Attached files
file | filename |
---|---|
8-K - FORM 8-K - MARINEMAX INC | c18829e8vk.htm |
Exhibit 3.2(a)
THIRD AMENDED AND RESTATED BYLAWS
OF
MARINEMAX, INC.
(a Delaware Corporation)
Adopted June 10, 2011
Article 1
Offices
Offices
1.1 Registered Agent and Office. The registered agent and office of MarineMax, Inc. (the
Corporation) in the state of Delaware shall be The Corporation Trust Company, 1209 Orange
Street, City of Wilmington, Delaware 19801, County of New Castle, or such other registered agent or
office (which need not be a place of business of the Corporation) as the Board of Directors may
designate from time to time in the manner provided by applicable law.
1.2 Other Offices. The Corporation may have offices also at such other places within and
without the state of Delaware as the Board of Directors may from time to time designate or as the
business of the Corporation may require.
Article 2
Stockholders
Stockholders
2.1 Place of Meetings. Meetings of stockholders shall be held at the place, if any, either
within or without the state of Delaware, as may be designated by resolution of the Board of
Directors from time to time.
2.2 Annual Meetings. If required by law, annual meetings of stockholders shall be held at
such date and time as determined by resolution of the Board of Directors and as set forth in the
notice of meeting required by Section 2.4, at which time they shall elect a Board of
Directors and transact any other business as may properly be brought before the meeting.
2.3 Special Meetings. Except as otherwise provided by the Certificate of Incorporation of the
Corporation (the Certificate of Incorporation) relating to the rights of the holders of
any series of preferred stock of the Corporation, a special meeting of stockholders for any purpose
or purposes may be called at any time only by (i) the Chairman of the Board or (ii) resolution of
the Board of Directors, and may not be called by any other person or persons, such special meeting
to be held at such date and time as shall be designated in the notice or waiver of notice thereof.
Only business within the purposes described in the Corporations notice of meeting required by
Section 2.4 may be conducted at the special meeting.
2.4 Notice of Meetings. Whenever stockholders are required or permitted to take any action at
a meeting, a written notice of the meeting shall be given that shall state the place, date, and
hour of the meeting, the record date for determining the stockholder entitled to
vote at the meeting, if such date is different from the record date for determining the
stockholders entitled to notice of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Except as otherwise provided by law, the Certificate
of Incorporation, or these Bylaws, the written notice of any meeting shall be given no less than
ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled
to vote at such meeting, as of the record date for determining the stockholders entitled to notice
of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his, her, or its address as it appears
on the records of the Corporation.
2.5 Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given of any such
adjourned meeting if the time and place, if any, thereof, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than thirty (30) days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for stockholders entitled to vote is fixed for the
adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned
meeting in accordance with Section 2.9 of these bylaws, and shall give notice of the adjourned
meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record
date fixed for notice of such adjourned meeting.
2.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation, or these
Bylaws, 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 shall
be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the
manner provided in Section 2.5 of these Bylaws until a quorum shall attend. 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.
2.7 Organization. Meetings of stockholders shall be presided over by the Chief Executive
Officer, if any, or in his or her absence by the Chairman of the Board, if any, or in his or her
absence by the President, or in his or her absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the absence of such
designation, by a chairman chosen at the meeting. The Secretary of the Corporation shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
2
2.8 Voting; Proxies. Each stockholder entitled to vote at any meeting of stockholders shall
be entitled to one vote for each share of stock held by such stockholder that
has voting power upon the matter in question. Each stockholder entitled to vote at a meeting
of stockholders may authorize another person or persons to act for such stockholder by proxy, but
no such proxy shall be voted or acted upon after three (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 that is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of
stockholders need not be by written ballot. Subject to the next succeeding sentence and except as
provided by the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock
exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable
to the Corporation or its securities, all other elections and questions presented to the
stockholders at a meeting at which a quorum is present shall, unless otherwise be decided by the
affirmative vote of the holders of a majority of the votes cast. For purposes of these Bylaws,
votes cast shall mean all votes cast in favor of and against a particular proposal or matter, but
shall not include abstentions or broker non-votes. A nominee for director shall be elected to the
Board of Directors if the votes cast for such nominees election exceed the votes cast against such
nominees election; provided, however, that directors shall be elected by a
plurality of the votes cast at any meeting of stockholders for which (1) the Secretary of the
Corporation receives a notice that a stockholder has nominated a person for election to the Board
of Directors in compliance with the advance notice requirements for stockholder nominees for
director set forth in Section 2.13 of these Bylaws and such nomination has not been
withdrawn by such stockholder on or before the tenth day before the Corporation first mails its
notice of meeting for such meeting to the stockholders or (2) the number of nominees otherwise
exceeds the number of directors to be elected. If directors are to be elected by a plurality of
the votes cast, stockholders shall not be permitted to vote against a nominee.
2.9 Fixing Date for Determination of Stockholders of Record. In order that the Corporation
may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date: (1) in the case of determination of
stockholders entitled to notice of any meeting of stockholders or adjournment thereof, shall,
unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, and, 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
determining the stockholders entitled to vote at such meeting, such date shall also be the record
date for determining the stockholders entitled to vote at such meeting; and (2) in the case of any
other action, shall not be more than sixty (60) days prior to such other action. If no record date
is fixed: (1) the record date for determining stockholders entitled to notice of and 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; and (2) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. 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 the 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 in
accordance with the foregoing provisions of this Section 2.9 at the adjourned meeting.
3
2.10 List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting,
provided, however, if the record date for determining the stockholders entitled to
vote is less than ten (10) days before the meeting date, 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 registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder for any purpose germane
to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting; or (ii) during ordinary business hours, at the
principal place of business of the corporation. The list of stockholders must also be open to
examination at the meeting as required by applicable law. Except as otherwise required by 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.
2.11 Action by Consent of Stockholders. Except as otherwise provided by the Certificate of
Incorporation relating to the rights of the holders of any series of preferred stock of the
Corporation, no action required or permitted to be taken at any annual or special meeting of the
stockholders may be effected by written consent of stockholders in lieu of a meeting, unless the
action to be effected by written consent of stockholders and the taking of such action by written
consent have been expressly approved in advance by the Board of Directors.
2.12 Inspectors of Election. The Corporation may, and shall if required by law, in advance of
any meeting of stockholders, appoint one or more inspectors of election, who may be employees of
the Corporation, to act at the meeting or any adjournment thereof and to make a written report
thereof. The Corporation may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. In the event that no inspector so appointed or designated is able to
act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before entering upon the discharge of his or her duties,
shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all
votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors, and (v) certify their determination of
the number of shares of capital stock of the Corporation represented at the
meeting and such inspectors count of all votes and ballots. Such certification and report
shall specify such other information as may be required by applicable law. In determining the
validity and counting of proxies and ballots cast at any meeting of stockholders of the
Corporation, the inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector at such election.
4
2.13 Notice of Stockholder Business; Nominations.
(a) Annual Meetings of Stockholders. Nominations of one or more individuals to the Board of
Directors (each, a Nomination, and more than one, Nominations) and the proposal
of business other than Nominations (Business) to be considered by the stockholders of the
Corporation may be made at an annual meeting of stockholders only (1) pursuant to the Corporations
notice of meeting or any supplement thereto (provided, however, that reference in
the Corporations notice of meeting to the election of directors or to the election of members of
the Board of Directors shall not include or be deemed to include Nominations), (2) by or at the
direction of the Board of Directors, or (3) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice provided for in this Section
2.13 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting,
and who complies with the notice procedures set forth in this Section 2.13.
(b) Special Meetings of Stockholders. Only such Business shall be conducted at a special
meeting of stockholders of the Corporation as shall have been brought before the meeting pursuant
to the Corporations notice of meeting; provided, however, that reference in the
Corporations notice of meeting to the election of directors or to the election of members of the
Board of Directors shall not include or be deemed to include Nominations. Nominations may be made
at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) by or at the direction of the Board of Directors or (2)
provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.13 is delivered to the Secretary of the Corporation,
who is entitled to vote at the meeting and upon such election, and who complies with the notice
procedures set forth in this Section 2.13.
(c) Stockholder Nominations and Business. For Nominations and Business to be properly brought
before an annual meeting by a stockholder pursuant to Section 2.13(a)(3), the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation in compliance
with this Section 2.13, and any such proposed Business must constitute a proper matter for
stockholder action. For Nominations to be properly brought before a special meeting by a
stockholder pursuant to Section 2.13(b)(2), the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation in compliance with this Section
2.13.
(1) Stockholder Nominations.
(A) Only individual(s) subject to a Nomination made in compliance with the procedures set
forth in this Section 2.13 shall be eligible for election at an annual or special meeting
of stockholders of the Corporation, and any individual(s) subject to a
Nomination not made in compliance with this Section 2.13 shall not be considered nor
acted upon at such meeting of stockholders.
5
(B) For Nominations to be properly brought before an annual or special meeting of stockholders
of the Corporation by a stockholder pursuant to Section 2.13(a)(3) or Section
2.13(b)(2), respectively, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation at the principal executive offices of the Corporation pursuant to
this Section 2.13. To be timely, the stockholders notice must be delivered to the
Secretary of the Corporation as provided in Section 2.13(c)(1)(C) or Section
2.13(c)(1)(D), in the case of an annual meeting of stockholders of the Corporation, and
Section 2.13(c)(1)(E), in the case of a special meeting of stockholders of the Corporation,
respectively.
(C) In the case of an annual meeting of stockholders of the Corporation, to be timely, any
Nomination made pursuant to Section 2.13(a)(3) shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding years annual meeting
(provided, however, that in the event that the date of the annual meeting is more
than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by
the stockholder must be so delivered 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
later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made by the Corporation).
In no event shall the public announcement of an adjournment or postponement of an annual meeting
of stockholders of the Corporation commence a new time period (or extend any time period) for the
giving of a stockholders notice as described above.
(D) Notwithstanding Section 2.13(c)(1)(C), in the event that the number of directors
to be elected to the Board of Directors at an annual meeting of stockholders of the Corporation is
increased 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, the stockholders notice required by this Section 2.13
shall also be considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the Corporation.
(E) In the case of a special meeting of stockholders of the Corporation, to be timely, any
Nomination made pursuant to Section 2.13(b)(2) shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting and not later than
the close of business on the later of the ninetieth (90th) day prior to such special meeting or the
tenth (10th) day following the day on which public announcement is first made of the date of such
special meeting and of the nominees proposed by the Board of Directors to be elected at such
special meeting. In no event shall the public announcement of an adjournment or postponement of a
special meeting of stockholders of the
Corporation commence a new time period (or extend any time period) for the giving of a
stockholders notice as described above.
6
(F) A stockholders notice of Nomination(s) pursuant to Section 2.13(a)(3) or
Section 2.13(b)(2) shall set forth: (i) as to any Nomination to be made by such
stockholder, (a) all information relating to the individual subject to such Nomination that is
required to be disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A
under the Securities Exchange Act of 1934, as amended (the Exchange Act), without regard
to the application of the Exchange Act to either the Nomination or the Corporation, (b) such
individuals written consent to being named in a proxy statement as a nominee and to serving as a
director if elected, (c) a statement whether such person, if elected, intends to tender, promptly
following such persons election or reelection, an irrevocable resignation effective upon such
persons failure to receive the required vote for reelection at the next meeting at which such
person would face reelection and upon acceptance of such resignation by the Board of Directors, in
accordance with the Corporations Corporate Governance Guidelines, and (d) the actions proposed to
be taken by such individual if elected; and (ii) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the Nomination is made (a) the name and address of such
stockholder, as they appear on the Corporations books, and of such beneficial owner, (b) the
class, series, and number of shares of capital stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (c) a representation that
the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting
and such stockholder (or a qualified representative of the stockholder) intends to appear in person
or by proxy at the meeting to propose such Nomination, (d) a description of any agreement,
arrangement, or understanding between such stockholder and such beneficial owner, and the
individual subject to such Nomination, and (e) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (1) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the Corporations
outstanding capital stock required to elect the individual subject to the Nomination and/or (2)
otherwise to solicit proxies from stockholders of the Corporation in support of such Nomination.
The Corporation may require any individual subject to such Nomination to furnish such other
information as it may reasonably require to determine the eligibility of such individual to serve
as a director of the Corporation.
(2) Stockholder Business.
(A) Only such Business shall be conducted at an annual or special meeting of stockholders of
the Corporation as shall have been brought before such meeting in compliance with the procedures
set forth in this Section 2.13, and any Business not brought in accordance with this
Section 2.13 shall not be considered nor acted upon at such meeting of stockholders;
provided, however, that if the Business is otherwise subject to Rule 14a-8 (or any
successor thereto) promulgated under the Exchange Act (Rule 14a-8), the notice requirements of
this Section 2.13(c)(2) shall be deemed satisfied by a stockholder if the stockholder has
notified the Corporation of his, her, or its intention to present such Business at an annual
meeting of stockholders of the Corporation in accordance with Rule 14a-8, and such Business has
been included in a proxy statement that has been prepared by the Corporation to solicit proxies for
such annual meeting.
7
(B) In the case of an annual meeting of stockholders of the Corporation, to be timely, any
such written notice of a proposal of Business pursuant to Section 2.13(a)(3) shall be
delivered to the Secretary of the Corporation at the principal executive offices of the Corporation
not later than the close of business on the ninetieth (90th) day nor earlier than the close of
business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding
years annual meeting (provided, however, that in the event that the date of the
annual meeting is more than thirty (30) days before or more than seventy (70) days after such
anniversary date, notice by the stockholder must be so delivered 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 later of the ninetieth (90th) day prior to such annual meeting or the
tenth (10th) day following the day on which public announcement of the date of such meeting is
first made by the Corporation). In no event shall the public announcement of an adjournment or
postponement of an annual meeting of stockholders of the Corporation commence a new time period (or
extend any time period) for the giving of a stockholders notice as described above.
(C) A stockholders notice of a proposal of Business pursuant to Section 2.13(a)(3)
shall set forth: (i) as to the Business proposed by such stockholder, a brief description of the
Business desired to be brought before the meeting, the text of the proposal or Business (including
the text of any resolutions proposed for consideration and in the event that such Business includes
a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the
reasons for conducting such Business at the meeting and any material interest in such Business of
such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (ii)
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the
nomination is made (a) the name and address of such stockholder, as they appear on the
Corporations books, and of such beneficial owner, (b) the class, series, and number of shares of
capital stock of the Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner, (c) a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and such stockholder (or a qualified
representative of such stockholder) intends to appear in person or by proxy at the meeting to
propose such Business, and (d) a representation whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends (1) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporations outstanding capital stock required
to approve or adopt the proposed Business and/or (2) otherwise to solicit proxies from stockholders
of the Corporation in support of such Business.
(d) General.
(1) Except as otherwise provided by law, the chairman of the meeting of stockholders of the
Corporation shall have the power and duty (a) to determine whether a Nomination or Business
proposed to be brought before such meeting was made or proposed in accordance with the procedures
set forth in this Section 2.13 and (b) if any proposed Nomination or Business was not made
or proposed in compliance with this Section 2.13, to declare that such Nomination or
Business shall be disregarded or that such proposed Nomination or Business shall not be considered
or transacted. Notwithstanding the foregoing provisions of this Section 2.13, if the
stockholder (or a qualified representative of such stockholder) does not
appear at the annual or special meeting of stockholders of the Corporation to present a
Nomination or Business, such Nomination or Business shall be disregarded and such Nomination or
Business shall not be considered or transacted, notwithstanding that proxies in respect of such
vote may have been received by the Corporation.
8
(2) For purposes of this Section 2.13, public announcement shall include disclosure
in a press release reported by the Dow Jones News Service, Associated Press, or comparable national
news service, or in a document publicly filed by the Corporation with the Securities and Exchange
Commission.
(3) Nothing in this Section 2.13 shall be deemed to affect (A) the rights or
obligations, if any, of stockholders of the Corporation to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 (to the extent that the Corporation or such
proposals are subject to Rule 14a-8), or (B) the rights, if any, of the holders of any series of
preferred stock of the Corporation to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
2.14 Conduct of Meetings. 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 announced at the meeting by
the chairman of the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the
chairman of the 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 chairman of the meeting, are appropriate for the proper conduct of the
meeting. Such rules, regulations, or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) 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 chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement
thereof, and (v) limitations on the time allotted to questions or comments by participants. The
chairman of the meeting of stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting or are otherwise contemplated by Section 2.13(d)
hereof, 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 chairman of the meeting should so
determine, such chairman of the meeting 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 of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
9
Article 3
Board of Directors
Board of Directors
3.1 Number; Qualifications. Except as otherwise provided by the Certificate of Incorporation,
the number of directors of the Corporation shall be fixed from time to time by resolution of the
Board of Directors; provided, however, no directors term shall be shortened by
reason of a resolution reducing the number of directors. Directors must be natural persons who are
18 years of age or older but need not be residents of the state of Delaware, stockholders of the
Corporation, or citizens of the United States.
3.2 Resignation; Removal; Vacancies. Any director may resign at any time upon notice given in
writing or by electronic transmission to the Corporation. To the extent allowed by law, any person
who serves as a director and is also an employee of the Corporation shall resign if that person is
no longer an employee upon notice given in writing or by electronic transmission to the
Corporation. A resignation is effective when the resignation is delivered unless the resignation
specifies a later effective date or an effective date determined upon the happening of an event or
events. Except as otherwise provided by the Certificate of Incorporation, a special meeting of
stockholders called expressly for that purpose, the entire Board of Directors, or any member or
members thereof, may be removed, only with cause, by affirmative vote for removal of a specific
director by stockholders holding 66 2/3% of the shares then entitled to vote at an election for
directors of the Corporation, voting as a single class. Except as otherwise provided by law or the
Certificate of Incorporation, any newly created directorship or any vacancy occurring in the Board
of Directors for any cause may be filled solely and exclusively by a majority of the remaining
members of the Board of Directors, although such majority is less than a quorum, or by the sole
remaining director, and each director so elected shall hold office until the expiration of the term
of office of the director whom he has replaced or until his or her successor is elected and
qualified.
3.3 Regular Meetings. Regular meetings of the Board of Directors may be held at such places
within or without the state of Delaware and at such times as the Board of Directors may from time
to time determine, and if so determined, notices thereof need not be given.
3.4 Special Meetings. Special meetings of the Board of Directors may be held at any time or
place within or without the state of Delaware whenever called by the Chief Executive Officer,
President, any Vice President, the Secretary, or by at least two members of the Board of Directors.
Notice of a special meeting of the Board of Directors shall be given by the person or persons
calling the meeting at least twenty-four (24) hours before the special meeting.
3.5 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting thereof 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 3.5
shall constitute presence in person at such meeting.
10
3.6 Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of
the whole Board of Directors shall constitute a quorum for the transaction of business. Except in
cases in which the Certificate of Incorporation or these Bylaws otherwise provide, the vote of a
majority of the votes cast by directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors.
3.7 Organization. Meetings of the Board of Directors shall be presided over by the Chairman
of the Board, if any, or in his or her absence by the Vice Chairman of the Board, if any, or in his
or her absence by the Chief Executive Officer, or in the absence of the foregoing persons by a
chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or
her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
3.8 Informal Action by Directors. 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, without prior
notice, and without a vote, 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 writing or writings or
electronic transmission or transmissions are filed with the minutes of proceedings of the Board of
Directors or such committee. Such filing shall be in paper form if such minutes are maintained in
paper form and shall be in electronic form if such minutes are maintained in electronic form.
Article 4
Committees
Committees
4.1 Committees. The Board of Directors may designate one or more committees, each committee
to consist of one or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not he, she, or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent permitted by law and 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.
4.2 Committee Rules. Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors 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 of Directors conducts its business pursuant to Article 3 of these
Bylaws.
11
Article 5
Officers
Officers
5.1 Executive Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies. The Board of Directors shall elect a President and Secretary or Treasurer, and it may,
if it so determines, choose a Chairman of the Board and a Vice Chairman of the Board from among its
members. The Board of Directors may also elect a Chief Executive Officer, one or more Vice
Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers as the Board of Directors deems necessary. Each such officer shall hold office until the
first meeting of the Board of Directors after the annual meeting of stockholders next succeeding
his or her election, and until his or her successor is elected and qualified or until his or her
earlier death, resignation, or removal. Any officer may resign at any time upon written notice to
the Corporation. The Board of Directors may remove any officer, with or without cause, at any
time, but such removal shall be without prejudice to the contractual rights of such officer, if
any, with the Corporation. Any number of offices may be held by the same person. Any vacancy
occurring in any office of the Corporation by death, resignation, removal, or otherwise may be
filled for the unexpired portion of the term by the Board of Directors at any regular or special
meeting.
5.2 Powers and Duties of Executive Officers. The officers of the Corporation shall have such
powers and duties in the management of the Corporation as may be prescribed by the Board of
Directors and, to the extent not so provided, as generally pertain to their respective officers,
subject to the control of the Board of Directors. The Board of Directors may require any officer,
agent, or employee to give security for the faithful performance of his or her duties.
Article 6
Stock
Stock
6.1 Certificates. 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 or Vice Chairperson of
the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation certifying the
number of shares owned by such holder in the Corporation. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent, or registrar at the date
of issue. The Corporation shall not have the power to issue a certificate in bearer form.
6.2 Lost, Stolen, or Destroyed Stock Certificates; Issuance of New 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 such owners 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.
12
Article 7
Indemnification
Indemnification
7.1 Right to Indemnification. The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the Corporation to provide prior
to such amendment), any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (a proceeding), by reason of the fact that he or she or a person for whom
he or she is the legal representative, is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust, enterprise, or nonprofit entity, including
service with respect to employee benefit plans (an indemnitee), against all expense,
liability, and loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid in settlement) reasonably incurred by such indemnitee. Notwithstanding the
foregoing sentence and except as provided in Section 7.3, the Corporation shall be required
to indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if the initiation of such proceeding (or part thereof) by the indemnitee was
authorized in the specific case by the Board of Directors.
7.2 Prepayment of Expenses. The Corporation shall to the fullest extent permitted by
applicable law pay the expenses (including attorneys fees) incurred by an indemnitee in defending
any proceeding in advance of its final disposition; provided, however, that the
payment of expenses incurred by a current director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the director or officer to
repay all amounts advanced if it should be ultimately determined that the director or officer is
not entitled to be indemnified under this Article 7 or otherwise.
7.3 Claims. If a claim for indemnification (following the final disposition of the relevant
proceeding) or payment of expenses under this Article 7 is not paid in full within thirty
(30) days after a written claim therefor by the indemnitee has been received by the Corporation,
the indemnitee may file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expenses of prosecuting such claim. In any such
action, the Corporation shall have the burden of proving that the indemnitee was not entitled to
the requested indemnification or payment of expenses under applicable law.
7.4 Nonexclusivity of Rights. The rights conferred on any person by this Article 7
shall not be exclusive of any other rights which such person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of
stockholders or disinterested directors, or otherwise.
13
7.5 Other Indemnification. The Corporations obligation, if any, to indemnify or advance
expenses to any person who was or is serving at its request as a director,
officer, employee, or agent of another corporation, partnership, joint venture, trust,
enterprise, or nonprofit entity shall be reduced by any amount such person may collect as
indemnification or advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise, or nonprofit enterprise.
7.6 Nature of Indemnification Rights; Amendment or Repeal. Each person who was, is, or
becomes a director or officer, or who serves at the request of the Corporation, shall be deemed to
have served or to have continued to serve in such capacity in reliance upon the rights provided to
him or her in this Article 7. All rights to indemnification (and the advancement of
expenses) under this Article 7 shall be deemed to be provided by a contract between the
Corporation and the person who serves or has served as a director or officer of the Corporation.
Any repeal or modification of the foregoing provisions of this Article 7 shall not
adversely affect any right or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
7.7 Insurance for Indemnification. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity, or arising out of
such persons status as such, whether or not the Corporation would have the power to indemnify such
person against such liability under applicable law.
7.8 Other Indemnification and Prepayment of Expenses. This Article 7 shall not limit
the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to
advance expenses to persons other than those discussed in this Article 7 when and as
authorized by appropriate corporate action.
Article 8
Miscellaneous
Miscellaneous
8.1 Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the
Board of Directors.
8.2 Seal. The corporate seal, if any, 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 of Directors.
8.3 Manner of Notice. Except as otherwise provided herein or permitted by applicable law,
notices to directors and stockholders shall be in writing and delivered personally or mailed to the
directors or stockholders at their addresses appearing on the books of the Corporation. Notice to
directors may be given by telecopier, telephone, or other means of electronic transmission.
14
8.4 Waiver of Notice of Meetings of Stockholders, Directors, and Committees. Any written
waiver of notice, signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be specified in any written
waiver of notice.
8.5 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 be in
the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly legible form within
a reasonable time.
15