Exhibit 3.1
BY-LAWS OF
TOLL BROTHERS, INC.
As Amended and Restated June 11, 2008
ARTICLE I OFFICES
Section 1-1.
Registered Office and Registered Agent
. The Corporation shall
maintain a registered office and registered agent within the State of Delaware, which may be
changed by the Board of Directors from time to time.
Section 1-2.
Other Offices
. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors may from time to
time determine.
ARTICLE II STOCKHOLDERS MEETINGS
Section 2-1.
Place of Stockholders Meetings
. Meetings of stockholders may be
held at such place, either within or without the State of Delaware, as may be designated by the
Board of Directors from time to time. If no such place is designated by the Board of Directors,
meetings of the stockholders shall be held at the registered office of the Corporation in the State
of Delaware.
Section 2-2.
Annual Meeting
. A meeting of the stockholders of the Corporation
shall be held in each calendar year at a date, time and place fixed by the Board of Directors. At
each annual meeting, beginning in 1990, the successors of the class of Directors whose term expires
at that meeting shall be elected to hold office for a term to expire at the annual meeting of
stockholders held in the third year following the year of election.
Section 2-3.
Special Meetings
. Except as otherwise specifically provided by
law, special meetings of the stockholders may be called at any time:
(a) By a majority of the Directors then in office; or
(b) By the Chief Executive Officer of the Corporation.
Section 2-4.
Notice of Meetings and Adjourned Meetings
. Written notice
stating the place, date and time 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 given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting, except as otherwise provided herein or required by law. If mailed, notice is
given when deposited in the United States Mail, postage prepaid, directed to the stockholder at his
address as it appears on the records 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 thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than thirty (30) days after the date for
which the meeting was originally noticed, 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. At any adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting.
To the extent permitted by law, notice shall be deemed to be given to all stockholders having
the same address if given in accordance with the householding rules set forth in Rule 14a-3(e)
under the Securities Exchange Act of 1934, as amended (the Exchange Act) (or any rules adopted in
substitution or replacement thereof).
Section 2-5.
Quorum
. The presence, in person or by proxy, at a meeting of
stockholders of the holders of a majority of the voting power shall constitute a quorum, unless or
-2-
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 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. The stockholders present at a duly organized meeting can
continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum. If a meeting cannot be organized because of the absence of a quorum, the
chairman of the meeting may, except as otherwise provided by law, adjourn the meeting to such time
and place he or she may determine.
Section 2-6.
Voting List; Proxies; and Voting
. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be produced and made available
for examination at the times and at the places or in the manner required by law.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize another person or persons to
act for him by proxy. Each proxy shall be authorized in writing, or by a transmission permitted by
law, and shall be filed with the Secretary of the Corporation not later than the call to order of
the meeting at which the proxy is to be exercised or with the inspector of election or the person
presiding at the meeting not later than the closing of the polls on the matter on which the proxy
is to be exercised. 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
-3-
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. No proxy shall be
voted or acted upon after three (3) years from its date, unless the proxy provides for a longer
period.
Except as otherwise specifically provided by law, the Certificate of Incorporation or these
by-laws, all matters coming before the meeting other than election of Directors shall be determined
by a majority of the votes cast affirmatively or negatively. Directors shall be elected by a
plurality of the votes cast. All elections of Directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. Except as otherwise specifically provided
by law, the Certificate of Incorporation or these by-laws, all other votes may be taken by voice
unless a stockholder demands that it be taken by ballot, in which latter event the vote shall be
taken by written ballot.
Section 2-7.
Stockholders Action by Written Consent
. Unless otherwise
provided by the Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, bearing the date of signature of
each stockholder signing the consent, 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 (which delivery shall be by hand or by certified or registered mail, return receipt
requested) within any time period required by law to the Corporations registered office in the
State of Delaware, its principal place of business or an officer or agent of the Corporation having
-4-
custody of the book in which proceedings of meetings of stockholders are recorded. However, if
such a consent to elect Directors is less than unanimous, such action by written consent may be in
lieu of holding an annual meeting only if all
of the directorships to which Directors could be elected at an annual meeting held at the
effective time of such action are vacant and are filled by such action.
Prompt notice of the taking of corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a sufficient number
of stockholders to take the action were delivered to the Corporation as provided by law.
In order that the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting (including by telegram, cablegram or other electronic
transmission as permitted by law), the Board of Directors may fix a record date as provided by law.
Any stockholder of record seeking to have the stockholders authorize or take corporate action by
consent shall, by written notice to the Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall adopt a resolution fixing the record date (unless a record date
has previously been fixed by the Board of Directors pursuant to the first sentence of this
paragraph) within a reasonable amount of time following receipt of such request. If no record date
has been fixed by the Board of Directors within a reasonable amount of time following receipt of
such request, the record date for determining stockholders entitled to consent to corporate action
without a meeting, provided no prior action by the Board of Directors is required by applicable
law, shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its registered office in the
State of Delaware, its
-5-
principal place of business, or any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporations registered office shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by applicable law, the record
date for determining stockholders entitled to consent to corporate action without a meeting shall
be at the close of business on the date on which the Board of Directors adopts the resolution
taking such prior action.
Section 2-8.
Nominations of Directors at Annual Meeting of Stockholders
.
Notwithstanding the provisions of Section 2-9 of these by-laws (dealing with business at meetings
of stockholders), nominations for the election of Directors at an annual meeting of stockholders
may be made (a) by or at the direction of the Board of Directors or by a committee appointed by the
Board of Directors with authority to do so, or (b) by any stockholder of record entitled to vote in
the election of Directors who is a stockholder of record at the time of the giving of notice
required herein, at the record date of the meeting and on the date of the meeting at which
Directors are to be elected; provided, however, that with respect to any nomination made by a
stockholder, such stockholder must comply with the notice procedures set forth in this section.
For the avoidance of doubt, clause (b) above shall be the exclusive means for a stockholder to make
nominations before an annual meeting of stockholders.
(a) For nominations to be properly brought before an annual meeting by a stockholder pursuant
to the foregoing paragraph, (i) the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation; and (ii) the stockholder, or beneficial owner on whose behalf any
such nomination is made, must have acted in accordance with the representations set forth in the
Nominee Solicitation Statement required by these
-6-
bylaws. To be timely, a stockholders notice must
be delivered to, or mailed and received at, the principal executive offices of the Corporation
addressed to the attention of the Secretary of the Corporation not less than 45 days or more than
75 days prior to the first anniversary (the Anniversary) of the date on which the Corporation
first mailed its proxy materials for the preceding years annual
meeting of stockholders; provided, however, that if the date of the annual meeting is not
within 30 days before or after the anniversary date of the immediately preceding annual meeting,
notice by the stockholder to be timely must be so delivered not later than the close of business on
the later of (i) the 90
th
day prior to such annual meeting or (ii) the 10
th
day following the day on which public disclosure of the meeting date is first made (which shall
include disclosure of the meeting date given to a national securities exchange or the National
Association of Securities Dealers).
(b) Each such written notice must set forth: (i) the name and address of the stockholder who
intends to make the nomination (Nominating Stockholder) as they appear of Corporations books;
(ii) the name and address of the beneficial owner, if different than the Nominating Stockholder, of
any of the shares owned of record by the Nominating Stockholder (Beneficial Holder); (iii) the
number of shares of each class and series of shares of the Corporation which are owned of record
and beneficially by the Nominating Stockholder and the number which are owned beneficially by any
Beneficial Holder; (iv) a description of all arrangements and understandings between the Nominating
Stockholder and any Beneficial Holder and any other person or persons (naming such person or
persons) pursuant to which the nomination is being made; (v) the name and address of the person or
persons to be nominated; (vi) a representation that the Nominating Stockholder is at the time of
giving of the notice, was or will be on the record date for the meeting, and will be on the meeting
date a holder of record
-7-
of shares of the Corporation entitled to vote at such meeting and will
appear in person or by proxy at the annual meeting to nominate the person or persons specified in
the notice; (vii) such other information regarding each nominee proposed by the Nominating
Stockholder as would have been required to be included in a proxy statement filed pursuant to the
proxy rules of the Exchange Act had the nominee been nominated, or intended to be nominated, by the
Board of Directors; (viii) the written
consent of each nominee to serve as a Director of the Corporation if so elected; and (ix) a
statement of whether or not either such Nominating Stockholder or Beneficial Holder will solicit
votes of, or deliver a proxy statement and form of proxy to, holders of at least the percentage of
voting power of all the Corporations voting shares reasonably believed by such Nominating
Stockholder or Beneficial Holder to be sufficient to elect the nominee or nominees proposed to be
nominated by such Nominating Stockholder or Beneficial Holder (such statement, a Nominee
Solicitation Statement).
Section 2-9.
Business at Annual Meetings of Stockholders
.
(a) Except as otherwise provided by law, in the Certificate of Incorporation or in these
by-laws, the proposal of business to be transacted by the stockholders at an annual meeting of
stockholders may be made (i) pursuant to the Corporations proxy materials with respect to such
meeting; (ii) by or at the direction of the Board of Directors or by a committee appointed by the
Board of Directors with authority to do so; or (iii) by any stockholder of record who shall be a
stockholder of record on the record date for such meeting and who shall continue to be entitled to
vote thereat and who shall be a stockholder of record at the time of the giving of the notice
provided for herein in accordance with all of the requirements set forth below. For the avoidance
of doubt, clause (iii) above shall be the exclusive means for a stockholder to propose
-8-
business
(other than business included in the Corporations proxy materials pursuant to Rule 14a-8 under the
Exchange Act) before an annual meeting of stockholders.
(b) For business to be properly brought before an annual meeting by a stockholder pursuant to
this section, (i) the stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation (the Stockholder Notice); (ii) such business must be a proper matter for
stockholder action under Delaware law; and (iii) the stockholder, or beneficial
owner on whose behalf any such proposal is made, must have acted in accordance with the
representations set forth in the Proposal Solicitation Statement required by these bylaws. To be
timely, each Stockholder Notice must be delivered to, or mailed and received at, the principal
executive offices of the Corporation addressed to the attention of the Secretary of the Corporation
not less than 45 days or more than 75 days prior to the Anniversary; provided, however, that if the
date of the annual meeting is not within 30 days before or after the anniversary date of the
immediately preceding annual meeting, notice by the stockholder to be timely must be so delivered
not later than the close of business on the later of (i) the 90
th
day prior to such
annual meeting or (ii) the 10
th
day following the day on which public disclosure of the
meeting date is first made (which shall include disclosure of the meeting date given to a national
securities exchange or the National Association of Securities Dealers). Each such Stockholder
Notice must set forth (A) the name and address of the stockholder who intends to bring the business
before the annual meeting (Proposing Stockholder) as they appear on the Corporations books; (B)
the name and address of the beneficial owner, if different than the Proposing Stockholder, of any
of the shares owned of record by the Proposing Stockholder (Beneficial Owner); (C) the number of
shares of each class and series of shares of the Corporation which are owned of record and
beneficially by the Proposing Stockholder and the
-9-
number which are owned beneficially by any
Beneficial Owner; (D) any interest (other than an interest solely as a stockholder) which the
Proposing Stockholder or a Beneficial Owner has in the business being proposed by the Proposing
Stockholder; (E) a description of all arrangements and understandings between the Proposing
Stockholder and any Beneficial Owner and any other person or persons (naming such person or
persons) pursuant to which the proposal in the Stockholder Notice is being made; (F) a description
of the business which the Proposing Stockholder seeks to bring before the annual meeting, the
reason for doing so and, if
a specific action is to be proposed, the text of the resolution or resolutions which the
Proposing Stockholder proposes that the Corporation adopt; (G) a representation that the Proposing
Stockholder is at the time of giving the Stockholder Notice, was or will be on the record date for
the meeting, and will be on the meeting date, a holder of record of shares of the Corporation
entitled to vote at such meeting, and will appear in person or by proxy at the annual meeting to
bring the business specified in the Stockholder Notice before the meeting; and (H) a statement of
whether or not either such Proposing Stockholder or such Beneficial Owner will solicit votes of,
or deliver a proxy statement and form of proxy to, holders of at least the percentage of voting
power of all the Corporations voting shares required under applicable law to carry the proposal
(such statement, a Proposal Solicitation Statement).
Section 2-10.
Additional Advance Notice Provisions
. Notwithstanding anything
in these by-laws to the contrary, in the event that the size of the Board of Directors or the
number of Directors to be elected to the Board of Directors is increased and there is no public
disclosure made by the Corporation at least 55 days prior to the Anniversary naming all of the
nominees for Director or specifying the size of the increased Board of Directors, the stockholders
notice required by Section 2-8 of these by-laws shall be considered timely, but only with respect
to nominees for any
-10-
new positions created by such increase, if it shall be delivered to 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 disclosure is first made by the
Corporation.
Section 2-11.
Conduct of Business at Annual Meeting of Stockholders
. Only
persons nominated in accordance with the procedures set forth in these by-laws shall be eligible to
serve as Directors and 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 these
by-laws. 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 by-laws and, if any proposed nomination or business is not in
compliance with these by-laws, to declare that such defectively proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be disregarded.
Section 2-12.
Special Meetings
. 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. 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 of the Corporation who
is a 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 complies with the notice procedures applicable to
nominations at annual meetings set forth in these by-laws. Any such nomination by stockholders of
persons for election to the Board of Directors may be made at such a special meeting of
stockholders only if the stockholders notice required by Section 2-8 of these by-laws shall be
delivered to the Secretary at the principal executive offices of the Corporation not later than the
close of business on the later of
-11-
the 90th day prior to such special meeting or the 10th day
following the day on which public disclosure 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. 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 stockholder in
accordance with the notice provisions set forth herein.
Section 2-13.
Inspectors of Elections
. In advance of any meeting of
stockholders of the Corporation, the Corporation shall appoint one or more inspectors to act at the
meeting and make a
written report thereof. The Corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If an inspector or alternate is not
appointed, or, if appointed, is not 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.
Section 2-14.
Compliance with Exchange Act
. Notwithstanding the foregoing
provisions of these by-laws, 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
these by-laws. Nothing in these by-laws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
ARTICLE III BOARD OF DIRECTORS
Section 3-1.
Number and Classification
. The business and affairs of the
Corporation shall be managed by and under the direction of the Board of Directors. The number of
members of the Board of Directors shall be the number of Directors serving at the time of adoption
of this
-12-
Section 3-1 or such other number as may thereafter from time to time be determined by the
Board of Directors.
The Directors shall be classified, with respect to duration of the term for which they
severally hold office, into three classes as nearly equal in number as reasonably possible. At
each annual meeting of stockholders, (1) the successors of the class of Directors whose term
expires at that meeting shall be elected to hold office for a term expiring at the annual meeting
of stockholders held in the third year following the year of their election, with each Director to
hold office until his or her successor shall have been duly elected and qualified, and (2) 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 3-2.
Place of Meeting
. Meetings of the Board of Directors may be held
at such place either within or without the State of Delaware, as a majority of the Directors may
from time to time designate or as may be designated in the notice calling the meeting.
Section 3-3.
Regular Meetings
. A regular meeting of the Board of Directors
shall be held annually, immediately following the annual meeting of stockholders, at the place
where such meeting of the stockholders is held or at such other place, date and time as a majority
of Directors then in office may designate. At such meeting the Board of Directors shall elect
officers of the Corporation. In addition to such regular meeting, the Board of Directors shall
have the power to fix, by resolution, the place, date and time of other regular meetings of the
Board.
Section 3-4.
Special Meetings
. Special meetings of the Board of Directors
shall be held whenever ordered by the Chief Executive Officer, by a majority of the members of the
executive committee, if any, or by a majority of the Directors then in office.
-13-
Section 3-5.
Notices of Meetings of Board of Directors
.
(a)
Regular Meetings
. No notice shall be required to be given of any regular meeting,
unless the same be held at other than the time or place for holding such meetings as fixed in
accordance with Section 3-3 of these by-laws, in which event one (1) days notice shall be given of
the time and place of such meeting.
(b)
Special Meetings
. At least one (1) days notice of the time, date and place for
which any special meeting of the Board of Directors is to be held shall be given to each Director
that has not waived notice by mailing written notice or by electronic transmission of the same.
Unless otherwise indicated in the notice thereof, any and all business may be transacted at a
special meeting. In any case where only one days notice is being given, notice must be given at
least twenty-four (24) hours in advance.
Section 3-6.
Quorum
. To the extent permitted by law, a majority of the
Directors then in office shall constitute a quorum for the transaction of business, and the vote of
a majority of the Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. If there be less than a quorum present, a majority of those present may
adjourn the meeting from time to time and place to place without further notice or waiver thereof.
Section 3-7.
Board of Director Action by Written Consent
. Any action required
or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting if all members of the Board 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.
Such filings 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.
-14-
Section 3-8.
Powers
.
(a)
General Powers
. The Board of Directors shall have all powers necessary or
appropriate to the management of the business and affairs of the Corporation, and, in addition to
the power and authority conferred by these by-laws, may exercise all powers of the Corporation and
do all such lawful acts and things as are not by statute, these by-laws or the Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
(b)
Specific Powers
. Without limiting the general powers conferred by the last
preceding clause and the powers conferred by the Certificate of Incorporation and by-laws of the
Corporation, it is hereby expressly declared that the Board of Directors shall have the following
powers:
(i) To confer upon any officer or officers of the Corporation the power to choose, remove or
suspend assistant officers, agents or servants.
(ii) To appoint any person, firm or corporation to accept and hold in trust for the
Corporation any property belonging to the Corporation or in which it is interested, and to
authorize any such person, firm or corporation to execute any documents and perform any duties that
may be requisite in relation to any such trust.
(iii) To appoint a person or persons to vote shares of another corporation held and owned by
the Corporation.
(iv) By resolution adopted by a majority of the Directors then in office, to designate one (1)
or more of its number to constitute an executive committee which, to the extent provided in such
resolution, shall have and may exercise the power 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.
-15-
(v) By resolution passed by a majority of the Directors then in office, the Board of Directors
may designate one (1) or more additional committees, each to consist of one (1) or more Directors,
to have such duties, powers and authority as the Board of Directors shall lawfully delegate.
(vi) To fix the place, time and purpose of meetings of stockholders.
(vii) To purchase or otherwise acquire for the Corporation any property, rights or privileges
which the Corporation is authorized to acquire, at such prices, on such terms and conditions and
for such consideration as it shall from time to time see fit, and, at its
discretion, to pay for any property, rights or privileges acquired by the Corporation, either
wholly or partly in money or in stocks, bonds, debentures or other securities of the Corporation.
(viii) To create, make and issue mortgages, bonds, deeds of trust, trust agreements and
negotiable or transferable instruments and securities, secured by mortgage or otherwise, and to do
every other act and thing necessary to effectuate the same.
(ix) To appoint and remove or suspend such subordinate officers, agents or servants,
permanently or temporarily, as it may from time to time think fit, and to determine their duties,
and fix, and from time to time change, their salaries or emoluments, and to require security in
such instances and in such amounts as it thinks fit.
(x) To determine who shall be authorized on the Corporations behalf to sign bills, notes,
receipts, acceptances, endorsements, checks, releases, contracts and documents.
Section 3-9.
Committees
. All committees of the Board of Directors, including
the executive committee, shall have the authority to adopt their own rules of procedure. Absent
the adoption of specific procedures, the procedures applicable to the Board of Directors shall also
apply to committees thereof. Adequate provision shall be made for notice to members of all
-16-
meetings; a majority of the members of a committee shall constitute a quorum unless the committee
shall consist of one (1) or two (2) members, in which event all members shall constitute a quorum;
and all matters shall be determined by a majority vote of the members present.
Section 3-10.
Compensation of Directors
. Compensation of Directors and
reimbursement of their expenses incurred in connection with the business of the Corporation, if
any, shall be as determined from time to time by resolution of the Board of Directors.
Section 3-11.
Removal of Directors by Stockholders
. The entire Board of
Directors or any individual Director may be removed from office, only for cause, and only by the
holders of 66-2/3% of the combined voting power of the then outstanding shares of stock entitled to
vote generally in the election of Directors, voting together as a single class. In case the entire
Board of Directors be so removed, new Directors may be elected at such time.
Section 3-12.
Resignations
. Any Director may resign at any time by submitting
his notice in writing or by electronic transmission to the Corporation. Such resignation shall
take effect at the time of its receipt by the Corporation unless another time be fixed in the
resignation, in which case it shall become effective at the time so fixed. The acceptance of a
resignation shall not be required to make it effective.
Section 3-13.
Vacancies
. Subject to the rights of the holders of any series
of preferred stock then outstanding and except as provided in Section 3-11 of these by-laws,
vacancies (whether created by removal, resignation, death or otherwise) and newly created
directorships resulting from any increase in the authorized number of Directors by the Board of
Directors shall be filled by a majority of the Directors then in office, although less than a
quorum, or by a sole remaining Director (and not by stockholders), and each person so elected shall
be a Director for a
-17-
term expiring at the annual meeting of stockholders at which the time of office
of the class to which they have been elected expires or until his successor is elected and
qualified or until his earlier resignation or removal. No decrease in the number of authorized
Directors shall shorten the term of any incumbent Director.
Section 3-14.
Participation by Conference Telephone or Other Means
. Directors
may participate in regular or special meetings of the Board or a committee designated by the Board
of Directors on which they serve by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear each other or as
otherwise permitted by law, and such participation shall constitute presence in person at the
meeting.
ARTICLE IV OFFICERS
Section 4-1.
Election and Office
. The Corporations principal officers shall
consist of a Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Treasurer, all of whom shall be elected, and may be removed, by the Board of Directors. The Board
of Directors may elect or remove, and, in addition, hereby delegates authority to the Chairman of
the Board or the Chief Executive Officer to elect or remove, such additional officers, including
Vice Presidents, as may be deemed desirable, including one or more assistant and honorary officers.
Any number of offices may be held by the same person.
Section 4-2.
Term
. The Chairman of the Board, the President, the Secretary
and the Treasurer shall each serve for a term of one year and until their respective successors are
chosen and qualified, unless they resign or are removed from office by the Board of Directors
during their respective tenures. The term of office of any other officer shall be as specified by
the Board of Directors or, if elected by the Chairman of the Board, the Chief Executive Officer or
the President, by the electing officer, subject to removal pursuant to Section 4-1 of these
by-laws.
-18-
Section 4-3.
Powers and Duties of the Chairman of the Board
. Unless otherwise
determined by the Board of Directors, the Chairman of the Board shall have the usual duties of such
an officer. In the exercise of these duties and subject to the limitations of the laws of the
State of Delaware, the Certificate of Incorporation, these by-laws, and the actions of the Board of
Directors, he shall preside at all meetings of the stockholders at which he shall be present, and
shall preside at all meetings of the Board of Directors at which he shall be present and, except as
may be precluded by law or rules applicable to the Corporation, including rules of a stock
exchange, or
unless otherwise specified by the Board of Directors, shall be a member of all committees
designated by the Board of Directors. He shall also do and perform such other duties as from time
to time may be assigned to him by the Board of Directors.
Section 4-4.
Powers and Duties of the Chief Executive Officer
. Unless
otherwise determined by the Board of Directors, the Chief Executive Officer shall have general
supervision over and direction of the affairs of the Corporation. In the exercise of these duties,
the Chief Executive Officer may appoint, suspend and discharge employees and agents. In addition,
he shall perform the duties of the Chairman of the Board when the Chairman is unable to do so and
shall preside at all meetings of the Board of Directors in the absence of the Chairman of the
Board. Unless otherwise determined by the Board of Directors, the Chief Executive Officer shall
have full power and authority on behalf of the Corporation to attend and to act and to vote at any
meeting of the stockholders of any corporation in which the Corporation may hold stock, and, at any
such meeting, shall possess and may exercise any and all of the rights and powers incident to the
ownership of such stock and which, as the owner thereof, the Corporation might have possessed and
exercised. He also shall have such other powers and perform such other duties as shall be
designated by the Board of Directors.
-19-
Section 4-5.
Powers and Duties of the President
. The President shall have
such powers and perform such duties as shall be designated by the Board of Directors or the Chief
Executive Officer.
Section 4-6.
Powers and Duties of Vice Presidents
. Each Vice President shall
have such powers and perform such duties as shall be designated by the Board of Directors or, if
elected by the Chairman of the Board, the Chief Executive Officer or the President, by the electing
officer.
Vice Presidents may be designated as having responsibility for a specific aspect of the
Corporations affairs.
Section 4-7.
Powers and Duties of the Secretary
. Unless otherwise determined
by the Board of Directors, the Secretary shall record all proceedings of the meetings of the
Corporation, the Board of Directors and all committees, in books to be kept for that purpose, and
shall attend to the giving and serving of all notices for the Corporation. He shall have charge of
the corporate seal, the certificate books, transfer books and stock ledgers, and such other books
and papers as the Board of Directors may direct. He shall perform all other duties ordinarily
incident to the office of Secretary and shall have such other powers and perform such other duties
as may be assigned to him by the Board of Directors.
Section 4-8.
Powers and Duties of the Treasurer
. Unless otherwise determined
by the Board of Directors, the Treasurer shall have charge of all the funds and securities of the
Corporation which may come into his hands. When necessary or proper, unless otherwise ordered by
the Board of Directors, he shall endorse for collection on behalf of the Corporation checks, notes
and other obligations, and shall deposit the same to the credit of the Corporation in such banks or
depositories as the Board of Directors may designate and shall sign all receipts and vouchers for
payments made to the Corporation. He shall sign all checks made by the
-20-
Corporation, except when
the Board of Directors shall otherwise direct. He shall enter regularly, in books of the
Corporation to be kept by him for that purpose, a full and accurate account of all moneys received
and paid by him on account of the Corporation. Whenever required by the Board of Directors, he
shall render a statement of the financial condition of the Corporation. He shall at all reasonable
times exhibit his books and accounts to any Director of the Corporation, upon application at the
office of the Corporation during business hours. He shall have such other powers and shall perform
such other
duties as may be assigned to him from time to time by the Board of Directors. He shall give
such bond, if any, for the faithful performance of his duties as shall be required by the Board of
Directors and any such bond shall remain in the custody of the President.
Section 4-9.
Delegation of Office
. Notwithstanding any provision hereof, the
Board of Directors may delegate the powers or duties of any officer of the Corporation to any other
officer or to any Director from time to time.
Section 4-10.
Vacancies
. The Board of Directors shall have the power to fill
any vacancies in any office occurring for whatever reason.
Section 4-11.
Resignations
. Any officer may resign at anytime by submitting
his written resignation to the Corporation. Such resignation shall take effect at the time of its
receipt by the Corporation, unless another time be fixed in the resignation, in which case it shall
become effective at the time so fixed. The acceptance of a resignation shall not be required to
make it effective.
ARTICLE V CAPITAL STOCK
Section 5-1.
Shares Represented by Certificates and Uncertificated Shares
.
The shares of capital stock of the Corporation shall be represented by a certificate, unless and
until the Board of Directors of the Corporation adopts a resolution permitting shares to be
uncertificated.
-21-
Notwithstanding the adoption of any such resolution providing for uncertificated
shares, every holder of capital stock of the Corporation represented by certificates and, upon
request, every holder of uncertificated shares, shall be entitled to retain or obtain a certificate
for shares of capital stock of the Corporation signed by, or in the name of the Corporation by, (a)
the Chairman of the Board of Directors, or the President or a Vice President, and (b) the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certifying the number of
shares owned by such stockholder in the Corporation. Any or all signatures on the certificate may
be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
Section 5-2.
Determination of Stockholders of Record
. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.
-22-
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
Section 5-3.
Transfer of Shares
. (a) Shares of the Corporation shall be
transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of shares
shall be made on the books of the Corporation, and in the case of certificated shares, only by the
person named in the certificate or by such persons attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; or, in the case of uncertificated shares, upon receipt of proper transfer
instructions from the registered holder of the shares or by such persons attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and compliance with
appropriate procedures for transferring shares in uncertificated form; provided, however, that such
surrender and endorsement, compliance or payment of taxes shall not be required in any case in
which the officers of the Corporation shall determine to waive such requirement. With respect to
certificated shares, every certificate exchanged, returned or surrendered to the Corporation shall
be marked Cancelled, with the date of cancellation, by the Secretary or Assistant Secretary of
the Corporation or the transfer agent thereof. No transfer of shares shall be valid as against the
-23-
Corporation for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section 5-4.
Lost, Stolen or Destroyed Share Certificates
. The Corporation
may issue a new certificate or uncertificated shares in place of any certificate theretofore issued
by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of
the alleged lost, stolen, or destroyed certificate, or his legal representative, to give the
Corporation a bond or other instrument acceptable to the Corporation sufficient to indemnify it
against any claim that may be made against it on account of the alleged lost, stolen or destroyed
certificate or the issuance of such new certificate or uncertificated shares.
ARTICLE VI NOTICES
Section 6-1.
Contents of Notice
. Whenever any notice of a meeting of
stockholders is required to be given pursuant to these by-laws or the Certificate of Incorporation
or otherwise, the notice shall specify the place, day and time of the meeting, and, in the case of
a special meeting or where otherwise required by law, the purpose of the meeting.
Section 6-2.
Method of Notice
. All notices shall be given to each person
entitled thereto by any means at the time permitted by applicable law. If the notice to
stockholders is sent by mail, it shall be deemed to have been given to the person entitled thereto
when deposited in the United States mail, postage prepaid, directed to the stockholder at such
stockholders address as it appears on the records of the Corporation. Without limiting the manner
in which notice otherwise may be given effectively to stockholders, any notice to stockholders may
be given by electronic transmission in the manner provided by law.
Section 6-3.
Waiver of Notice
. Whenever notice is required to be given under
any provision of law or of the Certificate of Incorporation or by-laws of the Corporation, a
written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by
the
-24-
person entitled to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, Directors, or members of a committee of Directors need be
specified in any written waiver of notice or waiver by electronic transmission unless so required
by the Certificate of Incorporation.
Section 6-4.
Computing Time Periods
. In computing the number of days for
purposes of these by
-
laws, all days shall be counted, including Saturdays, Sundays and
any holiday on which national banks are or may elect to be closed (Holiday). 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.
ARTICLE VII INDEMNIFICATION OF
DIRECTORS AND OFFICERS AND OTHER
PERSONS
Section 7-1.
Indemnification
. Subject to provisions in the Certificate of
Incorporation, the Corporation shall indemnify and hold harmless any Director, officer or employee
of the Corporation to the fullest extent permitted by 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 expenses (including legal fees), judgments, losses,
liability, fines and amounts paid in settlement, actually and reasonably
-25-
incurred or suffered by
him or her, in connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a proceeding), brought or
threatened to be brought against him by reason of the fact that he or she is or was a Director,
officer or employee of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee 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, employee or trustee or in any other capacity while serving as a director,
officer, employee or
trustee; provided, however, that except as provided the Certification of Incorporation of the
Corporation 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. In addition to the foregoing, the Corporation may provide indemnification under
this Section 7-1 for any indemnitee in those instances in which such indemnification, although
greater in scope or degree than that expressly provided by law, is deemed to be in the best
interest of the Corporation, by (a) a majority of disinterested Directors even though less than a
quorum (which may consist of only one Director if there is only one disinterested Director), (b) by
a committee of disinterested Directors designated by a majority of disinterested Directors, even
though less than a quorum, or (c) if there are no disinterested Directors, or if such disinterested
Directors so direct, by independent legal counsel in a written opinion.
Section 7-2.
Advances
. In addition to the right to indemnification conferred
in Section 7-1 of this Article VII, an indemnitee shall also have the right to be paid by the
Corporation the
-26-
expenses incurred (including attorneys fees) in connection with any proceeding in
advance of the final disposition of the proceeding (hereinafter an advancement of expenses);
provided, however, that, if required by law, any advancement of expenses incurred by an indemnitee
solely in his capacity as a director, officer or employee shall only be made 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 by the Corporation as provided in this Article or authorized by
law. No such undertaking is required in connection with the advancement of expenses incurred by an
indemnitee
acting in any other capacity in which service is or was rendered by such indemnitee,
including, without limitation, service to an employee benefit plan. The financial ability of any
such person to make such repayment shall not be considered in the making of an advance.
Section 7-3.
Independent Legal Counsel
. Independent legal counsel may be
appointed by the Board of Directors, even if a quorum of disinterested Directors is not available,
or by a person designated by the Board of Directors. If independent legal counsel, so appointed,
shall determine in a written opinion that indemnification is proper under this Article,
indemnification shall be made without further action of the Board of Directors.
Section 7-4.
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 corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
-27-
such, whether or not the Corporation would have the power to indemnify him against such liability
under law.
Section 7-5.
Nature of Rights.
The provisions of this Article VII shall be
contract rights, may only be amended, altered or repealed as to any Director or officer with that
persons consent (as further provided in Section 7-6), and shall be applicable to all actions,
suits or proceedings commenced after its adoption, whether such arise out of acts or omissions
which occurred prior or subsequent to such adoption and shall continue as to a person who has
ceased to be a Director, officer or employee, or to render services for or at the request of the
Corporation or, as the case may be, its parent or subsidiaries and shall inure to the benefit of
the heirs, executors and administrators of such a person. The rights of indemnification and
advancement provided for herein shall not be deemed exclusive of any other rights to which any
Director, officer or employee
of the Corporation may have or hereafter acquire under any statute, the Corporations
Certificate of Incorporation, these by-laws, agreement, vote of stockholders or Directors or
otherwise, both as to action in his or her official capacity and as to action in another capacity
while holding such office or position.
Section 7-6.
Amendment of this Article VII
. The provisions of this Article
VII relating to indemnification and to the advancement of expenses shall constitute a contract
between the Corporation and each of its current and former Directors and officers that may only be
modified as to any current or former Director or officer with that persons consent or as
specifically provided in this Section. Notwithstanding any other provision of these by-laws
relating to their amendment generally, any amendment, alteration or repeal of this Article VII that
adversely affects any right of any current or former Director or officer or his or her successors
to indemnification or to the advancement of expenses hereunder shall be prospective only and shall
-28-
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,
alteration or repeal. Notwithstanding any other provision of these by-laws, no repeal or amendment
of these by-laws shall affect any or all of this Article VII so as to limit indemnification or the
advancement of expenses in any manner unless adopted by (a) the unanimous vote of the Directors of
the Corporation then serving, or (b) the affirmative vote of stockholders entitled to cast not less
than 66 2/3% of the votes that all stockholders are entitled to cast in the election of Directors;
provided that no such amendment shall have retroactive effect inconsistent with the preceding
sentence.
ARTICLE VIII SEAL
The
form of the seal of the Corporation, called the corporate seal of the
Corporation, shall be as impressed adjacent hereto.
ARTICLE IX FISCAL YEAR
The Board of Directors shall have the power by resolution to fix the fiscal year of the
Corporation. If the Board of Directors shall fail to do so, the Chief Executive Officer shall fix
the fiscal year.
ARTICLE X AMENDMENTS
Subject to Section 7-6 of these by-laws, the Board of Directors may make, alter, amend or
repeal these by-laws, pursuant to the power conferred by the Certificate of Incorporation. Any
by-laws which the Directors make under the power conferred by the Certificate of Incorporation may
not be altered, amended or repealed, nor may any provisions inconsistent therewith, be adopted by
the stockholders, without the affirmative vote of the holders of at least 66 2/3% of the
-29-
voting power of the voting stock of the Corporation entitled to vote generally in the election of
Directors, voting together as a single class.
ARTICLE XI INTERPRETATION OF BY-LAWS; SEPARABILITY
Section 11-1.
Interpretation
. All words, terms and provisions of these
by-laws shall be interpreted and defined by and in accordance with the General Corporation Law of
the State of Delaware, as amended, and as amended from time to time hereafter. If any provision of
these by-laws shall be inconsistent with any provision of the Certificate of Incorporation, the
provision of the Certificate of Incorporation shall prevail. Where any provision of these by-laws
refers to a rule or a process as set forth in these by-laws, the reference shall be construed to
include and be satisfied by any rule or process on the same subject set forth in the Certificate of
Incorporation.
Section 11-2.
Separability
. The provisions of these by-laws are independent
of and separable from each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of them may be invalid
or unenforceable in whole or in part.
ARTICLE XII DETERMINATIONS BY THE BOARD OF DIRECTORS
Any determination involving interpretation or application of these by-laws made in good faith
by the Board of Directors shall be final, binding and conclusive on all parties in interest.
-30-