Attached files
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8-K - FORM 8-K - GLOBAL DEFENSE TECHNOLOGY & SYSTEMS, INC. | c15071e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - GLOBAL DEFENSE TECHNOLOGY & SYSTEMS, INC. | c15071exv3w1.htm |
Exhibit 3.2
BYLAWS
OF
SOTERA DEFENSE SOLUTIONS, INC.
A Delaware Corporation
Effective April 4, 2011
TABLE OF CONTENTS
Page | ||||
ARTICLE I OFFICES |
1 | |||
Section 1. Registered Office |
1 | |||
Section 2. Other Offices |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
Section 1. Place of Meetings |
1 | |||
Section 2. Annual Meetings |
1 | |||
Section 3. Special Meetings |
1 | |||
Section 4. Notice |
1 | |||
Section 5. Adjournments |
2 | |||
Section 6. Quorum |
2 | |||
Section 7. Voting |
2 | |||
Section 8. Proxies |
2 | |||
Section 9. Consent of Stockholders in Lieu of Meeting |
3 | |||
Section 10. List of Stockholders Entitled to Vote |
4 | |||
Section 11. Record Date |
4 | |||
Section 12. Stock Ledger |
5 | |||
Section 13. Conduct of Meetings |
5 | |||
ARTICLE III DIRECTORS |
5 | |||
Section 1. Number and Election of Directors |
5 | |||
Section 2. Vacancies |
5 | |||
Section 3. Duties and Powers |
6 | |||
Section 4. Meetings |
6 | |||
Section 5. Organization |
6 | |||
Section 6. Resignations and Removals of Directors |
6 | |||
Section 7. Quorum |
7 | |||
Section 8. Actions of the Board by Written Consent |
7 | |||
Section 9. Meetings by Means of Conference Telephone |
7 | |||
Section 10. Committees |
7 | |||
Section 11. Compensation |
8 | |||
Section 12. Interested Directors |
8 | |||
ARTICLE IV OFFICERS |
8 | |||
Section 1. General |
8 | |||
Section 2. Election |
9 | |||
Section 3. Voting Securities Owned by the Corporation |
9 | |||
Section 4. Chairman of the Board of Directors |
9 | |||
Section 5. Chief Executive Officer |
9 |
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Page | ||||
Section 6. President |
10 | |||
Section 7. Vice Presidents |
10 | |||
Section 8. Secretary |
10 | |||
Section 9. Treasurer |
11 | |||
Section 10. Assistant Secretaries |
11 | |||
Section 11. Assistant Treasurers |
11 | |||
Section 12. Other Officers |
11 | |||
ARTICLE V STOCK |
12 | |||
Section 1. Form of Certificates |
12 | |||
Section 2. Signatures |
12 | |||
Section 3. Lost Certificates |
12 | |||
Section 4. Transfers |
12 | |||
Section 5. Dividend Record Date |
13 | |||
Section 6. Record Owners |
13 | |||
Section 7. Transfer and Registry Agents |
13 | |||
ARTICLE VI NOTICES |
13 | |||
Section 1. Notices |
13 | |||
Section 2. Waivers of Notice |
13 | |||
ARTICLE VII GENERAL PROVISIONS |
14 | |||
Section 1. Dividends |
14 | |||
Section 2. Disbursements |
14 | |||
Section 3. Fiscal Year |
14 | |||
Section 4. Corporate Seal |
14 | |||
Section 5. Affixing Seal |
14 | |||
ARTICLE VIII INDEMNIFICATION |
14 | |||
Section 1. Power to Indemnify Directors |
14 | |||
Section 2. Procedure for Indemnification of Directors |
15 | |||
Section 3. Expenses Payable in Advance |
15 | |||
Section 4. Nonexclusivity of Indemnification and Advancement of Expenses |
16 | |||
Section 5. Insurance |
16 | |||
Section 6. Certain Definitions |
16 | |||
Section 7. Survival of Indemnification and Advancement of Expenses |
16 | |||
Section 8. Indemnification of Officers, Employees and Agents |
17 | |||
Section 9. Contract Rights |
17 | |||
ARTICLE IX MISCELLANEOUS |
17 | |||
Section 1. Amendments |
17 | |||
Section 2. Entire Board of Directors |
17 | |||
Section 3. Shareholders Agreement |
17 |
ii
BYLAWS
OF
SOTERA DEFENSE SOLUTIONS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other places,
both within and without the State of Delaware, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The Annual Meeting of Stockholders for the election of
directors shall be held on such date and at such time as shall be designated from time to time by
the Board of Directors. Any other proper business may be transacted at the Annual Meeting of
Stockholders.
Section 3. Special Meetings. Unless otherwise required by law or by the certificate
of incorporation of the Corporation, as amended and restated from time to time (the Certificate of
Incorporation), Special Meetings of Stockholders, for any purpose or purposes, may be called by
either (i) the Chairman, if there be one, or (ii) the President, (iii) any Vice President, if there
be one, (iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by
any such officer at the request in writing of (i) the Board of Directors, (ii) a committee of the
Board of Directors that has been duly designated by the Board of Directors and whose powers and
authority include the power to call such meetings or (iii) stockholders owning a majority of the
capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. At a Special Meeting of Stockholders, only
such business shall be conducted as shall be specified in the notice of meeting (or any supplement
thereto).
Section 4. Notice. Whenever stockholders are required or permitted to take any action
at a meeting, a written notice of the meeting shall be given which shall state the place, date and
hour of the meeting, and, in the case of a Special Meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by law, written notice of any meeting
shall be given not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to notice of and to vote at such meeting.
Section 5. Adjournments. Any meeting of the stockholders may be adjourned from time
to time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice
of the adjourned meeting in accordance with the requirements of Section 4 hereof shall be given to
each stockholder of record entitled to notice of and to vote at the meeting.
Section 6. Quorum. Unless otherwise required by applicable law or the Certificate of
Incorporation, the holders of a majority of the Corporations capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, in the manner provided in Section 5 hereof, until a
quorum shall be present or represented.
Section 7. Voting. Unless otherwise required by law, any Shareholders Agreement
entered into among Sentinel Acquisition Holdings, Inc. and its stockholders (as amended, modified
or supplemented, the Shareholders Agreement), the Certificate of Incorporation or these Bylaws,
any question brought before any meeting of the stockholders, other than the election of directors,
shall be decided by the vote of the holders of a majority of the total number of votes of the
Corporations capital stock represented at the meeting and entitled to vote on such question,
voting as a single class. Unless otherwise provided in the Certificate of Incorporation, and
subject to Section 11(a) of this Article II, each stockholder represented at a meeting of the
stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in
Section 8 of this Article II. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of the stockholders, in such officers discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 8. Proxies. Each stockholder entitled to vote at a meeting of the
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder as proxy, but no such proxy shall
be voted upon after three years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person or persons to act
for such stockholder as proxy, the following shall constitute a valid means by which a stockholder
may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the stockholder or such
stockholders authorized officer, director, employee or agent signing
such writing or causing such persons signature to be affixed to such writing by any
reasonable means, including, but not limited to, by facsimile signature.
2
(ii) A stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of a facsimile to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy
to receive such facsimile, provided that any such facsimile must either set forth or be
submitted with information from which it can be determined that the facsimile was authorized
by the stockholder. If it is determined that such facsimiles are valid, the inspectors or,
if there are no inspectors, such other persons making that determination shall specify the
information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing authorizing
another person or persons to act as proxy for a stockholder may be substituted or used in lieu of
the original writing, facsimile for any and all purposes for which the original writing, facsimile
could be used; provided, however, that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or facsimile
telecommunication.
Section 9. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required or permitted to be taken at any Annual or
Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which proceedings of meetings of
the stockholders are recorded. Delivery made to the Corporations registered office shall be by
hand or by certified or registered mail, return receipt requested. Every written consent shall
bear the date of signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within sixty (60) days of the
earliest dated consent delivered in the manner required by this Section 9 to the Corporation,
written consents signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book in which proceedings
of meetings of the stockholders are recorded. Any copy, facsimile or other reliable reproduction
of a consent in writing may be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such copy, facsimile or other
reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if the record date for such meeting
had been the date that written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation as provided above in this Section 9.
3
Section 10. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of the 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 (10) days prior to the meeting (i) either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held or (ii) during ordinary
business hours, 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.
Section 11. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining stockholders entitled to notice of or to
vote at a meeting of the 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 the stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which proceedings of meetings of
the stockholders are recorded. Delivery made to the Corporations registered office shall be by
hand or by certified or registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day on which the Board
of Directors adopts the resolution taking such prior action.
4
Section 12. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 10 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of the stockholders.
Section 13. Conduct of Meetings. The Board of Directors of the Corporation may adopt
by resolution such rules and regulations for the conduct of any meeting of the stockholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the
right and authority to prescribe such rules, regulations and procedures and to do all such acts as,
in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation, the following: (i) the establishment of
an agenda or order of business for the meeting; (ii) the determination of when the polls shall open
and close for any given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. Number and Election of Directors. Unless otherwise required by the
Shareholders Agreement, the Board of Directors shall consist of not less than one nor more than
fifteen members, the exact number of which shall initially be fixed by the Incorporator and
thereafter from time to time by the Board of Directors. Unless otherwise required by the
Shareholders Agreement, except as provided in Section 2 of this Article III, directors shall be
elected by a plurality of the votes cast at each Annual Meeting of Stockholders and each director
so elected shall hold office until the next Annual Meeting of Stockholders and until such
directors successor is duly elected and qualified, or until such directors earlier death,
resignation or removal. Directors need not be stockholders.
Section 2. Vacancies. Unless otherwise required by law, the Shareholders Agreement or
the Certificate of Incorporation, vacancies on the Board of Directors or any committee thereof
arising through death, resignation, removal, an increase in the number of directors constituting
the Board of Directors or such committee 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. The
directors so chosen shall, in the case of the Board of Directors, hold office until the next annual
election and until their successors are duly elected and qualified, or until their earlier death,
resignation or removal and, in the case of any committee of the Board of Directors, shall hold
office until their successors are duly appointed by the Board of Directors or until their earlier
death, resignation or removal.
5
Section 3. Duties and Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors and any committee thereof may hold
meetings, both regular and special, either within or without the State of Delaware. Regular
meetings of the Board of Directors or any committee thereof may be held without notice at such time
and at such place as may from time to time be determined by the Board of Directors or such
committee, respectively. Special meetings of the Board of Directors may be called by the Chairman,
if there be one, the President, or by any director. Special meetings of any committee of the Board
of Directors may be called by the chairman of such committee, if there be one, the President, or
any director serving on such committee. Notice thereof stating the place, date and hour of the
meeting shall be given to each director (or, in the case of a committee, to each member of such
committee) either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or facsimile on twenty-four (24) hours notice.
Section 5. Organization. At each meeting of the Board of Directors or any committee
thereof, the Chairman of the Board of Directors or the chairman of such committee, as the case may
be, or, in his or her absence or if there be none, a director chosen by a majority of the directors
present, shall act as chairman. Except as provided below, the Secretary of the Corporation shall
act as secretary at each meeting of the Board of Directors and of each committee thereof. In case
the Secretary shall be absent from any meeting of the Board of Directors or of any committee
thereof, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of
the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the
foregoing, the members of the Board of Directors or any committee thereof, as applicable, may
appoint any person to act as secretary of any meeting of the Board of Directors or such committee.
Section 6. Resignations and Removals of Directors. Any director of the Corporation
may resign from the Board of Directors or any committee thereof at any time, by giving notice in
writing to the Chairman of the Board of Directors, if there be one, the President or the Secretary
of the Corporation and, in the case of a committee, to the chairman of such committee, if there be
one. Such resignation shall take effect at the time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such notice, the acceptance of such resignation
shall not be necessary to make it effective. Except as otherwise required by applicable law or the
Shareholders Agreement and, subject to the rights, if any, of the holders of shares of preferred
stock then outstanding, any director or the entire Board of Directors may be removed from office at
any time by the affirmative vote of the holders of at least a majority in voting power of the
issued and outstanding capital stock of the Corporation entitled to vote in the election of
directors. Subject to the terms of the Shareholders Agreement, any director serving on a committee
of the Board of Directors may be removed from such committee at any time by the Board of Directors.
6
Section 7. Quorum. Except as otherwise required by law, the Certificate of
Incorporation or the Shareholders Agreement, at all meetings of the Board of Directors or any
committee thereof, a majority of the entire Board of Directors (which majority must include the
Chairman of the Board of Directors, if there is one) or a majority of the directors constituting
such committee, as the case may be, shall constitute a quorum for the transaction of business and
the act of a majority of the directors or committee members present at any meeting at which there
is a quorum shall be the act of the Board of Directors or such committee, as applicable. If a
quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be
present.
Section 8. Actions of the Board by Written Consent. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or such 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 of
Directors or such committee. Any copy, facsimile or other reliable reproduction of a consent in
writing may be substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used, provided that such copy, facsimile or other reproduction
shall be a complete reproduction of the entire original writing.
Section 9. Meetings by Means of Conference Telephone. Unless otherwise provided in
the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the
Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 9 shall constitute presence in person at such meeting.
Section 10. Committees. Unless otherwise required by the Shareholders Agreement, the
Board of Directors may designate one or more committees, each committee to consist of one or more
of the directors of the Corporation. Unless otherwise required by the Shareholders Agreement, the
Board of Directors may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of any such committee. Unless
otherwise required by the Shareholders Agreement, in the absence or disqualification of a member of
a committee, and in the absence of a designation by the Board of Directors of an alternate member
to replace the absent or disqualified member, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another qualified member of the Board of Directors to act at the meeting in the
place of any absent or disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may
require it. Each committee shall keep regular minutes and report to the Board of Directors when
required. Unless otherwise required by the Shareholders Agreement, notwithstanding anything to the
contrary contained in this Article III, the resolution of the Board of Directors establishing any
committee of the Board of Directors
and/or the charter of any such committee may establish requirements or procedures relating to
the governance and/or operation of such committee that are different from, or in addition to, those
set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws
and any such resolution or charter, the terms of such resolution or charter shall be controlling.
7
Section 11. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary for service as director, payable in cash
or securities. No such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for service as committee members.
Section 12. Interested Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because any such directors or officers vote is counted for such purpose if: (i) the material
facts as to the directors or officers relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to the directors or officers relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or
the stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
OFFICERS
Section 1. General. Unless otherwise required by the Shareholders Agreement, the
officers of the Corporation shall be chosen by the Board of Directors and shall be a President and
a Secretary. Any one or more individuals may hold such offices. Unless otherwise required by the
Shareholders Agreement, the Board of Directors, in its discretion, also may choose a Chairman of
the Board of Directors (who must be a director), a Treasurer and one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held
by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these
Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in
the case of the Chairman of the Board of Directors, need such officers be directors of the
Corporation.
8
Section 2. Election. The Board of Directors, at its first meeting held after each
Annual Meeting of Stockholders (or action by written consent of stockholders in lieu of the Annual
Meeting of Stockholders), shall elect the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and each officer of the Corporation shall hold office until
such officers successor is elected and qualified, or until such officers earlier death,
resignation or removal. Unless otherwise required by the Shareholders Agreement, any officer
elected by the Board of Directors (including, without limitation, the Chairman of the Board of
Directors) may be removed at any time by the Board of Directors. Unless otherwise required by the
Shareholders Agreement, any vacancy occurring in any office of the Corporation shall be filled by
the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the
Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President or any other officer authorized to do so by the Board of Directors and any such
officer may, in the name of and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting shall possess and
may exercise any and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or
persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of
Directors. Unless otherwise required by the Shareholders Agreement, the Chairman of the Board of
Directors shall be designated by a majority of the Board of Directors and, except where by law the
signature of the President is required, the Chairman of the Board of Directors shall possess the
same power as the President to sign all contracts, certificates and other instruments of the
Corporation which may be authorized by the Board of Directors. During the absence or disability of
the President, the Chairman of the Board of Directors shall exercise all the powers and discharge
all the duties of the President. The Chairman of the Board of Directors shall also perform such
other duties and may exercise such other powers as may from time to time be assigned by these
Bylaws or by the Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive Officer shall, subject to the
control of the Board of Directors and, if there be one, the Chairman of the Board of Directors
(including any committees established thereby), have general supervision of the business of the
Corporation consistent with any business plan or budget approved by the Board of Directors or any
applicable committee thereof and shall see that all orders and resolutions of the Board of
Directors (and any committees thereof) are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chief Executive Officer or the
President. In the absence or disability of the Chairman of the Board of Directors, or if
there be none, the Chief Executive Officer shall preside at all meetings of the stockholders and,
provided the Chief Executive Officer is also a director, the Board of Directors.
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Section 6. President. The President shall, subject to the control of the Chief
Executive Officer, the Board of Directors and, if there be one, the Chairman of the Board of
Directors, have general supervision of the business of the Corporation consistent with any business
plan or budget approved by the Board of Directors or any applicable committee thereof and shall see
that all orders and resolutions of the Board of Directors are carried into effect. The President
shall also perform such other duties and may exercise such other powers as may from time to time be
assigned to such officer by these Bylaws, the Chief Executive Officer or by the Board of Directors.
The President shall, in the absence of the Chief Executive Officer or in the event of the
inability or refusal of the Chief Executive Officer to act, shall perform the duties of the Chief
Executive Officer, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer.
Section 7. Vice Presidents. At the request of the President or in the Presidents
absence or in the event of the Presidents inability or refusal to act (and if there be no Chairman
of the Board of Directors), the Vice President, or the Vice Presidents if there are more than one
(in the order designated by the Board of Directors), shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other duties and have such other powers as the
Board of Directors from time to time may prescribe. If there be no Chairman of the Board of
Directors and no Vice President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the inability or refusal of the
President to act, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President.
Section 8. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for committees of
the Board of Directors when required. The Secretary shall give, or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors, the Chairman of the Board of
Directors or the President, under whose supervision the Secretary shall be. If the Secretary shall
be unable or shall refuse to cause to be given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest to the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
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Section 9. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of the Treasurer and for the
restoration to the Corporation, in case of the Treasurers death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
the Treasurers possession or under the Treasurers control belonging to the Corporation.
Section 10. Assistant Secretaries. Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of the Secretarys inability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
Section 11. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers inability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration to the Corporation, in case of the
Assistant Treasurers death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the Assistant Treasurers possession or
under the Assistant Treasurers control belonging to the Corporation.
Section 12. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
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ARTICLE V
STOCK
STOCK
Section 1. Form of Certificates. The Corporation may issue some or all of the shares
of any or all of the Corporations classes or series of Stock without certificates if authorized by
the Board of Directors. In the event that the Corporation issues shares of stock represented by
certificates, such certificates shall be in such form as prescribed by the Board of Directors
or a duly authorized officer, shall contain the statements and information required by the General
Corporation Law of the State of Delaware (the DGCL) and shall be signed by the officers of the
Corporation in the manner permitted by the DGCL. In the event that the Corporation issues shares
of stock without certificates, to the extent then required by the DGCL, the Corporation shall
provide to the record holders of such shares a written statement of the information required by the
DGCL to be included on stock certificates. There shall be no differences in the rights and
obligations of stockholders based on whether or not their shares are represented by certificates.
If a class or series of stock is authorized by the Board of Directors to be issued without
certificates, no stockholder shall be entitled to a certificate of certificates representing any
shares of such class or series of stock held by such stockholder unless otherwise determined by the
Board of Directors and then only upon written request by such stockholder to the secretary of the
Corporation.
Section 2. Signatures. Any or all of the signatures on a 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.
Section 3. Lost Certificates. The Board of Directors may direct a new certificate to
be issued in place of any certificate theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed; provided, however, if such
shares have ceased to be certificated no new certificate shall be issued unless requested in
writing by such stockholder and the Board of Directors has determined that such certificates may be
issued. When authorizing such issuance of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or such owners legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of such certificate or the issuance of such new
certificate.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law, the Shareholders Agreement and in these Bylaws. Transfers of stock
shall be made on the books of the Corporation only by the record holder of the shares or by such
persons attorney lawfully constituted in writing and, if such shares are certificated, upon the
surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary
transfer taxes; provided, however, that such surrender and endorsement or payment
of taxes shall not be required in any case in which the officers of the Corporation shall determine
to waive such requirement. Every certificate exchanged, returned or surrendered to the Corporation
shall be marked Cancelled, with the date of cancellation, by the Secretary or Assistant Secretary
of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against
the Corporation for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
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Section 5. Dividend Record Date. Except as otherwise set forth in the Certificate of
Incorporation, in order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty (60) days prior to such action. If no record date
is fixed, the record date for determining stockholders for any such purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 6. Record Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise required by law.
Section 7. Transfer and Registry Agents. The Corporation may from time to time
maintain one or more transfer offices or agencies and registry offices or agencies at such place or
places as may be determined from time to time by the Board of Directors.
ARTICLE VI
NOTICES
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder,
such notice may be given by mail, addressed to such director, member of a committee or stockholder,
at such persons address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail. Written notice may also be given personally or by facsimile, telegram,
telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by applicable law, the
Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of
a person at a meeting, present in person or represented by proxy, shall constitute a waiver of
notice of such meeting, except where the person attends the 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
Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or
members of a committee of directors need be specified in any written waiver of notice unless so
required by law, the Certificate of Incorporation or these Bylaws.
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ARTICLE VII
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the requirements of the DGCL, the Shareholders Agreement and the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting
of the Board of Directors (or any action by written consent in lieu thereof in accordance with
Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the
Corporations capital stock. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options,
bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the
Corporation, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may authorize the adoption of a
seal by the Corporation. Any such seal shall contain the name of the Corporation and the year of
its incorporation and the words Corporate Seal, Delaware. The Board of Directors may authorize
one or more duplicate seals and provide for the custody thereof. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 5. Affixing Seal. Whenever the Corporation is permitted or required to affix
its seal to a document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word (SEAL) adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
Section 1. Power to Indemnify Directors. In the event a person was, is or becomes a
party to or witness or other participant in, or is threatened to be made a party to or witness or
other participant in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that such person is or was
a director of the Corporation, or is or was a director of the Corporation serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, the Corporation shall indemnify such person to the
fullest extent permitted by law against any and all expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which such person reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that such persons conduct was unlawful.
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Section 2. Procedure for Indemnification of Directors. Any indemnification of a
director of the Corporation under Section 1 of this Article VIII or advance of expenses under
Section 3 of this Article VIII shall be made promptly, and in any event within 30 days, upon the
written request of the director. If a determination by the Corporation that the director is
entitled to indemnification pursuant to this Article VIII is required, and the Corporation fails to
respond within 60 days to a written request for indemnity, the Corporation shall be deemed to have
approved the request. If the Corporation denies a written request for indemnification or advancing
of expenses, in whole or in part, or if payment in full pursuant to such request is not made within
30 days, the right to indemnification or advances as granted by this Article VIII shall be
enforceable by the director in any court of competent jurisdiction. Such persons costs and
expenses incurred in connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the Corporation. 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, has been tendered to the Corporation) that the claimant has not met the standards of conduct
which make it permissible under the DGCL for the Corporation to indemnify the claimant for the
amount claimed, but the burden of such defense shall be on the Corporation. Neither the failure of
the Corporation (including its board of directors, 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 the DGCL, nor an actual determination by the Corporation (including its board
of directors, 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.
Section 3. Expenses Payable in Advance. Expenses (including attorneys fees) incurred
by a current or former director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall, to the extent permitted by law, be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such director to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation as authorized in this Article
VIII.
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Section 4. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of
Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such persons official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Section 1 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions of the DGCL, or
otherwise.
Section 5. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person in any such
capacity, or arising out of such persons status as such, whether or not the Corporation would have
the power or the obligation to indemnify such person against such liability under the provisions of
this Article VIII.
Section 6. Certain Definitions. For purposes of this Article VIII, references to the
Corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors, so
that any person who is or was a director of such constituent corporation, or is or was a director
of such constituent corporation serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued. The term another enterprise as
used in this Article VIII shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such director is or was serving at the
request of the Corporation as a director, officer, employee or agent. For purposes of this Article
VIII, references to fines shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to serving at the request of the Corporation shall include
any service as a director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner not opposed to the best interests of the Corporation as
referred to in this Article VIII.
Section 7. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director and shall inure to the benefit of the heirs, executors and administrators
of such a person.
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Section 8. Indemnification of Officers, Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to officers, employees and agents of the
Corporation similar to those conferred in this Article VIII to directors of the Corporation.
Section 9. Contract Rights. The provisions of this Article VIII shall be deemed to be
a contract right between the Corporation and each director who serves in any such capacity at any
time while this Article VIII and the relevant provisions of the DGCL or other applicable law are in
effect, and any repeal or modification of this Article VIII or any such law shall not affect any
rights or obligations then existing with respect to any state of facts, acts, omissions or
proceedings then existing.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 1. Amendments. Unless otherwise required by the Shareholders Agreement, these
Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by
the stockholders or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such
meeting of the stockholders or Board of Directors, as the case may be. All such amendments must be
approved by either the holders of a majority of the outstanding capital stock entitled to vote
thereon or by a majority of the entire Board of Directors then in office.
Section 2. Entire Board of Directors. As used in this Article IX and in these Bylaws
generally, the term entire Board of Directors means the total number of directors which the
Corporation would have if there were no vacancies.
Section 3. Shareholders Agreement. To the extent there is a conflict between these
Bylaws and the Shareholders Agreement, the Shareholders Agreement shall control.
* * *
Adopted as of: April 4, 2011
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