Attached files
file | filename |
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S-1/A - S-1/A - STAFFMARK HOLDINGS, INC. | y90786a2sv1za.htm |
EX-3.1 - EX-3.1 - STAFFMARK HOLDINGS, INC. | y90786a2exv3w1.htm |
EX-4.1 - EX-4.1 - STAFFMARK HOLDINGS, INC. | y90786a2exv4w1.htm |
EX-4.4 - EX-4.4 - STAFFMARK HOLDINGS, INC. | y90786a2exv4w4.htm |
EX-5.1 - EX-5.1 - STAFFMARK HOLDINGS, INC. | y90786a2exv5w1.htm |
EX-23.1 - EX-23.1 - STAFFMARK HOLDINGS, INC. | y90786a2exv23w1.htm |
EX-10.13 - EX-10.13 - STAFFMARK HOLDINGS, INC. | y90786a2exv10w13.htm |
EX-10.12 - EX-10.12 - STAFFMARK HOLDINGS, INC. | y90786a2exv10w12.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
STAFFMARK HOLDINGS, INC.
These Amended and Restated Bylaws (as may from time to time be amended or restated, these
Bylaws) amend and restate the Bylaws of Staffmark Holdings, Inc. (hereinafter the
Corporation) as heretofore in effect, and are made and adopted as of this [___] day of
[________], 2011. All words and terms capitalized but not defined in these Bylaws shall have the
meaning or meanings set forth for such words or terms in that certain Amended and Restated
Certificate of Incorporation of the Corporation as may from time to time be amended or restated
(hereinafter the Certificate of Incorporation).
ARTICLE I
OFFICES
OFFICES
1.1 Registered Office. The registered office of the Corporation in the State of Delaware
shall be established and maintained at 2711 Centerville Road, Suite 400, City of Wilmington, County
of New Castle, Delaware 19808 and Corporation Service Company shall be the registered agent of the
corporation in charge thereof.
1.2 Other Offices. The Corporations board of directors (the Board of Directors)
may at any time establish other offices both within and without the State of Delaware at any place
or places where the corporation is qualified to do business.
1.3 Books and Records. The books of the Corporation may be kept within or without the State
of Delaware as the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
MEETINGS OF THE STOCKHOLDERS
2.1 Time and Place of Meetings. All meetings of the stockholders 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 and stated in the notice of the meeting or in a duly executed waiver of
notice thereof. The Board of Directors may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of
Delaware (the DGCL).
2.2 Annual Meeting. The annual meeting of stockholders for the election of directors of 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 brought before the meeting in accordance with these
Bylaws.
2.3 Special Meetings.
(1) A special meeting of the stockholders, other than those required by statute, may be called
at any time only by (i) the Board of Directors, (ii) the Chairperson of the Board of Directors, or
(iii) the Chief Executive Officer or the President (in the absence of a Chief Executive Officer);
and shall be called by the Board of Directors at the request of stockholders only as provided in
these Bylaws. A special meeting of the stockholders may not be called by any other person or
persons. The Board of Directors may cancel, postpone or reschedule any previously scheduled
special meeting at any time, before or after the notice for such meeting has been sent to the
stockholders.
(2) The notice of a special meeting shall include the purpose for which the meeting is called.
Only such business shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting by or at the direction of the Board of Directors, the chairperson of the
Board of Directors, the chief executive officer or the president (in the absence of a chief
executive officer). Nothing contained in this Section 2.3(2) shall be construed as limiting,
fixing or affecting the time when a meeting of stockholders called by action of the Board of
Directors may be held.
2.4 Advance Notice Procedures.
(1) At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (i) brought before the meeting by the Corporation and specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board, (ii) brought before
the meeting by or at the direction of the Board or any committee thereof, or (iii) otherwise
properly brought before the meeting by a stockholder who (A) was a stockholder of record of the
Corporation (and, with respect to any beneficial owner, if different, on whose behalf such business
is proposed, only if such beneficial owner was the beneficial owner of shares of the Corporation)
both at the time of giving the notice provided for in this Section 2.4 and at the time of the
meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 2.4 as to
such business. Stockholders shall not be permitted to propose business to be brought before a
special meeting of the stockholders, and the only matters that may be brought before a special
meeting are the matters specified in the notice of meeting given by or at the direction of the
Board of Directors pursuant to Section 2.3(2) of this ARTICLE II. Stockholders seeking to nominate
persons for election to the Board of Directors must comply with Section 2.5 of this ARTICLE II, and
this Section 2.4 shall not be applicable to nominations except as expressly provided in Section 2.5
of this ARTICLE II.
(2) Without qualification, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in writing
and in proper form to the Secretary of the Corporation, (ii) provide any updates or supplements to
such notice at the times and in the forms required by this Section 2.4 and (iii) constitute a
proper mater for stockholder action. To be timely, a stockholders notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not later than the close
of business on the ninetieth (90th) day nor earlier than the one hundred twentieth (120th) day
prior to the one (1)-year anniversary of the preceding years annual
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meeting; provided, however, that if the date of the annual meeting is more than thirty (30)
days before or more than seventy (70) days after such anniversary date, notice by the stockholder
to be timely must be so delivered, or mailed and received, not earlier than the close of business
on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close
of business on the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th)
day following the day on which public disclosure of the date of such annual meeting was first made
(such notice within such time periods, Timely Notice). In no event shall any adjournment
or postponement of an annual meeting or the announcement thereof commence a new time period (or
extend any time period) for the giving of Timely Notice as described above.
(3) To be in proper form for purposes of this Section 2.4, a stockholders notice to the
Secretary of the Corporation shall set forth:
(a) As to each Proposing Person (as defined below), (A) the name and address of such Proposing
Person (including, if applicable, the name and address that appear on the Corporations books and
records); and (B) the class or series and number of shares of the Corporation that are, directly or
indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (as so
amended and inclusive of such rules and regulations, the Exchange Act)) by such Proposing
Person, except that such Proposing Person shall in all events be deemed to beneficially own any
shares of any class or series of the Corporation as to which such Proposing Person has a right to
acquire beneficial ownership at any time in the future (the disclosures to be made pursuant to the
foregoing clauses (A) and (B) are referred to as Stockholder Information);
(b) As to each Proposing Person, (A) any derivative, swap or other transaction or series of
transactions engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of
which is to give such Proposing Person economic risk similar to ownership of shares of any class or
series of the Corporation, including due to the fact that the value of such derivative, swap or
other transactions are determined by reference to the price, value or volatility of any shares of
any class or series of the Corporation, or which derivative, swap or other transactions provide,
directly or indirectly, the opportunity to profit from any increase in the price or value of shares
of any class or series of the Corporation (Derivative Instruments), which Derivative
Instruments shall be disclosed without regard to whether (x) the derivative, swap or other
transactions convey any voting rights in such shares to such Proposing Person, (y) the derivative,
swap or other transactions are required to be, or are capable of being, settled through delivery of
such shares or (z) such Proposing Person may have entered into other transactions that hedge or
mitigate the economic effect of such derivative, swap or other transactions, (B) any proxy (other
than a revocable proxy or consent given in response to a solicitation made pursuant to, and in
accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on
Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such
Proposing Person has or shares a right to vote any shares of any class or series of the
Corporation, (C) any agreement, arrangement, understanding or relationship, including any
repurchase or similar so-called stock borrowing agreement or arrangement, engaged in, directly or
indirectly, by such Proposing Person, the purpose or effect of which is to mitigate loss to, reduce
the economic risk (of ownership or otherwise) of shares of any class or series of the Corporation
by, manage the risk of share price changes for, or increase
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or decrease the voting power of, such Proposing Person with respect to the shares of any class
or series of the Corporation, or which provides, directly or indirectly, the opportunity to profit
from any decrease in the price or value of the shares of any class or series of the Corporation
(Short Interests), (D) any rights to dividends on the shares of any class or series of
the Corporation owned beneficially by such Proposing Person that are separated or separable from
the underlying shares of the Corporation, (E) any performance related fees (other than an asset
based fee) that such Proposing Person is entitled to based on any increase or decrease in the price
or value of shares of any class or series of the Corporation, or any Derivative Instruments or
Short Interests, if any, and (F) any other information relating to such Proposing Person that would
be required to be disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies or consents by such Proposing Person in support of the business
proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the
disclosures to be made pursuant to the foregoing clauses (A) through (F) are referred to as
Disclosable Interests); provided, however, that Disclosable Interests shall not include
any such disclosures with respect to the ordinary course business activities of any broker, dealer,
commercial bank, trust company or other nominee who is a Proposing Person solely as a result of
being the stockholder directed to prepare and submit the notice required by these Bylaws on behalf
of a beneficial owner; and
(c) As to each Proposing Person, (A) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business and (B) a representation whether the Proposing
Person intends or is part of a group which intends (a) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporations outstanding capital stock required
to approve or adopt the proposal and/or (b) otherwise to solicit proxies or votes from stockholders
in support of such proposal.
(d) As to each item of business that the stockholder proposes to bring before the annual
meeting, (A) a reasonably brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of each Proposing Person, (B) the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such business includes a
proposal to amend these Bylaws, the language of the proposed amendment), and (C) a reasonably
detailed description of all agreements, arrangements and understandings (x) between or among any of
the Proposing Persons or (y) between or among any Proposing Person and any other person or entity
(including their names) in connection with the proposal of such business by such stockholder.
(e) For purposes of this Section 2.4, the term Proposing Person shall mean (i) the
stockholder providing the notice of business proposed to be brought before an annual meeting, (ii)
the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business
proposed to be brought before the annual meeting is made, (iii) any affiliate or associate (each
within the meaning of Rule 12b-2 under the Exchange Act for purposes of these Bylaws) of such
stockholder or beneficial owner, and (iv) any other person with whom such stockholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in Concert (as defined
below).
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(f) A person shall be deemed to be Acting in Concert with another person for
purposes of these Bylaws if such person knowingly acts (whether or not pursuant to an express
agreement, arrangement or understanding) in concert with, or towards a common goal relating to the
management, governance or control of the Corporation in parallel with, such other person where (A)
each person is conscious of the other persons conduct or intent and this awareness is an element
in their decision-making processes and (B) at least one (1) additional factor suggests that such
persons intend to act in concert or in parallel, which such additional factors may include, without
limitation, exchanging information (whether publicly or privately), attending meetings, conducting
discussions, or making or soliciting invitations to act in concert or in parallel; provided, that a
person shall not be deemed to be Acting in Concert with any other person solely as a result of the
solicitation or receipt of revocable proxies or consents from such other person in response to a
solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of
a proxy or consent solicitation statement filed on Schedule 14A. A person Acting in Concert with
another person shall be deemed to be Acting in Concert with any third party who is also Acting in
Concert with such other person.
(4) A stockholder providing notice of business proposed to be brought before an annual meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2.4 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary of the Corporation at the principal
executive offices of the Corporation not later than five (5) business days after the record date
for the meeting (in the case of the update and supplement required to be made as of the record
date), and not later than eight (8) business days prior to the date for the meeting or, if
practicable, any adjournment or postponement thereof (and, if not practicable, on the first
practicable date prior to the date to which the meeting has been adjourned or postponed) (in the
case of the update and supplement required to be made as of ten (10) business days prior to the
meeting or any adjournment or postponement thereof).
(5) The foregoing notice requirements of this Section 2.4 shall be deemed satisfied by a
stockholder with respect to business other than a nomination if the stockholder has notified the
Corporation of his, her or its intention to present a proposal at an annual meeting in compliance
with applicable rules and regulations promulgated under the Exchange Act and such stockholders
proposal has been included in a proxy statement that has been prepared by the Corporation to
solicit proxies for such annual meeting.
(6) Except as otherwise expressly provided in any applicable rule or regulation promulgated
under the Exchange Act, no business shall be conducted at an annual meeting except in accordance
with this Section 2.4. Except as otherwise provided by law, the chairperson of the meeting shall
have the power and duty, if the facts warrant, (a) to determine whether business was properly
brought before the meeting in accordance with this Section 2.4 (including whether the Proposing
Person solicited (or is part of a group which solicited) or did not so solicit, as the case may be,
proxies or votes in support of such Proposing Persons proposal in compliance with such Proposing
Persons representation as required by clause (3)(c)(B) of this Section 2.4), and (b) if he or she
should so determine that the business was not proposed in compliance with this Section 2.4, he or
she shall so declare to the meeting and any
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such business not properly brought before the meeting shall not be transacted. Notwithstanding
the foregoing provisions of this Section 2.4, unless otherwise required by law, if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual meeting of
stockholders of the Corporation to present the proposed business, such proposed business shall not
be transacted, notwithstanding that proxies in respect of such vote may have been received by the
Corporation. For purposes of these Bylaws, to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or
must be authorized by a writing executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of stockholders.
(7) Notwithstanding the foregoing provisions of this Section 2.4 with respect to any business
proposed to be brought before an annual meeting, each Proposing Person shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder
with respect to any such business proposals; provided, however, that references in these Bylaws to
the Exchange Act, or the rules and regulations promulgated thereunder are not intended to and shall
not limit the requirements of these Bylaws applicable to proposals or any other business to be
considered pursuant to this Section 2.4 (including paragraphs (1)(iii) and (2) hereof), and
compliance with paragraphs (1)(iii) and (2) of this Section 2.4 shall be the exclusive means for a
stockholder to submit other business (other than, as provided in paragraph (5) of this Section 2.4,
business other than nominations brought properly under and in compliance with Rule 14a-8 of the
Exchange Act, as may be amended from time to time). Nothing in this Section 2.4 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to applicable rules and regulations promulgated under the Exchange Act.
(8) For purposes of these Bylaws, public disclosure shall include disclosure in a press
release reported by the Dow Jones News Service, Associated Press or other national news service or
in a document publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated
thereunder.
2.5 Advance Notice Provisions for Nominations of Directors.
(1) Nominations of any person for election to the Board at an annual meeting may be made at
such meeting only (i) by or at the direction of the Board, including by any committee or persons
appointed by the Board, (ii) pursuant to the Corporations notice of meeting (or any supplement
thereto) or (iii) by a stockholder who (A) was a stockholder of record of the Corporation (and,
with respect to any beneficial owner, if different, on whose behalf such nomination is proposed to
be made, only if such beneficial owner was the beneficial owner of shares of the Corporation) both
at the time of giving the notice provided for in this Section 2.5 and at the time of the meeting,
(B) is entitled to vote at the meeting and upon such election, and (C) has complied with this
Section 2.5 as to such nomination.
(2) Without qualification, for a stockholder to make any nomination of a person or persons for
election to the Board at an annual meeting, the stockholder must (i) provide
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Timely Notice (as defined in Section 2.4(2) of this ARTICLE II) thereof in writing and in
proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such
notice at the times and in the forms required by this Section 2.5. Nominations of persons for
election to the Board may be made at a special meeting of stockholders at which directors are to be
elected if the election of directors is a matter specified in the notice of meeting given by or at
the direction of the Board (i) by or at the direction of the Board (or any committee thereof), or
(ii) provided that the Board has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation, who is a stockholder of record of the Corporation at the time the
notice provided for in this Section 2.5 is delivered to the Secretary of the Corporation, who is
entitled to vote at the special meeting and upon such election and who complies with the notice
procedures set forth in this Section 2.5. The stockholder must (i) provide timely notice thereof in
writing and in proper form to the Secretary of the Corporation at the principal executive offices
of the Corporation, and (ii) provide any updates or supplements to such notice at the times and in
the forms required by this Section 2.5. To be timely, a stockholders notice for nominations to be
made at a special meeting must be delivered to, or mailed and received at, the principal executive
offices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such
special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if
later, the tenth (10th) day following the day on which public disclosure (as defined in Section
2.4(8) of this ARTICLE II) of the date of such special meeting and of the nominees proposed by the
Board to be elected at such meeting was first made. In no event shall any adjournment or
postponement of an annual meeting or special meeting or the announcement thereof commence a new
time period (or extend any time period) for the giving of a stockholders notice as described
above.
(3) To be in proper form for purposes of this Section 2.5, a stockholders notice to the
Secretary of the Corporation shall set forth:
(a) As to each Nominating Person (as defined below), the Stockholder Information (as defined
in Section 2.4(3)(a) of this ARTICLE II, except that for purposes of this Section 2.5 the term
Nominating Person shall be substituted for the term Proposing Person in all places it appears
in Section 2.4(3)(a) of this ARTICLE II);
(b) As to each Nominating Person, any Disclosable Interests (as defined in Section 2.4(3)(b)of
this ARTICLE II, except that for purposes of this Section 2.5 of this Article I the term
Nominating Person shall be substituted for the term Proposing Person in all places it appears
in Section 2.4(3)(b) of this ARTICLE II and the disclosure in clause (F) of Section 2.4(3)(b) of
this ARTICLE II shall be made with respect to the election of directors at the meeting);
(c) As to each Nominating Person, the information required to be disclosed pursuant to Section
2.4(3)(c) of this ARTICLE II, except that for purposes of this Section 2.5 of this ARTICLE II, the
term Nominating Person shall be substituted for the term Proposing Person in all places it
appears in Section 2.4(3)(c) of this ARTICLE II and the references to proposal or business
shall be deemed to be reference to nomination;
(d) As to each person whom a Nominating Person proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee
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that would be required to be set forth in a stockholders notice pursuant to this Section 2.5
if such proposed nominee were a Nominating Person, (B) all information relating to such proposed
nominee that is required to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors in a contested election
pursuant to Section 14(a) under the Exchange Act (including such proposed nominees written consent
to being named in the proxy statement as a nominee and to serving as a director if elected), (C) a
description of all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three (3) years, and any other material
relationships, between or among any Nominating Person, on the one hand, and each proposed nominee,
his or her respective affiliates and associates and any other persons with whom such proposed
nominee (or any of his or her respective affiliates and associates) is Acting in Concert (as
defined in Section 2.4(3)(f) of this ARTICLE II), on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if
such Nominating Person were the registrant for purposes of such rule and the proposed nominee
were a director or executive officer of such registrant and (D) a completed and signed
questionnaire, representation and agreement as provided in Section 2.5(6) of this ARTICLE II;
(e) The Corporation may require any proposed nominee to furnish such other information (A) as
may reasonably be required by the Corporation to determine the eligibility of such proposed nominee
to serve as an independent director of the Corporation or (B) that could be material to a
reasonable stockholders understanding of the independence or lack of independence of such proposed
nominee; and
(f) For purposes of this Section 2.5, the term Nominating Person shall mean (A) the
stockholder providing the notice of the nomination proposed to be made at the meeting, (B) the
beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination
proposed to be made at the meeting is made, (C) any affiliate or associate of such stockholder or
beneficial owner, and (D) any other person with whom such stockholder or such beneficial owner (or
any of their respective affiliates or associates) is Acting in Concert.
(4) A stockholder providing notice of any nomination proposed to be made at an annual or
special meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 2.5 shall
be true and correct as of the record date for the meeting and as of the date that is ten (10)
business days prior to the meeting or any adjournment or postponement thereof, and such update and
supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation at
the principal executive offices of the Corporation not later than five (5) business days after the
record date for the meeting (in the case of the update and supplement required to be made as of the
record date), and not later than eight (8) business days prior to the date for the meeting, or if
practicable, any adjournment or postponement thereof (and if not practicable, on the first
practicable date prior to the date to which the meeting has been adjourned or postponed) (in the
case of the update and supplement required to be made as of ten (10) business days prior to the
meeting or any adjournment or postponement thereof).
(5) Except as otherwise expressly provided in any applicable rule or regulation promulgated
under the Exchange Act, no person shall be eligible for election as a
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director of the Corporation unless nominated in accordance with this Section 2.5. Except as
otherwise provided by law, the chairperson of the meeting shall have the power and duty, if the
facts warrant, (a) to determine whether a nomination was properly made in accordance with this
Section 2.5 (including whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies or votes in support of such stockholders nominee or proposal
in compliance with such stockholders representation as required by clause (3)(c) of this Section
2.5), and (b) if he or she should so determine that any proposed nomination was not made in
compliance with this Section 2.5, he or she shall so declare such determination to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this
Section 2.5, unless otherwise required by law, if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present a nomination, such nomination shall be disregarded, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
(6) To be eligible to be a nominee for election as a director of the Corporation, the proposed
nominee must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 2.5) to the Secretary of the Corporation at the principal executive offices of the
Corporation a written questionnaire with respect to the background and qualification of such
proposed nominee (which questionnaire shall be provided by the Secretary of the Corporation upon
written request) and a written representation and agreement (in form provided by the Secretary of
the Corporation upon written request) that such proposed nominee (i) is not and will not become a
party to (A) any agreement, arrangement or understanding with, and has not given any commitment or
assurance to, any person or entity as to how such proposed nominee, if elected as a director of the
Corporation, will act or vote on any issue or question (a Voting Commitment) that has not
been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with
such proposed nominees ability to comply, if elected as a director of the Corporation, with such
proposed nominees fiduciary duties under applicable law, (ii) is not, and will not become a party
to, any agreement, arrangement or understanding with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not been disclosed to the Corporation
and (iii) in such proposed nominees individual capacity and on behalf of the stockholder (or the
beneficial owner, if different) on whose behalf the nomination is made, would be in compliance, if
elected to a director of the Corporation, and will comply with applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership and trading
policies and guidelines of the Corporation.
(7) Notwithstanding anything in the first sentence of Section 2.5(2) to the contrary, in the
event that the number of directors to be elected to the Board at an annual meeting is increased
effective after the time period for which nominations would otherwise be due under Section 2.5(2)
and there is no public announcement by the Corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of the preceding
years annual meeting, a stockholders notice required by this Section 2.5 shall also be considered
timely, but only with respect to nominees for the additional directorships, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation not later than the
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close of business on the tenth (10th) day following the day on which such public disclosure is
first made by the Corporation.
(8) In addition to the requirements of this Section 2.5 with respect to any nomination
proposed to be made at a meeting, each Nominating Person shall comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect
to any such nominations; provided, however, that references in these Bylaws to the Exchange Act, or
the rules and regulations promulgated thereunder are not intended to and shall not limit the
requirements of these Bylaws applicable to nominations to be considered pursuant to these Bylaws
(including Section 2.5(1)(iii) and (2)), and compliance with Section 2.5(1)(iii) and (2) shall be
the exclusive means for a stockholder to make nominations. Nothing in this Section 2.5 shall be
deemed to affect any rights (a) of stockholders to request inclusion of nominations in the
Corporations proxy statement pursuant to applicable rules and regulations promulgated under the
Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to
any applicable provisions of the Certificate of Incorporation.
2.6 Adjournments. Any meeting of the stockholders, including one at which Directors are to be
elected, may be adjourned for such periods as the presiding officer of the meeting or the
stockholders present in person or by proxy and entitled to vote shall direct.
2.7 List of Stockholders. The officer of the Corporation who has charge of the stock ledger
shall prepare a complete list of the stockholders entitled to vote at any meeting of stockholders
(provided, however, if the record date for determining the stockholders entitled to vote is less
than ten days before the date of the meeting, the list shall reflect the stockholders entitled to
vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the
address of each stockholder and the number of shares of each class of capital stock of the
Corporation registered in the name of each stockholder at least ten days before any meeting of the
stockholders. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, at the principal place of business of the
Corporation. 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 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 inspection by any stockholder during the whole time of the meeting as provided by
applicable law. Except as provided by applicable law, the stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the stock ledger and the list
of stockholders or to vote in person or by proxy at any meeting of stockholders.
2.8 Quorum. Unless otherwise required by law, the Certificate of Incorporation or these
Bylaws, at each meeting of the stockholders, a majority in voting power of the outstanding shares
of the Corporation entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. 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 adjourn the meeting, without notice other
than announcement at the meeting, until a quorum shall be present or represented. A quorum, once
established, shall not be broken by the subsequent withdrawal of enough votes to
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leave less than a quorum. At any such adjourned meeting at which there is a quorum, any
business may be transacted that might have been transacted at the meeting originally called.
2.9 Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution
such rules and regulations for the conduct of the meeting of the stockholders as it shall deem
appropriate. At every meeting of stockholders, the Chairperson of the Board of Directors, or in his
or her absence or inability to act, the Chief Executive Officer, or, in his or her absence or
inability to act, the person whom Secretary shall appoint, shall act as chairperson of, and preside
at, the meeting. The Secretary or, in his or her absence or inability to act, the person whom the
Chairperson of the meeting shall appoint secretary of the meeting, shall act as secretary of the
meeting and keep the minutes thereof. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the Chairperson 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 Chairperson, 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 chairperson 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 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 chairperson 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.
2.10 Voting. Unless otherwise required by law, the Certificate of Incorporation, or these
Bylaws, any question brought before any meeting of 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 stock represented at the meeting and entitled to vote on such question, voting
as a single class. The election of directors shall be decided by a plurality of the votes cast at
a meeting of the stockholders by the holders of stock entitled to vote in the election. No
stockholder shall be permitted to cumulate votes at any election of directors. Unless otherwise
provided in the Certificate of Incorporation and these Bylaws, each stockholder shall be entitled
to cast one (1) vote for each share of the stock entitled to vote thereat held by such stockholder.
Such votes may be cast in person or by proxy as provided in Section 2.11. 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.
2.11 Proxies. Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for such stockholder by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance with the procedure established
for the meeting, but no such proxy shall be voted or acted upon after three (3) 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 as long as, it is coupled with an interest sufficient in
law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by delivering to the
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secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot.
2.12 No Action by Consent. Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken only upon the vote of stockholders at an annual or
special meeting duly noticed and called in accordance with Delaware Law and may not be taken by
written consent of stockholders without a meeting.
2.13 Inspectors of Election. In advance of any meeting of the stockholders, the Board of
Directors, by resolution, the Chairperson or the President shall appoint one or more inspectors to
act at the meeting and make a written report thereof. Once or more other persons may be designated
as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is
able to act at a meeting of the stockholders, the chairperson of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may
be officers, employees or agents of the Corporation. Each inspector, before entering upon the
discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties
of inspector with strict impartiality and according to the best of such inspectors ability. The
inspector shall have the duties prescribed by law and shall take charge of the polls and, when the
vote is completed, shall make a certificate of the result of the vote taken and of such other facts
as may be required by applicable law.
2.14 Fixing the Record Date.
(1) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than 60
nor less than ten days before the date of such meeting. If the Board of Directors so fixes a date,
such date shall also be the record date for determining the stockholders entitled to vote at such
meeting unless the Board of Directors determines, at the time it fixes such record date, that a
later date on or before the date of the meeting shall be the date for making such determination. If
no record date is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the determination of stockholders entitled to vote at the adjourned meeting and in such
case shall also fix as the record date for stockholders entitled to notice of such adjourned
meeting the same or an earlier date as that fixed for the determination of stockholders entitled to
vote therewith at the adjourned meeting.
(2) 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
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adopted, and which record date shall be not more than 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.
ARTICLE III
BOARD OF DIRECTORS
BOARD OF DIRECTORS
3.1 Powers. Subject to the provisions of the DGCL and any limitations in the Certificate of
Incorporation or these Bylaws relating to action required to be approved by the stockholders or by
the outstanding shares, the business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board Directors.
3.2 Number of Directors. Subject to the Certificate of Incorporation, the authorized number
of directors shall be determined from time to time exclusively by resolution of the Board of
Directors. No reduction of the authorized number of directors shall have the effect of removing
any director before that directors term of office expires.
3.3 Election, Qualification and Term of Office of Directors.
(1) Classes of Directors. The Board of Directors shall be and is divided into three classes,
as nearly equal in number as possible, designated: Class I, Class II and Class III. In case of any
increase or decrease, from time to time, in the number of directors, the number of directors in
each class shall be apportioned as nearly equal as possible. No decrease in the number of directors
shall shorten the term of any incumbent director.
(2) Terms of Office. Each director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such director was elected; provided, that each
director initially appointed to Class I shall serve for an initial term expiring at the
Corporations first annual meeting of stockholders following the effectiveness of this provision;
each director initially appointed to Class II shall serve for an initial term expiring at the
Corporations second annual meeting of stockholders following the effectiveness of this provision;
and each director initially appointed to Class III shall serve for an initial term expiring at the
Corporations third annual meeting of stockholders following the effectiveness of this provision;
provided further, that the term of each director shall continue until the election and
qualification of a successor and be subject to such directors earlier death, resignation or
removal.
(3) Removal. Unless otherwise provided in the Certificate of Incorporation, no director may
be removed from office by the stockholders except for cause and only with the affirmative vote of
the holders of a majority of the total voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election of directors.
(4) Resignation. Any director may resign at any time by giving notice in writing or by
electronic transmission to the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect upon receipt of notice thereof or at such later time as is therein
specified; and unless otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
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(5) Vacancies. Unless otherwise provided in the Certificate of Incorporation, vacancies on the
Board of Directors by reason of death, resignation, retirement, disqualification, removal from
office, or otherwise, and newly created directorships resulting from any increase in the authorized
number of directors shall be solely filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. A
director elected to fill a vacancy or a newly created directorship shall hold office until the next
election of the class for which such director shall have been chosen, subject to the election and
qualification of a successor and to such directors earlier death, resignation or removal. Unless
otherwise provided in the Certificate of Incorporation, when one or more directors shall resign
from the Board of Directors, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have the power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in the filling of the other
vacancies.
3.4 Time and Place of Meetings. The Board of Directors shall hold its meetings at such place,
either within or without the State of Delaware, and at such time as may be determined from time to
time by the Board of Directors (or the Chairperson in the absence of a determination by the Board
of Directors).
3.5 Regular Meetings. Regular meetings of the Board of Directors may be held without notice
at such times and at such places as may be determined from time to time by the Board of Directors
or its Chairperson.
3.6 Annual Meetings. The Board of Directors shall meet for the purpose of organization, the
election of officers and the transaction of other business, as soon as practicable after each
annual meeting of stockholders, on the same day and at the same place where such annual meeting of
stockholders shall be held. Notice of such meeting need not be given. In the event such annual
meeting of stockholders is not so held, the annual meeting of the Board of Directors may be held at
such place either within or without the State of Delaware, on such date and at such time as shall
be specified in a notice thereof given as hereinafter provided in Section 3.10 herein or in a
waiver of notice thereof signed by any director who chooses to waive the requirement of notice.
3.7 Special Meetings. Special meetings of the Board of Directors may be called by the Board
of Directors, the Chairperson of the Board of Directors, the Chief Executive Officer, the President
or the Secretary of the Corporation and may not be called by any other person. Notice of special
meetings of the Board of Directors shall be given to each director on at least 24 hours notice to
each director given by one of the means specified in Section 3.10 hereof other than by mail or on
at least three days notice if given by mail.
3.8 Telephone Meetings. Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or such committee, as the case
may be, by means of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
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3.9 Adjourned Meetings. A majority of the directors present at any meeting of the Board of
Directors, including an adjourned meeting, whether or not a quorum is present, may adjourn and
reconvene such meeting to another time and place. Unless otherwise provide in the Certificate of
Incorporation or these Bylaws, at least 24 hours notice of any adjourned meeting of the Board of
Directors 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 3.9 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.
3.10 Notice.
(1) Form of Notice. Subject to Sections 3.6 and 3.7 hereof, whenever notice is required to
be given to any director by applicable law, the Certificate of Incorporation or these Bylaws, such
notice shall be deemed given effectively if given in person or by telephone, mail addressed to such
director at such directors address as it appears on the records of the Corporation, facsimile,
email or by other means of electronic transmission.
(2) Waiver of Notice. Whenever the giving of any notice to directors is required by
applicable law, the Certificate of Incorporation or these Bylaws, a waiver thereof, given by the
director entitled to the notice, whether before or after 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 was
not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special Board of Directors or committee meeting need be specified in any waiver of
notice.
3.11 Organization. At each meeting of the Board of Directors, the Chairperson or, in his or
her absence, another director selected by the Board of Directors shall preside. The Secretary
shall act as Secretary at each meeting of the Board of Directors. If the Secretary is absent from
any meeting of the Board of Directors, 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.
3.12 Quorum of Directors. Unless the Certificate of Incorporation or these Bylaws require a
lesser or greater number, the presence of a majority of the total number of directors shall
constitute a quorum for the transaction of business at any meeting of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors the directors present thereat
may adjourn the meeting, from time to time, without notice other than announcement at the meeting,
until a quorum shall be present. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the required quorum for that meeting.
3.13 Action by Majority Vote. Except as otherwise expressly required by these Bylaws, the
Certificate of Incorporation or by applicable law, the affirmative vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of the Board of
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Directors. If the Certificate of Incorporation provides that one or more directors shall have
more or less than one vote per director on any matter, every reference in these Bylaws to a
majority or other proportion of the directors shall refer to a majority or other proportion of the
votes of the directors.
3.14 Action without Meeting. Unless otherwise restricted by 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 members of the Board
of Directors or such committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writings or electronic transmissions are filed with the minutes of
proceedings of the Board of Directors or committee in accordance with applicable law.
3.15 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, the Board of Directors or a committee thereof shall have authority to fix the compensation
of directors, including fees and reimbursement of expenses.
ARTICLE IV
COMMITTEES
COMMITTEES
4.1 Committees of Directors. The Board of Directors shall appoint from among its members an
Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, each
composed of at least two directors or such higher number of directors as may be required by law or
the standards of any stock exchange on which shares of the Corporation are listed, with such
lawfully delegable powers and duties as it thereby confers or that are required by law or such
standards of any stock exchange on which shares of the Corporation are listed.
The Board of Directors may from time to time designate other committees of the Board, each
composed of one or more directors, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board of Directors.
In the absence or disqualification of any member of any committee and any alternate member in
his or her place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board of Directors or
these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but (a) unless the resolution, the
Certificate of Incorporation or these Bylaws expressly so provide, no such committee shall have the
power or authority to declare a dividend, authorize the issuance of stock, to adopt a certificate
of ownership and merger pursuant to Section 253 of the DGCL or to recommend to the stockholders
either the sale, lease or exchange of all or substantially all of the Corporations property and
assets or a dissolution of the Corporation (or the revocation of a dissolution); and (b) no such
committee shall have the power or authority of the Board of
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Directors in reference to adopting, amending or repealing any provision of the Certificate of
Incorporation or these Bylaws or approving or adopting, or recommending to the stockholders, any
action or matter expressly required by the DGCL to be submitted to stockholders for approval other
than those identified in (a) above.
4.2 Term. The Board of Directors, subject to the requirements specifically set forth in this
Section, may at any time change, increase or decrease the number of members of a committee or
terminate the existence of a committee. The membership of a committee member shall terminate on
the date of his death or resignation, but the Board of Directors may at any time for any reason
remove any individual committee member and the Board of Directors may, subject to the requirements
specifically set forth in this Section, fill any committee vacancy created by death, resignation,
removal or increase in the number of members of the committee. The Board of Directors may, subject
to the requirements specifically set forth in this Section, designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee, and, in addition, in the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may, subject to the requirements specifically set
forth in this Section, unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
4.3 Conduct of Business. Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as otherwise provided herein
or required by law. Adequate provision shall be made for notice to members of all meetings; a
majority of the members shall constitute a quorum unless the committee shall consist of one or two
members, in which event one member shall constitute a quorum; and all matters shall be determined
by a majority vote of the members present. Action may be taken by any committee without a meeting
if all members thereof consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of such committee.
ARTICLE V
OFFICERS
OFFICERS
5.1 Positions and Election. The officers of the Corporation shall be elected by the Board of
Directors and shall include a Chief Executive Officer, President, one or more Vice Presidents, a
Treasurer and a Secretary who shall have the duty, among other things, to record the proceedings of
the meetings of stockholders and directors in a book kept for that person. The Corporation may also
have such other principal officers as the Board of Directors may, in its discretion, appoint. Any
individual may be elected to, and may hold, more than one office of the Corporation, except that no
one person shall simultaneously hold the offices and perform the duties of President and Secretary.
5.2 Election, Term and Compensation. Each officer of the Corporation shall be elected
annually by the Board of Directors at the annual meeting thereof. Each such officer shall hold
office until such officers successor is elected and qualified or until such officers earlier
death, resignation or removal. The compensation of all officers of the Corporation shall be fixed
17
by or at the direction of the Board of Directors or a committee thereof. Any vacancy in any
office shall be filled in such manner as the Board of Directors shall determine.
5.3 Subordinate Officers. In addition to the principal officers enumerated in Section 4.01
above, the Corporation may have one or more Vice Presidents, Assistant Vice Presidents, Assistant
Treasurers, Assistant Secretaries and Assistant Controllers and such other subordinate officers,
agents and employees as the Board of Directors may deem necessary, each of whom shall hold office
for such period as the Board of Directors may from time to time determine. Any Vice President
(whether a principal officer or subordinate officer) may be designated Executive, Senior or
Corporate, or may be given such other designation or combination of designations as the Board of
Directors or the Chief Executive Officer may determine. The Board of Directors may delegate to any
principal officer the power to appoint and to remove any such subordinate officers, agents or
employees.
5.4 Removal. Any officer elected or appointed by the Board of Directors may be removed by the
Board of Directors at any time with or without cause by resolution adopted by the Board of
Directors then in office. The Chief Executive Officer, upon authority delegated by the Board of
Directors may remove any other principal officer, with or without cause.
5.5 Resignations. Any officer of the Corporation may resign at any time by giving written
notice of his or her resignation to the Board of Directors or to a principal officer if the Board
of Directors has delegated such principal officer the power to appoint and to remove such officer).
Any such resignation shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its receipt. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to make it effective.
5.6 Powers and Duties. The officers of the Corporation shall have such powers and perform
such duties incident to each of their respective offices and such other duties as may from time to
time be conferred upon or assigned to them by the Board of Directors.
ARTICLE VI
STOCK
STOCK
6.1 Certificates Representing Shares; Uncertificated Shares. The shares of stock of the
Corporation shall be represented by certificates; provided that the Board of Directors may provide
by resolution or resolutions that some or all of any class or series shall be uncertificated shares
that may be evidenced by a book-entry system maintained by the registrar of such stock. Any such
resolution shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Except as otherwise provided by law, the rights and obligations of
the holders of uncertificated shares and the rights and obligations of the holders of shares
represented by certificates of the same class and series shall be identical. If shares are
represented by certificates such certificates shall be in the form approved by the Board of
Directors. Every holder of stock represented by certificates shall be entitled to have a
certificate signed by, or in the name of, the Corporation by the Chairperson, any vice Chairperson,
the Chief Executive Officer, the President or any Vice President, and by the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all such signatures may be
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facsimiles. In case any officer, transfer agent or registrar whose manual or facsimile
signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar
before such certificate has been issued, it may nevertheless be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were still such at the date of its
issue. The Corporation shall not have power to issue a certificate in bearer form.
6.2 Transfer of Stock. Shares of stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Shares of stock may be transferred on the record of
stockholders of the Corporation by the holder thereof or by such holders duly authorized attorney
upon surrender of a certificate therefore properly endorsed or upon the receipt of proper transfer
instructions from the registered holder of uncertificated shares or by such holders duly
authorized attorney and upon compliance with appropriate procedures for transferring shares in
uncertificated form, unless waived by the Corporation. 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. To the extent designated by the
Chief Executive Officer, President or any Vice President or the Treasurer of the Corporation, the
Corporation may recognize the transfer of fractional uncertificated shares, but shall not otherwise
be required to recognize the transfer of fractional shares.
6.3 Transfer Agents and Registrars. The Board of Directors may appoint, or authorize any
officer or officers to appoint, one or more transfer agents and one or more registrars.
6.4 Authority for Additional Transfer Rules. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient concerning the issue,
transfer and registration of certificated or uncertificated shares of the Corporation.
6.5 Lost, Stolen or Destroyed Certificates. The Board of Directors may direct a new
certificate or uncertificated shares 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. When
authorizing such issue of a new certificate or uncertificated shares, 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 the owners legal representative to give the Corporation
a bond sufficient to indemnify the Corporation and/or the transfer agents, and/or the registrars
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed or the issuance of such new certificate or uncertificated
shares.
6.6 Dividends. Subject to Delaware law and the Certificate of Incorporation, dividends upon
the shares of capital stock of the Corporation may be declared by the Board of Directors.
Dividends may be paid in cash, in property or in shares of stock of the Corporation, unless
otherwise provided by applicable law or the Certificate of Incorporation.
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ARTICLE VII
GENERAL PROVISIONS
GENERAL PROVISIONS
7.1 Checks, Notes, Drafts, Etc. All checks, notes, drafts or other orders for the payment of
money of the Corporation shall be signed, endorsed or accepted in the name of the Corporation by
such officer, officers, person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to make such
designation.
7.2 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board
of Directors and may be changed by the Board of Directors.
7.3 Seal. The seal of the Corporation shall be in such form as shall be approved by the Board
of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise, as may be prescribed by law or custom or by the Board of Directors.
7.4 Reliance on Books, Reports and Records. To the fullest extent permitted by applicable
law, each director and each member of any committee designated by the Board of Directors, in
performance of his or her duties, shall be fully protected in relying in good faith upon the books
or account or other records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation or by any of its officers or employees, or committees of
the Board of Directors so designated, or by any other person as to matters which such director or
committee member reasonably believes are within such other persons professional or expert
competence and who has been selected with reasonable care by or on behalf of the Corporation.
7.5 Voting of Stock Owned by the Corporation. The Board of Directors may authorize any person,
on behalf of the Corporation, to attend, vote at and grant proxies to be used at any meeting of
stockholders of any corporation (except this Corporation) in which the Corporation may hold stock.
Absent such direction by the Board of Directors, any principal officer of the Corporation may
attend, vote at and grant proxies to be used at any meeting of stockholders of any corporation
(except this Corporation) in which the Corporation may hold stock.
7.6 Conflict with Applicable Law or Certificate of Incorporation. These Bylaws are adopted
subject to any applicable law and the Certificate of Incorporation. Whenever these Bylaws may
conflict with any applicable law or the Certificate of Incorporation, such conflict shall be
resolved in favor of such law or the Certificate of Incorporation.
ARTICLE VIII
AMENDMENTS
AMENDMENTS
The Board of Directors and stockholders may adopt, amend and repeal these Bylaws in the manner
provided in the Certificate of Incorporation.
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