Attached files
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EX-23.1 - Global Eagle Entertainment Inc. | v210876_ex23-1.htm |
S-1 - Global Eagle Entertainment Inc. | v210876_s1.htm |
EX-10.4 - Global Eagle Entertainment Inc. | v210876_ex10-4.htm |
EX-10.6 - Global Eagle Entertainment Inc. | v210876_ex10-6.htm |
EX-10.7 - Global Eagle Entertainment Inc. | v210876_ex10-7.htm |
EX-10.1 - Global Eagle Entertainment Inc. | v210876_ex10-1.htm |
Exhibit 3.2
BY LAWS
OF
GLOBAL
EAGLE ACQUISITION CORP.
ARTICLE
I
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 Corporation’s 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
Section
2.1. Annual Meetings. The annual
meeting of stockholders shall be held at such place and time and on such date as
shall be determined by the Board and stated in the notice of the meeting,
provided that the Board may in its sole discretion determine that the meeting
shall not be held at any place, but may instead be held solely by means of
remote communication pursuant to Section 9.5(a).
At each annual meeting, the stockholders shall elect those directors of the
Corporation to fill any term of a directorship that expires on the date of such
annual meeting and may transact any other business as may properly be brought
before the meeting.
Section
2.2. Special Meetings. Subject to
the rights of the holders of any outstanding series of the Preferred Stock, and
to the requirements of applicable law, special meetings of stockholders, for any
purpose or purposes, may be called only by the Chairman of the Board, Chief
Executive Officer, or the Board pursuant to a resolution adopted by a majority
of the Whole Board (as defined below). Special meetings of stockholders shall be
held at such place and time and on such date as shall be determined by the Board
and stated in the Corporation’s 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.
1
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
Corporation’s 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 Corporation’s Certificate of Incorporation, as
the same may be amended or restated from time to time (the “Certificate of
Incorporation”) or these By Laws, the presence, in person or by proxy, at
a stockholders meeting of the holders of shares of outstanding capital stock of
the Corporation representing a majority of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote at such meeting
shall constitute a quorum for the transaction of business at such meeting,
except that when specified business is to be voted on by a class or series of
stock voting as a class, the holders of shares representing a majority of the
voting power of the outstanding shares of such class or series shall constitute
a quorum of such class or series for the transaction of such business. If a
quorum shall not be present or represented by proxy at any meeting of the
stockholders of the Corporation, the chairman of the meeting may adjourn the
meeting from time to time in the manner provided in Section 2.6 until a
quorum shall attend. The stockholders present at a duly convened meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. Shares of its own stock
belonging to the Corporation or to another corporation, if a majority of the
voting power of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation or any
such other corporation to vote shares held by it in a fiduciary
capacity.
Section
2.5. Voting of Shares.
(a) Voting Lists. The
Secretary shall prepare, or shall cause the officer or agent who has charge of
the stock ledger of the Corporation to prepare, at least 10 days before
every meeting of stockholders, a complete list of the stockholders of record
entitled to vote thereat arranged in alphabetical order and showing the address
and the number of shares registered in the name of each stockholder. Nothing
contained in this Section 2.5(a)
shall require the Corporation to include electronic mail addresses or other
electronic contact information on such list. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours for a period of at least 10 days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the principal place of
business of the Corporation. In the event that the Corporation determines to
make the list available on an electronic network, the Corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
If a meeting of stockholders is to be held solely by means of remote
communication as permitted by Section 9.5(a),
the list shall be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list required by this Section 2.5(a)
or to vote in person or by proxy at any meeting of
stockholders.
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(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 person’s 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 stockholder’s authorized officer, director, employee or agent signing
such writing or causing such person’s 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 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.
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(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.
4
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
Corporation’s 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 stockholder’s 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, or in the case of the first
annual meeting which is called following the organization of the Corporation,
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. The public announcement of an adjournment of an annual
meeting shall not commence a new time period for the giving of a stockholder’s
notice as described in this Section 2.7(a).
(ii) To
be in proper written form, a stockholder’s notice to the Secretary with respect
to any business (other than nominations) must set forth as to each such matter
such stockholder proposes to bring before the annual meeting (A) a brief
description of the business desired to be brought before the annual meeting, the
text of the proposal or business (including the text of any resolutions proposed
for consideration and in the event such business includes a proposal to amend
these By Laws, the language of the proposed amendment) and the reasons for
conducting such business at the annual meeting, (B) the name and record
address of such stockholder and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (C) the class or series and
number of shares of capital stock of the Corporation that are owned beneficially
and of record by such stockholder and by the beneficial owner, if any, on whose
behalf the proposal is made, (D) a description of all arrangements or
understandings between such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made and any other person or persons (including
their names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in such business
and (F) a representation that such stockholder intends to appear in person
or by proxy at the annual meeting to bring such business before the
meeting.
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(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
stockholder’s 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 stockholder’s 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 Corporation’s 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
Corporation’s 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 Corporation’s notice of meeting only pursuant to
Section 3.2.
(c) Public Announcement.
For purposes of these By Laws, “public
announcement” shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
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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 initial public offering (“Offering”),
any action required to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted, and shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation’s
registered office shall be by hand or by certified or registered mail, return
receipt requested.
Every
written consent shall bear the date of signature of each stockholder who signs
the consent, and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated
consent delivered in the manner required by this section and Delaware Law to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt
requested.
7
ARTICLE
III
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 Corporation’s 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 stockholder’s
notice to the Secretary must be received by the Secretary at the principal
executive offices of the Corporation (i) in the case of an annual meeting,
not later than the close of business on the 90th day nor earlier than the
opening of business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within
45 days before or after such anniversary date, notice by the stockholder to
be timely must be so received not earlier than the opening of business on the
120th day before the meeting and not later than the later of (x) the close
of business on the 90th day before the meeting or (y) the close of business
on the 10th day following the day on which public announcement of the date of
the annual meeting was first made by the Corporation; and (ii) in the case
of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the 10th day following the
day on which public announcement of the date of the special meeting is first
made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting or special meeting commence a new time period
for the giving of a stockholder’s notice as described in this Section 3.2.
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(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
stockholder’s 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 stockholder’s notice to the Secretary must set
forth (i) as to each person whom the stockholder proposes to nominate for
election as a director (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the
person, (C) the class or series and number of shares of capital stock of
the Corporation that are owned beneficially or of record by the person and
(D) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; and (ii) as to the stockholder giving the notice (A) the
name and record address of such stockholder and the name and address of the
beneficial owner, if any, on whose behalf the nomination is made, (B) the
class or series and number of shares of capital stock of the Corporation that
are owned beneficially and of record by such stockholder and the beneficial
owner, if any, on whose behalf the nomination is made, (C) a description of
all arrangements or understandings relating to the nomination to be made by such
stockholder among such stockholder, the beneficial owner, if any, on whose
behalf the nomination is made, each proposed nominee and any other person or
persons (including their names), (D) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such stockholder
and the beneficial owner, if any, on whose behalf the nomination is made that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
(e) If
the Board or the chairman of the meeting of stockholders determines that any
nomination was not made in accordance with the provisions of this Section 3.2,
then such nomination shall not be considered at the meeting in question.
Notwithstanding the foregoing provisions of this Section 3.2, if
the stockholder (or a qualified representative of the stockholder) does not
appear at the meeting of stockholders of the Corporation to present the
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such nomination may have been received by the
Corporation.
(f) In
addition to the provisions of this Section 3.2, a
stockholder shall also comply with all of the applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 3.2
shall be deemed to affect any rights of the holders of Preferred Stock to elect
directors pursuant to the Certificate of Incorporation.
9
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
Section
4.1. Annual Meetings. The Board
shall meet as soon as practicable after the adjournment of each annual
stockholders meeting at the place of the annual stockholders meeting unless the
Board shall fix another time and place and give notice thereof in the manner
required herein for special meetings of the Board. No notice to the directors
shall be necessary to legally convene this meeting, except as provided in this
Section 4.1.
Section
4.2. Regular Meetings. Regularly
scheduled, periodic meetings of the Board may be held without notice at such
times, dates and places as shall from time to time be determined by the
Board.
Section
4.3. Special Meetings. Special
meetings of the Board (a) may be called by the Chairman of the Board or
President and (b) shall be called by the Chairman of the Board, President
or Secretary on the written request of at least a majority of directors then in
office, or the sole director, as the case may be, and shall be held at such
time, date and place as may be determined by the person calling the meeting or,
if called upon the request of directors or the sole director, as specified in
such written request. Notice of each special meeting of the Board shall be
given, as provided in Section 9.3, to
each director (i) at least 24 hours before the meeting if such notice is
oral notice given personally or by telephone or written notice given by hand
delivery or by means of a form of electronic transmission and delivery;
(ii) at least two days before the meeting if such notice is sent by a
nationally recognized overnight delivery service; and (iii) at least five
days before the meeting if such notice is sent through the United States mail.
If the Secretary shall fail or refuse to give such notice, then the notice may
be given by the officer who called the meeting or the directors who requested
the meeting. Any and all business that may be transacted at a regular meeting of
the Board may be transacted at a special meeting. Except as may be otherwise
expressly provided by applicable law, the Certificate of Incorporation, or these
By Laws, neither the business to be transacted at, nor the purpose of, any
special meeting need be specified in the notice or waiver of notice of such
meeting. A special meeting may be held at any time without notice if all the
directors are present or if those not present waive notice of the meeting in
accordance with Section 9.4.
Section
4.4. Quorum; Required Vote. A
majority of the Whole Board shall constitute a quorum for the transaction of
business at any meeting of the Board, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board,
except as may be otherwise specifically provided by applicable law, the
Certificate of Incorporation or these By Laws. If a quorum shall not be present
at any meeting, a majority of the directors present may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum is present.
10
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
Section
5.1. Establishment. The Board may
by resolution passed by a majority of the Whole Board designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. Each committee shall keep regular minutes of its meetings and
report the same to the Board when required. The Board shall have the power at
any time to fill vacancies in, to change the membership of, or to dissolve any
such committee.
Section
5.2. Available Powers. Any
committee established pursuant to Section 5.1
hereof, to the extent permitted by applicable law and by resolution of the
Board, shall have and may exercise all of the powers and authority of the Board
in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers that may
require it.
Section
5.3. Alternate Members. The Board
may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of such
committee.
11
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
Section
6.1. Officers. The officers of the
Corporation elected by the Board shall be a Chairman of the Board, a Chief
Executive Officer, a President, a Chief Financial Officer, a Secretary and such
other officers (including without limitation, Vice Presidents, Assistant
Secretaries and a Treasurer) as the Board from time to time may determine.
Officers elected by the Board shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific
provisions of this Article VI. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board. The Chief Executive Officer or President may also
appoint such other officers (including without limitation one or more Vice
Presidents and Controllers) as may be necessary or desirable for the conduct of
the business of the Corporation. Such other officers shall have such powers and
duties and shall hold their offices for such terms as may be provided in these
By Laws or as may be prescribed by the Board or, if such officer has been
appointed by the Chief Executive Officer or President, as may be prescribed by
the appointing officer.
(a) Chairman of the
Board. The Chairman of the Board shall preside when present at all
meetings of the stockholders and the Board. The Chairman of the Board shall have
general supervision and control of the acquisition activities of the Corporation
subject to the ultimate authority of the Board, and shall be responsible for the
execution of the policies of the Board with respect to such matters. In the
absence (or inability or refusal to act) of the Chairman of the Board, the Chief
Executive Officer (if he or she shall be a director) shall preside when present
at all meetings of the stockholders and the Board. The powers and duties of the
Chairman of the Board shall not include supervision or control of the
preparation of the financial statements of the Company (other than through
participation as a member of the Board).
(b) Chief Executive
Officer. The Chief Executive Officer shall be the chief executive officer
of the Corporation, shall have general supervision of the affairs of the
Corporation and general control of all of its business subject to the ultimate
authority of the Board, and shall be responsible for the execution of the
policies of the Board with respect to such matters, except to the extent any
such powers and duties have been prescribed to the Chairman of the Board
pursuant to Section 6.1(a)
above. In the absence (or inability or refusal to act) of the Chairman of the
Board, the Chief Executive Officer (if he or she shall be a director) shall
preside 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.
12
(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 Corporation’s transfer agent or
registrar, if one has been appointed, a stock ledger, or duplicate stock ledger,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each and, with respect to certificated shares, the
number and date of certificates issued for the same and the number and date of
certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the
Assistant Secretaries in the order determined by the Board shall, in the absence
(or inability or refusal to act) of the Secretary, perform the duties and have
the powers of the Secretary.
(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 Officer’s 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).
13
(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
Section
7.1. Certificated and Uncertificated
Shares. The shares of the Corporation may be certificated or
uncertificated, subject to the sole discretion of the Board.
Section
7.2. Multiple Classes of Stock. If
the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the Corporation shall (a) cause the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights to be set forth in
full or summarized on the face or back of any certificate that the Corporation
issues to represent shares of such class or series of stock or (b) in the
case of uncertificated shares, within a reasonable time after the issuance or
transfer of such shares, send to the registered owner thereof a written notice
containing the information required to be set 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.
14
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.
(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.
15
Section
7.6. Transfer of
Stock.
(a) If
a certificate representing shares of the Corporation is presented to the
Corporation with an endorsement requesting the registration of transfer of such
shares or an instruction is presented to the Corporation requesting the
registration of transfer of uncertificated shares, the Corporation shall
register the transfer as requested if:
(i) in
the case of certificated shares, the certificate representing such shares has
been surrendered;
(ii) (A) with
respect to certificated shares, the endorsement is made by the person specified
by the certificate as entitled to such shares; (B) with respect to
uncertificated shares, an instruction is made by the registered owner of such
uncertificated shares; or (C) with respect to certificated shares or
uncertificated shares, the endorsement or instruction is made by any other
appropriate person or by an agent who has actual authority to act on behalf of
the appropriate person;
(iii) the
Corporation has received a guarantee of signature of the person signing such
endorsement or instruction or such other reasonable assurance that the
endorsement or instruction is genuine and authorized as the Corporation may
request;
(iv) the
transfer does not violate any restriction on transfer imposed by the Corporation
that is enforceable in accordance with Section 7.8(a);
and
(v)
such other conditions for such transfer as shall be provided for under
applicable law have been satisfied.
(b) Whenever
any transfer of shares shall be made for collateral security and not absolutely,
the Corporation shall so record such fact in the entry of transfer if, when the
certificate for such shares is presented to the Corporation for transfer or, if
such shares are uncertificated, when the instruction for registration of
transfer thereof is presented to the Corporation, both the transferor and
transferee request the Corporation to do so.
Section
7.7. Registered Stockholders.
Before due presentment for registration of transfer of a certificate
representing shares of the Corporation or of an instruction requesting
registration of transfer of uncertificated shares, the Corporation may treat the
registered owner as the person exclusively entitled to inspect for any proper
purpose the stock ledger and the other books and records of the Corporation,
vote such shares, receive dividends or notifications with respect to such shares
and otherwise exercise all the rights and powers of the owner of such shares,
except that a person who is the beneficial owner of such shares (if held in a
voting trust or by a nominee on behalf of such person) may, upon providing
documentary evidence of beneficial ownership of such shares and satisfying such
other conditions as are provided under applicable law, may also so inspect the
books and records of the Corporation.
16
Section
7.8. Effect of the Corporation’s
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
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 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.
17
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 Corporation’s 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.
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.
18
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 Indemnitee’s heirs, executors and administrators.
Section
8.10. Severability. If any provision
or provisions of this Article VIII
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions
of this Article VIII
shall not in any way be affected or impaired thereby; and (b) to the
fullest extent possible, the provisions of this Article VIII
(including, without limitation, each such portion of this Article VIII
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
19
ARTICLE
IX
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 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 director’s 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 director’s 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.
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(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 stockholder’s 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 stockholder’s 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 stockholder’s 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 Corporation’s transfer agent, or other person responsible for the
giving of notice; provided, however, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other
action.
(c) Electronic
Transmission. “Electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process,
including but not limited to transmission by telex, facsimile telecommunication,
electronic mail, telegram and cablegram.
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(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 stockholder’s 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
stockholder’s 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 stockholder’s then current address, the requirement
that notice be given to such stockholder shall be reinstated. In the event that
the action taken by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the certificate need not
state that notice was not given to persons to whom notice was not required to be
given pursuant to Section 230(b) of the DGCL. The exception in subsection
(1) of the first sentence of this paragraph to the requirement that notice
be given shall not be applicable to any notice returned as undeliverable if the
notice was given by electronic transmission.
Section
9.4. Waiver of Notice. Whenever any
notice is required to be given under applicable law, the Certificate of
Incorporation, or these By Laws, a written waiver of such notice, signed before
or after the date of such meeting by the person or persons entitled to said
notice, or a waiver by electronic transmission by the person entitled to said
notice, shall be deemed equivalent to such required notice. All such waivers
shall be kept with the books of the Corporation. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except where a person attends for
the express purpose of objecting to the transaction of any business on the
ground that the meeting was not lawfully called or convened.
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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 Corporation’s capital stock) on the Corporation’s
outstanding shares of capital stock, subject to applicable law and the
Certificate of Incorporation.
Section
9.7. Reserves. The Board may set
apart out of the funds of the Corporation available for dividends a reserve or
reserves for any proper purpose and may abolish any such reserve.
Section
9.8. Contracts and Negotiable
Instruments. Except as otherwise provided by applicable law, the
Certificate of Incorporation or these By Laws, any contract, bond, deed, lease,
mortgage or other instrument may be executed and delivered in the name and on
behalf of the Corporation by such officer or officers or other employee or
employees of the Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the Board may
determine. The Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer 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, the Chief Financial Officer, the Treasurer 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 person’s
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.
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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 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.
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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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