Attached files
file | filename |
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S-1/A - FORM S-1/A - AIR LEASE CORP | v57988a2sv1za.htm |
EX-23.3 - EX-23.3 - AIR LEASE CORP | v57988a2exv23w3.htm |
EX-10.5 - EX-10.5 - AIR LEASE CORP | v57988a2exv10w5.htm |
EX-10.3 - EX-10.3 - AIR LEASE CORP | v57988a2exv10w3.htm |
EX-21.1 - EX-21.1 - AIR LEASE CORP | v57988a2exv21w1.htm |
EX-23.1 - EX-23.1 - AIR LEASE CORP | v57988a2exv23w1.htm |
EX-10.4 - EX-10.4 - AIR LEASE CORP | v57988a2exv10w4.htm |
EX-10.18 - EX-10.18 - AIR LEASE CORP | v57988a2exv10w18.htm |
EX-10.12 - EX-10.12 - AIR LEASE CORP | v57988a2exv10w12.htm |
EX-10.17 - EX-10.17 - AIR LEASE CORP | v57988a2exv10w17.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
AIR LEASE CORPORATION
(a Delaware corporation)
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
CORPORATE OFFICES
Section 1.1 Registered Office. The registered office of the Corporation shall be
fixed in the Restated Certificate of Incorporation of the Corporation.
Section 1.2 Other Offices. The Corporation may also have an office or offices, and
keep the books and records of the Corporation, except as may otherwise be required by law, at such
other place or places, either within or without the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting of stockholders, for the election of
directors and for the transaction of such other business as may properly come before the meeting,
shall be held at such place, if any, on such date, and at such time as may be determined by the
Board of Directors.
Section 2.2 Special Meeting. Subject to the rights of the holders of any series of
Preferred Stock, a special meeting of the stockholders may be called at any time only by the
Chairman of the Board of Directors, the Chief Executive Officer or by action of the Board of
Directors.
Section 2.3 Notice of Stockholders Meetings.
(a) Notice of the place, if any, date, and time of all meetings of the stockholders, the
record date for determining the stockholders entitled to vote at the meeting (if such date is
different from the record date for determining the stockholders entitled to notice of the 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 meeting, shall be given, not less than 10 nor more
than 60 days before the date on which the meeting is to be held, to each stockholder entitled to
vote at such meeting as of the record date for determining the stockholders entitled to notice of
the meeting, except as otherwise provided herein or required by law. In the case of a special
meeting, the purpose or purposes for which the meeting is called also shall be set forth in the
notice. Notice may be given personally, by mail or by electronic transmission in accordance with
Section 232 of the General Corporation Law of the State of Delaware (the DGCL). If
mailed, such
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notice shall be deemed given when deposited in the United States mail, postage prepaid,
directed to each stockholder at such stockholders address appearing on the books of the
Corporation or given by the stockholder for such purpose. Notice by electronic transmission shall
be deemed given as provided in Section 232 of the DGCL. An affidavit of the mailing or other means
of giving any notice of any stockholders meeting, executed by the Secretary, Assistant Secretary
or any transfer agent of the Corporation giving the notice, shall be prima facie evidence of the
giving of such notice or report. Notice shall be deemed to have been given to all stockholders of
record who share an address if notice is given in accordance with the householding rules set
forth in Rule 14a-3(e) under the Securities Exchange Act of 1934, as amended (the Exchange
Act) and Section 233 of the DGCL.
(b) When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the place, if any, date and time 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 called, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting. If after the
adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting,
the Board of Directors shall fix a new record date for notice of such adjourned meeting in
accordance with Section 7.7(a) of these Bylaws, and shall give notice of the adjourned meeting to
each stockholder of record entitled to vote at such adjourned meeting as of the record date for
notice of such adjourned meeting.
(c) Notice of any meeting of stockholders may be waived in writing, either before or after the
meeting, and to the extent permitted by law, will be waived by any stockholder by attendance
thereat, in person or by proxy, except when the person objects at the beginning of the meeting to
the transaction of any business because the meeting is not lawfully called or convened.
Section 2.4 Organization.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board of Directors,
if any, or in his or her absence by a person designated by the Board of Directors, or in the
absence of a person so designated by the Board of Directors, by a Chairman chosen at the meeting by
the holders of a majority in voting power of the stock entitled to vote thereat, present in person
or represented by proxy. The Secretary, or in his or her absence, an Assistant Secretary, or in
the absence of the Secretary and all Assistant Secretaries, a person whom the Chairman of the
meeting shall appoint, shall act as Secretary of the meeting and keep a record of the proceedings
thereof.
(b) The Board of Directors shall be entitled to make such rules or regulations for the conduct
of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such
rules and regulations of the Board of Directors, if any, the Chairman of the meeting shall have the
right and authority to prescribe such
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rules, regulations and procedures and to do all such acts as, in the judgment of such
Chairman, are necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business for the meeting, rules
and procedures for maintaining order at the meeting and the safety of those present, limitations on
participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies and such other persons as the Chairman shall permit, restrictions on entry
to the meeting after the time fixed for the commencement thereof, limitations on the time allotted
to questions or comments by participants and regulation of the opening and closing of the polls for
balloting and matters which are to be voted on by ballot.
Section 2.5 List of Stockholders. The officer who has charge of the stock ledger
shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, provided, however, that if the
record date for determining the stockholders entitled to vote is less than 10 days before the date
of the meeting, the list shall reflect the stockholders entitled to vote as of the 10th day before
the meeting date. Such list shall be arranged in alphabetical order and shall show the address of
each stockholder and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to the meeting at
least 10 days prior to the meeting (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided with the
notice of meeting or (b) during ordinary business hours at the principal place of business of the
Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote
at the meeting shall be produced and kept at the time and place of the meeting during the whole
time thereof and may be examined by any stockholder who is present. If the meeting is to be held
solely by means of remote communication, then the list shall also 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 the meeting.
Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders required by this Section 2.5 or to vote
in person or by proxy at any meeting of stockholders.
Section 2.6 Quorum. At any meeting of stockholders, the holders of a majority in
voting power of all issued and outstanding stock entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business; provided
that where a separate vote by a class or series is required, the holders of a majority in voting
power of all issued and outstanding stock of such class or series entitled to vote on such matter,
present in person or represented by proxy, shall constitute a quorum entitled to take action with
respect to such matter. If a quorum is not present or represented at any meeting of stockholders,
then the Chairman of the meeting or the holders of a majority in voting power of the stock entitled
to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting
from time to time in accordance with Section 2.7, without notice other than announcement at the
meeting and except as provided in Section 2.3(b), until a quorum is present or represented. If a
quorum initially is present at any meeting of stockholders, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
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stockholders to leave less than a quorum, but if a quorum is not present at least initially,
no business other than adjournment may be transacted.
Section 2.7 Adjourned Meeting. Any annual or special meeting of stockholders, whether
or not a quorum is present, may be adjourned for any reason from time to time by either the
Chairman of the meeting or the holders of a majority in voting power of the stock entitled to vote
thereat, present in person or represented by proxy. At any such adjourned meeting at which a
quorum may be present, any business may be transacted that might have been transacted at the
meeting as originally called.
Section 2.8 Voting.
(a) Except as otherwise provided by law or the Certificate of Incorporation, each holder of
stock of the Corporation entitled to vote at any meeting of stockholders shall be entitled to one
vote for each share of such stock held of record by such holder on all matters submitted to a vote
of stockholders of the Corporation.
(b) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at
each meeting of stockholders at which a quorum is present, all corporate actions to be taken by
vote of the stockholders shall be authorized by the affirmative vote of the holders of a majority
in voting power of the stock entitled to vote thereat, present in person or represented by proxy,
and where a separate vote by class or series is required, if a quorum of such class or series is
present, such act shall be authorized by the affirmative vote of the holders of a majority in
voting power of the stock of such class or series entitled to vote thereat, present in person or
represented by proxy.
Section 2.9 Proxies. Every person entitled to vote for directors, or on any other
matter, shall have the right to do so either in person or by one or more agents authorized by a
written proxy, which may be in the form of a telegram, cablegram or other means of electronic
transmission, signed by the person and filed with the Secretary of the Corporation, but no such
proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a
longer period. A proxy shall be deemed signed if the stockholders name is placed on the proxy by
the stockholder or the stockholders attorney-in-fact. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary
of the Corporation. A proxy is not revoked by the death or incapacity of the maker unless, before
the vote is counted, written notice of such death or incapacity is received by the Corporation.
Section 2.10 Notice of Stockholder Business and Nominations.
(a) Annual Meeting.
(i) Nominations of persons for election to the Board of Directors and the proposal of
business other than nominations to be considered by
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the stockholders may be made at an annual meeting of stockholders only (A) pursuant to
the Corporations notice of meeting (or any supplement thereto), (B) by or at the direction
of the Board of Directors (or any committee thereof) or (C) by any stockholder of the
Corporation who is a stockholder of record at the time the notice provided for in this
Section 2.10(a) is delivered to the Secretary of the Corporation, who is entitled to vote
at the meeting and who complies with the notice procedures set forth in this Section
2.10(a).
(ii) For nominations or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (C) of the foregoing paragraph, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation and such
business must be a proper subject for stockholder action. To be timely, a stockholders
notice must be delivered to 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 close
of business on the 120th day prior to the first anniversary of the preceding years annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 70 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the close of
business on the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the 10th day
following the date on which public announcement (as defined below) of the date of such
meeting is first made by the Corporation. In no event shall the public announcement of an
adjournment or postponement of an 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:
(A) as to each person whom the stockholder proposes to nominate for election
or re-election as a director (1) all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors in
an election contest, or is otherwise required, in each case pursuant to and in
accordance with Regulation 14A under the Exchange Act and (2) such persons written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected;
(B) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business includes
a proposal to amend the Bylaws of the Corporation, the language of the proposed
amendment), the reasons for conducting such business at the meeting and any
substantial interest (within the meaning of Item 5 of Schedule 14A under the
Exchange Act) in such business of such stockholder and the beneficial owner (within
the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the
proposal is made;
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(C) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination is made or the business is proposed:
(1) the name and address of such stockholder, as they appear on the
Corporations books, and the name and address of such beneficial owner,
(2) the class and number of shares of capital stock of the Corporation
which are owned of record by such stockholder and such beneficial owner as
of the date of the notice, and a representation that the stockholder will
notify the Corporation in writing, within five business days after the
record date for such meeting, of the class and number of shares of capital
stock of the Corporation owned of record by the stockholder and such
beneficial owner as of the record date for the meeting (except as otherwise
provided in Section 2.10(a)(iii) below), and
(3) a representation that the stockholder intends to appear in person
or by proxy at the meeting to propose such nomination or business;
(D) as to the stockholder giving the notice or, if the notice is given on
behalf of a beneficial owner on whose behalf the nomination is made or the business
is proposed, as to such beneficial owner:
(1) the class and number of shares of capital stock of the Corporation
which are beneficially owned (as defined below) by such stockholder or
beneficial owner as of the date of the notice, and a representation that
the stockholder will notify the Corporation in writing, within five
business days after the record date for such meeting, of the class and
number of shares of capital stock of the Corporation beneficially owned by
such stockholder or beneficial owner as of the record date for the meeting
(except as otherwise provided in Section 2.10(a)(iii) below),
(2) a description of any agreement, arrangement or understanding with
respect to the nomination or other business between or among such
stockholder or beneficial owner and any other person, including without
limitation any agreements that would be required to be disclosed pursuant
to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the
requirement to file a Schedule 13D is applicable to the stockholder or
beneficial owner) and a representation that the stockholder will notify the
Corporation in writing, within five business days after the record date for
such meeting, of any such agreement, arrangement or
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understanding in effect as of the record date for the meeting (except
as otherwise provided in Section 2.10(a)(iii) below),
(3) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
hedging transactions, and borrowed or loaned shares) that has been entered
into as of the date of the stockholders notice by, or on behalf of, such
stockholder or beneficial owner, the effect or intent of which is to
mitigate loss, manage risk or benefit from changes in the share price of
any class of the Corporations capital stock, or maintain, increase or
decrease the voting power of the stockholder or beneficial owner with
respect to shares of stock of the Corporation, and a representation that
the stockholder will notify the Corporation in writing within five business
days after the record date for such meeting of any such agreement,
arrangement or understanding in effect as of the record date for the
meeting (except as otherwise provided in Section 2.10(a)(iii) below), and
(4) a representation whether the stockholder or the beneficial owner,
if any, will engage in a solicitation with respect to the nomination or
business and, if so, the name of each participant (as defined in Item 4 of
Schedule 14A under the Exchange Act) in such solicitation and whether such
person intends or is part of a group which intends 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 approve or adopt the
business to be proposed (in person or by proxy) by the stockholder.
(iii) The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the eligibility
of such proposed nominee to serve as a director of the Corporation, including information
relevant to a determination whether such proposed nominee can be considered an independent
director. Notwithstanding anything in Section 2.10(a)(ii) above to the contrary, if the
record date for determining the stockholders entitled to vote at any meeting of
stockholders is different from the record date for determining the stockholders entitled to
notice of the meeting, a stockholders notice required by this Section 2.10(a) shall set
forth a representation that the stockholder will notify the Corporation in writing within
five business days after the record date for determining the stockholders entitled to vote
at the meeting, or by the opening of business on the date of the meeting (whichever is
earlier), of the information required under clauses (a)(ii)(C)(2) and (a)(ii)(D)(1)-(3) of
this Section 2.10, and such information when provided to the Corporation shall be current
as of the record date for determining the stockholders entitled to vote at the meeting.
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(iv) This Section 2.10(a) shall not apply to a proposal or nomination proposed to be
made by a stockholder if the stockholder has notified the Corporation of his or her
intention to present the proposal or nomination at an annual or special meeting only
pursuant to and in compliance with Rule 14a-8 under the Exchange Act or any other rule
promulgated under Section 14 of the Exchange Act and such proposal or nominee has been
included in a proxy statement that has been prepared by the Corporation to solicit proxies
for such meeting.
(v) Notwithstanding anything in this Section 2.10(a) to the contrary, in the event
that the number of directors to be elected to the Board of Directors at an annual meeting
is increased and there is no public announcement naming all of the nominees for directors
or specifying the size of the increased Board of Directors made by the Corporation at least
90 days prior to the first anniversary of the preceding years annual meeting, a
stockholders notice required by this Section 2.10(a) 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.
(b) Special Meeting. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the Corporations notice of
meeting. Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporations notice
of meeting (i) by or at the direction of the Board of Directors (or any committee thereof) or (ii)
provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.10(b) is delivered to the Secretary of the Corporation, who
is entitled to vote at the meeting and upon such election and who complies with the notice
procedures set forth in this Section 2.10. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of Directors, any such
stockholder entitled to vote in such election of directors may nominate a person or persons (as the
case may be) for election to such position(s) as specified in the Corporations notice of meeting,
if the notice required by paragraph (a)(ii) of this Section 2.10 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the close of business on
the later of the 90th day prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of the nominees proposed
by the Board of Directors to be elected at such meeting. In no event shall the public announcement
of an adjournment or postponement of a special meeting commence a new time period (or extend any
time period) for the giving of a stockholders notice as described above.
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(c) General.
(i) Except as otherwise provided by law, only such persons who are nominated in
accordance with the procedures set forth in this Section 2.10 shall be eligible to be
elected at any meeting of stockholders of the Corporation to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section 2.10. The
Chairman of the Board of Directors shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth in this Section 2.10
(including whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited) or did not
so solicit, as the case may be, proxies in compliance with such stockholders
representation as required by clause (a)(ii)(D)(4) of this Section 2.10). If any proposed
nomination or business was not made or proposed in compliance with this Section 2.10, then
except as otherwise provided by law, the Chairman of the meeting shall have the power and
duty to declare that such nomination shall be disregarded or that such proposed business
shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.10,
unless otherwise required by law, if the stockholder does not provide the information
required under clauses (a)(ii)(C)(2) and (a)(ii)(D)(1)-(3) of this Section 2.10 to the
Corporation within the times frames specified herein, or if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or proposed business, such
nomination shall be disregarded and such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 2.10, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer, manager or
partner of such stockholder or authorized by a writing executed by such stockholder (or a
reliable reproduction or electronic transmission of the writing) delivered to the
Corporation prior to the making of such nomination or proposal at such meeting by such
stockholder stating that such person is authorized to act for such stockholder as proxy at
the meeting of stockholders.
(ii) For purposes of this Section 2.10, a 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 Sections 13, 14 or 15(d) of the Exchange
Act. For purposes of clause (a)(ii)(D)(1) of this Section 2.10, shares shall be treated as
beneficially owned by a person if the person beneficially owns such shares,
directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Regulations
13D and 13G thereunder or has or shares pursuant to any agreement, arrangement or
understanding (whether or not in writing): (A) the right to acquire such shares (whether
such right is exercisable immediately or only after the passage of time or the fulfillment
of a condition or both), (B) the right to vote such shares, alone or in concert with others
and/or
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(C) investment power with respect to such shares, including the power to dispose of, or to
direct the disposition of, such shares.
(iii) Nothing in this Section 2.10 shall be deemed to affect any rights of the holders
of any series of Preferred Stock to elect directors pursuant to any applicable provisions
of the Certificate of Incorporation.
Section 2.11 No Action by Written Consent. Subject to the rights of the holders of
any series of Preferred Stock, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly held meeting of stockholders of the Corporation at which
a quorum is present or represented, and may not be effected by any consent in writing by such
stockholders.
Section 2.12 Inspectors of Election. Before any meeting of stockholders, the Board of
Directors shall appoint one or more inspectors of election to act at the meeting or its
adjournment. If any person appointed as inspector fails to appear or fails or refuses to act, then
the Chairman of the meeting may, and upon the request of any stockholder or a stockholders proxy
shall, appoint a person to fill that vacancy. Inspectors need not be stockholders. No director or
nominee for the office of director shall be appointed such an inspector.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of each, the number of
shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and
effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way arising in connection with the
right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or vote with fairness to all
stockholders.
The inspectors of election shall perform their duties impartially, in good faith, to the best
of their ability and as expeditiously as is practical. Any report or certificate made by the
inspectors of election shall be prima facie evidence of the facts stated therein.
Section 2.13 Meetings by Remote Communications. The Board of Directors may, in its
sole discretion, determine that a meeting of stockholders shall not be held at any place, but may
instead be held solely by means of remote communication in accordance
10
with Section 211(a)(2) of the DGCL. If authorized by the Board of Directors in its sole
discretion, and subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxyholders not physically present at a meeting of stockholders may, by means of
remote communication (a) participate in a meeting of stockholders and (b) 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 (i) 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 proxyholder; (ii) the Corporation
shall implement reasonable measures to provide such stockholders and proxyholders 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 (iii) if any stockholder or proxyholder votes or takes other action at
the meeting by means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
ARTICLE III
DIRECTORS
DIRECTORS
Section 3.1 Powers. Subject to the provisions of the DGCL and to any limitations in
the Certificate of Incorporation or these Bylaws relating to action required to be approved by the
stockholders, the business and affairs of the Corporation shall be managed and shall be exercised
by or under the direction of the Board of Directors. In addition to the powers and authorities
these Bylaws expressly confer upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the Certificate of
Incorporation or these Bylaws required to be exercised or done by the stockholders.
Section 3.2 Number, Term of Office and Election.
(a) The Board of Directors shall consist of such number of directors as determined from time
to time by resolution of the Board of Directors. With the exception of the first Board of
Directors, which shall be elected by the incorporator, and except as provided in Section 3.2(b) and
Section 3.3, directors shall be elected by a majority of the shares present and entitled to vote at
the stockholders annual meeting in each year. Directors need not be stockholders unless so
required by the Certificate of Incorporation or these Bylaws, wherein other qualifications for
directors may be prescribed.
(b) A nominee for directors shall be elected to the Board of Directors if the votes cast for
such nominees election exceed the votes cast against such nominees election; provided,
however, that directors shall be elected by a plurality of the votes cast at any meeting of
stockholders for which (i) the Secretary of the Corporation receives notices that a stockholder has
nominated a person for election to the Board of Directors in compliance with the advance notice
requirements for stockholder nominees set forth in Section 2.10(a)(ii) of these Bylaws and (ii)
such nomination has not been withdrawn by such stockholder on or prior to the day next preceding
the date the Corporation first mails
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its notice of meeting for such meeting to the stockholders. If directors are to be elected by
a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee.
Section 3.3 Vacancies. Subject to the rights of the holders of any one or more 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, disqualification, removal from office or other cause shall, unless
otherwise provided by law or by resolution of the Board of Directors, be filled solely by the
affirmative vote of a majority of the remaining directors then in office, though less than a
quorum, and directors so chosen shall hold office until the expiration of the term of office of the
director whom he or she has replaced or until his or her successor shall be elected and qualified.
No decrease in the authorized number of directors shall shorten the term of any incumbent director.
Section 3.4 Resignations and Removal. Any director may resign at any time upon notice
given in writing or by electronic transmission to the Board of Directors, the Chairman of the Board
of Directors or the Secretary. Such resignation shall take effect at the time specified in such
notice or, if the time be not specified, upon receipt thereof by the Board of Directors, the
Chairman of the Board of Directors or the Secretary, as the case may be. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Unless otherwise restricted by law, any director or the entire Board of Directors may be removed,
with or without cause, by the holders of 662/3% of the
voting power of all issued and outstanding stock entitled to vote at an election of directors;
except that the affirmative vote of the holders of only a majority of the voting power of all
issued and outstanding Common Stock shall be required to remove a director or directors if such
vote occurs at a special meeting of the stockholders called specifically to consider the removal of
members of the board of directors in connection with the express remedies provided under that
certain Registration Rights Agreement, dated on or about June 4, 2010, between FBR Capital Markets
& Co. and the Corporation.
Section 3.5 Regular Meetings. Regular meetings of the Board of Directors shall be
held at such place or places, on such date or dates and at such time or times, as shall have been
established by the Board of Directors and publicized among all directors; provided that no
fewer than one regular meeting per year shall be held. A notice of each regular meeting shall not
be required.
Section 3.6 Special Meetings. Special meetings of the Board of Directors for any
purpose or purposes may be called at any time by the Chairman of the Board of Directors, the Chief
Executive Officer or a majority of the Board of Directors then in office. The person or persons
authorized to call special meetings of the Board of Directors may fix the place and time of such
meetings. Notice of each such meeting shall be given to each director, if by mail, addressed to
such director as his or her residence or usual place of business, at least five days before the day
on which such meeting is to be held, or shall be sent to such director at such place by telecopy,
telegraph, electronic transmission or other form of recorded communication, or be delivered
personally or by telephone, in each case at least 24 hours prior to the time set for such meeting.
Notice of any meeting need not be given to director who shall, either before or after the meeting,
submit a waiver of
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such notice or who shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to such director. A notice of special meeting need not state the
purpose of such meeting, and, unless indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 3.7 Participation in Meetings by Conference Telephone. Members of the Board
of Directors, or of any committee thereof, may participate in a meeting of such Board of Directors
or 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 shall
constitute presence in person at such meeting.
Section 3.8 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, a majority of the authorized number of directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors, and the vote of a
majority of the directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the Board of Directors. The Chairman of the meeting or a majority of the
directors present may adjourn the meeting to another time and place whether or not a quorum is
present. At any adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. If a quorum initially is
present at any meeting of directors, the directors may continue to transact business,
notwithstanding the withdrawal of enough directors to leave less than a quorum, upon resolution of
at least a majority of the required quorum for that meeting prior to the loss of such quorum.
Section 3.9 Board of Directors Action by Written Consent Without a Meeting. Any
action required or permitted to be taken by the Board of Directors may be taken without a meeting,
provided that all members of the Board of Directors consent in writing or by electronic
transmission to such action, and the writing or writings or electronic transmission or
transmissions are filed with the minutes or proceedings of the Board of Directors. 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. Such action by written consent shall have the
same force and effect as a unanimous vote of the Board of Directors.
Section 3.10 Chairman of the Board. The Chairman of the Board shall preside at
meetings of stockholders and directors and shall perform such other duties as the Board of
Directors may from time to time determine. If the Chairman of the Board is not present at a
meeting of the Board of Directors, another director chosen by the Board of Directors shall preside.
Section 3.11 Rules and Regulations. The Board of Directors shall adopt such rules and
regulations not inconsistent with the provisions of law, the Certificate of Incorporation or these
Bylaws for the conduct of its meetings and management of the affairs of the Corporation as the
Board of Directors shall deem proper.
Section 3.12 Fees and Compensation of Directors. Directors and members of committees
may receive such compensation, if any, for their services and such
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reimbursement of expenses as may be fixed or determined by resolution of the Board of
Directors.
Section 3.13 Emergency Bylaws. In the event of any emergency, disaster or
catastrophe, as referred to in Section 110 of the DGCL, or other similar emergency condition, as a
result of which a quorum of the Board of Directors or a standing committee of the Board of
Directors cannot readily be convened for action, then the director or directors in attendance at
the meeting shall constitute a quorum. Such director or directors in attendance may further take
action to appoint one or more of themselves or other directors to membership on any standing or
temporary committees of the Board of Directors as they shall deem necessary and appropriate.
ARTICLE IV
COMMITTEES
COMMITTEES
Section 4.1 Committees of the Board of Directors. The Board of Directors may, by
resolution, designate one or more committees, including but not limited to an Executive Committee
and an Audit Committee, each such committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as alternate members of
any committee to replace any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members present at any
meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors establishing such committee, shall have and may exercise all
the powers and authority of the Board of Directors 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 which
may require it; but no such committee shall have the power or authority in reference to the
following matters: (a) approving or adopting, or recommending to the stockholders, any action or
matter (other than the election or removal of directors) expressly required by the DGCL to be
submitted to stockholders for approval or (b) adopting, amending or repealing any bylaw of the
Corporation. All committees of the Board of Directors shall keep minutes of their meetings and
shall report their proceedings to the Board of Directors when requested or required by the Board of
Directors.
Section 4.2 Meetings and Action of Committees. Any committee of the Board of
Directors may adopt such rules and regulations not inconsistent with the provisions of law, the
Certificate of Incorporation or these Bylaws for the conduct of its meetings as such committee may
deem proper.
ARTICLE V
OFFICERS
OFFICERS
Section 5.1 Officers. The officers of the Corporation shall consist of a Chief
Executive Officer, a Chief Financial Officer, a President, one or more Executive Vice Presidents,
Senior Vice Presidents, or Vice Presidents, a Secretary, a Treasurer and such
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other officers as the Board of Directors may from time to time determine, each of whom shall
be elected by the Board of Directors, each to have such authority, functions or duties as set forth
in these Bylaws or as determined by the Board of Directors. Each officer shall be chosen by the
Board of Directors and shall hold office for such term as may be prescribed by the Board of
Directors and until such persons successor shall have been duly chosen and qualified, or until
such persons earlier death, disqualification, resignation or removal. Any two of such offices may
be held by the same person; provided, however, that no officer shall execute,
acknowledge or verify any instrument in more than one capacity if such instrument is required by
law, the Certificate of Incorporation or these Bylaws to be executed, acknowledged or verified by
two or more officers.
Section 5.2 Compensation. The salaries of the officers of the Corporation and the
manner and time of the payment of such salaries shall be fixed and determined by the Board of
Directors and may be altered by the Board of Directors from time to time as it deems appropriate,
subject to the rights, if any, of such officers under any contract of employment.
Section 5.3 Removal, Resignation and Vacancies. Any officer of the Corporation may be
removed, with or without cause, by the Board of Directors, without prejudice to the rights, if any,
of such officer under any contract to which it is a party. Any officer may resign at any time upon
written notice to the Corporation, without prejudice to the rights, if any, of the Corporation
under any contract to which such officer is a party. If any vacancy occurs in any office of the
Corporation, the Board of Directors may elect a successor to fill such vacancy for the remainder of
the unexpired term and until a successor shall have been duly chosen and qualified.
Section 5.4 Chief Executive Officer. The Chief Executive Officer shall have general
supervision and direction of the business and affairs of the Corporation, shall be responsible for
corporate policy and strategy, and shall report directly to the Board of Directors. Unless
otherwise provided in these Bylaws, all other officers of the Corporation shall report directly to
the Chief Executive Officer or as otherwise determined by the Chief Executive Officer. The Chief
Executive Officer shall, if present and in the absence of the Chairman of the Board of Directors,
preside at meetings of the stockholders and of the Board of Directors.
Section 5.5 President. The President shall be the Chief Operating Officer of the
Corporation, with general responsibility for the management and control of the operations of the
Corporation. The President shall have the power to affix the signature of the Corporation to all
contracts that have been authorized by the Board of Directors. The President shall, when
requested, counsel with and advise the other officers of the Corporation and shall perform such
other duties as such officer may agree with the Board of Directors.
Section 5.6 Chief Financial Officer. The Chief Financial Officer shall exercise all
the powers and perform the duties of the office of the chief financial officer and in general have
overall supervision of the financial operations of the Corporation. The Chief Financial Officer
shall, when requested, counsel with and advise the other officers of the
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Corporation and shall perform such other duties as the Board of Directors may from time to
time determine.
Section 5.7 Executive Vice Presidents, Senior Vice Presidents and Vice Presidents.
The Executive Vice President, Senior Vice President and/or the Vice President shall have such
powers and duties as shall be prescribed by his or her superior officer or the Chief Executive
Officer. The Executive Vice President, Senior Vice President and/or the Vice President shall, when
requested, counsel with and advise the other officers of the Corporation and shall perform such
other duties as such officer may agree with the Chief Executive Officer or as the Board of
Directors may from time to time determine.
Section 5.8 Treasurer. The Treasurer shall supervise and be responsible for all the
funds and securities of the Corporation, the deposit of all moneys and other valuables to the
credit of the Corporation in depositories of the Corporation, borrowings and compliance with the
provisions of all indentures, agreements and instruments governing such borrowings to which the
Corporation is a party, the disbursement of funds of the Corporation and the investment of its
funds, and in general shall perform all of the duties incident to the office of the Treasurer. The
Treasurer shall, when requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as such officer may agree with the Chief Executive Officer or as
the Board of Directors may from time to time determine.
Section 5.9 Controller. The Controller shall be the Chief Accounting Officer of the
Corporation. The Controller shall, when requested, counsel with and advise the other officers of
the Corporation and shall perform such other duties as such officer may agree with the Chief
Executive Officer, or the President, or as the Board of Directors may from time to time determine.
Section 5.10 Secretary. The powers and duties of the Secretary are: (i) to act as
Secretary at all meetings of the Board of Directors, of the committees of the Board of Directors
and of the stockholders and to record the proceedings of such meetings in a book or books to be
kept for that purpose; (ii) to see that all notices required to be given by the Corporation are
duly given and served; (iii) to act as custodian of the seal of the Corporation and affix the seal
or cause it to be affixed to all certificates of stock of the Corporation and to all documents, the
execution of which on behalf of the Corporation under its seal is duly authorized in accordance
with the provisions of these Bylaws; (iv) to have charge of the books, records and papers of the
Corporation and see that the reports, statements and other documents required by law to be kept and
filed are properly kept and filed; and (v) to perform all of the duties incident to the office of
Secretary. The Secretary shall, when requested, counsel with and advise the other officers of the
Corporation and shall perform such other duties as such officer may agree with the Chief Executive
Officer or as the Board of Directors may from time to time determine.
Section 5.11 Additional Matters. The Chief Executive Officer and the President of the
Corporation shall have the authority to designate employees of the Corporation to have the title of
Executive Vice President, Senior Vice President, Vice President, Assistant Vice President,
Assistant Treasurer or Assistant Secretary. Any employee so designated
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shall have the powers and duties determined by the officer making such designation. The
persons upon whom such titles are conferred shall not be deemed officers of the Corporation unless
elected by the Board of Directors.
Section 5.12 Checks; Drafts; Evidences of Indebtedness. 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, bonds, debentures or other evidences of
indebtedness that are issued in the name of or payable by the Corporation, and only the persons so
authorized shall sign or endorse such instruments.
Section 5.13 Corporate Contracts and Instruments; How Executed. Except as otherwise
provided in these Bylaws, the Board of Directors 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.
Section 5.14 Action with Respect to Securities of Other Corporations. The Chief
Executive Officer or any other officer of the Corporation authorized by the Board of Directors or
the Chief Executive Officer is authorized to vote, represent, and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation or corporations
standing in the name of the Corporation. The authority herein granted may be exercised either by
such person directly or by any other person authorized to do so by proxy or power of attorney duly
executed by the person having such authority.
ARTICLE VI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to, or was or is otherwise involved in, any action, suit,
arbitration, alternative dispute mechanism, inquiry, judicial, administrative or legislative
hearing, investigation or any other threatened, pending or completed proceeding, whether brought by
or in the right of the Corporation or otherwise, including any and all appeals, whether of a civil,
criminal, administrative, legislative, investigative or other nature (hereinafter a
proceeding), by reason of the fact that he or she is or was a director or an officer of
the Corporation or, while a director, officer, employee, agent, or trustee of the Corporation, is
or was serving at the request of the Corporation as a director, officer, employee, agent or trustee
of another corporation or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an indemnitee), or by
reason of anything done or not done by him or her in any such capacity, 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, against all expense, liability and loss (including attorneys fees,
judgments, fines, Employee Retirement Income Security Act of 1974, as amended (ERISA)
excise taxes or penalties and amounts paid in settlement by or on behalf of the indemnitee)
actually and reasonably
17
incurred by such indemnitee in connection therewith; provided, however, that,
except as otherwise required by law or provided in Section 6.3 with respect to proceedings to
enforce rights under this Article VI, the Corporation shall indemnify any such indemnitee in
connection with a proceeding, or part thereof, initiated by such indemnitee (including claims and
counterclaims, whether such counterclaims are asserted by (i) such indemnitee, or (ii) the
Corporation in a proceeding initiated by such indemnitee) only if such proceeding, or part thereof,
was authorized or ratified by the Board of Directors.
Section 6.2 Right to Advancement of Expenses. In addition to the right to
indemnification conferred in Section 6.1, an indemnitee shall, to the fullest extent not prohibited
by law, also have the right to be paid by the Corporation the expenses (including attorneys fees)
incurred in defending any proceeding with respect to which indemnification is required under
Section 6.1 in advance of its final disposition (hereinafter an advancement of expenses);
provided, however, that an advancement of expenses shall be made only upon delivery
to the Corporation 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 by final
judicial decision of a court of competent jurisdiction from which there is no further right to
appeal (hereinafter a final adjudication) that such indemnitee is not entitled to be
indemnified for such expenses under this Section 6.2 or otherwise.
Section 6.3 Right of Indemnitee to Bring Suit. If a request for indemnification under
Section 6.1 is not paid in full by the Corporation within 60 days, or if a request for an
advancement of expenses under Section 6.2 is not paid in full by the Corporation within 20 days,
after a written request has been received by the Corporation, the indemnitee may at any time
thereafter bring suit against the Corporation in a court of competent jurisdiction in the State of
Delaware seeking an adjudication of entitlement to such indemnification or advancement of expenses.
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 be
entitled to be paid also the expense of prosecuting or defending such suit to the fullest extent
permitted by law. In any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that the indemnitee has not met any applicable standard of conduct
for indemnification set forth in the DGCL. Further, 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 adjudication that the indemnitee has not met any
applicable standard of conduct 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 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
18
suit brought by the indemnitee, 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
brought 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 VI or otherwise shall be on the Corporation.
Section 6.4 Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article VI shall not be exclusive of any other right
which any person may have or hereafter acquire under any law, agreement, vote of stockholders or
directors, provisions of the Certificate of Incorporation or these Bylaws or otherwise.
Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and 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 6.6 Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article VI with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
Section 6.7 Nature of Rights. The rights conferred upon indemnitees in this Article
VI shall be contract rights that shall vest at the time an individual becomes a director or officer
of the Corporation and such rights shall continue as to an indemnitee who has ceased to be a
director, officer or trustee and shall inure to the benefit of the indemnitees heirs, executors
and administrators. Any amendment, alteration or repeal of this Article VI that adversely affects
any right of an indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment, alteration or
repeal.
Section 6.8 Settlement of Claims. The Corporation shall not be liable to indemnify
any indemnitee under this Article VI for any amounts paid in settlement of any proceeding effected
without the Corporations written consent, which consent shall not be unreasonably withheld, or for
any judicial award if the Corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such proceeding.
Section 6.9 Subrogation. In the event of payment under this Article VI, the
Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of
the indemnitee, who shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to enable the
Corporation effectively to bring suit to enforce such rights.
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Section 6.10 Severability. If any provision or provisions of this Article VI 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 VI (including, without limitation,
all portions of any paragraph of this Article VI containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions
of this Article VI (including, without limitation, all portions of any paragraph of this Article VI
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent of the
parties that the Corporation provide protection to the indemnitee to the fullest enforceable
extent.
ARTICLE VII
CAPITAL STOCK
CAPITAL STOCK
Section 7.1 Certificates of Stock. The shares of the Corporation shall be represented
by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Every holder of stock represented by certificates
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, if any, or the President or a Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the
Corporation certifying the number of shares owned by such holder in the Corporation. Any or all
such signatures may be facsimiles. In case any officer, transfer agent or registrar 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 such person were such officer, transfer agent or registrar at the date
of issue.
Section 7.2 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. Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates pursuant to this
Section 7.2 or Section 156, 202(a) or 218(a) of the DGCL or with respect to this Section 7.2 a
statement that the Corporation
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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. Except as otherwise expressly provided by law, the rights and obligations of the
holders of uncertificated stock and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be identical.
Section 7.3 Transfers of Stock. Transfers of shares of stock of the Corporation shall
be made only on the books of the Corporation upon authorization by the registered holder thereof or
by such holders attorney thereunto authorized by a power of attorney duly executed and filed with
the Secretary or a transfer agent for such stock, and if such shares are represented by a
certificate, upon surrender of the certificate or certificates for such shares properly endorsed or
accompanied by a duly executed stock transfer power and the payment of any taxes thereon;
provided, however, that the Corporation shall be entitled to recognize and enforce
any lawful restriction on transfer.
Section 7.4 Lost Certificates. The Corporation may issue a new share certificate or
new certificate for any other security in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate or the owners legal representative to give the Corporation a
bond (or other adequate security) sufficient to indemnify it against any claim that may be made
against it (including any expense or liability) on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate. The Board of
Directors may adopt such other provisions and restrictions with reference to lost certificates, not
inconsistent with applicable law, as it shall in its discretion deem appropriate.
Section 7.5 Addresses of Stockholders. Each stockholder shall designate to the
Secretary an address at which notices of meetings and all other corporate notices may be served or
mailed to such stockholder and, if any stockholder shall fail to so designate such an address,
corporate notices may be served upon such stockholder by mail directed to the mailing address, if
any, as the same appears in the stock ledger of the Corporation or at the last known mailing
address of such stockholder.
Section 7.6 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 any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
Section 7.7 Record Date for Determining Stockholders.
(a) In order that the Corporation may determine the stockholders entitled to notice of any
meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record
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date shall, unless otherwise required by law, not be more than 60 nor less than 10 days before
the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the
record date for determining the stockholders entitled to vote at such meeting unless the Board of
Directors determines, at the time it fixes such record date, that a later date on or before the
date of the meeting shall be the date for making such determination. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled to notice of and 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. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
determination of stockholders entitled to vote at the adjourned meeting, and in such case shall
also fix as the record date for stockholders entitled to notice of such adjourned meeting the same
or an earlier date as that fixed for determination of stockholders entitled to vote in accordance
herewith at 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 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 shall not be more than 60 days
prior to such other action. If no such 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
of Directors adopts the resolution relating thereto.
Section 7.8 Regulations. The Board of Directors may make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and registration of shares of
stock of the Corporation.
ARTICLE VIII
GENERAL MATTERS
GENERAL MATTERS
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first
day of January of each year and end on the last day of December of the same year, or such other 12
consecutive months as the Board of Directors may designate.
Section 8.2 Corporate Seal. The Board of Directors may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and
when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be
kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 8.3 Maintenance and Inspection of Records. The Corporation shall, either at
its principal executive office 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
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number and class of shares held by each stockholder, a copy of these Bylaws as amended to
date, accounting books and other records.
Section 8.4 Reliance Upon Books, Reports and Records. Each director and each member
of any committee designated by the Board of Directors shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the books of account or other records of
the Corporation and upon such information, opinions, reports or statements presented to the
Corporation by any of its officers or employees, or committees of the Board of Directors so
designated, or by any other person as to matters which such director or committee member reasonably
believes are within such other persons professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
Section 8.5 Subject to Law and Certificate of Incorporation. All powers, duties and
responsibilities provided for in these Bylaws, whether or not explicitly so qualified, are
qualified by the Certificate of Incorporation and applicable law.
Section 8.6 Forum for Adjudication of Disputes. Unless the Corporation consents in
writing to the selection of an alternative forum, 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, (ii) any action asserting a claim of breach of a fiduciary duty owed by any
director, officer or other employee of the Corporation to the Corporation or the Corporations
stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or
the Corporations Certificate of Incorporation or these Bylaws, or (iv) any other action asserting
a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice
of and to have consented to the provisions of this Section 8.6.
ARTICLE IX
AMENDMENTS
AMENDMENTS
Section 9.1 Amendments. In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt,
amend or repeal these Bylaws. In addition to any requirements of law and any other provision of
these Bylaws or the Certificate of Incorporation, and notwithstanding any other provision of these
Bylaws, the Certificate of Incorporation or any provision of law which might otherwise permit a
lesser vote or no vote, the affirmative vote of the holders of at least
662/3% in voting power of the issued and outstanding
stock entitled to vote generally in the election of directors, voting together as a single class,
shall be required for the stockholders to amend or repeal, or adopt any provision inconsistent
with, any provision of these Bylaws.
The foregoing Bylaws were adopted by the Board of Directors and took effect on February 15,
2011.
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CERTIFICATE OF SECRETARY
I, the undersigned, hereby certify:
1. | That I am the duly elected, qualified and acting Secretary of Air Lease Corporation. | |
2. | That the foregoing Bylaws of said corporation were duly adopted as the Bylaws thereof by action of the Board of Directors of said corporation on February 15, 2011, and took effect as of that date, and that the same do now constitute the Bylaws of said corporation. |
Executed this 15th day of February, 2011.
/s/ Grant A. Levy | ||||
Grant A. Levy | ||||
Secretary | ||||
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