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8-K - FORM 8-K - SUPERIOR ENERGY SERVICES INC | h79938e8vk.htm |
EX-14.1 - EX-14.1 - SUPERIOR ENERGY SERVICES INC | h79938exv14w1.htm |
EX-99.1 - EX-99.1 - SUPERIOR ENERGY SERVICES INC | h79938exv99w1.htm |
EX-10.1 - EX-10.1 - SUPERIOR ENERGY SERVICES INC | h79938exv10w1.htm |
Exhibit
3.1
AMENDED AND RESTATED
BYLAWS
OF
SUPERIOR ENERGY SERVICES, INC.
(as amended through February 23, 2011)
BYLAWS
OF
SUPERIOR ENERGY SERVICES, INC.
(as amended through February 23, 2011)
SECTION 1.
OFFICES
OFFICES
1.1 Registered Office. The registered office of Superior Energy Services, Inc. (the
Corporation) is 1209 Orange Street in the City of Wilmington, County of New Castle, State of
Delaware, and the name of its registered agent at such address is The Corporation Trust Company.
1.2 Other Offices. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Corporations Board of Directors (the Board) or
any elected officer of the Corporation may determine or the business of the Corporation may require
from time to time.
SECTION 2.
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. All meetings of the stockholders of the Corporation shall be
held at such place or places, if any, within or without the State of Delaware as may from time to
time be fixed by the Board or as shall be specified or fixed in the respective notices or waivers
of notice thereof.
2.2 Annual Meetings. The annual meeting of the stockholders of the Corporation shall
be held at such date, time and place, either within or without the State of Delaware, as may be
fixed by resolution of the Board.
2.3 Special Meetings. Special meetings of the stockholders may be called at any time
only by the Secretary at the direction of the Board pursuant to a resolution adopted by the Board.
2.4 Notice of Stockholder Nominations and Business.
(a) Nominations of persons for election to the Board and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders only (i) pursuant
to the Corporations notice of meeting delivered pursuant to Section 2.5, (ii) by or at the
direction of the Board or (iii) by any stockholder of the Corporation who is entitled to vote at
the meeting, who complied with the notice procedures set forth in Section 2.4(b) and who was a
stockholder of record on the date such notice is delivered to the Secretary and at the time of the
annual meeting. Notwithstanding the foregoing provisions of this Section 2.4(a), if the
stockholder does not timely provide the notifications and updates contemplated by Section
2.4(b)(iii) or (unless otherwise required by law) 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 introduced or transacted, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. For purposes of this Section 2.4,
to be considered a qualified representative of the stockholder, a person must be authorized by a
writing executed and delivered by such stockholder to act for such stockholder as proxy at the
meeting of stockholders and such person must produce such writing, or a reliable reproduction of
the writing, at the meeting of the stockholders.
(b) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to Section 2.4(a)(iii), the stockholder must have given timely notice thereof
in writing to the Secretary and, in the case of business other than nominations, such other
business must otherwise be a proper matter for stockholder action. To be timely, a stockholders
notice shall be delivered to the Secretary at the Corporations principal executive office 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 if the date of the annual meeting is advanced by more than 30 days, or
delayed by more than 90 days, from 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 tenth day following the day on which public announcement 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 in this Section 2.4(b). Such
stockholders notice shall set forth:
(i) as to each person, if any, whom the stockholder proposes to nominate for election as a
director, (A) the name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) 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 Section 14 of
the Securities Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations
promulgated thereunder, (D) such persons written consent to being named in the proxy statement as
a nominee and to serving as a director if elected, (E) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such stockholder and the
beneficial owner, if any, on whose behalf the nomination is made, and their respective affiliates
and associates, or others acting in concert therewith, on the one hand, and each proposed nominee,
and his or her respective affiliates and associates, or others acting in concert therewith, on the
other hand, including, without limitation all information that would be required to be disclosed
pursuant to Item 404 promulgated under Regulation S-K if the stockholder making the nomination and
any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate
thereof or person acting in concert therewith, were the registrant for purposes of such rule and
the nominee were a director or executive officer of such registrant, (F) all information with
respect to such proposed nominee that would be required by Section 2.4(b)(ii) to be set forth in a
stockholders notice if such proposed nominee were a stockholder providing notice of a director
nomination to be made at the meeting, and (G) with respect to each nominee for election or
reelection to the Board, include a completed and signed questionnaire, representation and
agreement required by Section 2.4(h).
(ii) if the notice relates to any business (other than the nomination of persons for election
as directors) that the stockholder proposes to bring before the annual meeting, (A) a brief
description of the business desired to be brought before the annual meeting, (B) the reasons for
conducting such business at the annual meeting, (C) 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 Certificate of Incorporation or these Bylaws, the language of the proposed
amendment), (D) a description of any direct or indirect material interest by security holdings or
otherwise of such stockholder and of the beneficial owner, if any, on whose behalf the proposal is
made, or their respective affiliates, in such business (whether by holdings of securities, or by
virtue of being a creditor or contractual counterparty, of the Corporation or of a third party, or
otherwise), and (E) a description of all agreements, arrangements and understandings between such
stockholder and beneficial owner, if any, or their respective affiliates and any other person or
persons (naming such person or persons) in connection with the proposal of such business by the
stockholder; and
(iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (A) the name and address of such stockholder, as they
appear on the Corporations books, and of such beneficial owner, if any, (B)(1) the class or series
and number of shares of capital stock of the Corporation that are, directly or indirectly, owned
beneficially and of record by such stockholder and by such beneficial owner, (2) any option,
warrant, convertible security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to any class or series
of capital stock of the Corporation, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the Corporation or otherwise (a
Derivative Instrument) directly or indirectly owned beneficially by such stockholder and by such
beneficial owner, if any, and any other contract, arrangement, understanding or relationship
(including, without limitation, any swap profit interest, hedging transaction, repurchase agreement
or securities lending or borrowing arrangement) to which such stockholder or beneficial owner is,
directly or indirectly, a party as of the date of such notice (x) with respect to shares of capital
stock of the Corporation or (y) the effect or intent of which is to mitigate loss to, manage the
potential risk or benefit of share price changes (increases or decreases) for, or increase or
decrease the voting power of such stockholder or beneficial owner or any of their affiliates with
respect to, securities of the Corporation, or which may have payments based in whole or in part,
directly or indirectly, on the price, value or volatility (or change in price, value or volatility)
of any class or series of securities of the Corporation, (3) any proxy, contract, arrangement,
understanding, or relationship pursuant to which such stockholder or beneficial owner, if any, has
a right to vote any shares of any security of the Corporation, (4) any short interest in any
security of the Corporation (for purposes of this Section 2.4, a person shall be deemed to have a
short interest in a security if such person directly or indirectly, through a contract,
arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in
any profit derived from any decrease in the value of the subject security), (5) any proportionate
interest in shares of capital stock of the Corporation or Derivative Instrument held, directly or
indirectly by a general partner or with respect to which such stockholder or such beneficial owner,
if any, directly or indirectly,
beneficially owns an interest in a general partner, and (6) any performance-related fees
(other than an asset-based fee) to which such stockholder or such beneficial owner, if any, is
entitled to based on any increase or decrease in the value of shares of capital stock of the
Corporation or Derivative Instruments, if any, in each case with respect to the information
required to be included in the notice pursuant to clauses (1) through (6) above, as of the date of
such notice and including, without limitation, any such interests held by members of such
stockholders or such beneficial owners immediate family sharing the same household or by such
stockholders or such beneficial owners respective affiliates (naming such affiliates), (C) any
other information relating to such stockholder and beneficial owner, if any, that would be required
to be disclosed in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors in a contested election pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder, (D) a representation that
the stockholder is a holder of record of capital stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to propose such business or
nomination, (E) a representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group that intends (1) 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 proposal or elect the nominee, or (2) otherwise to solicit proxies from stockholders in
support of such proposal or nomination and (F) an undertaking by the stockholder and the beneficial
owner, if any, to (1) notify the Corporation in writing of the information set forth in clauses (C)
through (F) of Section 2.4.1(b)(i), clauses (D) and (E) of Section 2.4(b)(ii) and Section
2.4(b)(iii)(B) as of the record date for the meeting promptly (and, in any event, within five
business days) following the later of the record date or the day on which the Corporation makes a
public announcement of the record date and (2) update such information thereafter within two
business days of any change in such information, and in any event, as of close of business on the
day preceding the meeting date.
(c) 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 pursuant to Section
2.5. Nominations of persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporations notice of meeting
(i) by or at the direction of the Board or (ii) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complies with the notice procedures set forth in this Section
2.4 and who is a stockholder of record at the time such notice is delivered to the Secretary and at
the time of the annual meeting. If the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board, any stockholder entitled to vote in such
election may nominate such number of persons for election to such position(s) as are specified in
the Corporations notice of meeting, if the stockholders notice as required by Section 2.4(a)(ii)
shall be delivered to the Secretary at the Corporations principal executive offices 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 tenth day following the day on which public announcement of the date of the special meeting and
of the nominees proposed by the Board to be elected at such meeting is first made by the
Corporation. 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.
(d) Only persons who are nominated in accordance with the procedures set forth in these Bylaws
shall be eligible to be elected as directors at a meeting of stockholders 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 2.4. Except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, the Chairman of the Board 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 in accordance with the procedures set forth in this Section 2.4 and,
if any proposed nomination or business is not in compliance with this Section 2.4, to declare that
such defective proposal or nomination shall be disregarded.
(e) For purposes of this Section 2.4,
(1) public announcement shall include (A) the mailing by the Corporation to the stockholders
of written notice, or (B) disclosure in a press release reported by the Dow Jones News Service,
Associated Press, or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the
Exchange Act and the rules and regulations promulgated thereunder;
(2) the term beneficial owner has the meaning given to such term in Rule 13d-3 under the
Exchange Act; and
(3) the terms affiliate and associate have the meanings given to such terms in Rule 12b-2
under the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Section 2.4, any stockholder intending to
propose business or make a director nomination at a stockholder meeting in accordance with this
Section 2.4, and each related beneficial owner, if any, shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in these Bylaws; provided, however, that any references in these
Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not
limit the requirements applicable to proposals of business or director nominations made or intended
to be made by stockholders in accordance with this Section 2.4.
(g) Nothing in this Section 2.4 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
(h) Pursuant to Section 2.4(b)(i)(G), to be eligible to be a nominee for election or
reelection as a director of the Corporation, a person whom a stockholder proposes to nominate for
such election or reelection must deliver (not later than the deadline prescribed for delivery of
notice under this Section 2.4) to the Secretary at the Corporations corporate headquarters a
written questionnaire with respect to the background and qualification of such person and the
background of any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a written representation
and agreement (in the form provided by the Secretary upon written request) that
such person (A) is not and will not become a party to (1) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any person or entity as to
how such person, if elected as a director of the Corporation, will act or vote on any issue or
question (a Voting Commitment) that has not been disclosed to the Corporation, or (2) any Voting
Commitment that could limit or interfere with such persons ability to comply, if elected as a
director of the Corporation, with such persons fiduciary duties under applicable law, (B) is not
and will not become a party to any agreement, arrangement or understanding with any person or
entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed therein, and (C) in such persons individual capacity and on behalf of any person or
entity on whose behalf the nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with, applicable law and all applicable publicly
disclosed corporate governance, conflict of interest, confidentiality and stock trading policies
and guidelines of the Corporation.
2.5 Notice of Stockholder Meetings.
(a) All notices of meetings of stockholders shall be sent or otherwise given in accordance
with this Section 2.5 not less than ten nor more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. The notice shall specify the place, if any,
date, and hour of the meeting, 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, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.
(b) Written notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at the address as it appears on
the records of the Corporation. An affidavit of the Secretary or of the transfer agent of the
Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
(c) To the extent permitted by applicable law and without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders given by the
Corporation under applicable law, the Certificate of Incorporation or these Bylaws shall be
effective if given by a form of electronic transmission if consented to by the stockholder to whom
the notice is given. Any such consent shall be revocable by the stockholder by written notice to
the Corporation. Any such consent shall be deemed to be revoked if (i) the Corporation is unable
to deliver by electronic transmission two consecutive notices by the Corporation in accordance with
such consent and (ii) such inability becomes known to the Secretary or to the transfer agent, or
other person responsible for the giving of notice; provided, however, that the inadvertent failure
to treat such inability as a revocation shall not invalidate any meeting or other action. Notice
given by electronic transmission, as described above, shall be deemed given: (A) if by facsimile
telecommunication, when directed to a number at which the stockholder has consented to receive
notice; (B) if by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (C) if by a posting on an electronic network, together
with separate notice to the stockholder of such specific posting, upon the later of (1) such
posting and (2) the giving of such separate notice; and (D) if by any other form of electronic
transmission, when directed to the stockholder.
For purposes of this Section 2.5, electronic transmission shall mean any form of
communication, not directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process.
2.6 Stockholder List. The Secretary shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing 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, during ordinary business hours, for a
period of at least ten days prior to the meeting, at the principal place of business of the
Corporation. The list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
2.7 Quorum. Except as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the voting power of the outstanding shares of the
Corporation entitled to vote generally in the election of directors (the Voting Stock),
represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except
that when specified business is to be voted on by a class or series voting as a class, the holders
of a majority of the voting power of the shares of such class or series shall constitute a quorum
for the transaction of such business. The Chairman of the Board or the holders of a majority of
the voting power of the shares of Voting Stock so represented may adjourn the meeting from time to
time, whether or not there is such a quorum (or, in the case of specified business to be voted on
by a class or series, the Chairman of the Board or the holders of a majority of the voting power of
the shares of such class or series so represented may adjourn the meeting with respect to such
specified business). No notice of the time and place of adjourned meetings need be given except as
required by law. The stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
2.8 Proxies. At all meetings of stockholders, a stockholder may vote by proxy as
permitted by applicable law; provided, that no proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Any proxy to be used at a meeting of
stockholders must be filed with the Secretary or his representative at or before the time of the
meeting.
2.9 Voting. Unless otherwise required by law, the Certificate of Incorporation or
these Bylaws, (a) at all meetings of stockholders for the election of directors, directors shall be
elected by a plurality of votes cast and (b) any other question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority in voting power of the stock
represented and entitled to vote thereon. Unless otherwise provided in the Certificate of
Incorporation, each stockholder represented at a meeting of stockholders shall be entitled to cast
one vote for each share of the capital stock entitled to vote thereat held by such stockholder.
The Board, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
2.10 Inspector of Elections; Opening and Closing of Polls; Conduct of Meetings.
(a) The Board by resolution shall appoint one or more inspectors to act at a meeting of
stockholders and make a written report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If all inspectors or alternates who have
been appointed are unable to act, at a meeting of stockholders, the Chairman of the Board shall
appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or
her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors shall have the duties
prescribed by applicable law.
(b) The Chairman of the Board shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at the
meeting.
(c) The Board may adopt by resolution such rules and regulations for the conduct of the
meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such
rules and regulations as adopted by the Board, the person presiding over any meeting of
stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe
such rules, regulations and procedures and to do all such acts as, in the judgment of such
presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board or prescribed by the presiding person of the meeting,
may include, without limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted proxies or such
other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding person at any meeting of
stockholders, in addition to making any other determinations that may be appropriate to the conduct
of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or
business was not properly brought before the meeting and if such presiding person should so
determine, such presiding person shall so declare to the meeting and any such matter or business
not properly brought before the meeting shall not be transacted or considered. Unless and to the
extent determined by the Board or the person presiding over the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary procedure.
SECTION 3.
DIRECTORS
DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be managed by or under
the direction of the Board. In addition to the powers and authorities by these Bylaws expressly
conferred upon the Board, the Board may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of Incorporation or by these Bylaws
required to be exercised or done by the stockholders.
3.2 Number. Subject to Section 3.3, the number of directors constituting the entire
Board shall be determined, from time to time, by a resolution of the Board. No reduction of the
authorized number of directors shall have the effect of removing any director before such
directors term of office expires. No more than a minority of the number of directors necessary to
constitute a quorum shall be non-citizens of the United States.
3.3 Resignation and Vacancies. A director may resign at anytime effective upon giving
written notice to the Chairman of the Board, unless the notice specifies a later time for the
effectiveness of such resignation. Unless otherwise provided in the Certificate of Incorporation
or these Bylaws, vacancies arising through death, resignation, removal, an increase in the number
of directors or otherwise may be filled only by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office
until the next annual election and until their successors are duly elected and qualified, or until
their earlier death, resignation or removal.
3.4 Compensation. Directors may receive such compensation for their services and
reimbursement of expenses as may be fixed or determined from time to time by the Board.
SECTION 4.
MEETINGS OF THE BOARD
MEETINGS OF THE BOARD
4.1 Meetings.
(a) The Board may hold meetings, both regular and special, either within or without the State
of Delaware. Regular meetings of the Board may be held without notice at such time and at such
place as shall from time to time be determined by the Board. Special meetings of the Board may be
called by the Chairman of the Board or a majority of the Board. The person or persons authorized
to call special meetings of the Board may fix the time and place of the meetings.
(b) Notice of the time and place of special meetings may be given personally or by mail,
telephone, facsimile or by means of electronic transmission. If the notice is mailed, it shall be
sent by first class mail addressed to each director or that directors address as it is shown on
the records of the Corporation and deposited in the United States mail at least four days before
the time of the holding of the meeting. If the notice is delivered personally or by telephone,
facsimile or electronic transmission it shall be delivered by such means at least 24 hours before
the time of the holding of the meeting, or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate under the circumstances.
4.2 Quorum. At all meetings of the Board a majority of the directors shall constitute
a quorum for the transaction of business and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board, except as may be otherwise
specifically provided by law or by the Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum shall be present.
4.3 Action at Meeting. If a quorum is present when any meeting of the Board is
convened, the directors may continue to do business, taking action by vote of a majority of a
quorum as fixed in Section 4.2, until adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum or the refusal of any director present to vote.
4.4 Action by Consent. Unless otherwise restricted 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 all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
4.5 Meetings by Telephone. Unless otherwise restricted by the Certificate of
Incorporation, members of the Board or any committee designated by the Board may participate in a
meeting of the Board or any 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 such
participation in a meeting shall constitute presence in person at the meeting.
4.6 Presiding Officer. The Chairman of the Board shall preside at all meetings of the
Board or, in his absence, a chairman appointed by resolution of the Board. The Secretary shall act
as secretary of each meeting, but in the absence of the Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
4.7 Committees.
(a) The Corporation shall have three standing committees: the audit committee, the nominating
and corporate governance committee, and the compensation committee. Each such standing committee
shall consist of such number of directors and shall have such power and authority as shall be
determined by resolution of the Board.
(b) The Board may designate one or more additional committees, with each such committee
consisting of such number of directors and having such power and authority as shall be determined
by resolution of the Board.
(c) All acts done by any committee within the scope of its powers and authority pursuant to
these Bylaws and the resolutions adopted by the Board in accordance with the terms hereof shall be
deemed to be, and may be certified as being, done or conferred under authority of the Board. The
Secretary is empowered to certify that any resolution duly adopted by any such committee is binding
upon the Corporation and to execute and deliver such certifications from time to time as may be
necessary or proper to the conduct of the business of the Corporation.
(d) Regular meetings of committees shall be held at such times as may be determined by
resolution of the committee in question and no notice shall be required for any regular meeting
other than such resolution. A special meeting of any committee shall be called by the Secretary
upon the request of the chairman or a majority of the members of such committee. Notice of special
meetings shall be given to each member of the committee in the same manner as that provided for in
Section 4.1(b).
SECTION 5.
OFFICERS
OFFICERS
5.1 Officers. The Corporation may have elected officers and appointed officers. The
elected officers of the Corporation shall be elected by the Board (Elected Officers) and shall
consist of: a Chief Executive Officer; a President; a Chief Financial Officer; a General Counsel; a
Treasurer; a Secretary; or such other officers (including without limitation, Executive Vice
Presidents) as the Board from time to time may determine. Officers elected by the Board shall each
have such powers and duties as generally pertain to their respective offices, subject to the
specific provisions of this Section 5. Such officers shall also have such powers and duties as
from time to time may be conferred by the Board. All other officers of the Corporation shall be
appointed by the Chief Executive Officer of the Corporation (Appointed Officers) and shall serve
at the pleasure of the Chief Executive Officer and shall hold such officer titles solely for
purposes of identification and business convenience. Appointed Officers shall not be considered
Elected Officers. Unless otherwise expressly provided by the Chief Executive Officer and except as
required by law, Appointed Officers shall not be considered officers for any purpose, including,
without limitation, for purposes of any indemnification to which officers may be entitled under
these Bylaws or otherwise and any federal securities laws and regulations. Appointed Officers
shall have the authority to obligate and bind the Corporation only with respect to the ordinary
course of their business activities on behalf of the Corporation within the parameters of their
authority as specified from time to time by the Board or the Chief Executive Officer or his or her
designee.
5.2 Chief Executive Officer. The Chief Executive Officer shall be the chief executive
officer of the Corporation, shall have general supervision of the affairs of the Corporation and
general control of all of its business subject to the ultimate authority of the Board, and shall be
responsible for the execution of the policies of the Board. In the absence (or inability or refusal
to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) shall preside when present at all meetings of the stockholders and the Board.
5.3 President. If the President is not also the Chief Executive Officer, the
President shall make recommendations to the Chief Executive Officer on all operational matters that
would normally be reserved for the final executive responsibility of the Chief Executive Officer.
In the absence (or inability or refusal to act) of the Chairman of the Board and Chief Executive
Officer, the President (if he or she shall be a director) shall preside when present at all
meetings of the stockholders and the Board. The President shall also perform such duties and have
such powers as shall be designated by the Board.
5.4 Chief Financial Officer. The Chief Financial Officer shall have responsibility
for development and administration of the Corporations financial plans and all financial
arrangements, its cash deposits and short term investments, its accounting policies and its federal
and state tax returns. The Chief Financial Officer shall also be responsible for the Corporations
internal control procedures. The Chief Financial Officer shall perform all the duties incident to
the office of chief financial officer of a corporation, those duties assigned to him by other
provisions of these Bylaws and such other duties as may be assigned to him by the Board or the
Chief Executive Officer, or as may be provided by law.
5.5 General Counsel. The General Counsel shall have general authority and exercise
general supervision over the legal and regulatory affairs of the Corporation. The General Counsel
shall see that all orders of the Board with respect to such affairs are carried into effect. The
General Counsel shall perform all the duties incident to the office of a general counsel of a
corporation, those duties assigned to him by other provisions of these Bylaws and such other duties
as be assigned to him by the Board or the Chief Executive Officer, or as may be provided by law.
5.6 Treasurer. The Treasurer shall, in the absence (or inability or refusal to act)
of the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial
Officer.
5.7 Vice Presidents. In the absence (or inability or refusal to act) of the
President, the Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board) shall perform the duties and have the powers of
the President. Any one or more of the Vice Presidents may be given an additional designation of
rank or function.
5.8 Secretary.
(a) The Secretary shall attend all meetings of the stockholders, the Board and (as required)
committees of the Board and shall record the proceedings of such meetings in books to be kept for
that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board and shall perform such other duties as may be
prescribed by the Board or Chief Executive Officer. The Secretary shall have custody of the
corporate seal of the Corporation and the Secretary shall have authority to affix the same to any
instrument requiring it, and when so affixed, it may be attested by his or her signature. The
Board may give general authority to any other officer to affix the seal of the Corporation and to
attest the affixing thereof by his or her signature.
(b) The Secretary shall keep, or cause to be kept, at the principal executive office of the
Corporation or at the office of the Corporations transfer agent or registrar, if one has been
appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and
their addresses, the number and classes of shares held by each and, with respect to certificated
shares, the number and date of certificates issued for the same and the number and date of
certificates cancelled.
5.9 Term of Office; Removal. Elected Officers and Appointed Officers shall be
appointed by the Board and shall hold office until their successors are duly elected and qualified
in accordance with these Bylaws or until their earlier death, resignation, retirement,
disqualification, or removal from office. Any officer may be removed, with or without cause, at any
time by the Board.
5.10 Multiple Officeholders. Any number of offices may be held by the same person
unless the Certificate of Incorporation or these Bylaws otherwise provide.
SECTION 6.
INDEMNIFICATION
INDEMNIFICATION
6.1 Right to Indemnification. Each person who was or is made a party to or is
threatened to be made a party to or is involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (other
than an action by or in the right of the Corporation) (hereinafter a proceeding), by reason of
the fact that he is or was a director or officer of the Corporation, or by reason of the fact that
such director or officer, at the request of the Corporation, is or was serving as a director,
officer, partner, venturer, trustee, employee, agent, or similar functionary of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise, whether the basis of such proceeding is alleged action in an official capacity as
a director or officer or in any other capacity while serving or having agreed to serve as a
director or officer of the Corporation, shall be indemnified and held harmless by the Corporation
to the fullest extent permitted by law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted the Corporation to provide prior to such
amendment) against all expense, liability and loss (including without limitation, attorneys fees,
judgments, fines, excise or similar taxes, punitive damages or penalties and amounts paid or to be
paid in settlement) actually and reasonably incurred or suffered by such person in connection with
such proceeding, and such indemnification under this Section 6 shall continue as to a person who
has ceased to serve in the capacity which initially entitled such person to indemnity hereunder and
shall inure to the benefit of his or her heirs, executors and administrators; provided, however,
that the Corporation shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by a resolution of the Board. The right to indemnification granted pursuant to this
Section 6 shall be a contractual right, and no amendment, modification or repeal of this Section 6
shall have the effect of limiting or denying any such rights with respect to actions taken or
proceedings arising prior to any such amendment, modification or repeal.
6.2 Advance Payment. The right to indemnification conferred in this Section 6 shall
include the right to be paid or reimbursed by the Corporation for the reasonable expenses incurred
by a person of the type entitled to be indemnified under Section 6.1 who was, is or is threatened
to be made a named defendant or respondent in a proceeding in advance of the final disposition of
the proceeding and without any determination as to the persons ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred by any such person
in advance of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of a written affirmation by such director or officer of his good faith belief that he
has met the standard of conduct necessary for indemnification under this Section 6 and a written
undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified person is not entitled to be indemnified under this
Section 6 or otherwise.
6.3 Indemnification of Employees and Agents. The Corporation may, by resolution of
the Board, provide indemnification to employees and agents of the Corporation, individually
or as a group, with the same scope and effect as the indemnification of directors and officers
provided for in this Section 6.
6.4 Right of Claimant to Bring Suit. If a written claim received by the Corporation
from or on behalf of an indemnified party under this Section 6 is not paid in full by the
Corporation within 60 days after such receipt, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the claimant has not
met the standards of conduct which make it permissible under law for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board, independent legal
counsel, or its stockholders) to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in law, nor an actual determination by the Corporation
(including the Board, independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create a presumption that
the claimant has not met the applicable standard of conduct.
6.5 Insurance, Contracts and Funding. 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, limited liability company, joint venture, trust, employee benefit
plan 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 law.
The Corporation may enter into contracts with any indemnitee in furtherance of the provisions of
this Section 6 and may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Section 6.
6.6 Reformation. If any provision of this Section 6 is determined by a court to
violate or conflict with applicable law, the court shall be empowered to modify or reform such
provision so that, as modified or reformed, such provision provides the maximum indemnification
permitted by applicable law, and such provision, as so modified or reformed, and the balance of
this Section 6 shall be applied in accordance with their terms. Without limiting the generality of
the foregoing, if any portion of this Section 6 shall be invalidated on any ground, the Corporation
shall nevertheless indemnify an Indemnitee to the full extent permitted by any applicable portion
of this Section 6 that shall not have been invalidated and to the full extent permitted by law with
respect to that portion that has been invalidated.
SECTION 7.
GENERAL PROVISIONS
GENERAL PROVISIONS
7.1 Share Certificates and Uncertificated Shares. The shares of the Corporation may
be represented by certificates or uncertificated, as provided under applicable law. Every holder
of stock represented by certificates shall be entitled to have a certificate signed by, or in the
name
of the Corporation by (a) the Chairman of the Board, or the Chief Executive Officer or the
President or a Vice-President, and (b) by the Chief Financial Officer, or the Treasurer, or the
Secretary of the Corporation representing the number of shares registered in certificate form. Any
or all of the signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
has ceased to be an officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he or she were such officer, transfer agent
or registrar at the date of issue.
7.2 Lost Certificates. Except as provided in this Section 7.3, no new certificates
for shares shall be issued to replace a previously issued certificate unless the latter is
surrendered to the Corporation and canceled at the same time. The Corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate previously 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, upon the making of
an affidavit of fact by the person claiming the stock certificate to be lost, stolen or destroyed,
to give the Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate or uncertificated shares.
7.3 Record Date for Stockholder Notice, Voting and Dividends.
(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, in advance, a
record date, which shall 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 that it fixes such record date, that a later date on or before the date of the meeting shall
be the date for making such a determination. If the Board of Directors does not so fix a record
date, the record date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next preceding the day on which
the meeting is held. 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 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 which was 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, the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which shall not be more than
sixty (60) days prior to such other action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
7.4 Dividends. The Board may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and under the terms provided by law and the
Certificate of Incorporation.
7.5 Waiver of Notice. Whenever any notice is required to be given to any stockholder
or director of the Corporation by law, a waiver thereof in writing, signed by the person or persons
entitled to such notice, or a waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at, nor the purpose of, any annual or special
meeting of the stockholders or any meeting of the Board or committee thereof need be specified in
any waiver of notice of such meeting.
7.6 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of
the Board.
7.7 Seal. The corporate seal shall have inscribed thereon the name of the Corporation
and shall be in such form as may be approved from time to time by the incorporator, or, after the
appointment of directors, the Board. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
7.8 Forum Selection. Unless the Board of Directors 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 (a) any derivative action or proceeding brought on behalf of the
Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer, employee or agent of the Corporation to the Corporation or the Corporations stockholders,
(c) any action asserting a claim arising pursuant to any provision of the General Corporation Law
of the State of Delaware, or (d) any action asserting a claim governed by the internal affairs
doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the
indispensable parties named as defendants therein. 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 consented to the provisions of this Section 7.8.
SECTION 8.
AMENDMENTS
AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the Board,
subject to the rights of the stockholders of the Corporation to amend or repeal Bylaws made or
amended by the Board at any meeting of the stockholders, provided that notice of the proposed
action be included in the notice of such meeting.