Attached files
Exhibit 3.8
CHARGE ENTERPRISES, INC.
AMENDED AND RESTATED BYLAWS
BYLAWS
EFFECTIVE AS OF JULY 15, 2021
ARTICLE I—STOCKHOLDERS
Section 1. Annual
Meeting.
(1) An
annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be
held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within 13 months
of the last annual meeting of stockholders.
(2)
Nominations of persons for election to the Board of Directors and
the proposal of business to be transacted by the stockholders may
be made at an annual meeting of stockholders (a) pursuant to the
Corporation’s proxy materials with respect to such meeting,
(b) by or at the direction of the Board of Directors, or (c) by any
stockholder of record of the Corporation (the “Record
Stockholder”) at the time of the giving of the notice
provided for in Section 1(3) of this Article I who is entitled to
vote at the meeting and who has complied with the notice procedures
set forth in this Section 1. For the avoidance of doubt, clause (c)
shall be the exclusive means for a stockholder to bring nominations
of persons for election to the Board of Directors and the foregoing
business (other than business included in the Corporation’s
proxy materials pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (such act, and the rules and
regulations promulgated thereunder, the “Exchange Act”)
before an annual meeting of stockholders.
(3) For
nominations or business to be properly brought before an annual
meeting by a Record Stockholder pursuant to clause (c) of Section
1(2) of this Article I, (a) the Record Stockholder must have given
timely notice thereof in writing to the Secretary of the
Corporation, (b) any such business must be a proper matter for
stockholder action under Delaware law, and (c) the Record
Stockholder and the beneficial owner, if any, on whose behalf any
such proposal or nomination is made, must have acted in accordance
with the representations set forth in the Solicitation Statement
required by these Bylaws. To be timely, a Record
Stockholder’s notice shall be received by the Secretary at
the principal executive offices of the Corporation not less than 45
or more than 75 days prior to the one-year anniversary (the
“Anniversary”) of the date on which the Corporation
first mailed its proxy materials for the immediately preceding
year’s annual meeting of stockholders; provided, however,
that if the annual meeting is convened more than 30 days before, or
delayed by more than 30 days after, the one-year anniversary of the
immediately preceding year’s annual meeting of stockholders,
notice by the Record Stockholder to be timely must be so received
by the Secretary at the principal executive offices not later than
the close of business on the later of (i) the 90th day before such
annual meeting or (ii) the 10th day following the day on which
Public Announcement (as defined in Section 1(6) of this Article I)
of the date of such meeting is first made. Notwithstanding anything
in the preceding sentence to the contrary, in the event that the
number of directors to be elected to the Board of Directors is
increased and there is no Public Announcement naming all of the
nominees for director or specifying the size of the increased Board
of Directors made by the Corporation at least 10 days before the
last day a Record Stockholder may deliver a notice of nomination in
accordance with the preceding sentence, a Record
Stockholder’s notice required by this bylaw shall also be
considered timely, but only with respect to nominees for director
for any new positions created by such increase, if it shall be
received by the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day
following the day on which such Public Announcement is first made
by the Corporation. In no event shall an adjournment or
postponement of an annual meeting commence a new time period for
the giving of a Record Stockholder’s notice.
(4)
Such Record Stockholder’s notice shall set
forth:
(a)
if
such notice pertains to the nomination of directors, as to each
person whom the Record Stockholder proposes to nominate for
election or reelection as a director, all information relating to
such person as would be required to be disclosed in solicitations
of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Exchange Act, and such person’s
written consent to serve as a director if elected;
(b)
as
to any business that the Record Stockholder proposes to bring
before the meeting, a brief description of such business, the
reasons for conducting such business at the meeting and any
material interest in such business of such Record Stockholder and
the beneficial owner, if any, on whose behalf the proposal is made;
and
(c)
as
to (1) the Record Stockholder giving the notice and (2) the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (each, a “party”):
(i)
the
name and address of each such party as they appear on the
Corporation’s books (if such name and address appear on the
Corporation’s books);
(ii)
(A)
the class, series and number of shares of the Corporation that are
owned beneficially and of record by each such party, (B) any
option, warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or
series of shares of the Corporation or with a value derived in
whole or in part from the value of any class or series of shares of
the Corporation, whether or not such instrument or right shall be
subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative
Instrument”) directly or indirectly owned beneficially by
each such party, and any other direct or indirect opportunity to
profit or share in any profit derived from any increase or decrease
in the value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which
either party has a right to vote any shares of any security of the
Company, (D) any short interest in any security of the Company held
by each such party (for purposes of this Section 1(4) a person
shall be deemed to have a short interest in a security if such
person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the
value of the subject security), (E) any rights to dividends on the
shares of the Corporation owned beneficially by each such party
that are separated or separable from the underlying shares of the
Corporation, (F) any proportionate interest in shares of the
Corporation or Derivative Instruments held, directly or indirectly,
by a general or limited partnership in which either party is a
general partner or, directly or indirectly, beneficially owns an
interest in a general partner and (G) any performance-related fees
(other than an asset-based fee) that each such party is entitled to
based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, in each case with
respect to clauses (A) through (G) herein as of the close of
business on the date of such notice, including without limitation
any such interests held by members of each such party’s
immediate family sharing the same household (which information set
forth in this paragraph shall be supplemented by such stockholder
or such beneficial owner, as the case may be, not later than ten
(10) days after the record date for the meeting to disclose such
ownership as of the close of business on the record
date);
(iii)
any
other information relating to each such party that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of
directors in a contested election pursuant to Section 14 of the
Exchange Act; and
(iv)
a
statement whether or not each such party will deliver a proxy
statement and form of proxy to holders of, in the case of a
proposal, at least the percentage of voting power of all of the
shares of capital stock of the Corporation required under
applicable law to carry the proposal or, in the case of a
nomination or nominations, at least the percentage of voting power
of all of the shares of capital stock of the Corporation reasonably
believed by the Record Stockholder or beneficial holder, as the
case may be, to be sufficient to elect the nominee or nominees
proposed to be nominated by the Record Stockholder (such statement,
a “Solicitation Statement”).
(5)
Subject to Section 2 of Article II of these Bylaws, a person shall
not be eligible for election or re-election as a director at an
annual meeting unless (i) the person is nominated by a Record
Stockholder in accordance with Section 1(2)(c) of this Article I or
(ii) the person is nominated by or at the direction of the Board of
Directors. Only such business shall be conducted at an annual
meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in Section 1 of
this Article I. The chairman of the meeting shall have the power
and the duty to determine whether a nomination or any business
proposed to be brought before the meeting has been made in
accordance with the procedures set forth in these Bylaws and, if
any proposed nomination or business is not in compliance with these
Bylaws, to declare that such defectively proposed business or
nomination shall not be presented for stockholder action at the
meeting and shall be disregarded.
(6) For
purposes of these Bylaws, “Public Announcement” shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or a comparable national news service or
in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(7)
Notwithstanding the foregoing provisions of this Section 1, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 1. Nothing in this
Section 1 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange
Act.
Section 2. Special
Meetings.
(1)
Special meetings of the stockholders, other than those required by
statute, may be called at any time by the Board of Directors acting
pursuant to a resolution adopted by a majority of the Whole Board.
For purposes of these Bylaws, the term “Whole Board”
shall mean the total number of authorized directors whether or not
there exist any vacancies in previously authorized directorships.
The Board of Directors may postpone or reschedule any previously
scheduled special meeting.
(2)
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 notice of such special
meeting shall include the purpose for which the meeting is called.
Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are
to be elected (a) by or at the direction of the Board of Directors
or (b) by any stockholder of record at the time of giving of notice
provided for in this paragraph, who shall be entitled to vote at
the meeting and who delivers a written notice to the Secretary
setting forth the information set forth in Section 1(4)(a) and
1(4)(c) of this Article I. Nominations by stockholders of persons
for election to the Board of Directors may be made at such a
special meeting of stockholders only if such record
stockholder’s notice required by the preceding sentence is
received by the Secretary at the principal executive offices of the
Corporation not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day
following the day on which Public Announcement is first made of the
date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall
an adjournment or postponement of a special meeting commence a new
time period for the giving of a record stockholder’s notice.
A person shall not be eligible for election or reelection as a
director at a special meeting unless the person is nominated (i) by
or at the direction of the Board of Directors or (ii) by a record
stockholder in accordance with the notice procedures set forth in
this Article I.
(3)
Notwithstanding the foregoing provisions of this Section 2, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 2. Nothing in this
Section 2 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange
Act.
Section 3. Notice
of Meetings.
Notice
of the place, if any, date, and time of all meetings of the
stockholders, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given, not less than 10
nor more than 60 days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except
as otherwise provided herein or required by law (meaning, here and
hereinafter, as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation of the
Corporation).
When a
meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place, if any,
thereof, and the means of remote communications, if any, by which
stockholders and proxyholders 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; provided, however, that if the date of
any adjourned meeting is more than 30 days after the date for which
the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, notice of the place, if any, date,
and time of the adjourned meeting and the means of remote
communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such adjourned
meeting, shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum.
At any
meeting of the stockholders, the holders of a majority of the
voting power of all of the shares of the stock entitled to vote at
the meeting, present in person or by proxy, shall constitute a
quorum for all purposes, unless or except to the extent that the
presence of a larger number may be required by law. Where a
separate vote by a class or classes or series is required, a
majority of the voting power of the shares of such class or classes
or series present in person or represented by proxy shall
constitute a quorum entitled to take action with respect to that
vote on that matter.
If a
quorum shall fail to attend any meeting, the chairman of the
meeting may adjourn the meeting to another place, if any, date, or
time.
Section 5. Organization.
Such
person as the Board of Directors may have designated or, in the
absence of such a person, the Chairman of the Board or, in his or
her absence, the Chief Executive Officer of the Corporation or, in
his or her absence, such person as may be chosen by the holders of
a majority of the voting power of the shares entitled to vote who
are present, in person or by proxy, shall call to order any meeting
of the stockholders and act as chairman of the meeting. In the
absence of the Secretary of the Corporation, the secretary of the
meeting shall be such person as the chairman of the meeting
appoints.
Section 6. Conduct
of Business.
The
chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as
seem to him or her in order. The chairman of the meeting shall have
the power to adjourn the meeting to another place, if any, date and
time. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting
shall be announced at the meeting.
Section 7. Proxies
and Voting.
At any
meeting of the stockholders, every stockholder entitled to vote may
vote in person or 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. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted
or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could
be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission.
If
shares or other securities having voting power stand of record in
the names of 2 or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the
entirety, or otherwise, or if 2 or more persons have the same
fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating
the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect: (a) if only 1 votes, his
or her act binds all; (b) if more than 1 votes, the act of the
majority so voting binds all; (c) if more than 1 votes, but the
vote is evenly split on any particular matter, each faction may
vote the securities in question proportionally, or any person
voting the shares, or a beneficiary, if any, may apply to the
Delaware Court of Chancery or such other court as may have
jurisdiction for relief as provided in Section 217(b) of the
Delaware General Corporation Law. If the instrument filed with the
Secretary shows that any such tenancy is held in unequal interests,
a majority or even-split for the purpose of clause (c) of this
paragraph shall be a majority or even-split in
interest.
The
Corporation may, and to the extent required by law, shall, in
advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report thereof.
The Corporation may designate one or more alternate inspectors to
replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person
presiding at the meeting may, and to the extent required by law,
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 faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
or her ability. Every vote taken by ballots shall be counted by a
duly appointed inspector or inspectors.
All
elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast affirmatively or
negatively.
Section 8. Stock
List.
A
complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the
number of shares registered in his or her name, shall be open to
the examination of any such stockholder for a period of at least 10
days prior to the meeting in the manner provided by
law.
The
stock list shall also be open to the examination of any stockholder
during the whole time of the meeting of stockholders as provided by
law. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of
shares held by each of them.
Section
9. Written Consent of
Stockholders Without a Meeting. Any action to be taken at any annual
or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents
in writing, setting forth the action to be so taken, shall be
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered (by hand or
by certified or registered mail, return receipt requested) to the
Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Every written consent
shall bear the date of signature of each stockholder who signs the
consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this
Section, written consents signed by a sufficient number of holders
to take action are delivered to the Corporation as aforesaid.
Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall, to the extent
required by applicable law, be given to those stockholders who have
not consented in writing, and who, if the action had been taken at
a meeting, would have been entitled to notice of the meeting if the
record date for notice of such meeting had been the date that
written consents signed by a sufficient number of holders to take
the action were delivered to the Corporation
ARTICLE II—BOARD OF DIRECTORS
Section 1. Number,
Election and Term of Directors.
Subject
to the rights of the holders of any series of preferred stock to
elect directors under specified circumstances, the authorized
number of directors shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board. The directors, other than those who
may be elected by the holders of any series of preferred stock
under specified circumstances, shall be elected at each annual
meeting of stockholders. Each director shall hold office until the
next annual meeting of stockholders and until his or her successor
shall have been duly elected and qualified or until his or her
earlier death, resignation, disqualification or removal from
office. At each annual meeting of stockholders, if authorized by a
resolution of the Board of Directors, directors may be elected to
fill any vacancy on the Board of Directors, regardless of how such
vacancy shall have been created.
Section 2. Newly
Created Directorships and Vacancies.
Subject
to the rights of the holders of any series of preferred stock then
outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in
the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause
shall, unless otherwise required by law or by resolution of the
Board of Directors, be filled only by a majority vote of the
directors then in office, though less than a quorum (and not by
stockholders), and directors so chosen shall serve for the
remainder of the full term of the director for which the vacancy
was created or occurred or until such director’s successor
shall have been duly elected and qualified. No decrease in the
number of authorized directors shall shorten the term of any
incumbent director.
Section 3. Resignation.
Any
director may resign at any time by delivering his or her notice in
writing or by electronic transmission to the Secretary, such
resignation to specify whether it will be effective at a particular
time, upon receipt by the Secretary or at the pleasure of the Board
of Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. 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 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 for the unexpired portion of
the term of the director whose place shall be vacated and until his
or her successor shall have been duly elected and
qualified.
Section 4. Regular
Meetings.
Regular
meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall
have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be
required.
Section 5. Special
Meetings.
Special
meetings of the Board of Directors may be called by the Chairman of
the Board, the Chief Executive Officer or by a majority of the
Whole Board and shall be held at such place, on such date, and at
such time as they or he or she shall fix. Notice of the place,
date, and time of each such special meeting shall be given to each
director by whom it is not waived by mailing written notice not
less than two (2) days before the meeting or by telephone or by
telegraphing or telexing or by facsimile or electronic transmission
of the same not less than 24 hours before the meeting. Unless
otherwise indicated in the notice thereof, any and all business may
be transacted at a special meeting.
Section 6. Quorum.
At any
meeting of the Board of Directors, a majority of the total number
of the Whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time,
without further notice or waiver thereof.
Section 7. Participation in Meetings By
Conference Telephone.
Members
of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board of Directors or committee 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 shall constitute presence in
person at such meeting.
Section 8. Conduct
of Business.
At any
meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board of Directors may from time to
time determine, and all matters shall be determined by the vote of
a majority of the directors present, except as otherwise provided
herein or required by law. Action may be taken by the Board of
Directors without a meeting if all members thereof 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. Such filing
shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in
electronic form.
Section 9. Compensation of
Directors.
Unless
otherwise restricted by the Corporation’s Certificate of
Incorporation, the Board of Directors shall have the authority to
fix the compensation of the directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or paid a stated salary or paid
other compensation as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing
committees may be allowed compensation for attending committee
meetings.
ARTICLE III—COMMITTEES
Section 1. Committees of the Board of
Directors.
The
Board of Directors may from time to time designate committees of
the Board of Directors, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board
of Directors and shall, for those committees and any others
provided for herein, elect a director or directors to serve as the
member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member
at any meeting of the committee. 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.
Section 2. Conduct
of Business.
Each
committee of the Board of Directors 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; one-third (1/3) of the members shall
constitute a quorum unless the committee shall consist of 1 or 2
members, in which event 1 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 or by electronic
transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the
proceedings of such committee. Such filing shall be in paper form
if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic
form.
ARTICLE IV—OFFICERS
Section 1. Generally.
The
officers of the Corporation shall consist of, if and when
designated by the Board of Directors, a Chief Executive Officer, a
President, one or more Vice Presidents, a Secretary, a Treasurer
and such other officers as may from time to time be appointed by
the Board of Directors. Officers shall be elected by the Board of
Directors, which shall consider such appointment at its first
meeting after every annual meeting of stockholders. Each officer
shall hold office until his or her successor is elected and
qualified or until his or her earlier death, resignation or
removal. Any number of offices may be held by the same person
unless specifically prohibited therefrom by law. The salaries of
officers elected by the Board of Directors shall be fixed from time
to time by the Board of Directors, a committee thereof or by such
officers as may be designated by resolution of the Board of
Directors.
Section 2. Chief
Executive Officer.
The
Chief Executive Officer shall have the responsibility for the
general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers that
are commonly incident to the office of chief executive or which are
delegated to him or her by the Board of Directors. The Chief
Executive Officer shall preside at all meetings of the
stockholders. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation
that are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the
Corporation.
Section 3. President.
The
President shall be the chief operating officer of the Corporation.
He or she shall have general responsibility for the management and
control of the operations of the Corporation and shall perform all
duties and have all powers that are commonly incident to the office
of chief operating officer or that are delegated to him or her by
the Board of Directors. Subject to the direction of the Board of
Directors and the Chief Executive Officer, the President shall have
power to sign all stock certificates, contracts and other
instruments of the Corporation that are authorized and shall have
general supervision of all of the other officers (other than the
Chief Executive Officer), employees and agents of the Corporation.
Unless another officer has been appointed the Corporation’s
Chief Executive Officer, the President shall also have the powers
and responsibilities set forth under Section 2 of this Article
IV.
Section 4. Vice
President.
Each
Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors and that are
commonly incident to their office. One Vice President shall be
designated by the Board of Directors to perform the duties and
exercise the powers of the President in the event of the
President’s absence or disability.
Section 5. Chief
Financial Officer.
The
Chief Financial Officer shall keep or cause to be kept the books of
account of the Corporation in a thorough and proper manner and
shall render statements of the financial affairs of the Corporation
in such form and as often as required by the Board of Directors,
the Chief Executive Officer or the President. The Chief Financial
Officer, subject to the order of the Board of Directors, shall have
the custody of all funds and securities of the Corporation. The
Chief Financial Officer shall perform other duties commonly
incident to the office of the chief financial officer and shall
also perform such other duties and have such other powers as the
Board of Directors, the Chief Executive Officer or the President
shall designate from time to time. The Chief Executive Officer or
the President may direct the Treasurer or any Assistant Treasurer,
or the Controller or any Assistant Controller to assume and perform
the duties of the Chief Financial Officer in the absence or
disability of the Chief Financial Officer.
Section 6. Secretary.
The
Secretary shall issue all authorized notices for, and shall
maintain minutes of, all meetings of the stockholders and the Board
of Directors and any committee thereof. He or she shall have charge
of the corporate books and shall perform such other duties that are
commonly incident to the office of secretary and as the Board of
Directors may from time to time prescribe. The Chief Executive
Officer or the President may direct any Assistant Secretary or
other officer to assume and perform the duties of the Secretary in
the absence or disability of the Secretary.
Section 7. Treasurer.
The
Treasurer shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of
the Corporation. The Treasurer shall also perform such other duties
that are commonly incident to the office of treasurer and as the
Board of Directors may from time to time prescribe.
Section 8. Delegation of
Authority.
The
Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
Section 9. Removal.
Any
officer of the Corporation may be removed at any time, with or
without cause, by the affirmative vote of a majority of the members
of the Board of Directors or by the Chief Executive Officer or by
other superior officers upon whom such power of removal may have
been conferred by the Board of Directors.
Section 10. Resignations.
Any
officer may resign at any time by giving notice in writing or by
electronic transmission to the Board of Directors or to the Chief
Executive Officer, the President or the Secretary. Any such
resignation shall be effective when received by the person or
persons to whom such notice is given, unless a later time is
specified therein, in which event the resignation shall become
effective at such later time. Unless otherwise specified in such
notice, the acceptance of any such resignation shall not be
necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the Corporation under any
contract with the resigning officer.
Section 11. Action
with Respect to Securities of Other
Corporations.
Unless
otherwise directed by the Board of Directors, the Chief Executive
Officer, the President and the Chief Financial Officer shall each
have power to vote and otherwise act on behalf of the Corporation,
in person or by proxy, at any meeting of stockholders of or with
respect to any action of stockholders of any other corporation or
entity in which this Corporation may hold securities and otherwise
to exercise any and all rights and powers which this Corporation
may possess by reason of its ownership of securities in such other
corporation or entity.
ARTICLE V—STOCK
Section 1. Certificates of Stock; Uncertificated
Shares.
The
shares of the Corporation shall be evidenced by certificates;
provided, however, that the
Board may provide by resolution or resolutions that some or all of
any or all classes or series of stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to
shares evidenced by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board, every holder of stock evidenced by
certificates, and upon request every holder of uncertificated
shares, shall be entitled to have a certificate signed by, or in
the name of the Corporation by, the Chairman or a Vice-Chairman of
the Board of Directors or the President or a Vice President, and by
the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer, certifying the number of shares owned by him
or her. Any or all of the signatures on the certificate may be by
facsimile.
Section 2. Transfers of
Stock.
Transfers
of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer
agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance
with Section 5 of this Article V of these Bylaws, an outstanding
certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued
therefor.
Section 3. Record
Date.
In
order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, or to
receive payment of any dividend or other distribution or allotment
of any rights or 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, except as otherwise
required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is
adopted and which record date shall not be more than 60 nor less
than 10 days before the date of any meeting of stockholders, nor
more than 60 days prior to the time for such other action as
hereinbefore described; provided,
however, that 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, and, for
determining stockholders entitled to receive payment of any
dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or
for any other purpose, the record date shall be at the close of
business on the day on which the Board of Directors adopts a
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 adjourned meeting.
Section 4. Registered
Stockholders.
The
Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share
or shares on the part of any other person whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of the State of Delaware.
Section 5. Lost,
Stolen or Destroyed Certificates.
In the
event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such
regulations as the Corporation may establish concerning proof of
such loss, theft or destruction and concerning the giving of a
satisfactory bond or bonds of indemnity.
Section 6. Regulations.
The
issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of
Directors may establish.
ARTICLE VI—OTHER SECURITIES OF THE CORPORATION
All
bonds, debentures and other corporate securities of the
Corporation, other than stock certificates (covered in Article V of
these Bylaws), may be signed by the Chairman of the Board of
Directors, the Chief Executive Officer, the President or any Vice
President, or such other person as may be authorized by the Board
of Directors, and the corporate seal impressed thereon or a
facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Chief
Financial Officer or Treasurer or an Assistant Treasurer;
provided, however, that
where any such bond, debenture or other corporate security shall be
authenticated by the manual signature, or where permissible
facsimile signature, of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be
issued, the signatures of the persons signing and attesting the
corporate seal on such bond, debenture or other corporate security
may be the imprinted facsimile of the signatures of such persons.
Interest coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid, shall
be signed by the Treasurer or an Assistant Treasurer of the
Corporation or such other person as may be authorized by the Board
of Directors, or bear imprinted thereon the facsimile signature of
such person.
ARTICLE VII—NOTICES
Section 1. Notices.
If
mailed, notice to stockholders shall be deemed given when deposited
in the mail, postage prepaid, directed to the stockholder at such
stockholder’s address as it appears on the records of the
Corporation. Without limiting the manner by which notice otherwise
may be given effectively to stockholders, any notice to
stockholders may be given by facsimile, telegraph, telex or by
electronic transmission in the manner provided in Section 232 of
the Delaware General Corporation Law.
Without
limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by
the Corporation under the provisions of the Delaware General
Corporation Law, the Corporation’s Certificate of
Incorporation or these Bylaws shall be effective if given by a
single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such
notice is given. Any stockholder who fails to object in writing to
the Corporation, within 60 days of having been given written notice
by the Corporation of its intention to send such single notice,
shall be deemed to have consented to receiving such single written
notice. Any such consent shall be revocable by the stockholder by
written notice to the Corporation.
Section 2. Waivers.
A
written waiver of any notice, signed by a stockholder or director,
or waiver by electronic transmission by such person, whether given
before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be
given to such person. Neither the business nor the purpose of any
meeting need be specified in such a waiver. Attendance at any
meeting shall constitute waiver of notice except attendance for the
sole purpose of objecting to the timeliness of notice.
ARTICLE VIII—MISCELLANEOUS
Section 1. Facsimile and Electronic
Signatures.
In
addition to the provisions for use of facsimile or electronic
signatures elsewhere specifically authorized in these Bylaws,
facsimile or electronic signatures of any officer or officers of
the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal.
The
Board of Directors may provide a suitable seal, containing the name
of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by
the Treasurer or by an Assistant Secretary or Assistant
Treasurer.
Section 3. Reliance
upon Books, Reports and Records.
Each
director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the
performance of his or her duties, be fully protected in relying in
good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or
statements presented to the Corporation 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
person’s professional or expert competence and who has been
selected with reasonable care by or on behalf of the
Corporation.
Section 4. Fiscal
Year.
The
fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section 5. Time
Periods.
In
applying any provision of these Bylaws that requires that an act be
done or not be done a specified number of days prior to an event or
that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall
be included.
Section 6. Other
Offices.
The
Corporation shall also have and maintain an office or principal
place of business at such place as may be fixed by the Board of
Directors, and may also have offices at such other places, both
within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation
may require.
Section 7. Execution of Corporate
Instruments.
The
Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or
persons, to execute on behalf of the Corporation any corporate
instrument or document, or to sign on behalf of the Corporation the
corporate name without limitation, or to enter into contracts on
behalf of the Corporation, except where otherwise provided by law
or these Bylaws, and such execution or signature shall be binding
upon the Corporation.
All
checks and drafts drawn on banks or other depositaries on funds to
the credit of the Corporation or in special accounts of the
Corporation shall be signed by such person or persons as provided
in these Bylaws or as the Board of Directors shall authorize so to
do.
Unless
authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the Corporation by any contract
or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
ARTICLE IX—INDEMNIFICATION OF DIRECTORS AND
OFFICERS
Section 1. Right to
Indemnification.
Each
person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a “Proceeding”), by reason
of the fact that he or she is or was a director or an officer of
the Corporation or is or was serving at the request of the
Corporation as a director, officer or trustee of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan (hereinafter an “Indemnitee”), whether the basis
of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving
as a director, officer or trustee, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by
Delaware law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability
and loss (including attorneys’ fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Indemnitee in connection
therewith; provided,
however, that, except as provided in Section 3 of this
Article IX with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such
Indemnitee in connection with a Proceeding (or part thereof)
initiated by such Indemnitee only if such Proceeding (or part
thereof) was authorized by the Board of Directors of the
Corporation or is expressly required by law.
Section 2. Right to
Advancement of Expenses.
In
addition to the right to indemnification conferred in Section 1 of
this Article IX, an Indemnitee shall also have the right to be paid
by the Corporation the expenses (including attorney’s fees)
incurred in defending any such Proceeding in advance of its final
disposition (hereinafter an “Advancement of Expenses”);
provided, however, that, if
required by the Delaware General Corporation Law, an Advancement of
Expenses incurred by an Indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service
was or is rendered by such Indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only
upon delivery to the Corporation of an undertaking (hereinafter an
“Undertaking”), by or on behalf of such Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to
appeal (hereinafter a “Final Adjudication”) that such
Indemnitee is not entitled to be indemnified for such expenses
under Section 1 of this Article IX or otherwise.
Section 3. Right of
Indemnitee to Bring Suit.
If a
claim under Section 1 or 2 of this Article IX is not paid in full
by the Corporation within 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall
be 20 days, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the Indemnitee shall be
entitled to be paid also the expense of prosecuting or defending
such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by
the Indemnitee to enforce a right to an Advancement of Expenses),
it shall be a defense that, and (ii) any suit brought by the
Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, in either
case the Indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its directors who
are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that
indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its directors who are
not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall create a
presumption that the Indemnitee has not met the applicable standard
of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the
Indemnitee to enforce a right to indemnification or to an
Advancement of Expenses hereunder, or brought by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses,
under this Article IX or otherwise shall be on the
Corporation.
Section 4. Non-Exclusivity of
Rights.
The
rights to indemnification and to the Advancement of Expenses
conferred in this Article IX shall not be exclusive of any other
right that any person may have or hereafter acquire under any
statute, the Corporation’s Certificate of Incorporation,
these Bylaws, agreement, vote of stockholders or directors or
otherwise.
Section 5. Insurance.
The
Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6. Indemnification of Employees and
Agents of the Corporation.
The
Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article IX with
respect to the indemnification and advancement of expenses of
directors and officers of the Corporation.
Section 7. Nature
of Rights.
The
rights conferred upon indemnitees in this Article IX shall be
contract rights and such rights shall continue as to an Indemnitee
who has ceased to be a director, officer or trustee and shall inure
to the benefit of the Indemnitee’s heirs, executors and
administrators. Any amendment, alteration or repeal of this Article
IX that adversely affects any right of an Indemnitee or its
successors shall be prospective only and shall not limit or
eliminate any such right with respect to any Proceeding involving
any occurrence or alleged occurrence of any action or omission to
act that took place prior to such amendment or repeal.
Section 8. Saving
Clause.
If this
Article IX or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify and advance expenses to each director and
officer to the fullest extent not prohibited by any applicable
portion of this Article IX that shall not have been invalidated, or
by any other applicable law. If this Article IX shall be invalid
due to the application of the indemnification provisions of another
jurisdiction, then the Corporation shall indemnify and advance
expenses to each director and officer to the fullest extent
permitted under any other applicable law.
ARTICLE X—AMENDMENTS
Subject
to the limitations set forth in Section 7 of Article IX of these
Bylaws, in furtherance and not in limitation of the powers
conferred by law, the Board of Directors is expressly authorized to
adopt, amend and repeal these Bylaws subject to the power of the
holders of capital stock of the Corporation to adopt, amend or
repeal Bylaws of the Corporation; provided, however, that, with respect
to the power of holders of capital stock to adopt, amend and repeal
bylaws of the Corporation, notwithstanding any other provision of
these Bylaws or any provision of law that might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of
the holders of any particular class or series of the capital stock
of the Corporation required by law, these Bylaws or any preferred
stock, the affirmative vote of the holders of at least sixty-seven
(67%) of the voting power of all of the then-outstanding shares
entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or
repeal any provision of these Bylaws.
ARTICLE XI – FORUM FOR ADJUDICATION OF
DISPUTES
To the
fullest extent permitted by law and unless the Corporation consents
in writing to the selection of an alternative forum, the Court of
Chancery of the State of Delaware shall be the sole and exclusive
forum for any stockholder (including a beneficial owner) to bring
(i) any derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of
the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim against the
Corporation, its directors, officers or employees arising pursuant
to any provision of the DGCL or these Bylaws, or (iv) any action
asserting a claim against the Corporation, its directors, officers,
employees or agents governed by the internal affairs doctrine,
except for, as to each of (i) through (iv) above, any claim as to
which the Court of Chancery determines that there is an
indispensable party not subject to the jurisdiction of the Court of
Chancery (and the indispensable party does not consent to the
personal jurisdiction of the Court of Chancery within ten days
following such determination), which is vested in the exclusive
jurisdiction of a court or forum other than the Court of Chancery,
or for which the Court of Chancery does not have subject matter
jurisdiction.
This exclusive forum provision would not apply to suits brought to
enforce any liability or duty created by the Securities Act of
1933, as amended, or the Exchange Act, or any other claim for which
the federal courts have exclusive jurisdiction. Any person
or entity purchasing or otherwise acquiring any interest in shares
of capital stock of the Corporation shall be deemed to have notice
of and consented to the provisions of this Article XI.