs doctrine.
ARTICLE IX
AMENDMENTS
The Bylaws of the Corporation may be adopted, amended or repealed by the stockholders entitled
to vote; provided, however, that no bylaw may be adopted, amended or repealed by the stockholders
except by the vote or written consent of at least 66 2/3% of the
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voting power of the Corporation. The Corporation may, in its Certificate of Incorporation,
confer the power to adopt, amend or repeal Bylaws upon the Board of Directors. The fact that such
power has been so conferred upon the Board of Directors shall not divest the stockholders of the
power, nor limit their power, to adopt, amend or repeal Bylaws as set forth in this Article IX.
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