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8-K - FORM 8-K - NAVISITE INC | b86190e8vk.htm |
EX-3.1 - EX-3.1 - NAVISITE INC | b86190exv3w1.htm |
Exhibit 3.2
SECOND AMENDED AND RESTATED BY-LAWS
of
NAVISITE, INC.
of
NAVISITE, INC.
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the term:
1.1 Assistant Secretary means an Assistant Secretary of the Corporation.
1.2 Assistant Treasurer means an Assistant Treasurer of the Corporation.
1.3 Board means the Board of Directors of the Corporation.
1.4 By-laws means the initial by-laws of the Corporation, as amended from time to time.
1.5 Certificate of Incorporation means the initial certificate of incorporation of the
Corporation, as amended, supplemented or restated from time to time.
1.6 Chairman means the Chairman of the Board of Directors of the Corporation.
1.7 Corporation means NaviSite, Inc.
1.8 DGCL means the General Corporation Law of the State of Delaware.
1.9 Directors means directors of the Corporation.
1.10 Disinterested Directors means those Directors consisting of persons who are not parties
to any action, suit or proceeding concerning the indemnification of an Indemnitee under Article 6
at the time that such Indemnitee submits his or her request for an advancement of expenses pursuant
to Section 6.6.
1.11 Entire Board means all then authorized directors of the Corporation.
1.12 General Corporation Law means the General Corporation Law of the State of Delaware, as
amended from time to time.
1.13 Indemnitee means each person seeking indemnification pursuant to Sections 6.1 and 6.2.
1.14 Office of the Corporation means the executive office of the Corporation, anything in
Section 131 of the General Corporation Law to the contrary notwithstanding.
1.15 President means the President of the Corporation.
1.16 Secretary means the Secretary of the Corporation.
1.17 Stockholders means stockholders of the Corporation.
1.18 Treasurer means the Treasurer of the Corporation.
1.19 Vice President means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders may be held at such place,
within or without the State of Delaware, as may be designated by resolution of the Board from time
to time. The Board may, in its sole discretion, determine that the meeting of Stockholders shall
not be held at any place, but may instead be held solely by means of remote communication in
accordance with Delaware law.
2.2 Annual Meeting. If required by applicable law, a meeting of Stockholders shall be
held annually for the election of Directors at such date and time as may be designated by
resolution of the Board from time to time. Any other business may be transacted at the annual
meeting.
2.3 Special Meetings. Unless otherwise prescribed by applicable law, special meetings
of Stockholders may be called at any time by the Board and may not be called by any other person or
persons. Business transacted at any special meeting of Stockholders shall be limited to the
purpose stated in the notice.
2.4 Fixing Record Date. For the purpose of (a) determining the Stockholders entitled
(i) to notice of or to vote at any meeting of Stockholders or any adjournment thereof, (ii) unless
otherwise provided in the Certificate of Incorporation, to express consent to corporate action in
writing without a meeting or (iii) to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock; or (b) any other lawful action, the Board may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date was adopted by the
Board and which record date, unless otherwise required by applicable law, shall not be (x) in the
case of clause (a)(i) above, more than 60 nor less than 10 days before the date of such meeting,
(y) in the case of clause (a)(ii) above, more than 10 days after the date upon which
the resolution fixing the record date was adopted by the Board and (z) in the case of
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clause (a)(iii) or (b) above, more than 60 days prior to such action. If no such record date is fixed:
2.4.1 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;
2.4.2 the record date for determining Stockholders entitled to express consent to corporate
action in writing without a meeting (unless otherwise provided in the Certificate of
Incorporation), when no prior action by the Board is required by applicable law, shall be the first
day on which a signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law; and when prior action by the Board
is required by applicable law, the record date for determining Stockholders entitled to express
consent to corporate action in writing without a meeting shall be at the close of business on the
date on which the Board adopts the resolution taking such prior action; and
2.4.3 the record date for determining Stockholders for any purpose other than those specified
in Sections 2.4.1 and 2.4.2 shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. When a determination of Stockholders of record entitled to notice
of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such
determination shall apply to any adjournment thereof unless the Board fixes a new record date for
the adjourned meeting.
2.5 Notice of Meetings of Stockholders. Whenever under the provisions of applicable
law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to
take any action at a meeting, notice shall be given stating the place, if any, date and hour of the
meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise provided by applicable law,
the Certificate of Incorporation or these By-laws, notice of any meeting shall be given, not less
than 10 nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote
at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United
States mail, with postage prepaid, directed to the Stockholder at his or her address as it appears
on the records of the Corporation. An affidavit of the Secretary
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or an Assistant Secretary or of the transfer agent of the Corporation that the notice required
by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein. Any meeting of Stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place. When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as originally called.
If, however, the adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder of record entitled to vote at the meeting.
2.6 Waivers of Notice. Whenever the giving of any notice to Stockholders is required
by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by
the person entitled to said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance by a Stockholder at a meeting shall
constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the Stockholders need be
specified in any waiver of notice unless so required by applicable law, the Certificate of
Incorporation or these By-laws.
2.7 List of Stockholders. The Secretary shall prepare and make, at least 10 days
before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the
meeting, 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, the Stockholders agent, or attorney, at the Stockholders expense, for any
purpose germane to the meeting, for a period of at least 10 days prior to the meeting, during
ordinary business hours at the principal place of business of the Corporation, or on a reasonably
accessible electronic network as provided by applicable law. If the meeting is to be held at a
place, 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. If the meeting is held
solely by means of remote communication, the list shall also be open for
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examination as provided by applicable law. Upon the willful neglect or refusal of the
Directors to produce such a list at any meeting for the election of Directors, they shall be
ineligible for election to any office at such meeting. Except as provided by applicable law, the
stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the
stock ledger, the list of Stockholders or the books of the Corporation, or to vote in person or by
proxy at any meeting of Stockholders.
2.8 Quorum of Stockholders; Adjournment. Except as otherwise provided by applicable
law, the Certificate of Incorporation or these By-laws, at each meeting of Stockholders, the
presence in person or by proxy of the holders of a majority in voting power of all outstanding
shares of stock entitled to vote at the meeting of Stockholders, shall constitute a quorum for the
transaction of any business at such meeting. In the absence of a quorum, the holders of a majority
in voting power of the shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such
meeting to another time and place. Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
2.9 Voting; Proxies. Unless otherwise provided in the Certificate of Incorporation,
every Stockholder entitled to vote at any meeting of Stockholders shall be entitled to one vote for
each share of stock held by such Stockholder which has voting power upon the matter in question. At
any meeting of Stockholders, all matters, except as otherwise provided by the Certificate of
Incorporation, these By-laws, the rules and regulations of any stock exchange applicable to the
Corporation, applicable law or pursuant to any rules or regulations applicable to the Corporation
or its securities, shall be decided by the affirmative vote of a majority in voting power of shares
of stock present in person or represented by proxy and entitled to vote thereon. At all meetings
of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to
elect. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize another person or persons to
act for such Stockholder by proxy but no such proxy shall be voted or acted upon
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after three years from its date, unless the proxy provides for a longer period. A proxy shall
be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy
that is not irrevocable by attending the meeting and voting in person or by delivering to the
Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.
2.10 Voting Procedures and Inspectors of Election at Meetings of Stockholders. The
Board, in advance of any meeting of Stockholders, may, and shall if required by applicable law,
appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and
make a written report thereof. The Board may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. If no inspector or alternate is able to act at a
meeting, the person presiding at the meeting may, and shall if required by applicable law, appoint
one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge
of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of his or her ability. The inspectors shall (a)
ascertain the number of shares outstanding and the voting power of each, (b) determine the shares
represented at the meeting and the validity of proxies and ballots, (c) count all votes and
ballots, (d) determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (e) certify their determination of the
number of shares represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the inspectors in the
performance of their duties. Unless otherwise provided by the Board, the date and time of the
opening and the closing of the polls for each matter upon which the Stockholders will vote at a
meeting shall be determined by the person presiding at the meeting and shall be announced at the
meeting. No ballot, proxies or votes, or any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State
of Delaware upon application by a Stockholder shall determine otherwise. In determining the
validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors
may consider such information as is permitted by applicable law. No person who is a candidate for
office at an election may serve as an inspector at such election.
2.11 Conduct of Meetings; Organization. The Board may adopt by resolution such rules
and regulations for the conduct of the meeting of Stockholders as it shall deem
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appropriate. At each meeting of Stockholders, the President, or in the absence of the
President, the Chairman, or if there is no Chairman or if there be one and the Chairman is absent,
a Vice President, and in case more than one Vice President shall be present, that Vice President
designated by the Board (or in the absence of any such designation, the most senior Vice President,
based on age, present), shall preside over the meeting. 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 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 officer 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 person presiding over 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 officer 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 officer should so determine, such 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. The Secretary, or in his or her absence, one
of the Assistant Secretaries, shall act as secretary of the meeting. In case none of the officers
above designated to act as the person presiding over the meeting or as secretary of the meeting,
respectively, shall be present, a person presiding over the meeting or a secretary of the meeting,
as the case may be, shall be designated by the Board, and in case the Board has not so acted, in
the case of the designation of a person to act as secretary of the meeting, designated by the
person presiding over the meeting.
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2.12 Order of Business. The order of business at all meetings of Stockholders shall
be as determined by the person presiding over the meeting.
2.13 Written Consent of Stockholders Without a Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required by the General Corporation Law to be taken at
any annual or special meeting of Stockholders, or any action which may be taken at any annual or
special meeting of Stockholders, 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 (by hand or by certified or registered mail,
return receipt requested) to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of Stockholders are recorded. Every written consent
shall bear the date of signature of each Stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this Section 2.13, written consents
signed by a sufficient number of holders to take action are delivered to the Corporation as
aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall, to the extent required by applicable law, 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.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of Incorporation,
the business and affairs of the Corporation shall be managed by or under the direction of the
Board. The Board may adopt such rules and regulations, not inconsistent with the Certificate of
Incorporation or these By-laws or applicable law, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers expressly conferred by
these By-laws, the Board may exercise all powers and perform all acts
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that are not required, by these By-laws or the Certificate of Incorporation or by statute, to
be exercised and performed by the Stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of one or more
members, the number thereof to be determined from time to time by resolution of the Board.
Directors need not be Stockholders. Each Director shall hold office until a successor is duly
elected and qualified or until the Directors earlier death, resignation, disqualification or
removal.
3.3 Newly Created Directorships and Vacancies. Unless otherwise provided by
applicable law or the Certificate of Incorporation, any newly created directorships resulting from
an increase in the authorized number of Directors and vacancies occurring in the Board for any
cause, may be filled by the affirmative votes of a majority of the remaining members of the Board,
although less than a quorum, or by a sole remaining Director, or may be elected by a plurality of
the votes cast. A Director so elected shall be elected to hold office until the expiration of the
term of office of the Director whom he or she has replaced or until a successor is elected and
qualified, or until the Directors earlier death, resignation, disqualification or removal.
3.4 Resignation. Any Director may resign at any time by notice given in writing or by
electronic transmission to the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified in such resignation, the acceptance of such resignation
shall not be necessary to make it effective.
3.5 Removal. Subject to the provisions of Section 141(k) of the General Corporation
Law, any or all of the Directors may be removed with or without cause by vote of the holders of a
majority of the shares then entitled to vote at an election of Directors.
3.6 Compensation. Each Director, in consideration of his or her service as such,
shall be entitled to receive from the Corporation such amount per annum or such fees for attendance
at Directors meetings, or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall serve as a member of
any committee of Directors in consideration of serving as such shall be entitled to such additional
amount per annum or such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable
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out-of-pocket expenses, if any, incurred by such Director in the performance of his or her
duties. Nothing contained in this Section 3.6 shall preclude any Director from serving the
Corporation or its subsidiaries in any other capacity and receiving proper compensation therefor.
3.7 Regular Meetings. Regular meetings of the Board may be held without notice at
such times and at such places within or without the State of Delaware as may be determined from
time to time by resolution of the Board.
3.8 Special Meetings. Special meetings of the Board may be held at such times and at
such places within or without the State of Delaware whenever called by the Chairman, the President
or the Secretary or by any two or more Directors then serving as Directors on at least 24 hours
notice to each Director given by one of the means specified in Section 3.11 hereof other than by
mail, or on at least three days notice if given by mail. Special meetings shall be called by the
Chairman, President or Secretary in like manner and on like notice on the written request of any
two or more of the Directors then serving as Directors.
3.9 Telephone Meetings. Directors or members of any committee designated by the Board
may participate in a meeting of the Board or of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this Section 3.9 shall constitute
presence in person at such meeting.
3.10 Adjourned Meetings. A majority of the Directors present at any meeting of the
Board, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting
to another time and place. At least 24 hours notice of any adjourned meeting of the Board shall
be given to each Director whether or not present at the time of the adjournment, if such notice
shall be given by one of the means specified in Section 3.11 hereof other than by mail, or at least
three days notice if by mail. Any business may be transacted at an adjourned meeting that might
have been transacted at the meeting as originally called.
3.11 Notice Procedure. Subject to Sections 3.8 and 3.12 hereof, whenever, under
applicable law, the Certificate of Incorporation or these By-laws, notice is required to be given
to any Director, such notice shall be deemed given effectively if given in person or by telephone,
by mail addressed to such Director at such Directors address as it appears on the records of the
Corporation, with postage thereon prepaid, or by telegram, telecopy or, if consented to by the
Director to whom notice is given, by other means of electronic transmission.
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3.12 Waiver of Notice. Whenever the giving of any notice to Directors is required by
applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the
Director entitled to said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance by a Director at a meeting shall
constitute a waiver of notice of such meeting except when the Director attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the Directors or a
committee of Directors need be specified in any waiver of notice unless so required by applicable
law, the Certificate of Incorporation or these By-laws.
3.13 Organization. At each meeting of the Board, the Chairman, or in the absence of
the Chairman, the President, or in the absence of the President, a chairman chosen by a majority of
the Directors present, shall preside. The Secretary shall act as secretary at each meeting of the
Board. In case the Secretary shall be absent from any meeting of the Board, 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 Assistant Secretaries, the person presiding at the meeting may appoint any
person to act as secretary of the meeting.
3.14 Quorum of Directors. The presence in person of a majority of the Entire Board
shall be necessary and sufficient to constitute a quorum for the transaction of business at any
meeting of the Board.
3.15 Action by Majority Vote. Except as otherwise expressly required by applicable
law, the Certificate of Incorporation or these By-laws, the vote of a majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board.
3.16 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting if all Directors or members of
such committee, as the case may be, consent thereto in writing or by electronic transmission, and
the writing or writings or electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are maintained in
electronic form.
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ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution, designate one or more committees, each committee to consist of
one or more of the Directors of the Corporation. The Board may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of such committee. If a member of a committee shall be absent from any meeting, or
disqualified from voting thereat, the remaining member or members present at the meeting and not
disqualified from voting, whether or not such member or members constitute a quorum, may, by a
unanimous vote, appoint another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent permitted by applicable law and
to the extent provided in the resolution of the Board designating such committee, shall have and
may exercise all the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all
papers that may require it. Unless otherwise specified in the resolution of the Board designating
a committee, at all meetings of such committee, a majority of the then authorized members of the
committee shall constitute a quorum for the transaction of business, and the vote of a majority of
the members of the committee present at any meeting at which there is a quorum shall be the act of
the committee. Each committee shall keep regular minutes of its meetings. Unless the Board
otherwise provides, each committee designated by the Board may make, alter and repeal rules for the
conduct of its business. In the absence of such rules each committee shall conduct its business in
the same manner as the Board conducts its business pursuant to Article 3 of these By-laws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President, a Secretary, and
such other officers as the Board may elect, including a Chairman, a Treasurer, one or more Vice
Presidents and one or more Assistant Secretaries and Assistant Treasurers, who shall exercise such
powers and perform such duties as shall be determined from time to time by resolution of the Board.
The Board may elect one or more Vice Presidents as Senior Vice Presidents and may use descriptive
words or phrases to designate the standing, seniority or areas
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of special competence of the Vice Presidents elected or appointed by it. Any number of
offices may be held by the same person unless the Certificate of Incorporation or these By-laws
otherwise provide.
5.2 Compensation. The compensation of all officers of the Corporation shall be fixed
by the Board or by any officer authorized by the Board to fix such compensation. No officer shall
be prevented from receiving a salary or other compensation by reason of the fact that the officer
is also a Director.
5.3 Election. The officers of the Corporation shall be elected by the Board at its
annual meeting or at such other time or times as the Board shall determine.
5.4 Term of Office. Each officer of the Corporation shall hold office for the term
for which he or she is elected and until such officers successor is elected and qualifies or until
such officers earlier death, resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Such resignation shall take effect at the date of receipt of
such notice or at such later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer
may be removed at any time, with or without cause by the Board. Any vacancy occurring in any
office of the Corporation may be filled by the Board. The removal of an officer with or without
cause shall be without prejudice to the officers contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall preside at all
meetings of the Board and shall exercise such powers and perform such other duties as shall be
determined from time to time by resolution of the Board.
5.7 President. The President [shall be the Chief Executive Officer of the Corporation
and] shall have general supervision over the business of the Corporation, subject, however, to the
control of the Board and of any duly authorized committee of the Board. The President shall
preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman
(if there be one) is not present. The President may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments, except in
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cases in which the signing and execution thereof shall be expressly delegated by resolution of
the Board or by these By-laws to some other officer or agent of the Corporation, or shall be
required by applicable law otherwise to be signed or executed and, in general, the President shall
perform all duties incident to the office of President of a corporation and such other duties as
may from time to time be assigned to the President by resolution of the Board.
5.8 Vice Presidents. At the request of the President, or, in the Presidents absence,
at the request of the Board, the Vice Presidents shall (in such order as may be designated by the
Board, or, in the absence of any such designation, in order of seniority based on age) perform all
of the duties of the President and, in so performing, shall have all the powers of, and be subject
to all restrictions upon, the President. Any Vice President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in which
the signing and execution thereof shall be expressly delegated by resolution of the Board or by
these By-laws to some other officer or agent of the Corporation, or shall be required by applicable
law otherwise to be signed or executed, and each Vice President shall perform such other duties as
from time to time may be assigned to such Vice President by resolution of the Board or by the
President.
5.9 Secretary. The Secretary shall attend all meetings of the Board and of the
Stockholders and shall record all the proceedings of the meetings of the Board and of the
Stockholders in a book to be kept for that purpose, and shall perform like duties for committees of
the Board, when required. The Secretary shall give, or cause to be given, notice of all special
meetings of the Board and of the Stockholders and shall perform such other duties as may be
prescribed by the Board or by the President, under whose supervision the Secretary shall be. The
Secretary shall have custody of the corporate seal of the Corporation, and the Secretary, or an
Assistant Secretary, shall have authority to affix the same on any instrument requiring it, and
when so affixed, the seal may be attested by the signature of the Secretary or by the signature of
such Assistant Secretary. The Board may, by resolution, give general authority to any other
officer to affix the seal of the Corporation and to attest the same by such officers signature.
The Secretary or an Assistant Secretary may also attest all instruments signed by the President or
any Vice President. The Secretary shall have charge of all the books, records and papers of the
Corporation relating to its organization and management, shall see that the reports, statements and
other documents required by applicable law are properly kept and filed and, in general, shall
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perform all duties incident to the office of Secretary of a corporation and such other duties as
may from time to time be assigned to the Secretary by resolution of the Board or by the President.
5.10 Treasurer. The Treasurer, if one shall have been appointed, shall have charge
and custody of, and be responsible for, all funds, securities and notes of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any sources whatsoever;
deposit all such moneys and valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board; against proper vouchers, cause such funds to
be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such
manner as shall be determined by the Board and be responsible for the accuracy of the amounts of
all moneys so disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or paid for the account
of the Corporation; have the right to require from time to time reports or statements giving such
information as the Treasurer may desire with respect to any and all financial transactions of the
Corporation from the officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board shall require the Treasurer so to do, an account of the
financial condition of the Corporation and of all financial transactions of the Corporation;
disburse the funds of the Corporation as ordered by the Board; and, in general, perform all duties
incident to the office of Treasurer of a corporation and such other duties as may from time to time
be assigned to the Treasurer by resolution of the Board or by the President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and
Assistant Treasurers, if either shall have been appointed, shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by resolution of the Board
or by the President.
ARTICLE 6
INDEMNIFICATION
INDEMNIFICATION
6.1 Actions, Suits and Proceedings Other than by or in the Right of the Corporation.
The Corporation shall indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
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Corporation), by reason of the fact that such person is or was, or has agreed to become, a Director
or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a Director, officer, partner, employee or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise (including any
employee benefit plan), or by reason of any action alleged to have been taken or omitted in such
capacity against all expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person or on such persons behalf in connection
with such action, suit or proceeding and any appeal therefrom, if such person acted in good faith
and in a manner 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 no reasonable cause to
believe such persons conduct was unlawful. 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 such 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.
6.2 Actions or Suits by or in the Right of the Corporation. The Corporation shall
indemnify each person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was, or has agreed to become, a Director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the
Corporation, as a Director, officer, partner, employee or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise (including any
employee benefit plan), or by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by such person or on the such persons
behalf in connection with such action, suit or proceeding and any appeal therefrom, if such person
acted in good faith and in a manner such person reasonably believed to be in, or not opposed to,
the best interests of the Corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of
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Delaware shall determine upon application that, despite the adjudication of such liability but in
view of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses (including attorneys fees) which the Court of Chancery of the State of
Delaware shall deem proper.
6.3 Indemnification for Expenses of Successful Party. Notwithstanding the other
provisions of this Article 6, to the extent that an Indemnitee has been successful, on the merits
or otherwise, in defense of any action, suit or proceeding referred to in Sections 6.1 and 6.2, or
in defense of any claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, the Indemnitee shall be indemnified against all expenses (including attorneys fees)
actually and reasonably incurred by the Indemnitee or on the Indemnitees behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is disposed of, on the
merits or otherwise (including a disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the
Indemnitee did not act in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation and (v) with respect to any criminal proceeding, an
adjudication that the Indemnitee had reasonable cause to believe his conduct was unlawful, the
Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect
thereto.
6.4 Notification and Defense of Claim. As a condition precedent to an Indemnitees
right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation involving the Indemnitee for which
indemnity will or could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to participate therein at
its own expense and/or to assume the defense thereof at its own expense, with legal counsel
reasonably acceptable to the Indemnitee. After notice from the Corporation to the Indemnitee of
its election so to assume such defense, the Corporation shall not be liable to the Indemnitee for
any legal or other expenses subsequently incurred by the Indemnitee in connection with such action,
suit, proceeding or investigation, other than as provided below in this Section 6.4. The
Indemnitee shall have the right to employ the Indemnitees own counsel in connection with such
action, suit, proceeding or investigation, but the fees and expenses of such
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counsel incurred after notice from the Corporation of its assumption of the defense thereof shall
be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been
authorized by the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that
there may be a conflict of interest or position on any significant issue between the Corporation
and the Indemnitee in the conduct of the defense of such action, suit, proceeding or investigation
or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such
action, suit, proceeding or investigation, in each of which cases the fees and expenses of counsel
for the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly
provided by this Article 6. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as
to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in
clause (ii) above. The Corporation shall not be required to indemnify the Indemnitee under this
Article 6 for any amounts paid in settlement of any action, suit, proceeding or investigation
effected without its written consent. The Corporation shall not settle any action, suit,
proceeding or investigation in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitees written consent. Neither the Corporation nor the Indemnitee
will unreasonably withhold its consent to any proposed settlement.
6.5 Advance of Expenses. Subject to the provisions of Section 6.6 below, in the event
that the Corporation does not assume the defense pursuant to Section 6.4 of any action, suit,
proceeding or investigation of which the Corporation receives notice under this Article 6, any
expenses (including attorneys fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Corporation
in advance of the final disposition of such matter; provided, however, that the
payment of such expenses incurred by the Indemnitee in advance of the final disposition of such
matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay
all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is
not entitled to be indemnified by the Corporation as authorized in this Article 6; and
further provided that no such advancement of expenses shall be made if it is
determined that (i) the Indemnitee did not act in good faith and in a manner the Indemnitee
reasonably believed to be in, or not opposed to, the best interests of the Corporation or (ii) with
respect to any criminal action or proceeding, the Indemnitee had reasonable cause to believe the
Indemnitees
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conduct was unlawful. Such undertaking shall be accepted without reference to the financial
ability of the Indemnitee to make such repayment.
6.6 Procedure for Indemnification. In order to obtain indemnification or advancement
of expenses pursuant to Sections 6.1, 6.2, 6.3 or 6.5, the Indemnitee shall submit to the
Corporation a written request, including in such request such documentation and information as is
reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses, unless ordered by a court, shall be made, with respect
to requests under Sections 6.1, 6.2 or 6.5, only as authorized in the specific case upon a
determination by the Corporation that the indemnification of the Indemnitee is proper because the
Indemnitee has met the applicable standard of conduct set forth in Sections 6.1, 6.2 or 6.5, as the
case may be. Such determination shall be made in each instance (i) by a majority vote of
Disinterested Directors, whether or not a quorum, (ii) by a majority vote of a committee of
Disinterested Directors designated by majority vote of Disinterested Directors, whether or not a
quorum, (iii) if there are no Disinterested Directors, or if Disinterested Directors so direct, by
independent legal counsel (who may, to the extent permitted by law, be regular legal counsel to the
Corporation) in a written opinion or (iv) by the stockholders of the Corporation.
6.7 Remedies. The right to indemnification or advances as granted by this Article 6
shall be enforceable by the Indemnitee in any court of competent jurisdiction. Neither the failure
of the Corporation to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation pursuant to Section 6.6 above
that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the
Indemnitee has not met the applicable standard of conduct. The Indemnitees expenses
(including attorneys fees) incurred in connection with successfully establishing the Indemnitees
right to indemnification, in whole or in part, in any such proceeding also shall be indemnified by
the Corporation.
6.8 Limitations. Notwithstanding anything to the contrary in this Article 6, except
as set forth in Section 6.7 above, the Corporation shall not indemnify an Indemnitee in connection
with a proceeding (or part thereof) initiated by the Indemnitee unless the initiation
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thereof was approved by the Board. Notwithstanding anything to the contrary in this Article 6, the
Corporation shall not indemnify an Indemnitee to the extent the Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes any indemnification payments to an
Indemnitee and the Indemnitee is subsequently reimbursed from the proceeds of insurance, the
Indemnitee shall promptly refund such indemnification payments to the Corporation to the extent of
such insurance reimbursement.
6.9 Subsequent Amendment. No amendment, termination or repeal of this Article 6 or of
the relevant provisions of the DGCL or any other applicable laws shall affect or diminish in any
way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or relating to any actions, transactions
or facts occurring prior to the final adoption of such amendment, termination or repeal.
6.10 Other Rights. The indemnification and advancement of expenses provided by this
Article 6 shall not be deemed exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under any law (common or statutory),
agreement or vote of stockholders or Disinterested Directors or otherwise, both as to action in the
Indemnitees official capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a Director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee.
Nothing contained in this Article 6 shall be deemed to prohibit, and the Corporation is
specifically authorized to enter into, agreements with officers and Directors providing
indemnification rights and procedures different from those set forth in this Article 6. In
addition, the Corporation may, to the extent authorized from time to time by the Board, grant
indemnification rights to other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those set forth in this
Article 6.
6.11 Partial Indemnification. If an Indemnitee is entitled under any provision of
this Article 6 to indemnification by the Corporation for some or a portion of the expenses
(including attorneys fees), judgments, fines or amounts paid in settlement actually and reasonably
incurred by the Indemnitee or on the Indemnitees behalf in connection with any action, suit,
proceeding or investigation and any appeal therefrom but not, however, for the total
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amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such
expenses (including attorneys fees), judgments, fines or amounts paid in settlement to which the
Indemnitee is entitled.
6.12 Insurance. The Corporation may purchase and maintain insurance, at its expense,
to protect itself and any Director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by such person in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
6.13 Savings Clause. If this Article 6 or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each Indemnitee as to any expenses (including attorneys fees), judgments, fines and
amounts paid in settlement in connection with any action, suit, proceeding or investigation,
whether civil, criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this Article 6 that shall
not have been invalidated and to the fullest extent permitted by applicable law.
6.14 Definitions. Terms used in this Article 6 and defined in Section 145(h) and
Section 145(i) of the DGCL shall have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
ARTICLE 7
GENERAL PROVISIONS
GENERAL PROVISIONS
7.1 Certificates Representing Shares. Every holder of stock shall be entitled to have
a certificate signed by or in the name of the Corporation by the Chairman, if any, or the President
or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, certifying the number of shares owned by such Stockholder in the Corporation. Any or
all of the signatures upon a certificate may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
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7.2 Transfer and Registry Agents. The Corporation may from time to time maintain one
or more transfer offices or agents and registry offices or agents at such place or places as may be
determined from time to time by the Board.
7.3 Lost, Stolen or Destroyed Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, 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.
7.4 Form of Records. Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account, and minute books, may be kept on, or
by means of, or be in the form of, any information storage device or method, provided that the
records so kept can be converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person entitled to inspect
such records pursuant to applicable law.
7.5 Seal. The corporate seal shall have the name of the Corporation inscribed thereon
and shall be in such form as may be approved from time to time by the Board. The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
7.6 Fiscal Year. Except as from time to time otherwise designated by the Board, the
fiscal year of the Corporation shall begin on the first day of August of each year and end on the
last day of July in each year.
7.7 Amendments. These By-laws may be altered, amended or repealed and new By-laws may
be adopted by the Board, but the Stockholders may make additional By-laws and may alter and repeal
any By-laws whether adopted by them or otherwise.
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