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8-K - FORM 8-K - AMERISOURCEBERGEN CORP | c13017e8vk.htm |
EX-99.1 - EXHIBIT 99.1 - AMERISOURCEBERGEN CORP | c13017exv99w1.htm |
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
AMERISOURCEBERGEN CORPORATION
OF
AMERISOURCEBERGEN CORPORATION
(Amended and restated as of February 17, 2011)
TABLE OF CONTENTS
Page | ||||
ARTICLE I OFFICES |
1 | |||
Section 1.01 Registered Office |
1 | |||
Section 1.02 Other Offices |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
Section 2.01 Annual Meetings |
1 | |||
Section 2.02 Special Meetings |
1 | |||
Section 2.03 Notice and Business of Meetings |
1 | |||
Section 2.04 Adjournments |
5 | |||
Section 2.05 Quorum |
5 | |||
Section 2.06 Organization |
5 | |||
Section 2.07 Inspectors of Elections |
6 | |||
Section 2.08 Fixing of Record Date |
6 | |||
Section 2.09 Voting; Proxies |
7 | |||
Section 2.10 Action by Stockholders Without a Meeting |
7 | |||
ARTICLE III BOARD OF DIRECTORS |
8 | |||
Section 3.01 Election and Term |
8 | |||
Section 3.02 Number |
8 | |||
Section 3.03 General Powers |
8 | |||
Section 3.04 Place of Meetings |
8 | |||
Section 3.05 Organization Meeting |
8 | |||
Section 3.06 Regular Meetings |
8 | |||
Section 3.07 Special Meetings; Notice and Waiver of Notice |
9 | |||
Section 3.08 Organization of Meetings |
9 | |||
Section 3.09 Quorum and Manner of Acting |
9 | |||
Section 3.10 Voting |
9 | |||
Section 3.11 Action Without a Meeting |
9 | |||
Section 3.12 Resignations |
10 | |||
Section 3.13 Removal of Directors |
10 | |||
Section 3.14 Vacancies |
10 | |||
Section 3.15 Directors Compensation |
10 | |||
ARTICLE IV COMMITTEES |
10 | |||
Section 4.01 Constitution and Powers |
10 | |||
Section 4.02 Place of Meetings |
10 | |||
Section 4.03 Meetings; Notice and Waiver of Notice |
11 | |||
Section 4.04 Organization of Meetings |
11 | |||
Section 4.05 Quorum and Manner of Acting |
11 | |||
Section 4.06 Voting |
11 | |||
Section 4.07 Records |
11 | |||
Section 4.08 Vacancies |
11 | |||
Section 4.09 Members Compensation |
12 | |||
Section 4.10 Emergency Management Committee |
12 |
i
TABLE OF CONTENTS
Page | ||||
ARTICLE V OFFICERS |
12 | |||
Section 5.01 Officers; Election or Appointment |
12 | |||
Section 5.02 Term of Office; Resignation; Removal; Vacancies |
12 | |||
Section 5.03 Powers and Duties |
12 | |||
Section 5.04 Executive Management Committee |
13 | |||
ARTICLE VI SHARES AND TRANSFERS OF SHARES |
13 | |||
Section 6.01 Stock Certificates; Uncertificated Shares |
13 | |||
Section 6.02 Transfers of Stock |
14 | |||
Section 6.03 Lost Certificates |
14 | |||
Section 6.04 Determination of Holders of Record for Certain Purposes |
14 | |||
ARTICLE VII CORPORATE SEAL |
15 | |||
Section 7.01 Seal |
15 | |||
Section 7.02 Affixing and Attesting |
15 | |||
ARTICLE VIII MISCELLANEOUS |
15 | |||
Section 8.01 Fiscal Year |
15 | |||
Section 8.02 Signatures on Negotiable Instruments |
15 | |||
Section 8.03 Execution of Proxies |
15 | |||
Section 8.04 References to Article and Section Numbers and to the
Bylaws and the
Certificate of Incorporation |
15 | |||
ARTICLE IX AMENDMENTS |
16 | |||
Section 9.01 Amendments |
16 |
ii
AMENDED AND RESTATED BYLAWS
OF
AMERISOURCEBERGEN CORPORATION
OF
AMERISOURCEBERGEN CORPORATION
ARTICLE I
OFFICES
Section 1.01 Registered Office. The registered office of AmerisourceBergen
Corporation (the Corporation) in the State of Delaware shall be The Corporation Trust
Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801, and
the registered agent in charge thereof shall be The Corporation Trust Company.
Section 1.02 Other Offices. The Corporation may also have an office or offices
at any other place or places within or without the State of Delaware as the Board of Directors of
the Corporation (the Board) may from time to time determine or the business of the
Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01 Annual Meetings. The annual meeting of stockholders of the
Corporation for the election of Directors of the Corporation (Directors), and for the
transaction of such other business as may properly come before such meeting, shall be held at such
place, date and time as shall be fixed by the Board and designated in the notice or waiver of
notice of such annual meeting.
Section 2.02 Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called by the Board pursuant to a resolution duly adopted by a majority
of the members of the Board, to be held at such place, date and time as shall be designated in the
notice or waiver of notice thereof. Only business within the purposes described in the notice
required by Section 2.03 of this Article II may be conducted at the special meeting. The ability of
the stockholders to call a special meeting of stockholders of the Corporation is specifically
denied.
Section 2.03 Notice and Business of Meetings.
(a) General. Except as otherwise provided by law, written notice of each meeting of
stockholders shall be given to each stockholder of record entitled to vote thereat by delivery of a
notice personally, mailing a notice or giving notice by a form of electronic transmission in the
manner permitted by Section 232 of the Delaware General Corporation Law. If mailed, the notice
shall be directed to the stockholder in a postage-prepaid envelope at his address as it appears on
the stock books of the Corporation unless, prior to the time of mailing, he shall have filed with
the Secretary a written request that notices intended for him be mailed to some other address, in
which case it shall be mailed to the address designated in such request. Notice of each meeting of
stockholders shall be in such form as is approved by the Board and shall state the purpose or
purposes for which the meeting is called, the date and time when and
the place where it is to be held, and shall be delivered personally or mailed not more than
sixty (60) days and not less than ten (10) days before the day of the meeting. Except as otherwise
provided by law, the business which may be transacted at any special meeting of stockholders shall
consist of and be limited to the purpose or purposes so stated in such notice. The Secretary or an
Assistant Secretary or the transfer agent of the Corporation shall, after giving such notice, make
an affidavit stating that notice has been given, which shall be filed with the minutes of such
meeting.
(b) Advance Notice Provisions for Business to be Transacted at Annual Meeting.
(i) No business other than the nomination and election of directors may be transacted at an
annual meeting of stockholders unless the business is (A) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board (or any duly authorized committee
thereof), (B) otherwise properly brought before the annual meeting by or at the direction of the
Board (or any duly authorized committee thereof), or (C) otherwise properly brought before the
annual meeting by any stockholder of the Corporation who (x) is a stockholder of record on the date
of the giving of the notice provided for in this Section 2.03 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and (y) complies with all the
notice procedures set forth in this Section 2.03(b).
(ii) In addition to any other applicable requirements, for business to be properly brought
before an annual meeting by a stockholder (other than the nomination of a person for election as a
director which is governed by Section 2.03(c)), such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
(A) To be timely, a stockholders notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than ninety (90) days nor more than one hundred
twenty (120) days 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 advanced by more than thirty (30)
days or delayed by more than sixty (60) days from such anniversary date, notice by the stockholder
to be timely must be delivered by the later of (x) a date that is not earlier than the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or (y) the tenth
(10th) day following the day on which public announcement of the date of such meeting is
first made.
(B) To be in proper written form, a stockholders notice to the Secretary must set forth as to
each matter such stockholder proposes to bring before the annual meeting (1) a brief description of
the business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (2) the name and record address of such stockholder, (3) the class
or series and number of shares of capital stock of the Corporation which are owned beneficially or
of record by such stockholder, (4) any derivative positions held beneficially or of record by the
stockholder in the Corporations securities and whether and the extent to which any hedging or
other transactions or series of transactions has been entered into by or on behalf of the
stockholder, or any other agreement, arrangement or understanding has been made, the effect or
intent of which is to increase or decrease the voting
power of the stockholder with respect to the Corporations securities, (5) a description of
all arrangements or understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such stockholder and
any material interest of such stockholder in such business, (6) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to bring such business
before the meeting, and (7) a representation whether the stockholder intends to solicit proxies
from stockholders in support of the proposal. Any information required pursuant to this Section
2.03(b)(ii)(B) shall be supplemented to speak as of the record date for the annual meeting of
stockholders which supplemented notice shall be provided not later than ten (10) days after such
record date.
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(iii) 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
2.03(b) (other than the nomination of a person for election as a director which is governed by
Section 2.03(c)), provided, however, that, once business has been properly brought before the
annual meeting in accordance with such procedures, nothing in this Section 2.03(b) shall be deemed
to preclude discussion by any stockholder of any such business. If the chairman of an annual
meeting determines that business was not properly brought before the annual meeting in accordance
with the foregoing procedures, the chairman shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted.
(c) Advance Notice Provisions for Nomination of Directors.
(i) No nominations of persons for election to the Board of Directors of the Corporation may be
made at the annual meeting of the stockholders, other than nominations that are (A) specified in
the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any
duly authorized committee thereof), (B) otherwise properly brought before the annual meeting by or
at the direction of the Board (or any duly authorized committee thereof), or (C) otherwise properly
brought before the annual meeting by any stockholder of the Corporation who (x) is a stockholder of
record on the date of the giving of the notice provided for in this Section 2.03 and on the record
date for the determination of stockholders entitled to vote at such annual meeting and (y) complies
with all the notice procedures set forth in this Section 2.03(c).
(ii) 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.
(A) To be timely, a stockholders notice shall be delivered to the Secretary at the principal
executive offices of the corporation not less than ninety (90) days nor more than one hundred
twenty (120) days 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 advanced by more than thirty (30)
days or delayed by more than sixty (60) days from such anniversary date, notice by the stockholder
to be timely must be delivered by the later of (x) a date that is not earlier than the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual
meeting or (y) the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made.
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(B) To be in proper written form, a stockholders notice to the Secretary must set forth (1)
as to each person whom the stockholder proposes to nominate for election as a director (v) the
name, age, business address and residence address of the person, (w) the principal occupation or
employment of the person, (x) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person, (y) 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 Securities Exchange Act of 1934, as amended (the Exchange Act), and
the rules and regulations promulgated thereunder, (including such persons written consent to being
named in the proxy statement as a nominee and to serving as a director if elected), and (z) a
statement whether such person, if elected, intends to tender, promptly following such persons
election or re-election, an irrevocable resignation effective upon such persons failure to receive
the required vote for re-election at the next meeting at which such person would face re-election
and upon acceptance of such resignation by the Board of Directors, in accordance with the
Corporations Board Policy on Director Elections set forth in the Corporations Corporate
Governance Principles; and (2) as to the stockholder giving notice (t) the name and record address
of such stockholder, (u) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (v) any derivative
positions held beneficially or of record by the stockholder in the Corporations securities and
whether and the extent to which any hedging or other transactions or series of transactions has
been entered into by or on behalf of the stockholder, or any other agreement, arrangement or
understanding has been made, the effect or intent of which is to increase or decrease the voting
power of the stockholder with respect to the Corporations securities, (w) a description of all
arrangements or understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (x) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to nominate the person(s) named in its notice, (y) a representation
whether the shareholder intends to solicit proxies from the stockholders in support of the election
of the proposed nominee as director, and (z) any other information relating to such stockholder
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. Any information required pursuant to this Section 2.03(c)(ii)(B) shall be
supplemented to speak as of the record date for the annual meeting of stockholders which
supplemented notice shall be provided not later than ten (10) days after such record date.
(iii) The Corporation may require any proposed nominee to furnish additional information as
may be reasonably required to determine the qualifications of such person to serve as a director of
the Corporation; including, but not limited to, such information as the Corporation may reasonably
require to determine the eligibility of such nominee to serve as an independent director of the
Corporation or that could be material to a reasonable stockholders understating of independence,
or lack thereof, of such nominee. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with the procedures
set forth in this Section 2.03(c). If the chairman of an annual meeting determines that a
nomination was not made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the nomination was defective and such defective nomination shall be disregarded.
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Section 2.04 Adjournments. Whenever a meeting of stockholders, annual or
special, is adjourned to another date, time or place, notice need not be given of the adjourned
meeting if the date, time and place thereof are announced at the meeting at which the adjournment
is taken. If the adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote thereat. At the adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
Section 2.05 Quorum. At each meeting of stockholders, except where otherwise
required by law, the Certificate of Incorporation or these Bylaws, the holders of a majority of the
outstanding shares of stock entitled to vote on a matter at the meeting, present in person or
represented by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate
vote by class or classes is required for any matter, the holders of a majority of the outstanding
shares of such class or classes, present in person or represented by proxy, shall constitute a
quorum to take action with respect to that vote on that matter. Two or more classes or series of
stock shall be considered a single class if the holders thereof are entitled to vote together as a
single class at the meeting. In the absence of a quorum of the holders of any class of stock
entitled to vote on a matter, the meeting of such class may be adjourned from time to time in the
manner provided by these Bylaws until a quorum of such class shall be so present or represented.
Shares of its own capital stock belonging on the record date for the meeting to the Corporation or
to another corporation, if a majority 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 to vote stock, including but not limited to its own stock,
held by it in a fiduciary capacity.
Section 2.06 Organization. The Chairman of the Board shall act as chairman at
all meetings of stockholders at which he or she is present, and as such chairman shall call such
meetings of stockholders to order and preside thereat. If the Chairman of the Board shall be absent
from any meeting of stockholders, the duties otherwise provided in this Section 2.06 to be
performed by him or her at such meeting, shall be performed at such meeting by a chairman
designated by the Board, or in the absence of such designation, by a chairman chosen at the
meeting. The Secretary of the Corporation shall act as secretary at all meetings of the
stockholders, but in his or her absence the chairman of the meeting may appoint any person present
to act as secretary of the meeting.
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Section 2.07 Inspectors of Elections. Prior to any meeting of stockholders,
the Board, or a Chairman of the Board designated by the Board, shall appoint one or more inspectors
to act at such meeting and make a written report thereof and may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is
able to act at the meeting of stockholders, the person presiding at the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his
or her
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors shall ascertain the
number of shares outstanding and the voting power of each, determine the shares represented at the
meeting and the validity of proxies and ballots, count all votes and ballots, 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. The inspectors may appoint or retain other persons to
assist them in the performance of their duties. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted
by the inspectors after the closing of the polls. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted therewith, any information provided by a stockholder who submits a proxy by
telegram, cablegram or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and record of the Corporation, and
they may also consider other reliable information for the limited purpose of reconciling proxies
and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other reliable information
for such purpose, they shall, at the time they make their certification, specify the precise
information considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the information was obtained and
the basis for the inspectors belief that such information is accurate and reliable.
Section 2.08 Fixing of Record Date. The Board may fix a date not more than
sixty (60) days nor less than ten (10) days prior to the date of any meeting of stockholders, as a
record date for the determination of the stockholders entitled to notice of and to vote at such
meeting and any adjournment thereof, and in such case such stockholders and only such stockholders
of record on the date so fixed shall be entitled to notice of, and to vote at, such meeting and any
adjournment thereof, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid. No record date shall precede the date on which the
Board establishes such record date. The Secretary shall prepare and make or cause to be prepared
and made, at least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order and showing the
address of each such stockholder and the number of shares registered in the name of each such
stockholder. 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 ten (10) days prior to the
meeting, either at a place, specified in the notice of the meeting, within the city where the
meeting is to be held, or, if not so specified, at the place where the meeting is to be held. Such
list shall be produced and kept at the time and place of the meeting during the whole time thereof,
and subject to the inspection of any stockholder who may be present.
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Section 2.09 Voting; Proxies.
(a) General. Unless otherwise provided in the Certificate of Incorporation, each
stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for
each share of stock held by such stockholder which has voting power upon the matter in
question. If the Certificate of Incorporation provides for more or less than one vote for any share
on any matter, every reference in these Bylaws to a majority or other proportion of shares of stock
shall refer to such majority or other proportion of the votes of such shares of stock. Each
stockholder entitled to vote at a meeting of stockholders 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. 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, regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
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 another duly executed proxy
bearing a later date with a Secretary. Voting at meetings of stockholders need not be by written
ballot unless so directed by the chairman of the meeting or the Board.
(b) Election of Directors. Each nominee for Director 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 a
notice that a stockholder has nominated a person for election to the Board of Directors in
compliance with the advance notice requirements for stockholder nominees for Directors set forth in
Article II, Section 2.03(c) of these Bylaws and (ii) such nomination has not been withdrawn by such
stockholder on or prior to the tenth day preceding the date the Corporation first mails 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.
(c) Other Action by Stockholders. In all other matters, unless otherwise required by
law, the Certificate of Incorporation or these Bylaws, the affirmative vote of the holders of a
majority of the shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders.
(d) Separate Class Vote. Where a separate vote by class or classes is required, the
affirmative vote of the holders of a majority of the shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class or classes, except as
otherwise required by law, the Certificate of Incorporation or these Bylaws.
Section 2.10 Action by Stockholders Without a Meeting. The stockholders may
not take any action without a duly called meeting of the stockholders.
- 7 -
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 Election and Term. Except as otherwise provided by law or by the
Certificate of Incorporation, and subject to the provisions of Sections 3.12 and 3.13 of this
Article III, commencing with the 2012 annual meeting of stockholders, Directors shall be elected
at the annual meeting of stockholders to serve until the next annual meeting of stockholders
and until their successors are duly elected and qualified, or until their earlier death,
resignation or removal. Directors elected at the 2010 annual meeting of stockholders to a
three-year term shall hold office until the 2013 annual meeting of stockholders and Directors
elected at the 2011 annual meeting of stockholders to a three-year term shall hold office until the
2014 annual meeting of stockholders.
Section 3.02 Number. The number of Directors may be fixed from time to time by
resolution of the Board but shall not be less than three (3) nor more than twelve (12).
Section 3.03 General Powers. The business, properties and affairs of the
Corporation shall be managed by, or under the direction of, the Board, which, without limiting the
generality of the foregoing, shall have power to elect and appoint officers of the Corporation, to
appoint and direct agents, to grant general or limited authority to officers, employees and agents
of the Corporation to make, execute and deliver contracts and other instruments and documents in
the name and on behalf of the Corporation and over its seal, without specific authority in each
case, and, by resolution adopted by a majority of the whole Board, to appoint committees of the
Board in addition to those appointed pursuant to Article IV hereof, the membership of which may
consist of one or more Directors, and which may advise the Board with respect to any matters
relating to the conduct of the Corporations business. The Board may designate one or more
Directors as alternate members of any committee, including those appointed pursuant to Article IV
hereof, who may replace any absent or disqualified member at any meeting of the committee. In
addition, the Board may exercise all the powers of the Corporation and do all lawful acts and
things which are not reserved to the stockholders by law or by the Certificate of Incorporation.
Section 3.04 Place of Meetings. Meetings of the Board may be held at any
place, within or without the State of Delaware, from time to time as designated by the Board.
Section 3.05 Organization Meeting. A newly elected Board shall meet and
organize, and also may transact any other business which might be transacted at a regular meeting
thereof, as soon as practicable after each annual meeting of stockholders, at the place at which
such meeting of stockholders took place, without notice of such meeting, provided a majority of the
whole Board is present. If such a majority is not present, such organizational meeting may be held
at any other time or place which may be specified in a notice given in the manner provided in
Section 3.07 of this Article III for special meetings of the Board, or in a waiver of notice
thereof.
Section 3.06 Regular Meetings. Regular meetings of the Board shall be held at
such times as may be determined by resolution of the Board and no notice shall be required for any
regular meeting. Except as otherwise provided by law, any business may be transacted at any regular
meeting of the Board.
- 8 -
Section 3.07 Special Meetings; Notice and Waiver of Notice. Special meetings
of the Board shall be called by the Secretary on the request of the Chairman of the Board or the
President, or on the request in writing of any three other Directors stating the purpose or
purposes of such meeting. Notice of any special meeting shall be in form approved by the Chairman
of the Board or the President, as the case may be. Notices of special meetings shall be
mailed to each Director, addressed to him at his residence or usual place of business, not
later than two (2) days before the day on which the meeting is to be held, or shall be sent to him
at such place by telegraph, cable or other form of recorded communication or be delivered
personally or by telephone or electronic transmission, not later than the day before such day of
meeting. Notice of any meeting of the Board need not be given to any Director if he shall sign a
written waiver thereof either before or after the time stated therein, or if he shall attend a
meeting, except when he attends such meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any special meeting of the
Board need be specified in any notice or written waiver of notice unless so required by the
Certificate of Incorporation or by the Bylaws. Unless limited by law, by the Certificate of
Incorporation or by the Bylaws, any and all business may be transacted at any special meeting.
Section 3.08 Organization of Meetings. The Chairman of the Board shall preside
at all meetings of the Board at which he or she is present. If the Chairman of the Board shall be
absent from any meeting of the Board, the duties otherwise provided in this Section 3.08 of Article
III to be performed by him or her at such meeting shall be performed at such meeting by the
Director chosen by a majority of the other Directors who are present. The Secretary of the
Corporation shall act as the secretary at all meetings of the Board, and in his or her absence a
temporary secretary shall be appointed by the chairman of the meeting.
Section 3.09 Quorum and Manner of Acting. Except as otherwise provided by
Section 3.05 of this Article III, at every meeting of the Board a majority of the total number of
Directors constituting the whole Board shall constitute a quorum but in no event shall a quorum be
constituted by less than two (2) Directors. Except as otherwise provided by law or by the
Certificate of Incorporation, or by Section 3.14 of this Article III, or by Section 4.01 or Section
4.08 of Article IV, or by Article IX, the act of a majority of the Directors present at any such
meeting, at which a quorum is present, shall be the act of the Board. In the absence of a quorum, a
majority of the Directors present may adjourn any meeting, from time to time, until a quorum is
present. No notice of any adjourned meeting need be given other than by announcement at the meeting
that is being adjourned. Members of the Board or any committee thereof may participate in a meeting
of the Board or of such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and
participation by a member of the Board in a meeting pursuant to this Section 3.09 of Article III
shall constitute his presence in person at such meeting.
Section 3.10 Voting. On any question on which the Board shall vote, the names
of those voting and their votes shall be entered in the minutes of the meeting if any member of the
Board so requests at the time.
Section 3.11 Action Without a Meeting. Except as otherwise provided by law or
by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of
the Board or of any committee thereof may be taken without a meeting, if prior to such action all
members of the Board or of such committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission or transmissions
are filed with the minutes of proceedings of the Board or the committee.
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Section 3.12 Resignations. Any Director may resign at any time upon written
notice of resignation to the Corporation. Any resignation shall be effective immediately unless a
date certain is specified for it to take effect, in which event it shall be effective upon such
date, and acceptance of any resignation shall not be necessary to make it effective, irrespective
of whether the resignation is tendered subject to such acceptance.
Section 3.13 Removal of Directors. Subject to the rights of the holders of any
series of Preferred Stock or any other class of capital stock of the Corporation (other than the
Common Stock) then outstanding, no Director may be removed except both for cause and by the
affirmative vote of the holders of a majority of the votes cast for and against the removal by the
holders of shares of stock of the Corporation present in person or represented by proxy at the
meeting and entitled to vote generally in the election of Directors, voting together as a single
class.
Section 3.14 Vacancies. Subject to the rights of the holders of any series of
Preferred Stock or any other class of capital stock of the Corporation (other than the Common
Stock) then outstanding, any vacancies in the Board for any reason, including by reason of any
increase in the number of Directors, shall be filled only by the Board, acting by the affirmative
vote of a majority of the remaining Directors then in office, although less than a quorum, and any
Directors so elected shall hold office until the next election of Directors and until their
successors are duly elected and qualified.
Section 3.15 Directors Compensation. Any and all Directors may receive such
reasonable compensation for their services as such, whether in the form of salary, a fixed fee for
attendance at meetings or otherwise, with expenses, if any, as the Board may from time to time
determine. Nothing herein contained shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
Section 4.01 Constitution and Powers. The Board may, by resolution adopted by
affirmative vote of a majority of the whole Board, appoint one or more committees of the Board,
which committees shall have such powers and duties as the Board shall properly determine. Unless
otherwise provided by the Board, no such other committee of the Board shall be composed of fewer
than three (3) Directors.
Section 4.02 Place of Meetings. Meetings of any committee of the Board may be
held at any place, within or without the State of Delaware, from time to time designated by the
Board or such committee.
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Section 4.03 Meetings; Notice and Waiver of Notice. Regular meetings of any
committee of the Board shall be held at such times as may be determined by resolution either of the
Board or of such committee and no notice shall be required for any regular meeting. Special
meetings of any committee shall be called by the secretary thereof upon request of any two members
thereof. Notice of any special meeting of any committee shall be in form approved by
the Chairman of the Board or the President, as the case may be. Notices of special meetings
shall be mailed to each member, addressed to him at his residence or usual place of business, not
later than two (2) days before the day on which the meeting is to be held, or shall be sent to him
at such place by telegraph, cable or any other form of recorded communication, or be delivered
personally or by telephone or electronic transmission, not later than the day before such day of
meeting. Neither the business to be transacted at, nor the purpose of, any special meeting of any
committee, need be specified in any notice or waiver of notice unless so required by the
Certificate of Incorporation or the Bylaws. Notices of any such meeting need not be given to any
member of any committee, however, if waived by him as provided in Section 3.07 of Article III, and
the provisions of such Section 3.07 with respect to waiver of notice of meetings of the Board shall
apply to meetings of any committee as well.
Section 4.04 Organization of Meetings. The most senior officer of the
Corporation present, if any be members of the committee, and, if not, the Director present who has
served the longest as a Director, except as otherwise expressly provided by the Board or the
committee, shall preside at all meetings of any committee. The Secretary of the Corporation, except
as otherwise expressly provided by the Board, shall act as secretary at all meetings of any
committee and in his absence a temporary secretary shall be appointed by the chairman of the
meeting.
Section 4.05 Quorum and Manner of Acting. A majority of the members of any
committee then in office shall constitute a quorum for the transaction of business, and the act of
a majority of those present at any meeting at which a quorum is present, shall be the act of such
committee. In the absence of a quorum, a majority of the members of any committee present, or, if
two or fewer members shall be present, any member of the committee present or the Secretary, may
adjourn any meeting, from time to time, until a quorum is present. No notice of any adjourned
meeting need be given other than by announcement at the meeting that is being adjourned. The
provisions of Section 3.09 of Article III with respect to participation in a meeting of a committee
of the Board and the provisions of Section 3.11 of Article III with respect to action taken by a
committee of the Board without a meeting shall apply to participation in meetings of and action
taken by any committee.
Section 4.06 Voting. On any question on which any committee shall vote, the
names of those voting and their votes shall be entered in the minutes of the meeting if any member
of such committee so requests.
Section 4.07 Records. All committees shall keep minutes of their acts and
proceedings, which shall be submitted at the next regular meeting of the Board unless sooner
submitted at an organization or special meeting of the Board, and any action taken by the Board
with respect thereto shall be entered in the minutes of the Board.
Section 4.08 Vacancies. Any vacancy among the appointed members or alternate
members of any committee of the Board may be filled by affirmative vote of a majority of the whole
Board.
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Section 4.09 Members Compensation. Members of all committees may receive such
reasonable compensation for their services as such, whether in the form of salary, a fixed fee for
attendance at meetings or otherwise, with expenses, if any, as the Board may from time to time
determine. Nothing herein contained shall be construed to preclude any member of any committee from
serving the Corporation in any other capacity and receiving compensation therefor.
Section 4.10 Emergency Management Committee. In the event that a quorum of the
Board cannot readily be convened as a result of emergency conditions following a catastrophe or
disaster, then all the powers and duties vested in the Board shall vest automatically in an
Emergency Management Committee which shall consist of all readily available members of the Board
and which Committee shall have and may exercise all of the powers of the Board in the management of
the business and affairs of the Corporation. Two members shall constitute a quorum. Other
provisions of these Bylaws notwithstanding, the Emergency Management Committee shall call a meeting
of the Board as soon as circumstances permit, for the purpose of filling vacancies on the Board and
its committees and to take such other action as may be appropriate. The powers of the Emergency
Management Committee shall terminate upon the convening of the meeting of the Board above
prescribed at which a majority of the members thereof shall be present.
ARTICLE V
OFFICERS
Section 5.01 Officers; Election or Appointment. The Board shall take such
action as may be necessary from time to time to ensure that the Corporation has such officers as
are necessary, under this Section 5.01 and the Delaware General Corporation Law as currently in
effect or as the same may hereafter be amended, to enable it to sign stock certificates.
Section 5.02 Term of Office; Resignation; Removal; Vacancies. Unless otherwise
provided in the resolution of the Board electing or authorizing the appointment of any officer,
each officer shall hold office until his or her successor is elected or appointed and qualified or
until his or her earlier resignation or removal. Any officer may resign at any time upon written
notice to the Board or to such person or persons as the Board may designate. Such resignation shall
take effect at the time specified therein, and unless otherwise specified therein no acceptance of
such resignation shall be necessary to make it effective. The Board may remove any officer with or
without cause at any time. Any officer authorized by the Board to appoint a person to hold an
office of the Corporation may also remove such person from such office with or without cause at any
time, unless otherwise provided in the resolution of the Board providing such authorization. Any
such removal shall be without prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election or appointment of an officer shall not of itself create contractual
rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled by the Board at any regular or special meeting or by an officer authorized
by the Board to appoint a person to hold such office.
Section 5.03 Powers and Duties. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated in these Bylaws or
in a resolution of the Board which is not inconsistent with these Bylaws and, to the extent not so
stated, as generally pertain to their respective offices, subject to the control of the Board. A
Secretary or such other officer appointed to do so by the Board shall have the duty to record
the proceedings of the meetings of the stockholders, the Board and any committees in a book to be
kept for that purpose. The Board may require any officer, agent or employee to give security for
the faithful performance of his or her duties.
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Section 5.04 Executive Management Committee. There shall be an Executive
Management Committee of the Corporation, the members of which shall consist of the Chief Executive
Officer, the President, the Chief Financial Officer and such other officers of the Corporation as
the Board may determine from time to time. The Executive Management Committee shall have and may
exercise all the powers and authority in the management of the business and affairs of the
Corporation, insofar as it pertains to capital expenditures and acquisitions, as the Board may
determine.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
Section 6.01 Stock Certificates; Uncertificated Shares.
(a) The shares of stock in the Corporation shall be represented by certificates, provided that
the Board of the Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such resolution shall not
apply to any such shares represented by a certificate theretofore issued until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a resolution or resolutions by
the Board of the Corporation, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate signed by or in the
name of the Corporation by the Chairman of the Board or the President or a Vice President, and by a
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, representing the number of shares
of stock in the Corporation owned by such holder. If such certificate is manually signed by one or
more officers or manually countersigned by a transfer agent or by a registrar, any other signature
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, 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. Certificates representing shares of stock of the Corporation may bear such
legends regarding restrictions on transfer or other matters as any officer or officers of the
Corporation may determine to be appropriate and lawful.
(b) If the Corporation is authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the qualifications or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such class or series of
stock, provided that, except as otherwise required by law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which 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, designations,
preferences and relative, participating, optional or other special rights of such class or
series of stock and the qualifications, limitations or restrictions of such preferences and/or
rights. Within a reasonable time after the issuance or transfer of uncertificated shares of any
class or series of stock, the Corporation shall send to the registered owner thereof a written
notice containing the information required by law to be set forth or stated on certificates
representing shares of such class or series or 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 such class or series and the
qualifications, limitations or restrictions of such preferences and/or rights.
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(c) Except as otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated shares and the rights and obligations of the holders of certificates representing
stock of the same class and series shall be identical.
Section 6.02 Transfers of Stock. Subject to any restrictions on transfer and
unless otherwise provided by the Board of Directors, shares of stock may be transferred only on the
books of the Corporation, if such shares are certificated, by the surrender to the Corporation or
its transfer agent of the certificate therefore properly endorsed or accompanied by a written
assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, or
upon proper instructions from the holder of uncertificated shares, in each case with such proof of
the authenticity of signature as the Corporation or its transfer agent may reasonably require.
Section 6.03 Lost Certificates. In case any certificate of stock shall be
lost, stolen or destroyed, the Board, in its discretion, or any officer or officers thereunto duly
authorized by the Board, may authorize the issue of a substitute certificate of stock or
uncertificated shares in place of the certificate so lost, stolen or destroyed; provided, however,
that, in each such case, the applicant for a substitute certificate or uncertificated shares shall
furnish evidence to the Corporation, which it determines in its discretion is satisfactory, of the
loss, theft or destruction of such certificate and of the ownership thereof, and also such security
or indemnity as may be required by it.
Section 6.04 Determination of Holders of Record for Certain Purposes. In order
to determine the stockholders or other holders of securities 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 capital stock or other securities or for the
purpose of any other lawful action, the Board may fix, in advance, a record date, not more than
sixty (60) days prior to the date of payment of such dividend or other distribution or allotment of
such rights or the date when any such rights in respect of any change, conversion or exchange of
stock or securities may be exercised, and in such case only holders of record on the date so fixed
shall be entitled to receive payment of such dividend or other distribution or to receive such
allotment of rights, or to exercise such rights, notwithstanding any transfer of any stock or other
securities on the books of the Corporation after any such record date fixed as aforesaid. No record
date shall precede the date on which the Board establishes such record date.
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ARTICLE VII
CORPORATE SEAL
Section 7.01 Seal. The Board may provide a suitable Seal containing the name
of the Corporation.
Section 7.02 Affixing and Attesting. The seal of the Corporation shall be in
the custody of the Secretary, who shall have power to affix it to the proper corporate instruments
and documents, and who shall attest it. In his absence, it may be affixed and attested by an
Assistant Secretary, or by the Treasurer or an Assistant Treasurer or by any other person or
persons as may be designated by the Board.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Fiscal Year. The fiscal year of the Corporation shall end on the
thirtieth day of September of each year unless changed by resolution of the Board.
Section 8.02 Signatures on Negotiable Instruments. All bills, notes, checks or
other instruments for the payment of money shall be signed or countersigned by such officers or
agents and in such manner as, from time to time, may be prescribed by resolution (whether general
or special) of the Board, or may be prescribed by any officer or officers, or any officer and agent
jointly, thereunto duly authorized by the Board.
Section 8.03 Execution of Proxies. The President, or, in his absence or his
disability, any Vice President, may authorize, from time to time, the execution and issuance of
proxies to vote shares of stock or other securities of other corporations held of record by the
Corporation and the execution of consents to action taken or to be taken by any such corporation.
All such proxies and consents, unless otherwise authorized by the Board, shall be signed in the
name of the Corporation by the Chairman, the President or any Vice President.
Section 8.04 References to Article and Section Numbers and to the Bylaws and the
Certificate of Incorporation. Whenever in the Bylaws reference is made to an Article or Section
number, such reference is to the number of an Article or Section of the Bylaws. Whenever in the
Bylaws reference is made to the Bylaws, such reference is to these Bylaws of the Corporation, as
amended, and whenever reference is made to the Certificate of Incorporation, such reference is to
the Certificate of Incorporation of the Corporation, as amended, including all documents deemed by
the General Corporation Law of the State of Delaware to constitute a part thereof.
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ARTICLE IX
AMENDMENTS
Section 9.01 Amendments. The Bylaws may be adopted, altered, amended or
repealed, at any annual or special meeting of stockholders of the Corporation, duly called and upon
proper
notice thereof, by the affirmative vote of a majority of the votes cast for and against the
adoption, alteration, amendment or repeal by the holders of shares of stock present in person or
represented by proxy at the meeting and entitled to vote on the adoption, alteration, amendment or
repeal or by the Board at any valid meeting by the affirmative vote of a majority of the whole
Board, provided that in the case of a special meeting of stockholders, notice of such proposed
adoption, alteration, amendment or repeal must be included in the notice of meeting.
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