OF
LUBY'S,
INC.
ARTICLE
I
OFFICES
Section 1.
Registered Office.
The
registered office of the Corporation shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 2.
Other Offices.
The Corporation
may also have offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or as may be
necessary or convenient to the business of the Corporation.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section 1.
Time and Place of Meeting.
All
meetings of the stockholders shall be held at such time and at such place within
or without the State of Delaware as shall be designated by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2.
Annual Meetings.
An annual
meeting of the stockholders shall be held each year on such date and at such
time as shall be designated from time to time by the Board of Directors, and
stated in the notice of the meeting, at which meeting the stockholders shall
elect, in accordance with the Certificate of Incorporation, a board of directors
and transact such other business as may properly be brought before the
meeting.
Section 3.
Special Meetings.
Special
meetings of the stockholders, for any proper purpose or purposes, unless
otherwise prescribed by statute or by the Certificate of Incorporation of the
Corporation, may be called at any time by (a) the Board of Directors, (b) the
President or (c) the holders of at least fifty percent of all shares entitled to
vote at the proposed special meeting. A request for a special meeting of the
stockholders shall state the purpose or purposes of the proposed meeting.
Business transacted at special meetings shall be confined to the purpose or
purposes stated in the notice of the meeting.
Section 4.
Notice.
Written or printed
notice stating the place, date and hour of any meeting of stockholders, and in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than 10 nor more than 60 days before the
date of the meeting, either personally, by mail, or, with the consent of the
stockholder entitled to receive notice, by facsimile or other means of
electronic transmission, by or at the direction of the President, the Secretary,
or the person calling the meeting, to each stockholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his or her address as it appears on the stock ledger of the
Corporation. Notice given by electronic transmission pursuant to this
Section 4 shall be deemed given: (1) if by facsimile telecommunication, when
directed to a facsimile telecommunication number at which the stockholder has
consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and (4) if by any other form of
electronic transmission, when directed to the stockholder. An
affidavit of the secretary or an assistant secretary or of the transfer agent or
other agent of the Corporation that the notice has been given by personal
delivery, by mail, or by a form of electronic transmission shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
Section 5.
Record Date.
The Board of
Directors may fix a record date for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, which record date
shall not (1) precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, or (2) be less than 10 nor more than 60
days prior to such meeting. In the absence of any action by the Board of
Directors, the day next preceding the date upon which the notice of the meeting
is mailed shall be the record date.
Section 6. List of
Stockholders.
The officer or agent of the Corporation having charge of
the stock ledger of the Corporation shall prepare and make, at least 10 days
before each meeting of the stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Nothing contained in this
Section 6 shall require the Corporation to include electronic mail addresses or
other electronic contact information on such list. Such list, for a
period of 10 days prior to such meeting, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours at the Corporation’s principal place of business. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any stockholder during the whole time of
the meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or stock ledger, or to vote at any
meetings of stockholders.
Section 7. Quorum and
Adjournment.
The holders of a majority of the capital stock issued and
outstanding and entitled to be cast thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time until a quorum shall be present or
represented without notice of the adjourned meeting other than announcement of
the time and place thereof at the meeting at which the adjournment is taken.
When any adjourned meeting is reconvened and a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the original meeting. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of such meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. Voting.
Each
director of the Corporation to be elected by stockholders shall be elected by
the vote of a majority of the votes cast with respect to such director by the
shares present in person or represented by proxy and entitled to vote on the
election of directors at any meeting of stockholders duly called for that
purpose at which a quorum is present. In all other matters, when a quorum is
present at any meeting, the vote of the holders of the shares present or
represented by proxy at such meeting, entitled to vote on the subject matter,
and representing a majority of the votes cast with respect to such matter shall
decide any question brought before such meeting, unless the vote of a different
number is expressly required by statute, the Certificate of Incorporation or
these Bylaws. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his or her discretion,
may require that any votes cast at such meeting shall be cast by written
ballot.
Section 9. Manner of Voting;
Proxies.
(a) At each meeting of stockholders,
each stockholder having the right to vote shall be entitled to vote in person or
by proxy. Each stockholder shall be entitled to vote each share of
stock having voting power and registered in such stockholder’s name on the books
of the Corporation on the record date fixed for determination of stockholders
entitled to vote at such meeting.
(b) Each
person entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize another
person or persons to act for such stockholder by proxy, but no such proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only so long as, it is coupled with an
interest sufficient in law to support an irrevocable power. Proxies
need not be filed with the Secretary of the Corporation until the meeting is
called to order, but shall be filed before being voted. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, the following shall constitute
valid means by which a stockholder may grant such authority:
(1) A
stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the
stockholder or the stockholder’s authorized officer, director, employee, or
agent signing such writing or causing such person’s signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature; and
(2) A
stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person or persons
who will be the holder of the proxy or to an agent of the proxyholder(s) duly
authorized by such proxyholder(s) to receive such transmission; provided,
however, that any such telegram, cablegram, or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram, or other electronic
transmission was authorized by the stockholder. If it is determined
that any such telegram, cablegram, or other electronic transmission is valid,
the inspectors or, if there are no inspectors, such other persons making that
determination, shall specify the information upon which they
relied.
Any copy,
facsimile telecommunication, or other reliable reproduction of a writing or
electronic transmission authorizing a person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the original writing or
electronic transmission for any and all purposes for which the original writing
or electronic transmission could be used; provided, however, that such copy,
facsimile telecommunication, or other reproduction shall be a complete
reproduction of the entire original writing or electronic
transmission.
Section 10. Notice of
Stockholder Business and Nominations
. (a)
Annual Meetings of
Stockholders
. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any
supplement thereto), (b) by or at the direction of the Board of Directors or (c)
by any stockholder of the Corporation who was a stockholder of record at the
time of giving of the notice provided for in this Section 10, who is entitled to
vote at the meeting, and who complies with the notice procedures set forth in
this Section 10.
(2) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (c) of paragraph (a)(1) of this Section 10, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, and such proposed business (other than the nomination of
persons for election to the Board of Directors) must otherwise be a proper
matter for stockholder action. To be timely, a stockholder’s notice
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 90th day and not earlier
than the close of business on the 120th day prior to the first anniversary of
the preceding year’s 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
sixty (60) days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of (i) the 90th
day prior to such annual meeting or (ii) the 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 of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
above. Such stockholder’s notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person 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 Regulation 14A under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such
person’s written consent to serve as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting, 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 (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner, (ii) the class and number of
shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, and any derivative positions owned
beneficially by such stockholder or beneficial owner, (iii) whether and the
extent to which any hedging or other transaction or series of transactions has
been entered into by or on behalf of such stockholder or beneficial owner with
respect to any securities of the Corporation, or whether any other agreement,
arrangement or understanding (including any short position or any borrowing or
lending of shares) has been made, the effect or intent of which is to mitigate
loss to or manage risk or benefit from share price changes for, or to increase
or decrease the voting power of, such stockholder or beneficial owner with
respect to any securities of the Corporation, (iv) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination, and (v) a representation whether the
stockholder or the beneficial owner, if any, on whose behalf the nomination or
proposal is made intends or is part of a group that intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation’s outstanding capital stock required to approve or adopt the
proposal or elect the nominee(s) and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination.
The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine whether such nominee qualifies as an
“independent director” or “audit committee financial expert” under applicable
law and the eligibility of such proposed nominee to serve as a director of the
Corporation.
(3) Notwithstanding
anything in the second sentence of paragraph (a)(2) of this Section 10 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation at a annual meeting is increased and there is no
public announcement by the Corporation naming all of the nominees for director
or specifying the size of the increased Board of Directors at least one hundred
(100) days prior to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice required by this Section 10 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, 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 10th day following the day on which such public
announcement is first made by the Corporation.
(b)
Special Meetings of
Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting. 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 pursuant to the
Corporation’s notice of meeting only (1) by or at the direction of the Board of
Directors or (2) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this Section 10, who
shall be entitled to vote at the meeting, and who complies with the notice
procedures set forth in this Section 10. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation’s notice of meeting, if the stockholder’s notice in the same
form as required by paragraph (a)(2) of this Section 10 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 120th day prior to
such special meeting and 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 the public announcement of an adjournment
of a special meeting commence a new time period (or extend any time period) for
the giving of a stockholder’s notice as described above.
(c)
General
. (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 10 shall be eligible to be elected at an annual or special meeting
of stockholders of the Corporation to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in these
Bylaws. Except as otherwise provided by law, the Certificate of
Incorporation, or these Bylaws, the presiding officer of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 10 and, if any proposed
nomination or business is not in compliance with this Section 10, to declare
that such nomination shall be disregarded or that such proposed business shall
not be transacted.
(2) For
purposes of this Section 10, “public announcement” shall mean 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 pursuant to Section 13,
14, or 15(d) of the Exchange Act.
(3) Nothing
in this Section 10 shall be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
Section 11.
Presiding Officer and
Secretary.
(a) The Chairman of the
Board shall preside at meetings of the stockholders. In the absence
of the Chairman of the Board, the Vice Chairman of the Board and, in his or her
absence, the President shall preside at meetings of the
stockholders. In the absence of each of the Chairman of the Board,
the Vice Chairman of the Board, and the President, any director or officer
designated by the Board of Directors shall preside at meetings of the
stockholders.
(b) The
Secretary of the Corporation shall act as secretary of all meetings of the
stockholders, but, in the absence of the Secretary, the Assistant Secretary
designated in accordance with Section 7 of Article V of these Bylaws shall act
as secretary of meetings of the stockholders. In the absence of the
Secretary and any designated Assistant Secretary, the presiding officer of the
meeting may appoint any person to act as secretary of the meeting.
Section 12.
Conduct of
Meetings.
At each meeting of stockholders, the presiding
officer of the meeting shall fix and announce the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at the meeting and shall determine the order of business and all other
matters of procedure. The Board of Directors may adopt by resolution
such rules, regulations, and procedures for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with any such rules and regulations adopted by the Board of
Directors, the presiding officer of the meeting shall have the right and
authority to convene and to adjourn the meeting and to establish rules,
regulations, and procedures, which need not be in writing, for the conduct of
the meeting and to maintain order and safety. Without limiting the
foregoing, the presiding officer of the meeting may:
(a) restrict
attendance at any time to bona fide stockholders of record and their proxies and
other persons in attendance at the invitation of the presiding officer or Board
of Directors;
(b) place
restrictions on entry to the meeting after the time fixed for the commencement
thereof;
(c) restrict
dissemination of solicitation materials and use of audio or visual recording
devices at the meeting;
(d) adjourn
the meeting without a vote of the stockholders, whether or not there is a quorum
present; and
(e) make
rules governing speeches and debate, including time limits and access to
microphones.
The
presiding officer of the meeting shall act in his or her absolute discretion and
his or her rulings shall not be subject to appeal.
Section 13.
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 person
presiding at 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 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.
ARTICLE
III
DIRECTORS
Section 1. Number, Election and
Terms of Directors.
The business and affairs of the Corporation shall be
managed by a Board of Directors which shall consist of not less than nine nor
more than fifteen persons, who need not be residents of the State of Delaware or
stockholders of the Corporation. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors. The directors shall be
divided into three classes, as nearly equal in number as possible, with the term
of office of the first class to expire at the first following Annual Meeting of
Stockholders, the term of office of the second class to expire at the second
following Annual Meeting of Stockholders and the term of office of the third
class to expire at the third following Annual Meeting of Stockholders. At each
Annual Meeting of Stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding Annual Meeting
of Stockholders after their election. A directorship to be filled by reason of
an increase in the number of directors may be filled (i) by election at an
Annual or Special Meeting of Stockholders called for that purpose or (ii) by the
Board of Directors for a term of office continuing only until the next election
of one or more directors by the stockholders; provided that the Board of
Directors may not fill more than two such directorships during the period
between any two successive Annual Meetings of Stockholders.
Section 2. Vacancies in the
Board of Directors, Removal and Resignations of Directors.
Any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
by a majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the Annual Meeting of Stockholders at
which the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director. Any director, or the entire Board of Directors,
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least eighty percent of the voting power
of all of the shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Any
director may resign at any time by giving notice in writing or by electronic
transmission to the Board of Directors or the Secretary; provided, however, that
if such notice is given by electronic transmission, such electronic transmission
must either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the
director. Such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein. Acceptance of
such resignation shall not be necessary to make it effective.
Section 3. General
Powers.
The business and affairs of the Corporation shall be managed by
its Board of Directors, which may exercise all powers of the corporation and do
all such lawful acts and things as are not by statute, or by the Certificate of
Incorporation or by these Bylaws, directed or required to be exercised or done
by the stockholders.
Section 4. Place of
Meetings.
The Directors of the Corporation may hold their meetings, both
regular and special, either within or without the State of
Delaware.
Section 5. Annual
Meetings.
The first meeting of each newly elected Board of Directors
shall be held without notice immediately following the annual meeting of
stockholders, and at the same place, unless by unanimous consent of the
directors then elected and serving such time or place shall be
changed.
Section 6. Regular
Meetings.
Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the
Board of Directors.
Section 7. Special
Meetings.
Special meetings of the Board of Directors may be called by the
President. Notice of special meetings shall, if mailed, be given at
least [five] days prior to the date of the special meeting or, if given by
electronic transmission, at least twenty-four hours before the time of the
special meeting. Special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of a majority
of the directors then in office.
Section 8. Quorum and Powers of
a Majority
. Unless otherwise provided by statute, the Certificate of
Incorporation or these Bylaws, at all meetings of the Board of Directors, the
presence of a majority of the number of directors constituting the entire Board
of Directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the affirmative vote of a majority of the number of
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of
directors, the directors present may adjourn the meeting from time to time
without notice other than announcement at the meeting, until a quorum shall be
present.
Section 9. Executive
Committee.
The Board of Directors, by resolution adopted by a majority of
the number of directors constituting the entire Board of Directors, may
designate two or more directors to constitute an Executive Committee, one of
whom shall be designated as Chairman. The Executive Committee shall meet at such
times as the Committee may determine to be appropriate. A majority of the
Committee shall constitute a quorum and the act of a majority of a quorum shall
constitute the act of the Committee. Meetings of the Executive Committee may be
called at any time by the Chairman upon three days' notice. During the intervals
between the meetings of the Board, the Executive Committee shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it;
provided, however, that the Executive Committee shall have no power or authority
with reference to (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the General Corporation
Law of the State of Delaware to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any Bylaw of the Corporation. The Executive
Committee shall keep regular minutes of its proceedings and all actions of the
Executive Committee shall be reported promptly to the Board. Such actions shall
be subject to review by the Board, provided that no rights of third parties
shall be affected by such review. Any member of the Executive Committee may be
removed, for or without cause, by vote of a majority of the number of directors
constituting the entire Board of Directors.
Section 10. Other
Committees.
The Board of Directors, by resolution adopted by a majority
of the number of directors constituting the entire Board of Directors, may
designate other committees, each committee to consist of one or more directors
and to have and exercise such powers and authority as may be provided in such
resolution (including the power and authority to designate other committees of
the Board of Directors); provided, however, that no such committee shall have
the power or authority in reference to the following matters: (i)
approving or adopting, or recommending to the stockholders, any action or matter
expressly required by the General Corporation Law of the State of Delaware to be
submitted to stockholders for approval (other than recommending the election or
removal of directors) or (ii) adopting, amending, or repealing any Bylaw of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee to replace any absent or disqualified member
of the committee. In the absence or disqualification of a member of a
committee, the member or members present at any meeting of such committee and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of such absent or disqualified director. Each
such committee shall keep regular minutes of its proceedings and make reports to
the Board of Directors when and as required by the Board.
(a) Except
as otherwise determined by the Board of Directors or provided by these Bylaws,
each committee shall adopt its own rules governing the time, place, and method
of holding its meetings and the conduct of its proceedings and shall meet as
provided by such rules or by resolution of the Board of
Directors. Unless otherwise provided by these Bylaws or any such
rules or resolutions, notice of the time and place of each meeting of a
committee shall be given to each member of such committee as provided in Section
7 of this Article III with respect to notices of meetings of the Board of
Directors.
(b) Any
member of any committee may be removed from such committee either with or
without cause, at any time, by the Board of Directors at any meeting
thereof. Any vacancy in any committee may be filled by the Board of
Directors in the manner prescribed by the Certificate of Incorporation or these
Bylaws for the original appointment of the members of such
committee.
Section 11. Compensation of
Directors.
By resolution of the Board of Directors, the directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors or of any committee of the Board of Directors and may be paid a fixed
sum for attendance at each such meeting, or may be paid stated salaries as
directors, or both; provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
Section 12. Action Without a
Meeting.
Unless otherwise restricted by the Certificate of Incorporation
or these Bylaws, any action required or permitted to be taken at any meeting of
the Board of Directors, or of any committee designated by the Board of
Directors, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or
committee, provided however, that such electronic transmission or transmissions
must either set forth or be submitted with information from which it can be
determined that the electronic transmission or transmissions were authorized by
the director. 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 13. Meetings by
Conference Call, Etc.
Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 14. Reliance Upon
Books.
Directors and members of any committee designated by the Board of
Directors shall, in the performance of their duties, be fully protected in
relying in good faith upon the books of accounts or reports made to the
Corporation by any of its officers, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee, or in relying in good faith upon other
records of the Corporation.
Section 15.
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 a presiding person chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in
his or her absence the presiding person at the meeting may appoint any person to
act as secretary of the meeting.
ARTICLE
IV
NOTICES
Section 1. Form of
Notice.
Whenever under the provisions of the Certificate of
Incorporation, these Bylaws or by statute, notice is required to be given to any
director or stockholder, and no provision is made as to how such notice shall be
given, it shall not be construed to mean personal notice, but any such notice
may be given in writing and personally delivered or sent by mail, postage
prepaid, or courier service (including, without limitation, FedEx), addressed to
such director or stockholder at such address as appears on the books of the
Corporation, and any such notice required or permitted to be given by mail shall
be deemed to be given at the time when the same be thus deposited in the United
States mail or courier service as aforesaid; such notice may also be given by
telegram, facsimile transmission (directed to the facsimile transmission number
at which the director or stockholder has consented to receive notice),
electronic mail (directed to the electronic mail address at which the director
or stockholder has consented to receive notice), or other form of electronic
transmission pursuant to which the director or stockholder has consented to
receive notice, in which case it shall be so addressed as to be received by such
director or stockholder at the address of such director or stockholder as it
appears on the books of the Corporation or at a regular place of such director's
or stockholder's business.
Section 2. Waiver.
Whenever any notice is required to be given to any director or stockholder of
the Corporation under the provisions of the General Corporation Law of the State
of Delaware, the Certificate of Incorporation or these Bylaws, a waiver thereof
in writing or by electronic transmission signed by the person or persons
entitled to such notice, whether before or after the time stated in such notice,
shall be deemed equivalent to the giving of such notice. 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. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the attendance
is 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. If waiver of notice is given by electronic transmission, such
electronic transmission must either set forth or be submitted with information
from which it can be determined that the electronic transmission was authorized
by the director or stockholder.
ARTICLE
V
OFFICERS
Section 1. In General.
The officers of the Corporation shall be elected by the Board of Directors and
shall be a Chairman of the Board, a Vice Chairman of the Board, a President, one
or more Vice Presidents, a Secretary and a Treasurer. The Board of Directors may
also elect additional officers, including but not limited to one or more
Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers, and a Controller. Two or more offices may be held by the
same person, except that the office of President and Secretary shall not be held
by the same person.
Section 2. Election, Salaries,
Removal, and Resignation.
(a) The Board of Directors shall elect
officers at its first meeting after each annual meeting of the stockholders and
from time to time as necessary or convenient. Except for the Chairman
of the Board and the Vice Chairman of the Board, none of the officers of the
Corporation needs to be a director of the Corporation.
(b) The
salaries of all officers shall be fixed by the Board of Directors from time to
time. No officer shall be prevented from receiving such salary by
reason of the fact that he or she also is a director of the
Corporation
(c) Each
officer shall hold office until his or her successor is elected and qualified.
Any officer may be removed, for or without cause, at any time by vote of the
Board of Directors. Election or appointment of an officer or agent of the
Corporation shall not of itself create contract rights.
(d) Any
officer of the Corporation may resign at any time by giving notice in writing or
by electronic transmission to the Board of Directors or to the Chairman of the
Board; provided, however, that if such notice is given by electronic
transmission, such electronic transmission must either set forth or be submitted
with information from which it can be determined that the electronic
transmission was authorized by the officer. Such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 3. Chairman and Vice
Chairman.
(a) The Chairman of the Board of
Directors shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board may be designated by the Board of Directors
as the Chief Executive Officer of the Corporation, in which event he or she
shall have, subject to the supervision, direction, and control of the Board of
Directors, the general and active powers and duties of supervision, direction,
and management of the business of the Corporation and shall see that all orders
and resolutions of the Board of Directors are carried into
effect. Without limitation, the Chairman of the Board shall have the
powers and duties customarily and usually associated with the office of the
Chairman of the Board, and may sign certificates for shares, deeds, mortgages,
bonds, contracts and other instruments on behalf of the Corporation, except as
otherwise required by law or where the signing thereof is expressly delegated by
the Board of Directors or these Bylaws to some other officer or
agent.
(b) The
Vice Chairman of the Board shall have the powers and duties customarily and
usually associated with the office of the Vice Chairman of the
Board. In the case of absence or disability of the Chairman of the
Board, the Vice Chairman of the Board shall perform the duties and exercise the
powers of the Chairman of the Board.
Section 4. President.
The President may be designated by the Board of Directors as the Chief Executive
Officer of the Corporation, in which event he or she shall have, subject to the
supervision, direction, and control of the Board of Directors, the general and
active powers and duties of supervision, direction, and management of the
business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. If the President is not so
designated as the Chief Executive Officer, he or she shall be the Chief
Operating Officer of the Corporation. The President shall have the powers and
duties customarily and usually associated with the office of chief executive
officer or chief operating officer, as the case may be, including without
limitation, all powers necessary to direct and control the organizational and
reporting relationships within the Corporation, and may sign certificates for
shares, deeds, mortgages, bonds, contracts and other instruments on behalf of
the Corporation, except as otherwise required by law or where the signing
thereof is expressly delegated by the Board of Directors or these Bylaws to some
other officer or agent. The President shall, in the absence or disability of the
Chairman of the Board and Vice Chairman of the Board, perform the duties and
exercise the powers of the Chairman of the Board, except as otherwise expressly
provided in these Bylaws.
Section 5. Vice
Presidents.
If there be an Executive Vice President, he or she shall, in
the absence or disability of the President, perform the duties and exercise the
powers of the President. If the President is designated as the Chief Executive
Officer of the Corporation pursuant to these Bylaws, the Executive Vice
President shall be the Chief Operating Officer of the Corporation. In the
absence or disability of the President and the Executive Vice President, the
Senior Vice Presidents in the order of their seniority shall perform the duties
and exercise the powers of the President. All Vice Presidents of the Corporation
shall generally assist the President and the Chairman of the Board and shall
perform such other duties as the President or the Chairman of the Board or the
Board of Directors may prescribe. The Board of Directors may delegate
to the President the power to appoint one or more employees of the Corporation
as divisional or departmental vice presidents and to fix the duties of such
appointees; provided, however, no such divisional or departmental vice president
shall be considered to be an officer of the Corporation, the officers of the
Corporation being limited to those officers elected by the Board of Directors in
accordance with this Article V.
Section 6. Secretary.
The Secretary shall attend all sessions of the Board of Directors and all
meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose, and shall perform like duties
for the Executive Committee and any other committees of the Board when required.
He or she shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall have all
such further powers and duties as are customarily and usually associated with
the position of Secretary or as may be prescribed by the Board of Directors, the
Chairman of the Board, or the President. He or she shall keep in safe custody
the seal of the Corporation.
Section 7. Assistant
Secretaries.
Each Assistant Secretary shall have such powers and
perform such duties as may from time to time be assigned to him or her by the
Board of Directors, the Chairman of the Board, the President, or the
Secretary. Any Assistant Secretary shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as may be prescribed by the Board
of Directors, the Chairman of the Board, or the President.
Section 8. Treasurer.
The Treasurer shall have the custody of all corporate funds and securities, and
shall keep full and accurate accounts of receipts and disbursements of the
Corporation, and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. He or she shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and directors, at the regular
meetings of the Board or whenever they may require it, an account of all his or
her transactions as Treasurer and of the financial condition of the
Corporation. The Treasurer shall have all such further powers and
duties as are customarily and usually associated with the position of Treasurer
or as may be prescribed by the Board of Directors, the Chairman of the Board, or
the President.
Section 9. Assistant
Treasurers
. Each Assistant Treasurer shall have such powers and perform
such duties as may from time to time be assigned to him or her by the Board of
Directors, the President, or the Treasurer. Any Assistant Treasurer
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as may
be prescribed by the Board of Directors or the President.
ARTICLE
VI
CERTIFICATES
REPRESENTING SHARES
Section 1. Form of
Certificates.
The Corporation shall deliver certificates representing all
shares to which stockholders are entitled, unless the Certificate of
Incorporation otherwise provides or unless the Board of Directors provides by
resolution or resolutions that some or all of the shares of any class or
classes, or series thereof, of the Corporation’s capital stock shall be
uncertificated. Every holder of capital stock of the Corporation
represented by certificates shall be entitled to a certificate representing such
shares. Certificates representing shares of the Corporation shall be in such
form as shall be determined by the Board of Directors and shall be numbered
consecutively and entered in the books of the Corporation as they are issued.
Each certificate shall state on the face thereof the holder's name, the number
of and class of shares, and the par value of the shares or a statement that the
shares are without par value. Each certificate shall be signed by the Chairman
of the Board, or Vice Chairman of the Board, or President or a Vice President,
and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, and may be sealed with the seal of the Corporation or a facsimile
thereof if the Corporation shall then have a seal. If any certificate is
countersigned by a transfer agent or registered by a registrar, either of which
is other than the Corporation or an employee of the Corporation, the signatures
of the Corporation's officers may be facsimiles. In case any officer, transfer
agent or registrar who has signed, or whose facsimile signature has been placed
on such certificate, shall cease to be such officer, transfer agent or
registrar, whether because of death, resignation or otherwise, before such
certificate has been delivered by the Corporation or its agents, such
certificate may nevertheless be issued and delivered with the same effect as if
he or she were such officer, transfer agent or registrar at the date of
issue.
Section 2. Lost, Stolen or
Destroyed Certificates.
The Board of Directors may direct that a new
certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate to be lost,
stolen or destroyed. When authorizing the issue of a new certificate, the Board
of Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of the lost, stolen or destroyed certificate, or
his or her legal representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such form, in such sum, and
with such surety or sureties as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 3. Transfer of
Shares.
Shares of stock of the Corporation shall be transferrable in the
manner prescribed by law and in these Bylaws. Shares of stock shall be
transferable only on the books of the Corporation by the holder thereof in
person or by his or her duly authorized attorney and, upon surrender to the
Corporation or to the transfer agent of the Corporation of a certificate (if
any) representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer; provided, however, that such
succession, assignment, or transfer is not prohibited by the Certificate of
Incorporation, these Bylaws, applicable law, or contract, and thereupon it shall
be the duty of the Corporation or the transfer agent of the Corporation to issue
a new certificate (if requested) to the person entitled thereto, cancel the old
certificate (if any) and record the transaction upon its books.
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, accordingly, 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 law.
ARTICLE
VII
GENERAL
PROVISIONS
Section 1. Dividends.
Dividends upon the outstanding shares of the Corporation may be declared by the
Board of Directors at any regular or special meeting, subject to the provisions
of law and of the Certificate of Incorporation. Dividends may be declared and
paid in cash, in property, or in shares of the Corporation, provided that all
such declarations and payments of dividends shall be in strict compliance with
all applicable laws and the Certificate of Incorporation. The Board of Directors
may fix in advance a record date for the purposes of determining stockholders
entitled to receive payment of any dividend, such record date to be not earlier
than the date upon which the resolution fixing such record date is adopted the
nor more than 60 days prior to the payment date of such dividend, or the Board
of Directors may close the stock ledger for such purpose for a period of not
more than 60 days prior to the payment date of such dividend. If the stock
transfer books are not closed and no record date is fixed by the Board of
Directors, the date upon which the Board of Directors adopts the resolution
declaring such dividend shall be the record date.
Section 2. Fiscal Year.
The fiscal year of the Corporation shall be the twelve-month period ending on
the last Wednesday in August of each year unless otherwise fixed by resolution
of the Board of Directors.
Section 3. Seal.
The
Corporation shall have a seal and said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any manner reproduced. Any
officer of the Corporation shall have authority to affix the seal to any
document requiring it.
Section 4. Contracts.
The Board of Directors may authorize any officer or officers, agent or agents,
to enter into any contracts or execute and deliver any instruments in the name
of and on behalf of the Corporation, and such authority may be general or
confined to specific instances.
Section 5. Loans.
No
loans shall be contracted on behalf of the Corporation, and no evidences of
indebtedness shall be issued in its name unless authorized by a resolution of
the Board of Directors. Such authority may be general or confined to specific
instances.
Section 6. Books and
Records.
(a) Any books or records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or by means of, or be in the
form of, any information storage device or method; provided, however, that the
books and records so kept can be converted into clearly legible paper form
within a reasonable time. The Corporation shall so convert any books
or records so kept upon the request of any person entitled to inspect such
records pursuant to the Certificate of Incorporation, these Bylaws, or the
provisions of the General Corporation Law of the State of Delaware.
Section 7. Voting Shares
in Other Business Entities.
The President or any other officer
of the Corporation designated by the Board of Directors may vote any and all
shares of stock or other equity interest held by the Corporation in any other
corporation or other business entity, and may exercise on behalf of the
Corporation any and all rights and powers incident to the ownership of such
stock or other equity interest.
Section 8. Electronic
Transmission.
For purposes of these Bylaws, the term
“electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
Section 9. Entire Board of
Directors.
For purposes of these Bylaws, the term "entire Board of
Directors" means the total number of directors which the Corporation would have
if there were no vacancies.
Section 10. When Bylaws
Silent.
It is expressly recognized that when these Bylaws are silent as
to the manner of performing any corporate function, the provisions of Delaware
law shall control.
ARTICLE
VIII
INDEMNIFICATION
Section 1. Indemnification in
Actions, Suits or Proceedings Other Than Those by or in the Right of the
Corporation.
Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) (hereinafter, a “Proceeding”) by reason
of the fact that he or she is or was a director or officer of the Corporation,
or while serving as a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise (collectively, “Another Enterprise”), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such
Proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal Proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal Proceeding, had reasonable cause to believe that his or her conduct
was unlawful.
Section 2. Indemnification in
Actions, Suits or Proceedings by or in the Right of the Corporation.
Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
Proceeding by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he or she is or was a director or officer, of
the Corporation, or while serving as a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
employee or agent of Another Enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Authorization of
Indemnification.
Any indemnification under this Article VIll (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as
the case may be. Such determination shall be made (i) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum;
(iii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iv) by the stockholders. To
the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith, without
the necessity of authorization in the specific case.
Section 4. Good Faith
Defined.
For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if his or her action is based on the records or books of account of
the Corporation or Another Enterprise, or on information supplied to him or her
by the officers of the Corporation or Another Enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or Another
Enterprise or on information or records given or report made to the Corporation
or Another Enterprise be an independent certified public accountant or be an
appraiser or other expert selected with reasonable care by the corporation or
Another Enterprise. The provision of this Section 4 of this Article
Vlll shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as
the case may be.
Section 5. Claims;
Indemnification by a Court.
(a) If (X) a claim under Section
1 of this Article VIII with respect to any right to indemnification is not paid
in full by the Corporation within sixty days after a written demand has been
received by the Corporation or (Y) a claim under Section 6(a) of this Article
VIII with respect to any right to the advancement of expenses is not paid in
full by the Corporation within twenty days after a written demand has been
received by the Corporation, then the person seeking to enforce a right to
indemnification or to an advancement of expenses, as the case may be, may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim.
(b) If
successful in whole or in part in any suit brought pursuant to Section 5(a) of
this Article VIII, or in a suit brought by the Corporation to recover an
advancement of expenses (whether pursuant to the terms of an undertaking or
otherwise), the person seeking to enforce a right to indemnification or an
advancement of expenses hereunder or the person from whom the Corporation sought
to recover an advancement of expenses, as the case may be, shall be entitled to
be paid by the Corporation the reasonable expenses (including attorneys’ fees)
of prosecuting or defending such suit.
(c) In
any suit brought by a person seeking to enforce a right to indemnification
hereunder (but not a suit brought by a person seeking to enforce a right to an
advancement of expenses hereunder), it shall be a defense that the person
seeking to enforce a right to indemnification has not met any applicable
standard for indemnification under applicable law. With respect to
any suit brought by a person seeking to enforce a right to indemnification or
right to advancement of expenses hereunder or any suit brought by the
Corporation to recover an advancement of expenses (whether pursuant to the terms
of an undertaking or otherwise), neither (i) the failure of the Corporation to
have made a determination prior to commencement of such suit that
indemnification of such person is proper in the circumstances because such
person has met the applicable standards of conduct under applicable law, nor
(ii) an actual determination by the Corporation that such person has not met
such applicable standards of conduct, shall create a presumption that such
person has not met the applicable standards of conduct or, in a case brought by
such person seeking to enforce a right to indemnification, be a defense to such
suit.
(d) In
any suit brought by a person seeking to enforce a right to indemnification or to
an advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses (whether pursuant to the terms of an undertaking or
otherwise), the burden shall be on the Corporation to prove that the person
seeking to enforce a right to indemnification or to an advancement of expenses
or the person from whom the Corporation seeks to recover an advancement of
expenses is not entitled to be indemnified, or to such an advancement of
expenses, under this Article VIII or otherwise.
Section 6. Expenses Payable in
Advance.
Subject to Section 11 of this Article VIII, expenses (including
attorneys’ fees) incurred by a director or officer in defending or investigating
a threatened or pending Proceeding shall be paid by the Corporation in advance
of the final disposition of such Proceeding (hereinafter an “advancement of
expenses”) upon receipt of any undertaking by or on behalf of such director or
officer to repay all amounts advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal that he
or she is not entitled to be indemnified by the Corporation for such expenses as
authorized in this Article VIII or otherwise.
Section 7. Nonexclusively of
Indemnification and Advancement of Expenses.
The indemnification and
advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which any person may be
entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be such director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person. The provisions of this Article
Vlll shall not be deemed to preclude the indemnification of any person who is
not specified in Section 1 or Section 2 of this Article Vlll but whom the
Corporation has the power or obligation to indemnify under the provisions of the
General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance.
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 Enterprise against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power or the
obligation to indemnify him or her against such liability under the provisions
of this Article VIII or otherwise.
Section 9. Certain
Definitions.
For purposes of this Article VIII,
(a) references
to "the Corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors and
officers, so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such constituent
corporation serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article Vlll with respect to the
resulting or surviving corporation as such indemnification relates to his or her
acts while serving in any of the foregoing capacities, of such constituent
corporation, as he or she would have with respect to such constituent
corporation if its separate existence had continued;
(b) references
to "fines" shall include any excise taxes assessed on a person with respect to
an employee benefit plan;
(c) references
to "serving at the request of the Corporation" shall include any service as a
director or officer of the Corporation which imposes duties on, or involves
services by, such director or officer with respect, to an employee benefit plan,
its participants or beneficiaries;
(d) a
person who acted in good faith and in a manner he or she reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VIII;
and
(e) references
to a director of Another Enterprise shall include, in the case of any entity
that is not managed by a board of directors, such other position, such as
manager or trustee or member of the governing body of such entity, that entails
responsibility for the management and direction of such entity’s affairs,
including, without limitation, general partner of any partnership (general or
limited) and manager or managing member of any limited liability
company.
Section 10. Survival of
Indemnification and Advancement of Expenses.
The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article Vlll
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director or officer and shall inure to the benefit
of the heirs, executors and administrators of such a person. The rights to
indemnification and to the advancement of expenses conferred in this Article
VIII shall be contract rights. Any amendment, repeal, or modification
of, or adoption of any provision inconsistent with, this Article VIII (or any
provision hereof) shall not adversely affect any right to indemnification or
advancement of expenses granted to any person pursuant hereto with respect to
any act or omission of such person occurring prior to the time of such
amendment, repeal, modification, or adoption (regardless of whether the
Proceeding relating to such acts or omissions is commenced before or after the
time of such amendment, repeal, modification, or adoption).
Section 11. Limitation on
Indemnification.
Anything in Section 1, Section 2 or Section 6
of this Article VIII to the contrary notwithstanding, except as provided in
Section 5(b) of this Article VIII, the Corporation shall not be required to
indemnify or to advance expenses (including attorneys’ fees) to any person
otherwise entitled to indemnification or advancement hereunder in connection
with prosecuting any Proceeding (or part thereof) initiated by any person
against the Corporation or in defending any counterclaim, cross-claim,
affirmative defense, or like claim of the Corporation in any Proceeding (or part
thereof) unless the initiation of such Proceeding (or part thereof) was
authorized in advance by the Board of Directors of the Corporation.
Section 12. Indemnification of
Employees and Agents.
The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar
to those conferred in this Article Vlll to directors and officers of the
Corporation.
Section 13.
Severability.
If any provision or provisions of this Article
VIII shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever: (1) the validity, legality, and enforceability of the remaining
provisions of this Article VIII (including, without limitation, each portion of
any paragraph or clause containing any such provision held to be invalid,
illegal, or unenforceable, that is not itself held to be invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby; and (2) to
the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of any paragraph or clause containing any
such provision held to be invalid, illegal, or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal, or unenforceable.
ARTICLE
IX
AMENDMENTS
Section 1. Amendments.
These Bylaws may be altered, amended or repealed and new Bylaws may be adopted
by the Board of Directors at any regular meeting or at any special meeting
called for that purpose. These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by affirmative vote of stockholders
holding a majority of outstanding stock entitled to vote at any regular meeting
or at any special meeting called for that purpose.