BY-LAWS
of
ACCO
BRANDS CORPORATION
(as
amended through December 19, 2008)
ARTICLE I
OFFICES
Section
1.
Registered Office in Delaware;
Resident Agent.
The address of the Company’s registered office
in the State of Delaware and the name and address of its resident agent in
charge thereof are as filed with the Secretary of State of the State of
Delaware.
Section
2.
Other Offices
. The
Company may also have an office or offices at such other place or places either
within or without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Company requires.
ARTICLE II
MEETINGS
OF STOCKHOLDERS
Section
1.
Place of
Meetings
. All meetings of the stockholders of the Company
shall be held at such place, within or without the State of Delaware, as may
from time to time be designated by resolution passed by the Board of
Directors. The Board of Directors may, in its sole discretion,
determine that the meetings shall not be held at any place, but may instead be
held solely by means of remote communication.
Section
2.
Annual Meeting
. An
annual meeting of the stockholders for the election of directors and for the
transaction of such other proper business, notice of which was given in the
notice of meeting, shall be held on a date and at a time as may from time to
time be designated by resolution passed by the Board of Directors.
Section
3.
Special Meetings
. A
special meeting of the stockholders for any purpose or purposes shall be called
only by the Board of Directors pursuant to a resolution adopted by a majority of
the whole Board.
Section
4.
Notice of
Meetings
. Except as otherwise provided by law, written notice
of each meeting of the stockholders, whether annual or special, shall be mailed,
postage prepaid, or sent by electronic transmission not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled to
vote at such meeting, at the stockholder’s address as it appears on the records
of the Company. Every such notice shall state the place, date and
hour of the meeting, the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person or by proxy
and vote at such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Notice of any adjourned
meeting of the stockholders shall not be required to be given, except when
expressly required by law.
Section
5.
List of
Stockholders
. The Secretary shall, from information obtained
from the transfer agent, prepare and make, at least ten 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 open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary
business
hours, for a period of at least ten days prior to the
meeting: (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (b) during ordinary business hours, at
the principal place of business of the Company. In the event that the
Company determines to make the list available on an electronic network, the
Company may take reasonable steps to ensure that such information is available
only to stockholders of the Company. If the meeting is to be held at
a specified place, then the list shall be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
the list shall be provided with the notice of the meeting. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list referred to in this section or the books of
the Company, or to vote in person or by proxy at any meeting of
stockholders.
Section
6.
Quorum
. At each
meeting of the stockholders, the holders of a majority of the issued and
outstanding stock of the Company present either in person or by proxy shall
constitute a quorum for the transaction of business except where otherwise
provided by law or by the Certificate of Incorporation or by these By-laws for a
specified action. Except as otherwise provided by law, in the absence
of a quorum, a majority in interest of the stockholders of the Company present
in person or by proxy and entitled to vote shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until stockholders holding the requisite amount of stock shall be
present or represented. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at a meeting as originally called, and only those stockholders
entitled to vote at the meeting as originally called shall be entitled to vote
at any adjournment or adjournments thereof. The absence from any
meeting of the number of stockholders required by law or by the Certificate of
Incorporation or by these By-laws for action upon any given matter shall not
prevent action at such meeting upon any other matter or matters which may
properly come before the meeting, if the number of stockholders required in
respect of such other matter or matters shall be present.
Section
7.
Organization
. At
every meeting of the stockholders, the Chairman of the Board, or in the absence
of the Chairman of the Board, any director designated by the Board of Directors,
shall act as chairman of the meeting. The Secretary, or, in the
Secretary’s absence, an Assistant Secretary, shall act as secretary at all
meetings of the stockholders. In the absence from any such meeting of
the Secretary and the Assistant Secretaries, the chairman may appoint any person
to act as secretary of the meeting.
Section
8.
Notice of Stockholder Business and
Nominations
.
(A)
Annual Meetings of
Stockholders
. (1) Nominations of persons for election to
the Board of Directors of the Company and the proposal of other business to be
considered by the stockholders may be made at an annual meeting of stockholders
only (a) pursuant to the Company’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 Company who (i) was a stockholder of record
of the Company at the time the notice provided for in this by-law is provided to
the Secretary of the Company and at the time of the annual meeting, (ii) is
entitled to vote at the meeting, and (iii) complies with the notice procedures
set forth in this by-law. Clause (c) of the preceding sentence shall
be the exclusive means for a stockholder to make nominations or submit other
business (other than matters properly brought under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in
the Company’s notice of meeting) before an annual meeting of
stockholders.
(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
by-law, the stockholder must have given timely notice thereof in writing to the
Secretary of the Company and any such other business 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
Company not earlier than the close of business on the 120th day nor later than
the close of business on the 90th 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 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
Company. In no event shall the public announcement of an adjournment
or postponement 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.
(3) A
stockholder’s notice delivered pursuant to this by-law shall set forth
(a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director (i) all information relating to such
nominee that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the Exchange Act
and (ii) such person’s written consent to being named in the proxy statement as
a nominee and to serving 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 by-laws of the Company, 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
Company’s books, and of such beneficial owner, (ii) the class or series and
number of shares of capital stock of the Company which are owned beneficially
and of record by such stockholder and such beneficial owner, (iii) a description
of any agreement, arrangement or understanding with respect to the nomination or
proposal between or among such stockholder and such beneficial owner, any of
their respective affiliates or associates, and any others acting in concert with
any of the foregoing, (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, stock appreciation or similar rights, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the
stockholder’s notice by, or on behalf of, such stockholder and/or such
beneficial owners, the effect or intent of which is to mitigate loss to, manage
risk or benefit of share price changes for, or increase or decrease the voting
power of, such stockholder and such beneficial owner, with respect to shares of
stock of the Company, (v) a representation that the stockholder is a holder of
record of stock of the Company 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 (vi) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends (a) to deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Company’s outstanding capital stock required to approve or adopt the
proposal or elect the nominee or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the Company of his or her intention to present a proposal at an annual
meeting
in compliance with Rule 14a-8 (or any successor thereof) promulgated under the
Exchange Act and such stockholder’s proposal has been included in a proxy
statement that has been prepared by the Company to solicit proxies for such
annual meeting. The Company may require any proposed nominee to
furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the
Company. Notwithstanding the foregoing, the information required by
clauses (A)(3)(c)(ii), (A)(3)(c)(iii) and (A)(3)(c)(iv) of this by-law shall be
updated by such stockholder and beneficial owner, if any, not later than 10 days
after the record date for the meeting to disclose such information as of the
record date.
(4) Notwithstanding
anything in the second sentence of paragraph (A)(2) of this by-law to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Company at an annual meeting is increased and there is no
public announcement by the Company naming all of the nominees for the additional
directorships or specifying the size of the increased Board of Directors at
least 100 days prior to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice required by this by-law shall also be considered
timely, but only with respect to nominees for the additional directorships, if
it shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the 10th day following the day
on which such public announcement is first made by the Company.
(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 Company’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 Company’s
notice of meeting (1) by or at the direction of the Board of Directors or
(2) provided that the Board of Directors has determined that directors
shall be elected at such meeting, by any stockholder of the Company who (a) is a
stockholder of record of the Company at the time the notice provided for in this
by-law is provided to the Secretary of the Company and at the time of the
special meeting, (b) is entitled to vote at the meeting and (c) complies with
the notice procedures set forth in this by-law, including paragraph (A)(3)
hereof. Clause (2) of this paragraph (B) shall be the exclusive means
for a stockholder to make nominations before a special meeting of
stockholders. For nominations to be properly brought by a stockholder
before a special meeting pursuant to clause (2) of this paragraph (B), the
stockholder must have given timely notice thereof in writing to the Secretary of
the Company. To be timely, a stockholder’s notice shall be delivered
to the Secretary at the principal executive offices of the Company 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 or postponement 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 by-law shall be eligible to be elected at an annual or special meeting of
the Company to serve as directors and only such other 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 this
by-law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the chairman of the meeting shall have the power
and duty (a) to determine whether a nomination or any other 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 by-law (including whether the stockholder or beneficial owner, if any, on
whose behalf the nomination or proposal is made solicited (or is part of a group
which solicited) or did not so solicit, as the case may be, proxies in support
of such stockholder’s nominee or proposal in compliance with such stockholder’s
representation as required by clause (A)(3)(c)(vi) of this by-law) and (b), if
any proposed nomination or other business is determined to not have been made or
proposed in compliance with this by-law, to declare that such nomination shall
be disregarded or that such proposed other business shall not be transacted.
Notwithstanding the foregoing provisions of this by-law, if the stockholder (or
a qualified representative of the stockholder) does not appear at the annual or
special meeting of stockholders of the Company to present a nomination or other
business, such nomination shall be disregarded and such proposed other business
shall not be transacted, notwithstanding that proxies in respect of such vote
may have been received by the Company. For purposes of this by-law,
to be considered a qualified representative of the stockholder, a person must be
a duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) For
purposes of this by-law, “public announcement” shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Company
with the Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(3) Notwithstanding
the foregoing provisions of this by-law, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this by-law, provided
however, that any references in these By-laws to the Exchange Act or the rules
promulgated thereunder are not intended to and shall not limit any requirements
applicable to nominations or proposals as to any other business to be considered
pursuant to this by-law (including clause (A)(1)(c) and clause (B)(2) hereof),
and compliance with clause (A)(1)(c) and clause (B)(2) of this by-law shall be
the exclusive means for a stockholder to make nominations or submit other
business, as applicable (other than matters brought properly under and in
compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to
time). Nothing in this by-law shall be deemed to affect any rights
(i) of stockholders to request inclusion of proposals in the Company’s
proxy statement pursuant to applicable rules and regulations under the Exchange
Act or (ii) of the holders of any series of Preferred Stock of the Company
to elect directors under specified circumstances.
Section
9.
Business and Order of
Business
. At each meeting of the stockholders such business
may be transacted as may properly be brought before such meeting, except as
otherwise provided by law or in these By-laws. The order of business
at all meetings of the stockholders shall be as determined by the chairman of
the meeting, unless otherwise determined by a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereat.
Section
10.
Voting
. Except as
otherwise provided by law, the Certificate of Incorporation or these By-laws,
each stockholder shall at every meeting of the stockholders be entitled to one
vote for each share of stock held by such stockholder. Any vote of
share of stock may be given by the stockholder entitled thereto in person or by
proxy appointed by an instrument in writing, subscribed (or transmitted by
electronic means and authenticated as provided by law) by such stockholder or by
the stockholder’s attorney thereunto authorized, and delivered to the Secretary;
provided, however, that no proxy shall be voted after three years from its date
unless the proxy provides for a longer period. Except as otherwise
provided
by law, the Certificate of Incorporation or these By-laws, at all meetings of
the stockholders, all matters shall be decided by the vote (which need not be by
ballot) of a majority in interest of the stockholders present in person or by
proxy and entitled to vote thereat, a quorum being present.
ARTICLE III
BOARD
OF DIRECTORS
Section
1.
General Powers
. The
property, affairs and business of the Company shall be managed by or under the
direction of its Board of Directors.
Section
2.
Number, Qualifications, and Term of
Office
. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the
number of directors of the Company shall be no fewer than eight and no greater
than eleven and shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole
Board. A director need not be a stockholder.
At each
annual meeting of the stockholders beginning with the 2008 annual meeting of
stockholders, directors shall be elected for a term of office to expire at the
next annual meeting of stockholders; provided, however, that any director who
prior to the 2008 annual meeting of stockholders was elected to a term that
continues beyond the date of the 2008 annual meeting of stockholders shall
continue in office for the remainder of his or her elected term. Each
director shall hold office until such director’s successor is duly elected and
qualified or until his or her earlier death, resignation or
removal.
Section
3.
Election of
Directors
. At each meeting of the stockholders for the
election of directors at which a quorum is present, the directors shall be
elected by a plurality vote of all votes cast for the election of directors at
such meeting.
Section
4.
Quorum and Manner of
Acting
. A majority of the members of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting, and
the act of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the Board of Directors unless otherwise provided
by law, the Certificate of Incorporation or these By-laws. In the
absence of a quorum, a majority of the directors present may adjourn any meeting
from time to time until a quorum shall be obtained. Notice of any
adjourned meeting need not be given. The directors shall act only as
a board and the individual directors shall have no power as such.
Section
5.
Place of
Meetings
. The Board of Directors may hold its meetings at such
place or places within or without the State of Delaware as the Board may from
time to time determine or as shall be specified or fixed in the respective
notices or waivers of notice thereof.
Section
6.
First
Meeting
. Promptly after each annual election of directors, the
Board of Directors shall meet for the purpose of organization, the election of
officers and the transaction of other business, at the same place as that at
which the annual meeting of stockholders was held or as otherwise determined by
the Board. Notice of such meeting need not be given. Such
meeting may be held at any other time or place which shall be specified in a
notice given as hereinafter provided for special meetings of the Board of
Directors.
Section
7.
Regular
Meetings
. Regular meetings of the Board of Directors shall be
held at such places and at such times as the Board shall from time to time
determine. If any day fixed for a regular meeting shall be a legal
holiday at the place where the meeting is to be held, then the
meeting
which
would otherwise be held on that day shall be held at the same hour on the next
succeeding business day not a legal holiday. Notice of regular
meetings need not be given.
Section
8.
Special Meetings;
Notice
. Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board and shall be called by the
Chairman of the Board or the Secretary of the Company at the written request of
three directors. Notice of each such meeting stating the time and
place of the meeting shall be given to each director by mail, telephone, other
electronic transmission or personally. If by mail, such notice shall
be given not less than five days before the meeting; and if by telephone, other
electronic transmission or personally, not less than two days before the
meeting. A notice mailed at least two weeks before the meeting need
not state the purpose thereof except as otherwise provided in these
By-laws. In all other cases the notice shall state the principal
purpose or purposes of the meeting. Notice of any meeting of the
Board need not be given to a director, however, if waived by the director in
writing before or after such meeting or if the director shall be present at the
meeting, except when the director attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
Section
9.
Organization
. The
Board of Directors shall annually appoint one of its members to be Chairman of
the Board and shall fill any vacancy in the position of Chairman of the Board at
such time and in such manner as the Board of Directors shall
determine. He or she shall have the power to call special meetings of
the Board of Directors, shall preside at meetings of the Board of Directors and
of stockholders and shall perform such other duties and services and have such
responsibilities as may be assigned to or required of the Chairman by the Board
of Directors. At each meeting of the Board of Directors, the Chairman
of the Board, or, in the absence of the Chairman of the Board, any director of
the Company designated by the Board of Directors, shall act as chairman of the
meeting. The Secretary, or, in the Secretary’s absence, any person
appointed by the chairman of the meeting, shall act as secretary of the
meeting.
Section
10.
Order of
Business
. At all meetings of the Board of Directors, business
shall be transacted in the order determined by the Board.
Section
11.
Resignations
. Any
director of the Company may resign at any time by giving written notice to the
Chairman of the Board or the Secretary of the Company. The
resignation of any director shall take effect at the time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section
12.
Compensation
. Each
director shall be paid such compensation, if any, as shall be fixed by the Board
of Directors.
ARTICLE IV
COMMITTEES
Section
1.
Appointment and
Powers
. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of two or more directors of the Company (or in the case of a
special-purpose committee, one or more directors of the Company), which, to the
extent provided in said resolution or in these By-laws and not inconsistent with
Section 141 of the Delaware General Corporation Law shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Company, and may authorize the seal of the Company to be
affixed to all papers which may require it. Such committee or
committees
shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section
2.
Term of Office and
Vacancies
. Each member of a committee shall continue in office
until a director to succeed him or her shall have been elected and shall have
qualified, or until he or she ceases to be a director or until he or she shall
have resigned or shall have been removed in the manner hereinafter
provided. Any vacancy in a committee shall be filled by the vote of a
majority of the whole Board of Directors at any regular or special meeting
thereof.
Section
3.
Alternates
. The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee.
Section
4.
Organization
. Unless
otherwise provided by the Board of Directors, each committee shall appoint a
chairman. Each committee shall keep a record of its acts and
proceedings and report the same from time to time to the Board of
Directors.
Section
5.
Resignations
. Any
regular or alternate member of a committee may resign at any time by giving
written notice to the Chairman of the Board, the Chief Executive Officer (if
any) or the Secretary of the Company. Such resignation shall take
effect at the time 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
6.
Removal
. Any
regular or alternate member of a committee may be removed with or without cause
at any time by resolution passed by a majority of the whole Board of Directors
at any regular or special meeting.
Section
7.
Meetings
. Regular
meetings of each committee, of which no notice shall be necessary, shall be held
on such days and at such places as the chairman of the committee shall determine
or as shall be fixed by a resolution passed by a majority of all the members of
such committee. Special meetings of each committee will be called by
the Secretary at the request of any two members of such committee, or in such
other manner as may be determined by the committee. Notice of each
special meeting of a committee shall be mailed to each member thereof at least
two days before the meeting or shall be given personally or by telephone or
other electronic transmission at least one day before the
meeting. Every such notice shall state the time and place, but need
not state the purposes of the meeting. Notice of any meeting of any
committee need not be given to a director, however, if waived by the director in
writing before or after such meeting or if the director shall be present at the
meeting, except when the director attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. No notice of
any meeting of a committee shall be required to be given to any
alternate.
Section
8.
Quorum and Manner of
Acting
. Unless otherwise provided by resolution of the Board
of Directors, a majority of a committee (including alternates when acting in
lieu of regular members of such committee) shall constitute a quorum for the
transaction of business and the act of a majority of those present at a meeting
at which a quorum is present shall be the act of such committee. The
members of each committee shall act only as a committee and the individual
members shall have no power as such.
Section
9.
Compensation
. Each
regular or alternate member of a committee shall be paid such compensation, if
any, as shall be fixed by the Board of Directors.
ARTICLE V
OFFICERS
Section
1.
Officers
. The
officers of the Company shall be appointed by the Board of
Directors. The Board of Directors may appoint a Chief Executive
Officer, a President, one or more Vice Presidents (one or more of whom may be
Executive Vice Presidents, Senior Vice Presidents or otherwise as may be
designated by the Board), and shall also choose a Secretary and a
Treasurer. Any two or more offices not inconsistent with each other
may be held by the same person. The Board of Directors may also from
time to time elect such other officers as it deems necessary.
Section
2.
Term of
Office
. Each officer shall hold office until his or her
successor shall have been duly elected and qualified in his or her stead, or
until his or her death or until he or she shall have resigned or shall have been
removed in the manner hereinafter provided.
Section
3.
Additional Officers;
Agents
. The Chairman of the Board may from time to time
appoint and remove such additional officers and agents as may be deemed
necessary. Such persons shall hold office for such period, have such
authority, and perform such duties as provided in these By-laws or as the
Chairman of the Board may from time to time prescribe. The Board of
Directors or the Chairman of the Board may from time to time authorize any
officer to appoint and remove agents and employees and to prescribe their powers
and duties.
Section
4.
Salaries
. Unless
otherwise provided by resolution passed by a majority of the whole Board, the
salaries of all officers elected by the Board of Directors shall be fixed by the
Board of Directors.
Section
5.
Removal
. Except
where otherwise expressly provided in a contract authorized by the Board of
Directors, any officer may be removed, either with or without cause, by the vote
of a two-thirds majority of the Board at any regular or special meeting or,
except in the case of an officer elected by the Board, by any superior officer
upon whom the power of removal may be conferred by the Board or by these
By-laws.
Section
6.
Resignations
. Any
officer elected by the Board of Directors may resign at any time by giving
written notice to the Chairman of the Board, the Chief Executive Officer (if
any) or the Secretary. Any other officer may resign at any time by
giving written notice to the Chairman of the Board, or the Chief Executive
Officer (if any). Any such resignation shall take effect at the date
of 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
7.
Vacancies
. A
vacancy in any office because of death, resignation, removal or otherwise, shall
be filled for the unexpired portion of the term in the manner provided in these
By-laws for regular election or appointment to such office.
Section
8.
Chief Executive
Officer
. The Chief Executive Officer of the Company (if any)
shall have general direction of its business affairs, subject, however, to the
control of the Board of Directors. Such person shall perform such
other duties and have such responsibilities as the Board may from time to time
determine. At the request of the Chairman of the Board or in case of
his or her absence or disability, the Chief Executive Officer, or if there is no
Chief Executive Officer such other elected officer designated by the Chairman of
the Board in writing filed with the records of the Secretary, shall perform the
duties of the Chairman of the Board, subject to the control of the Board of
Directors and the
power of
the Board of Directors to fill any vacancy in the position of Chairman of the
Board at such time and in such manner as the Board of Directors shall
determine.
Section
9.
President and Vice
Presidents
. The President (if any), the Executive Vice
Presidents (if any), the Senior Vice Presidents (if any) and such other Vice
Presidents as shall have been chosen shall have such powers and perform such
duties as shall at any time be delegated to them by the Board of
Directors.
Section
10.
Secretary
. The
Secretary shall give the requisite notice of meetings of stockholders and
directors and shall record the proceedings of such meetings, shall have the
custody of the seal of the Company and shall affix it or cause it to be affixed
to such instruments as require the seal and attest it and, besides his or her
powers and duties prescribed by law, shall have such other powers and perform
such other duties as shall at any time be required of him or her by the Board of
Directors.
Section
11.
Assistant
Secretaries
. The Assistant Secretaries shall assist the
Secretary in the discharge of his or her duties and shall have such powers and
perform such other duties as shall at any time be delegated to them by the Board
of Directors, and in the absence or disability of the Secretary, shall perform
the duties of his or her office, subject to the control of the
Board.
Section
12.
Treasurer
. The
Treasurer shall have charge of the funds and securities of the Company and shall
have such powers and perform such duties as shall at any time be delegated to
him or her by the Board of Directors.
Section
13.
Assistant
Treasurers
. The Assistant Treasurers shall assist the
Treasurer in the discharge of his or her duties and shall have such powers and
perform such other duties as shall at any time be delegated to them by the Board
of Directors, and in the absence or disability of the Treasurer, shall perform
the duties of his or her office subject to the control of the
Board.
ARTICLE VI
AUTHORIZATIONS
Section
1.
Contracts
. The
Board of Directors, except as in these By-laws otherwise provided, may authorize
any officer, employee or agent of the Company to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the Company,
and such authority may be general or confined to specific
instances.
Section
2.
Loans
. No loan
shall be contracted on behalf of the Company and no negotiable paper shall be
issued in its name, unless authorized by the Board of Directors.
Section
3.
Checks, Drafts,
Etc
. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Company shall be signed by such officer or officers, employee or employees, of
the Company as shall from time to time be determined in accordance with
authorization of the Board of Directors.
Section
4.
Deposits
. All funds
of the Company shall be deposited from time to time to the credit of the Company
in such banks, trust companies or other depositories as the Board of Directors
may from time to time designate, or as may be designated by any officer or
officers of the Company to whom such power may be delegated by the Board, and
for the purpose of such deposit the officers and employees who have been
authorized to do so in accordance with the determinations of the Board
may
endorse,
assign and deliver checks, drafts, and other orders for the payment of money
which are payable to the order of the Company.
Section
5.
Proxies
. Except as
otherwise provided in these By-laws or in the Certificate of Incorporation, and
unless otherwise provided by resolution of the Board of Directors, the Chairman
of the Board, the Chief Executive Officer (if any) or any other officer may from
time to time appoint an attorney or attorneys or agent or agents of the Company,
in the name and on behalf of the Company, to cast the votes which the Company
may be entitled to cast as a stockholder or otherwise in any other corporation
any of whose stock or other securities may be held by the Company, at meetings
of the holders of the stock or other securities of such other corporations, or
to consent in writing to any action by such other corporation, and may instruct
the person or persons so appointed as to the manner of casting such vote or
giving such consent, and may execute or cause to be executed in the name and on
behalf of the Company and under its corporate seal, or otherwise, all such
written proxies or other instruments as such officer may deem necessary or
proper in the premises.
ARTICLE VII
INDEMNIFICATION
Section
1.
Proceedings Other Than Proceedings by
or in the Right of the Company
. The Company 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 Company), by reason of the fact that such person is or was a
director, officer, employee or agent of the Company or any of its majority-owned
subsidiaries or is or was serving at the request of the Company as a director,
officer, employee or agent (except in each of the foregoing situations to the
extent any written agreement, arrangement or understanding of agency to which
such person is a party contains provisions that supersede or abrogate
indemnification under this Section 1) of another corporation or of any
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or 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 such person reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section
2.
Proceedings by or in the Right of the
Company
. The Company 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 or suit by or in the right of the Company to procure a judgment
in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the Company or any of its majority-owned
subsidiaries, or is or was serving at the request of the Company as a director,
officer, employee or agent (except in each of the foregoing situations to the
extent any written agreement, arrangement or understanding of agency to which
such person is a party contains provisions that supersede or abrogate
indemnification under this Section 2) of another corporation or of any
partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Company and 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 Company unless and only to the extent that the Court of
Chancery of Delaware 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 of Delaware
or such other court shall deem proper.
Section
3.
Indemnification for Expenses of
Person Who Is Wholly or Partly Successful
. To the extent that
a director, officer, employee or agent of the Company or any of its majority
owned subsidiaries has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1 or 2 of this
Article VII, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by or on behalf of such person in connection
therewith. If any such person is not wholly successful in any such
action, suit or proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters therein, the Company
shall indemnify such person against all expenses (including attorneys’ fees)
actually and reasonably incurred by or on behalf of such person in connection
with each claim, issue or matter that is successfully resolved. For
purposes of this Article VII and without limitation, the termination of any
claim, issue or matter by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or matter.
Section
4.
Indemnification for Expenses of a
Witness
. Notwithstanding any other provision of this
Article VII, to the extent any person is a witness in, but not a party to,
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of the Company or any of its majority-owned
subsidiaries, or is or was serving at the request of the Company as a director,
officer, employee or agent (except in each of the foregoing situations to the
extent any written agreement, arrangement or understanding of agency to which
such person is a party contains provisions that supersede or abrogate
indemnification under this Section 4) of another corporation or of any
partnership, joint venture, trust, employee benefit plan or other enterprise,
such person shall be indemnified against all expenses (including attorneys’
fees) actually and reasonably incurred by or on behalf of such person in
connection therewith.
Section
5.
Determination of Right to
Indemnification
. Indemnification under Sections 1 and 2
of this Article VII shall be made only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or 2 of this Article VII,
as the case may be. Such determination shall be made (1) if a
Change of Control (as hereinafter defined) shall not have occurred, (a) by
the Board of Directors by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum, or (b) if there are
no Disinterested Directors or, even if there are Disinterested Directors, a
majority of such Disinterested Directors so directs, by (x) Independent
Counsel (as hereinafter defined) in a written opinion to the Board of Directors,
a copy of which shall be delivered to the claimant, or (y) if the Board of
Directors so directs, the stockholders of the Company; or (2) if a Change
of Control shall have occurred, by Independent Counsel selected by the claimant
in a written opinion to the Board of Directors, a copy of which shall be
delivered to the claimant, unless the claimant shall request that such
determination be made by or at the direction of the Board of Directors, in which
case it shall be made in accordance with clause (1) of this
sentence. Any claimant shall be entitled to be indemnified against
the expenses (including attorneys’ fees) actually and reasonably incurred by
such claimant in cooperating with the person or entity making the determination
of entitlement to indemnification (irrespective of the determination as to the
claimant’s entitlement to indemnification) and, to the extent successful, in
connection with any litigation or arbitration with respect to such claim or the
enforcement thereof.
Section
6.
Timing of Determination of Right to
Indemnification
. If a Change of Control shall not have
occurred, or if a Change of Control shall have occurred and a director, officer,
employee or agent requests pursuant to clause (2) of the second sentence in
Section 5 of this Article VII that the determination as to whether the
claimant is entitled to indemnification be made by or at the direction of the
Board of Directors, the claimant shall be conclusively presumed to have been
determined pursuant to Section 5 of this Article VII to be entitled to
indemnification if (a)(i) within fifteen days after the next regularly
scheduled meeting of the Board of Directors following receipt by the Company of
the request therefor, the Board of Directors shall not have resolved by majority
vote of the Disinterested Directors to submit such determination to
(x) Independent Counsel for its determination or (y) the stockholders
for their determination at the next annual meeting, or any special meeting that
may be held earlier, after such receipt, and (ii) within sixty days after
receipt by the Company of the request therefor (or within ninety days after such
receipt if the Board of Directors in good faith determines that additional time
is required by it for the determination and, prior to expiration of such
sixty-day period, notifies the claimant thereof), the Board of Directors shall
not have made the determination by a majority vote of the Disinterested
Directors, or (b) after a resolution of the Board of Directors, timely made
pursuant to clause (a)(i)(y) above, to submit the determination to the
stockholders, the stockholders meeting at which the determination is to be made
shall not have been held on or before the date prescribed (or on or before a
later date, not to exceed sixty days beyond the original date, to which such
meeting may have been postponed or adjourned on good cause by the Board of
Directors acting in good faith); provided, however, that this sentence shall not
apply if the claimant has misstated or failed to state a material fact in
connection with his or her request for indemnification. Such presumed
determination that a claimant is entitled to indemnification shall be deemed to
have been made (I) at the end of the sixty-day or ninety-day period (as the
case may be) referred to in clause (a)(ii) of the immediately preceding
sentence or (II) if the Board of Directors has resolved on a timely basis
to submit the determination to the stockholders, on the last date within the
period prescribed by law for holding such stockholders meeting (or a
postponement or adjournment thereof as permitted above).
Section
7.
Advancement of
Expenses
. Expenses (including attorneys’ fees) incurred in
defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Company, at the sole discretion of the Board of
Directors, in advance of the final disposition of such action, suit or
proceeding, promptly after receipt of a request therefor stating in reasonable
detail the expenses incurred; provided that in each case the Company shall have
received an undertaking by or on behalf of the present or former director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Company as
authorized in this Article VII.
Section
8.
Procedures
. The
Board of Directors may, from time to time, establish reasonable procedures for
the submission of claims for indemnification pursuant to this Article VII,
determination of the entitlement of any person thereto and review of any such
determination.
Section
9.
Definitions
. For
purposes of this Article VII:
(1) “Change
of Control” means any of the following:
(a) The
acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 30% or more of either (i) the then outstanding shares of
common stock of the Company (the “Outstanding Corporation Common Stock”) or
(ii) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
“Outstanding Corporation Voting Securities”); provided,
however,
that for purposes of this subsection (a), the following acquisitions shall
not constitute a Change of Control: (w) any acquisition directly from the
Company, (x) any acquisition by the Company, (y) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (z) any acquisition
pursuant to a transaction which complies with clauses (i), (ii) and (iii)
of subsection (c) of this Section 9(1); or
(b) Individuals
who, as of August 17, 2005, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual becoming a director subsequent
to that date whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of Directors;
or
(c) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company or the acquisition of assets
of another entity (a “Corporate Transaction”), in each case, unless, following
such Corporate Transaction, (i) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors or members of
any other governing body, as the case may be, of the corporation or other legal
entity resulting from such Corporate Transaction, respectively (including,
without limitation, a corporation or other legal entity which as a result of
such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities, as the case may be, (ii) no Person
(excluding any employee benefit plan (or related trust) of the Company or of
such corporation resulting from such Corporate Transaction) beneficially owns,
directly or indirectly, 30% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the then outstanding voting
securities of such corporation or the then outstanding securities with the
combined voting power entitled under ordinary circumstances to elect a majority
of the members of the governing body of any other legal entity resulting from
such Corporation Transaction except to the extent that such ownership existed
prior to the Corporate Transaction and (iii) at least a majority of the
members of the board of directors of the corporation or other governing body of
any legal entity resulting from such Corporate Transaction were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such Corporate Transaction;
or
(d) Approval
by the Company’s stockholders of a complete liquidation or dissolution of the
Company.
(2) “Disinterested
Director” means a director of the Company who is not and was not a party to an
action, suit or proceeding in respect of which indemnification is sought by a
director, officer, employee or agent.
(3) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(4) “Independent
Counsel” means a law firm, or a member of a law firm, that (i) is
experienced in matters of corporation law; (ii) neither presently is, nor
in the past five years has been, retained to represent the Company, the
director, officer, employee or agent claiming indemnification or any other party
to the action, suit or proceeding giving rise to a claim for indemnification
under this Article VII, in any matter material to the Company, the claimant
or any such other party; and (iii) would not, under applicable standards of
professional conduct then prevailing, have a conflict of interest in
representing either the Company or such director, officer, employee or agent in
an action to determine the Company’s or such person’s rights under this
Article VII.
Section
10.
Nonexclusivity; Survival of
Rights
. The indemnification and advancement of expenses herein
provided, or granted pursuant hereto, shall not be deemed exclusive of any other
rights to which any of those indemnified or eligible for advancement of expenses
may be entitled under any agreement, vote of stockholders or Disinterested
Directors or otherwise, both as to action in such person’s 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 a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such
person. Notwithstanding any amendment, alteration or repeal of this
Article VII or any of its provisions, or of any of the procedures that may
be established by the Board of Directors pursuant to Section 8 of this
Article VII, any person who is or was a director, officer, employee or
agent of the Company or any of its majority-owned subsidiaries or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of any partnership, joint venture, employee benefit
plan or other enterprise shall be entitled to indemnification in accordance with
the provisions hereof and thereof, if applicable, with respect to any action
taken or omitted prior to such amendment, alteration or repeal except to the
extent otherwise required by law.
Section
11.
Indemnification for Actions Against
the Company
. No indemnification shall be payable pursuant to
this Article VII with respect to any action against the Company commenced
by an officer, director, employee or agent unless the Board of Directors shall
have authorized the commencement thereof or unless and to the extent that this
Article VII or the procedures that may be established pursuant to
Section 8 of this Article VII shall specifically provide for
indemnification of expenses relating to the enforcement of rights under this
Article VII and such procedures, if applicable.
Section
12.
Vesting of Rights to
Indemnification
. Notwithstanding any amendment, alteration or
repeal of any provision of this Article VII, all rights to indemnification and
advancement hereunder vest in a director or officer of the Company at the time
such person is or becomes a director or officer of the Company, and any director
or officer of the Company shall be entitled, to the maximum extent permitted by
law, to the benefits of this Article VII with respect to any claim for
indemnification arising out of any action taken or omitted prior to such
amendment, alteration or repeal.
ARTICLE VIII
SHARES
AND THEIR TRANSFER
Section
1.
Shares of
Stock
. The shares of the stock of the Company shall be
uncertificated shares, as approved by the Board of Directors.
Section
2.
Record Ownership
. A
record of the name and address of each holder of the shares of the Company, the
number of shares held by such stockholder and the date of issuance of the shares
held by such stockholder shall be made on the Company’s books. The
Company shall be entitled to treat the holder of record of any share of stock
(including any holder registered in a book-entry or direct registration system
maintained by the Company or a transfer agent or a registrar designated by the
Board of Directors) as the holder in fact thereof and accordingly shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice thereof, except as required by law.
Section
3.
Transfer of
Stock
. Shares of stock shall be transferable on the books of
the Company by the holder of record of such stock in person or by such person’s
attorney or other duly constituted representative, pursuant to applicable law
and such rules and regulations as the Board of Directors shall from time to time
prescribe.
Section
4.
Transfer Agent and Registrar;
Regulations
. The Company shall, if and whenever the Board of
Directors shall so determine, maintain one or more transfer offices or agencies,
each in charge of a transfer agent designated by the Board of Directors, where
the shares of the stock of the Company shall be directly transferable, and also
one or more registry offices, each in charge of a registrar designated by the
Board of Directors, where such shares of stock shall be
registered. The Board of Directors may also make such additional
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of shares of stock of the Company and concerning the
registration of pledges of uncertificated shares.
Section
5.
Fixing Record
Date
. For the purpose of determining the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date
is fixed (1) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held and (2) the record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section
6.
Examination of Books by
Stockholders
. The Board of Directors shall, subject to the
laws of the State of Delaware, have power to determine from time to time,
whether and to what extent and under what conditions and regulations the
accounts and books of the Company, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have any right to
inspect any book or document of the Company, except as conferred by the laws of
the State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Company.
ARTICLE IX
NOTICE
Section
1.
Manner of Giving Written
Notice
.
(A) Any
notice in writing required by law or by these By-laws to be given to any person
shall be effective if delivered personally, given by depositing the same in the
post office or letter box in a postpaid envelope addressed to such person at
such address as appears on the books of the Company or given by a form of
electronic transmission consented to by such person to whom the notice is to be
given. Any such consent shall be deemed revoked if (i) the
Company is unable to deliver by electronic transmission two consecutive notices
given by the Company in accordance with such consent and (ii) such
inability becomes known to the Secretary or an Assistant Secretary of the
Company or to the transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action.
(B) Notice
by mail shall be deemed to be given at the time when the same shall be mailed
and notice by other means shall be deemed given when actually delivered (and in
the case of notice transmitted by a form of electronic transmission, such notice
shall be deemed given (i) if by facsimile telecommunication, when directed
to a number at which the stockholder has consented to receive notice;
(ii) if by electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice; (iii) if by a
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 (iv) if by any other
form of electronic transmission, when directed to the stockholder).
Section
2.
Waiver of
Notice
. Whenever any notice is required to be given to any
person, a waiver thereof by such person in writing or transmitted by electronic
means (and authenticated if and as required by law), whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE X
SEAL
The
corporate seal, if any, shall have inscribed thereon the name of the Company,
the year of its organization and the words “Corporate Seal” and
“Delaware.”
ARTICLE XI
FISCAL
YEAR
The
fiscal year of the Company shall end on December 31 in each year.