BYLAWS
OF
DARLING
INTERNATIONAL INC.
A
Delaware Corporation
Adopted
December 8, 2008
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Page
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OFFICES
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2
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1.1
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Registered
Office and Agent
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2
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1.2
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Other
Offices
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2
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Article
2
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MEETINGS
OF STOCKHOLDERS
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2
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2.1
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Annual
Meeting
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2
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2.2
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Special
Meeting
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3
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2.3
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Place
of Meetings
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5
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2.4
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Notice.
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5
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2.5
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Notice
by Electronic Transmission
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6
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2.6
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Exceptions
from Notice Requirement
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6
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2.7
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Voting
List
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7
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2.8
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Quorum
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7
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2.9
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Required
Vote; Withdrawal of Quorum
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7
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2.10
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Method
of Voting; Proxies
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8
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2.11
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Record
Date
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8
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2.12
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Conduct
of Meeting
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9
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2.13
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Action
without a Meeting
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9
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2.14
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Inspectors
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10
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2.15
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Adjournment
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11
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2.16
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Requirements
for Notice of Stockholder Business and Nominations
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11
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Article
3
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DIRECTORS
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15
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3.1
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Management
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15
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3.2
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Number;
Qualification; Term
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16
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3.3
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Change
in Number
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16
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3.4
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Vacancies
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16
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3.5
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Meetings
of Directors
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16
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3.6
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First
Meeting
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16
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3.7
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Election
of Officers
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16
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3.8
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Regular
Meetings
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16
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3.9
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Special
Meetings
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17
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TABLE
OF CONTENTS
(continued)
3.10
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Notice
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17
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3.11
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Quorum;
Majority Vote
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17
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3.12
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Telephone
Meetings
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17
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3.13
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Action
without a Meeting
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17
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3.14
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Procedure
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17
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3.15
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Presumption
of Assent
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18
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3.16
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Compensation
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18
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Article
4
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COMMITTEES
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18
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4.1
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Designation
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18
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4.2
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Number;
Qualification; Term
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18
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4.3
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Authority
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18
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4.4
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Committee
Changes
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18
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4.5
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Alternate
Members of Committees
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19
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4.6
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Regular
Meetings
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19
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4.7
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Special
Meetings
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19
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4.8
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Quorum;
Majority Vote
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19
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4.9
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Minutes
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19
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4.10
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Compensation
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19
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4.11
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Responsibility
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19
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Article
5
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NOTICE
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19
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5.1
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Method
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19
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5.2
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Waiver
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20
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Article
6
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OFFICERS
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20
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6.1
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Number;
Titles; Term of Office
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20
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6.2
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Removal
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20
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6.3
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Suspension
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20
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6.4
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Vacancies
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21
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6.5
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Authority
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21
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6.6
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Compensation
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21
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6.7
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Chairman
of the Board
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21
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TABLE
OF CONTENTS
(continued)
6.8
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Chief
Executive Officer
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21
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6.9
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President
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21
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6.10
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Chief
Operating Officer
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22
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6.11
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Chief
Financial Officer
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22
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6.12
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Vice
Presidents
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22
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6.13
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Treasurer
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22
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6.14
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Assistant
Treasurers
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23
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6.15
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Secretary
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23
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6.16
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Assistant
Secretaries
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23
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Article
7
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CERTIFICATES
AND SHAREHOLDERS
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23
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7.1
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Certificates
for Shares
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23
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7.2
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Signatures
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24
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7.3
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Replacement
of Lost, or Destroyed Certificates
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24
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7.4
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Transfer
of Shares
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25
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7.5
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Registered
Stockholders
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25
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7.6
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Regulations
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25
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7.7
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Legends
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25
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Article
8
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INDEMNIFICATION
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25
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8.1
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Right
of Indemnification
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25
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8.2
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Advancement
of Expenses
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25
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8.3
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Non-Exclusive
Right
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26
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8.4
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Insurance
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26
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8.5
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Meaning
of Terms
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26
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8.6
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Continuing
Right
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26
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8.7
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Other
Indemnification
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27
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8.8
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Amendment
or Repeal
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27
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Article
9
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MISCELLANEOUS
PROVISIONS
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27
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9.1
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Dividends
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27
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9.2
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Reserves
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27
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9.3
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Books
and Records
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27
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TABLE
OF CONTENTS
(continued)
9.4
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Fiscal
Year
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27
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9.5
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Seal
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27
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9.6
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Resignations
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27
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9.7
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Securities
of Other Corporations
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28
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9.8
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Transactions
with the Corporation
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28
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9.9
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Checks
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28
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9.10
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Invalid
Provisions
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28
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9.11
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Mortgages,
etc.
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28
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9.12
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Headings
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28
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9.13
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References
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29
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9.14
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Amendments
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29
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AMENDED
AND RESTATED
BYLAWS
OF
DARLING
INTERNATIONAL INC.
A
Delaware Corporation
PREAMBLE
These
Amended and Restated Bylaws (as they may be subsequently amended, revised or
restated, the “Bylaws”) are subject to, and governed by, the General Corporation
Law of the State of Delaware (the “Delaware General Corporation Law”) and the
Certificate of Incorporation, as it may be amended from time to time (the
“Certificate of Incorporation”) of Darling International Inc., a Delaware
corporation (the “Corporation”). In the event of a direct conflict
between the provisions of these Bylaws and the mandatory provisions of the
Delaware General Corporation Law or the provisions of the Certificate of
Incorporation, such provisions of the Delaware General Corporation Law or the
Certificate of Incorporation, as the case may be, will be
controlling.
ARTICLE
1
OFFICES
1.1
Registered
Office and Agent
. The registered office and registered agent
of the Corporation shall be as designated from time to time by the appropriate
filing by the Corporation in the office of the Secretary of State of the State
of Delaware.
1.2
Other
Offices
. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE
2
MEETINGS
OF STOCKHOLDERS
2.1
Annual
Meeting
. An annual meeting of stockholders of the Corporation
shall be held on the second Monday of May in each calendar year, if not a legal
holiday, and otherwise on the next regular business day following, at 10:00
a.m., or at such other date and time as shall be designated from time to time by
the board of directors and stated in the notice of the meeting or in a duly
executed waiver of notice of such meeting. At such meeting, the
stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
2.2
Special
Meeting
. (a) A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer,
the President, or a majority of the board of directors, and shall be called by
the Secretary following his or her receipt of one or more written demands to
call a special meeting of the stockholders, in accordance with and subject to
this Section 2.2. and Article II, from stockholders of record, as of the record
date fixed in accordance with Section 2.2(d) below who hold, in the aggregate,
at least 10% of the voting power of the outstanding shares of capital stock of
the Corporation. The stockholder demand shall state the purpose or
purposes of the special meeting, and the business to be conducted at the special
meeting shall be limited to the purpose or purposes stated in the stockholder
demand. Except in accordance with this Section 2.2, stockholders
shall not be permitted to propose business to be brought before a special
meeting of the stockholders.
(b) No
stockholder may demand that the Secretary of the Corporation call a special
meeting of the stockholders pursuant to this Section 2.2 unless a stockholder of
record has first submitted a request in writing that the board of directors fix
a record date for the purpose of determining the stockholders entitled to demand
that the Secretary of the Corporation call such a special meeting, which request
shall be in proper form and delivered to, or mailed and received by, the
Secretary of the Corporation at the principal executive offices of the
Corporation.
(c) To
be in proper form for purposes of this Section 2.2, a request by a stockholder
for the board of directors to fix a record date shall set forth as to each
stockholder of record making such request (a “Requesting Person”), the
information required pursuant to Section 2.16(a)(2)(C).
(d
) Within
ten (10) days after receipt of a request to fix a record date in proper form and
otherwise in compliance with this Section 2.2 from any stockholder of record,
the board of directors may adopt a resolution fixing a record date for the
purpose of determining the stockholders entitled to demand that the Secretary of
the Corporation call a special meeting, which date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors. If no resolution fixing a record date has been adopted by
the board of directors within the ten (10) day period after the date on which
such a request to fix a record date was received, the record date in respect
thereof shall be deemed to be the twentieth (20th) day after the date on which
such a request is received. Notwithstanding anything in this Section
2.2 to the contrary, no record date shall be fixed if the board of directors
determines that the demand or demands that would otherwise be submitted
following such record date could not comply with the requirements of Section
2.2(f).
(e) Without
qualification, a special meeting of the stockholders shall not be called
pursuant to Section 2.2(a) unless stockholders of record as of the record date
fixed in accordance with Section 2.2(d) who hold, in the aggregate, at least 10%
of the outstanding capital stock of the Corporation (the “Required Percentage”)
timely provide one or more demands to call such special meeting in writing and
in proper form to the Secretary of the Corporation at the principal offices of
the
Corporation. Only
stockholders
of record on the record date shall be entitled to demand
that the Secretary of the Corporation call a special meeting of the stockholders
pursuant to Section 2.2(a). To be timely, a stockholder’s demand to
call a special meeting must be delivered to, or mailed and received at, the
principal executive offices of the Corporation no later than the sixtieth (60th)
day following the record date fixed in accordance with Section
2.2(d).
To be
in proper form for purposes of this Section 2.2(e), a demand to call a special
meeting shall set forth a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the Bylaws of the Corporation, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, of any capital stock of the Corporation on whose
behalf the demand to call a special meeting is made; and, as to the stockholder
demanding such special meeting and the beneficial owner, if any, of any capital
stock of the Corporation on whose behalf the demand for a special meeting is
made, (i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner,
(iii) a description of any agreement, arrangement or understanding with
respect to the proposed business 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, and (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 request by, or on behalf of,
such stockholder and such beneficial owner, 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 Corporation. A stockholder may
revoke a demand to call a special meeting by written revocation delivered to the
Secretary at any time prior to the special meeting. If any such
revocation(s) are received by the Secretary after the Secretary’s receipt of
written demands from the Requisite Percentage of stockholders, and as a result
of such revocation(s), there no longer are unrevoked demands from the Requisite
Percentage of stockholders to call a special meeting, the board of directors
shall have discretion to determine whether or not to proceed with the special
meeting.
(f) The
Secretary shall not accept, and shall consider ineffective, a written demand
from a stockholder to call a special meeting (i) that does not comply with this
Section 2.2, (ii) that relates to an item of business to be transacted at such
meeting that is not a proper subject for stockholder action under applicable
law, (iii) that includes an item of business to be transacted at such meeting
that did not appear on the written request that resulted in the determination of
the record date to determine the stockholders entitled to submit such written
demand (the “Current Record Date”), (iv) that relates to an item of business
(other than election of directors) that is identical or substantially similar to
an item of business for which a record date (other than the Current Record Date)
was previously fixed and such demand is delivered between the time beginning on
the sixty-first (61st) day after such previous record date and ending on the
one-year anniversary of such previous record date, (v) if a similar item will be
submitted for stockholder approval at any stockholder meeting to be held on or
before the ninetieth (90th) day after the Secretary receives such demand, or
(vi) if a similar item has been presented at the most recent annual meeting or
at any special meeting held within one year prior to receipt by the Secretary of
such demand to call a special meeting.
(g) After
receipt of demands in proper form and in accordance with this Section 2.2 from a
stockholder or stockholders holding the Requisite Percentage, the board of
directors shall duly call, and determine the place, date and time of, a special
meeting of stockholders for the purpose or purposes and to conduct the business
specified in the demands received by the Corporation. Notwithstanding
anything in these Bylaws to the contrary, the board of directors may submit its
own proposal or proposals for consideration at such special
meeting.
2.3
Place
of Meetings
. An annual meeting of stockholders may be held at
any place within or without the State of Delaware in the continental United
States designated by the board of directors. A special meeting of
stockholders may be held at any place within or without the State of Delaware in
the continental United States designated in the notice of the
meeting. Meetings of stockholders shall be held at the principal
office of the Corporation unless another place is designated for meetings in the
manner provided herein. The board of directors may, in its sole
discretion, determine that the meetings of stockholders shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by Section 211(a)(2) of the Delaware General Corporation
Law.
2.4
Notice
. (a)
(i)
Written
notice stating the place, if any, date and hour of each meeting of the
stockholders, the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, and, in case of a special meeting, the purpose or purposes for which
the meeting is called shall be delivered not less than twenty (20) nor more than
sixty (60) days before the date of the meeting, either personally, by mail, in
accordance with Section 2.5, or by any other method permitted by law (including,
but not limited to, overnight courier services, telegram or telex), by or at the
direction of the Chief Executive Officer, the President, the Secretary, or the
officer or person(s) calling the meeting, to each stockholder of record entitled
to vote at such meeting; provided, however, that in the case of a special
meeting called by or on behalf of stockholders in accordance with this Article
II, such notice for such special meeting shall be delivered in accordance with
Section 2.16 hereof. If such notice is to be sent by
mail, it shall be directed to such stockholder at the stockholder’s address as
it appears on the records of the Corporation, unless the stockholder shall have
filed with the Secretary of the Corporation a written request that notices to
the stockholder be mailed to some other address, in which case it shall be
directed to the stockholder at such other address. Notice of any
meeting of stockholders shall not be required to be given to any stockholder who
shall attend such meeting in person or by proxy and shall not, at the beginning
of such meeting, object to the transaction of any business because the meeting
is not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy or a waiver by
electronic transmission. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of stockholders need be
specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the Certificate of Incorporation or these
Bylaws. Whenever by statute, the Certificate of Incorporation, or
these Bylaws, notice is required to be given to any stockholder and no provision
is made as to how such notice shall be given, personal notice shall not be
required and any such notice may be given by mail, in accordance with Section
2.5, or by any other method permitted by law (including, but not limited to,
overnight courier services, telegram or telex).
(b) Any
notice required or permitted to be given by mail shall be deemed to be delivered
and given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight
courier service shall be deemed to be delivered and given at the time delivered
to such service with all charges prepaid and addressed as
aforesaid. Any notice required or permitted to be given by telegram
or telex shall be deemed to be delivered and given at the time transmitted with
all charges prepaid and addressed as aforesaid.
2.5
Notice
by Electronic Transmission
. (a) Without limiting
the manner by which notice otherwise may be given effectively to stockholders,
any notice to stockholders given by the Corporation shall be effective if given
by a form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any such consent shall be deemed revoked if
(i) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent and
(ii) such inability becomes known to the Secretary or an Assistant Secretary of
the Corporation 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
given pursuant to subsection (a) of this Section 2.5 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
(1) such posting and (2) the giving of such separate notice; and (iv) if by any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent or
other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
(c) For
purposes of these Bylaws, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
2.6
Exceptions
from Notice Requirement
. The giving of any notice required
under any provision of the Delaware General Corporation Law, the Certificate of
Incorporation or these Bylaws shall not be required to be given to any
stockholder to whom (i) notice of two consecutive annual meetings, and all
notices of meetings or of the taking of action by written consent without a
meeting to such person during the period between such two consecutive annual
meetings, or (ii) all, and at least two, payments (if sent by first class mail)
of dividends or interest on securities during a twelve-month period, have been
mailed addressed to such person at his address as shown on the records of the
Corporation and have been returned undeliverable. Any action or
meeting which shall be taken or held without notice to such person shall have
the same force and effect as if such notice had been duly given. If
any such stockholders shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be given to such
stockholder shall be reinstated. This exception to the requirement
that notice be given shall not apply under subparagraph (i) to this Section 2.6
to any notice returned as undeliverable if the notice was given by electronic
transmission.
2.7
Voting
List
. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation’s stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each
stockholder. For a period of ten (10) days prior to such meeting,
such list shall be (i) made available on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) kept on file at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such
list shall be produced at such meeting and kept at the meeting at all times
during such meeting 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 examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
2.8
Quorum
. The
holders of a majority of the outstanding shares of stock entitled to vote on a
matter, present in person or by proxy, shall constitute a quorum at any meeting
of stockholders, except as otherwise provided by law, the Certificate of
Incorporation, or these Bylaws; provided, that at any meeting of the
stockholders at which the holders of any class of stock of the Corporation shall
be entitled to vote separately as a class, the holders of a majority of the
total outstanding shares of such class, present in person or by proxy, shall
constitute a quorum for purposes of a class vote except as otherwise provided by
law, the Certificate of Incorporation, or these Bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at
which a quorum shall be present, in person or by proxy, any business may be
transacted which may have been transacted at the original meeting had a quorum
been present; provided that, if the adjournment is for more than thirty (30)
days or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
2.9
Required
Vote; Withdrawal of Quorum
. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the Certificate of Incorporation, or these Bylaws,
a different vote is required, in which case such express provision shall govern
and control the decision of such question. Except as provided in
Section 3.4 hereof, a nominee for director shall be elected to the board of
directors by the vote of the majority of the votes cast with respect to that
director’s election at any meeting for the election of directors at which a
quorum is present; provided, however, that if the number of nominees exceeds the
number of directors to be elected, the directors shall be elected by a plurality
of the votes cast at any such meeting and entitled to vote on the election of
directors. For purposes of this section, a majority of votes cast
means that the number of votes cast “for” a director must exceed the number of
votes cast “against” that director (with “abstentions” and “broker non-votes”
not counted as a vote cast with respect to that director). The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.10
Method
of Voting; Proxies
. Except as otherwise provided in the
Certificate of Incorporation or these Bylaws, each outstanding share, regardless
of class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders. Voting at the meeting of stockholders, on
other than the election of directors, need not be by written ballot unless
directed by the presiding officer or upon the demand of any
stockholder. At any meeting of stockholders, every stockholder having
the right to vote may vote either in person or by a proxy executed in writing by
the stockholder or by his or its duly authorized
attorney-in-fact. Each such proxy shall be filed with the Secretary
of the Corporation before or at the time of the meeting. No proxy
shall be valid after three (3) years from the date of its execution, unless
otherwise provided in the proxy. If no date is stated in a proxy,
such proxy shall be presumed to have been executed on the date of the meeting at
which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.1
Record
Date
. (a) For the purpose of determining 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.
(b) Without
qualification, any stockholder of record seeking to have the stockholders
authorize or take any action by written consent shall first request in writing
that the board of directors fix a record date for the purpose of determining the
stockholders entitled to take such action, which request shall be in proper form
and delivered to, or mailed and received by, the Secretary of the Corporation at
the principal executive officers of the Corporation. Within ten (10)
days after receipt of a request in proper form and otherwise in compliance with
this Section 2.11(b), from any such stockholder, the board of directors may
adopt a resolution fixing a record date for the purpose of determining the
stockholders entitled to take such action, which date shall not precede the date
upon which the resolution fixing the record date is adopted by the board of
directors and which date shall not be more than ten (10) days after the date on
which such a resolution is adopted by the board of
directors.
If no
resolution fixing a record date has been adopted by the board of directors
within such ten (10) day period after the date on which such a request is
received, (i) the record date for determining stockholders entitled to consent
to such action, when no prior action of the board of directors is required by
applicable law, shall be the first date on which a valid signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in the manner described in this Section 2.11(b) and (ii) the record
date for determining stockholders entitled to consent to such action, when prior
action by the board of directors is required by applicable law, shall be at the
close of business on the date on which the board of directors adopts the
resolution taking such prior action. To be in proper form for
purposes of this Section 2.11(b), a request by a stockholder for the board of
directors to fix a record date shall provide the information required
in a stockholder’s notice pursuant to Section 2.16(a)(2) and (3).
(c) 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.
2.12
Conduct
of Meeting
. The Chairman of the Board, if such office has been
filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer shall preside at all meetings of
stockholders; provided, however, if such office has not been filled or if the
Chief Executive Officer is absent or otherwise unable to act, the President
shall preside at all meetings of stockholders. The Secretary shall
keep the records of each meeting of stockholders. In the absence or
inability to act of any such officer, such officer’s duties shall be performed
by the officer given the authority to act for such absent or non-acting officer
under these Bylaws or by some person appointed by the meeting. The
order of business at each such meeting shall be as determined by the Chairman of
the meeting. The Chairman of the meeting shall have the sole right
and authority to prescribe the rules, regulations and procedures for, and to do
all such acts and things as are necessary or desirable for the proper conduct
of, the meeting, including, without limitation, setting the agenda of the
meeting, establishing procedures for the maintenance of order and safety at the
meeting, determining the persons entitled to make presentations at the meeting
and the time allotted for each such presentation, determining the time, if any,
allotted to questions or comments at the meeting, instituting restrictions on
entry to the meeting after the time prescribed for the commencement thereof,
determining the form of ballot to be used for voting on each matter upon which
stockholders will vote at the meeting and determining the date and time of the
opening and closing of the polls for each matter upon which the stockholders
will vote at the meeting.
2.13
Action
without a Meeting
. Unless otherwise provided in the
Certificate of Incorporation, any action required by the Delaware General
Corporation Law to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or special meeting
of the 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, shall be
signed
by all of the holders (acting for themselves or through a proxy) of outstanding
stock and shall be delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded and shall otherwise be in compliance with
these Bylaws. Every written consent of stockholders shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days of the earliest dated consent delivered in the manner required
by this Section 2.13 to the Corporation, written consents signed by all of the
holders to take action are delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made
to the Corporation’s registered office, principal place of business, or such
officer or agent shall be by hand or by certified or registered mail, return
receipt requested.
2.14
Inspectors
. (a) The
board of directors shall, in advance of any meeting of stockholders, appoint one
or more inspectors to act at the meeting and make a written report thereof. The
board of directors may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of the duties of inspector, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability.
(b) The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each; (ii) determine the shares represented at a meeting and the
validity of proxies and ballots; (iii) count all votes and ballots; (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain
other persons or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting, determined in accordance with
Section 2.12 hereof, shall be announced at the meeting. No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be accepted by the
inspectors after the closing of the polls unless the Court of Chancery of the
State of Delaware upon application by a stockholder shall determine
otherwise.
(d) In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
those proxies, any information provided in accordance with Section 211(e) or
Section 212(c)(2) of the Delaware General Corporation Law, or any information
provided pursuant to Section 211(a)(2)(B)(i) or (iii) of the Delaware General
Corporation Law, ballots and the regular books and records of the Corporation,
except that the inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein, the inspectors at
the time they make their certification pursuant to subparagraph (b)(v) of this
Section 2.14 shall specify the precise information considered by them,
including, the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained
and the basis for the inspectors' belief that such information is accurate and
reliable. For purposes of this Section 2.14(d), Sections 211(e),
212(c)(2) and 211(a)(2)(B)(i) of the Delaware General Corporation Law shall
include any successor statute addressing the comparable
information.
2.15
Adjournment
. Any
meeting of the stockholders of the Corporation may be adjourned at any time or
from time to time by the board of directors.
2.16
Requirements
for Notice of Stockholder Business and Nominations
.
(a)
Annual Meetings of Stockholders. (1) Nominations of persons for election to
the board of directors of the Corporation and the proposal of other business to
be considered by the stockholders may be made at an annual meeting of
stockholders only (A) pursuant to the Corporation's notice of meeting (or
any supplement thereto), (B) by or at the direction of the board of
directors or any duly authorized committee thereof or (C) by any
stockholder of the Corporation who (i) was a stockholder of record of the
Corporation at the time the notice provided for in this Section 2.16 is
delivered to the Secretary of the Corporation 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 Article II. 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 Corporation'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
Section 2.16, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and any such proposed business other
than the nominations of persons for election to the board of directors must
constitute a proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the ninetieth (90th) day
nor earlier than the close of business on the one hundred twentieth
(120th) day prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made by the Corporation). In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for
election as a director all information
relating to such person
that is required to be disclosed pursuant to Section 2.16(a)(3) hereof;
(B) as to any other business that the stockholder proposes to bring before
the meeting, a brief description of the business desired to be brought before
the meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business
includes a proposal to amend the Bylaws of the Corporation, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, of any capital stock of the Corporation on whose behalf the
proposal is made; and (C) as to the stockholder giving the notice and the
beneficial owner, if any, of any capital stock of the Corporation on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (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 without limitation any derivative, swap, synthetic 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 such beneficial owner, 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 Corporation (which information shall be
updated by such stockholder and beneficial owner, if any, as of the record date
of the meeting not later than then (10) days after the record date for the
meeting), (v) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business or nomination, and
(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
Corporation'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 Corporation 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 Corporation to
solicit proxies for such annual meeting.
(3) In
addition to the requirements set forth in Section 2.16(a)(2) above, such
stockholder's notice shall set forth as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (a) the name,
age, business address and residence address of such person, (b) the principal
occupation or employment of such person, (c) the class and number of shares of
capital stock of the Corporation that are owned beneficially and of record by
such person, (d) a good faith determination of whether the nominee qualifies as
an “independent director” under then applicable standards of both the Exchange
Act (and rules and regulations promulgated thereunder) and any stock exchange or
national market upon which the Corporation’s stock is then admitted for trading,
(e) all additional information
relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Exchange Act (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), and (f) a description of all direct and
indirect compensation and other material monetary agreements, arrangements and
understandings during the past three (3) years, and any other material
relationships, between or among the nominating person, on the one hand, and the
proposed nominee, and his or her respective affiliates and associates, on the
other hand, including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 under Regulation S-K if the
nominating person were the “registrant” for purposes of such rule and the
proposed nominee were a director or executive officer of such registrant. To be
eligible to be a nominee for election as a director of the Corporation, the
proposed nominee must deliver (in accordance with the time periods prescribed
for delivery of notice under this Section 2.16) to the Secretary at the
principal executive offices of the Corporation a written questionnaire with
respect to the background and qualification of such proposed nominee (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in form provided by the Secretary upon
written request) that such proposed nominee (A) is not and will not become a
party to (i) any agreement, arrangement or understanding with, and has not given
any commitment or assurance to, any person or entity as to how such proposed
nominee, if elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation or (ii) any Voting Commitment that could limit or interfere with
such proposed nominee’s ability to comply, if elected as a director of the
Corporation, with such proposed nominee’s fiduciary duties under applicable law,
(B) is not, and will not become a party to, any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect
to any direct or indirect compensation, reimbursement or indemnification in
connection with service or action as a director that has not been disclosed to
the Corporation and (C) in such proposed nominee’s individual capacity and on
behalf of the stockholder (or the beneficial owner, if different) on whose
behalf the nomination is made, would be in compliance, if elected as a director
of the Corporation, and will comply with applicable publicly disclosed corporate
governance, conflict of interest, confidentiality and stock ownership (if any)
and trading policies and guidelines of the Corporation.
(4)
Notwithstanding anything in the second sentence of paragraph (a)(2) of
this Section 2.16 to the contrary, in the event that the number of
directors to be elected to the board of directors of the Corporation at an
annual meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least one
hundred (100) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Article II shall also be
considered timely, but only with respect to nominees for the additional
directorships, if such notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(b)
Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been properly brought before the
meeting pursuant to this Article II (including without limitation Section 2.2)
and the Corporation's notice of meeting. For nominations or other
business to be properly brought before a special meeting
by a stockholder pursuant to this Section 2.16, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation
and otherwise be in compliance with this Article II (including Section 2.2) and
such other business must otherwise be a proper matter for stockholder
action. Nominations of persons for election to the board of directors
may be made for consideration at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting
(1) by or at the direction of the board of directors or any duly authorized
committee thereof, or (2) provided that the board of directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time the notice
provided for in this Section 2.16 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and
who complies with the notice procedures set forth in this Section 2.16,
including without limitation by providing the information required to be
provided in stockholders notices in respect of nomination of directors by
Section 2.16(a)(2) and (3). In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more directors to the board
of directors, any such stockholder entitled to vote in such election of
directors may nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation's notice of meeting, if a
stockholder's notice containing the information required by paragraph (a)(2) and
(3) of this Section 2.16 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting
and not later than the close of business on the later of the ninetieth (90th)
day prior to such special meeting or the tenth (10th) day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected at such
meeting. In the event the Corporation calls a special meeting of stockholders
for the purpose of business other than the election of one or more directors to
the board of directors, any stockholder entitled to vote in such meeting may
propose business (other than the election of one or more directors) if a
stockholder’s notice containing the information regarding other business
required by paragraph (a)(2) of this Section 2.16 shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special 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 Section 2.16 shall be eligible to be elected
at an annual or special meeting of stockholders of the Corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before such meeting in accordance with the procedures
set forth in this Section 2.16. Except as otherwise provided by law, the
Chairman of the meeting shall have the power and duty (a) to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 2.16 (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)(2)(C)(vi) of this
Section 2.16) and (b) if any
proposed nomination or business was not made or proposed in compliance
with this Section 2.16, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.16, if the
stockholder (or a qualified representative of the stockholder) does not appear
at the annual or special meeting of stockholders of the Corporation to present a
nomination or business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the Corporation. For purposes of
this Section 2.16, 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 Section 2.16, "public announcement" shall include
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3)
Notwithstanding the foregoing provisions of this Section 2.16, 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
Section 2.16; provided however, that any references in these Bylaws 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 bylaw (including paragraphs
(a)(1)(C) and (b) hereof), and compliance with this Section 2.16 shall be the
exclusive means for a stockholder to make nominations or submit other business
(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 Section 2.16 shall be deemed to affect any rights (a) of stockholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
applicable rules and regulations promulgated under the Exchange Act or (b) of
the holders of any series of preferred stock of the Corporation to elect
directors pursuant to any applicable provisions of the Amended and Restated
Certificate of Incorporation.
ARTICLE
3
DIRECTORS
3.1
Management
. The
business and property of the Corporation shall be managed by the board of
directors. Subject to the restrictions imposed by law, the
Certificate of Incorporation, or these Bylaws, the board of directors may
exercise all the powers of the Corporation.
3.2
Number;
Qualification; Term
. Except as otherwise provided in the
Certificate of Incorporation, the number of directors which shall constitute the
entire board of directors shall be determined by resolution of the board of
directors. Except as otherwise required by law, the Certificate of
Incorporation, or these Bylaws, the directors shall be elected at an annual
meeting of stockholders at which a quorum is present. Each director
so chosen shall hold office until the first annual meeting of stockholders held
after his election and until his successor is elected and qualified or, if
earlier, until his death, resignation, or removal from office. None
of the directors need be a stockholder of the Corporation or a resident of the
State of Delaware. Each director must have attained the age of
majority.
3.3
Change
in Number
. No decrease in the number of directors constituting
the entire board of directors shall have the effect of shortening the term of
any incumbent director.
3.4
Vacancies
. Vacancies
and newly-created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by the sole remaining director, and each director
so chosen shall hold office until the first annual meeting of stockholders held
after his election and until his successor is elected and qualified or, if
earlier, until his death, resignation, or removal from office. If
there are no directors in office, an election of directors may be held in the
manner provided by statute. Except as otherwise provided in these
Bylaws, when one or more directors shall resign from the board of directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in these Bylaws with respect to the filling of other
vacancies.
3.5
Meetings
of Directors
. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.6
First
Meeting
. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be
necessary.
3.7
Election
of Officers
. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the
Corporation.
3.8
Regular
Meetings
. Regular meetings of the board of directors shall be
held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings
shall not be required.
3.9
Special
Meetings
. Special meetings of the board of directors shall be
held whenever called by the Chairman of the Board, the Chief Executive Officer,
the President, or by written request of one-third of the directors then in
office.
3.10
Notice
. The
Secretary shall give notice of each special meeting to each director at least 24
hours before the meeting. Waiver of notice may be given as provided
in Section 5.2.
3.11
Quorum;
Majority Vote
. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these Bylaws shall
constitute a quorum for the transaction of business. If at any
meeting of the board of directors there be less than a quorum present, a
majority of those present or any director solely present may adjourn the meeting
from time to time without further notice. Unless the act of a greater
number is required by law, the Certificate of Incorporation, or these Bylaws,
the act of a majority of the directors present at a meeting at which a quorum is
in attendance shall be the act of the board of directors. At any time that the
Certificate of Incorporation provides that directors elected by the holders of a
class or series of stock shall have more or less than one vote per director on
any matter, every reference in these Bylaws to a majority or other proportion of
directors shall refer to a majority or other proportion of the votes of such
directors.
3.12
Telephone
Meetings
. Members of the board of directors, or members of a
committee of the board of directors, may participate in and hold a meeting of
the board of directors, or committee, by means of a conference telephone or
similar communications equipment by means of which persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.13
Action
without a Meeting
. Unless otherwise restricted by the
Certificate of Incorporation or by these Bylaws, any action required or
permitted to be taken at a meeting of the board of directors, or of any
committee of the board of directors, may be taken without a meeting if a consent
or consents in writing or by electronic transmission, setting forth the action
so taken, shall be signed by all the directors or all the committee members, as
the case may be, entitled to vote with respect to the subject matter thereof,
and such consent shall have the same force and effect as a vote of such
directors or committee members, as the case may be, and may be stated as such in
any certificate or document filed with the Secretary of State of the State of
Delaware or in any certificate delivered to any person. Such consent
or consents shall be filed with the minutes of proceedings of the board or
committee, as the case may be.
3.14
Procedure
. At
meetings of the board of directors, business shall be transacted in such order
as from time to time the board of directors may determine. The board
of directors shall annually elect by a majority vote of the board at which a
quorum shall be present one of its members to be Chairman of the Board and shall
fill any vacancy in the position of the Chairman of the Board at such time as
the board of directors shall determine. The Chairman of the Board may
but need not be an officer of or employed in an executive or any other capacity
by the Corporation. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer, shall preside at all meetings of the
Board; provided, however, if such office has not been filled or if the Chief
Executive Officer is absent or otherwise unable to act, the President shall
preside at all meetings of the Board. In the absence or inability to
act of either such officer, a Chairman shall be chosen by the board of directors
from among the directors present. The Secretary of the Corporation
shall act as the secretary of each meeting of the board of directors unless the
board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its
proceedings which shall be placed in the minute book of the
Corporation.
3.15
Presumption
of Assent
. A director of the Corporation who is present at the
meeting of the board of directors at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward any dissent by certified or registered
mail to the Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who
voted in favor of such action.
3.16
Compensation
. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, the
board of directors shall have the authority to fix the compensation, including
fees and reimbursement of expenses, or a stated salary paid to directors for
attendance at regular or special meetings of the board of directors or any
committee thereof; provided, that nothing contained herein shall be construed to
preclude any director from serving the Corporation in any other capacity or
receiving compensation therefor.
ARTICLE
4
COMMITTEES
4.
Designation
. The
board of directors may, by resolution adopted by a majority of the entire board
of directors, designate one or more committees and shall designate a chairperson
for each committee.
4.2
Number;
Qualification; Term
. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until
the earliest of (i) the expiration of his term as director, (ii) his resignation
as a committee member or as a director, or (iii) his removal as a committee
member or as a director.
4.3
Authority
. Each
committee, to the extent expressly provided in the resolution establishing such
committee, shall have and may exercise all of the authority of the board of
directors in the management of the business of the Corporation except to the
extent expressly restricted by law, the Certificate of Incorporation, or these
Bylaws.
4.4
Committee
Changes
. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5
Alternate
Members of Committees
. The board of directors may designate
one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee.
4.6
Regular
Meetings
. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7
Special
Meetings
. Special meetings of any committee may be held
whenever called by the Chairman thereof. The committee member calling
any special meeting shall cause notice of such special meeting, including
therein the time and place of such special meeting, to be given to each
committee member at least 24 hours before such special
meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of any committee need be specified in the notice or
waiver of notice of any special meeting. Waiver of notice may be
given as provided in Section 5.2.
4.8
Quorum;
Majority Vote
. At meetings of any committee, a majority of the
number of members designated by the board of directors shall constitute a quorum
for the transaction of business; provided, however, that any alternative
member(s) may be counted in lieu of an absent or disqualified member in
determining the presence of a quorum. If a quorum is not present at a
meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the
members present at any meeting at which a quorum is in attendance shall be the
act of a committee, unless the act of a greater number is required by law, the
Certificate of Incorporation, or these Bylaws.
4.9
Minutes
. Each
committee shall cause minutes of its proceedings to be prepared and shall report
the same to the board of directors upon the request of the board of
directors. The minutes of the proceedings of each committee shall be
delivered to the Secretary of the Corporation for placement in the minute books
of the Corporation.
4.10
Compensation
. Committee
members may, by resolution of the board of directors, be allowed a fixed sum and
expenses of attendance, if any, for attending any committee meetings or a stated
salary.
4.11
Responsibility
. The
designation of any committee and the delegation of authority to it shall not
operate to relieve the board of directors or any director of any responsibility
imposed upon it or such director by law.
ARTICLE
5
NOTICE
5.1
Method
. Whenever
by statute, the Certificate of Incorporation, or these Bylaws, notice is
required to be given to any committee member or director and no provision is
made as to how such notice shall be given, personal notice shall not be required
and any such notice may be given (a) in writing, by mail, postage prepaid,
addressed to such committee member or director at his or its address as it
appears on the books, or (b) by any other method permitted by law (including but
not limited to overnight courier service, telegram, telex, telefax, or
electronic transmission). Any notice required or permitted to be
given by mail shall be deemed to be delivered and given at the time when the
same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted
to be given by telegram, telex, or telefax shall be deemed to be delivered and
given at the time transmitted with all charges prepaid and addressed as
aforesaid.
5.2
Waiver
. Whenever
any notice is required to be given to any director or committee member of the
Corporation by statute, the Certificate of Incorporation, or these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice or a waiver by electronic transmission by the person
entitled to notice. Attendance of a director, or committee member at
a meeting shall constitute a waiver of notice of such meeting, except where such
person attends for the express purpose of objecting to the transaction of any
business on the ground that 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 directors or committee members need be
specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the Certificate of Incorporation or these
Bylaws.
ARTICLE
6
OFFICERS
6.1
Number;
Titles; Term of Office
. The officers of the Corporation shall be such
officers as the board of directors may from time to time elect or appoint, which
may include a Chairman of the Board, a Chief Executive Officer, a Chief
Operating Officer, a Chief Financial Officer, President, a Secretary, one or
more Vice Presidents (with each Vice President to have such descriptive title,
if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified, until his death, or until he
shall resign or shall have been removed in the manner hereinafter
provided. Any two or more offices may be held by the same
person. None of the officers need be a stockholder or a director of
the Corporation or a resident of the State of Delaware.
6.2
Removal
. Any
officer or agent elected or appointed by the board of directors may be removed
by the board of directors by the affirmative vote of a majority of the board of
directors at which a quorum is present or by an authorized committee thereof
whenever in its judgment the best interest of the Corporation will be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
6.3
Suspension
. Subject
to any contractual limitations, the Chief Executive Officer or such other
officer having comparable authority as determined by the board of directors may
suspend the powers, authority, responsibilities and compensation of any
employee, including elected officer, for a period of time sufficient to permit
the board of directors or appropriate committee of the board of directors a
reasonable opportunity to consider and act upon a resolution relating to the
reinstatement, further suspension, or removal of such
person.
6.4
Vacancies
. Any
vacancy occurring in any office of the Corporation (by death, resignation,
removal, or otherwise) may be filled by the board of
directors.
6.5
Authority
. Officers
shall have such authority and perform such duties in the management of the
Corporation as are provided in these Bylaws or as may be determined by
resolution of the board of directors not inconsistent with these
Bylaws.
6.6
Compensation
. The
compensation, if any, of officers and agents shall be fixed from time to time by
the board of directors; provided, however, that the board of directors may
delegate the power to determine the compensation of any officer and agent (other
than the officer to whom such power is delegated) to the Chairman of the Board,
the Chief Executive Officer, the President or such other officers as determined
by the board of directors.
6.7
Chairman
of the Board
. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as designated in these
Bylaws and as may be prescribed by the board of directors. Such
officer shall preside at all meetings of the stockholders and of the board of
directors. Such officer may sign all certificates for shares of stock
of the Corporation. The board of directors may also appoint a Vice
Chairman or vice chairmen to serve in the absence of the
Chairman.
6.8
Chief
Executive Officer
. Subject to the direction and authority of
the board of directors, the Chief Executive Officer shall have general executive
charge, management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; he may agree upon and execute all leases, contracts, evidences
of indebtedness and other obligations in the name of the Corporation and may
sign all certificates for shares of capital stock of the Corporation. Unless the
board of directors otherwise determines, he shall, in the absence of the
Chairman of the Board, preside at all meetings of the stockholders and of the
board of directors; and he shall have such powers and duties as designated in
accordance with these Bylaws and as from time to time be assigned to him by the
board of directors. The Chief Executive Officer may from time to time
delegate any of the aforementioned duties and responsibilities in accordance
with these Bylaws to any officer who directly or indirectly reports to
him.
6.9
President
. The
President or such other officer as determined by the board of directors shall
have charge of such properties, business, and operations of the Corporation as
may be assigned to him from time to time in accordance with these Bylaws by the
Chief Executive Officer, as well as all such powers as may be reasonably
incident to such charge and he shall have the authority to agree upon and
execute all leases, contracts, evidences of indebtedness, and other obligations
in the name of the Corporation. Unless the board of directors
otherwise determines, he shall, in the absence of the Chairman of the Board and
the Chief Executive Officer, preside at all meetings of the stockholders and of
the board of directors; and he shall have such other powers and duties as
designated in accordance with these Bylaws and as from time to time be assigned
to him by the board of directors. The President shall report directly
to the Chief Executive Officer or such other officer as determined by the board
of directors.
6.10
Chief
Operating Officer
. The Chief Operating Officer or such other
officer as determined by the board of directors shall have charge of such
properties, business, and operations of the Corporation as may be assigned to
him from time to time in accordance with these Bylaws by the board of directors,
the Chief Executive Officer or such other officer as determined by the board of
directors.
6.11
Chief
Financial Officer
. The Chief Financial Officer or such other
officer as determined by the board of directors shall have general charge of the
financial affairs of the Corporation, as well as all such powers as may be
reasonably incident to such charge and he shall have the authority to agree upon
and execute all leases, contracts, evidences of indebtedness, and other
obligations in the name of the Corporation. He shall render such
accounts and reports as may be required by the board of directors or any
committee of the board. The financial records, books and accounts of
the Corporation shall be maintained subject to his direct or indirect
supervision. The Chief Financial Officer shall report directly to the
Chief Executive Officer or such other officer as determined by the board of
directors.
6.12
Vice
Presidents
. The vice presidents shall have charge of such
properties, business, and operations of the Corporation as may be assigned to
them from time to time by the board of directors, the Chairman of the Board, the
Chief Executive Officer, the Chief Operating Officer or such other officer as
determined by the board of directors, as well as such powers as may be
reasonably incident to such charge. A vice president shall report directly to
the Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer or such other officer as determined by the board of
directors.
6.13
Treasurer
. The
Treasurer or such other officer as determined by the board of directors shall
have custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the board of directors. He shall disburse the funds of the Corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the
Corporation. If required by the board of directors, he shall give the
Corporation a bond, at the expense of the Company, in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the
Corporation. The Treasurer shall perform such other duties as may be
prescribed by the board of directors, the Chairman of the Board, the Chief
Executive Officer, the President or such other officer as determined by the
board of directors. In the absence of a duly appointed Treasurer, the
Chief Financial Officer of the Corporation or such other officer as determined
by the board of directors shall perform the duties of
Treasurer.
6.14
Assistant
Treasurers
. The Assistant Treasurer, or if there shall be more
than one, the assistant treasurers, in the order determined by the board of
directors (or if there be no such determination, then in the order of their
election) shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
board of directors, the Chairman of the Board, the Chief Executive Officer, the
President or such other officer as determined by the board of directors may from
time to time prescribe. In the absence of a duly appointed Assistant Treasurer,
the Chief Financial Officer of the Corporation or such other officer as
determined by the board of directors shall perform the duties of Assistant
Treasurer.
6.15
Secretary
. The
Secretary shall attend all meetings of the board of directors and all meetings
of the stockholders and record all the proceedings of the meetings of the
Corporation and of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. When
required to be given, he shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board of directors
under whose supervision he shall be. He shall have custody of the corporate seal
of the Corporation and he, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary, and
he may sign with the Chairman of the Board, the Chief Executive Officer or the
President, in the name of the Corporation, all contracts of the
Corporation. The board of directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature.
6.16
Assistant
Secretaries
. The Assistant Secretary, or if there be more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his inability or
refusal to act, or if such powers shall be delegated him by the Secretary,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the board of directors, the
Chairman of the Board, the Chief Executive Officer, the President or such other
officer as determined by the board of directors may from time to time
prescribe.
ARTICLE
7
CERTIFICATES
AND SHAREHOLDERS
7.1
Certificates
for Shares
. (a) The shares of the Corporation shall
be represented by a certificate or shall be
uncertificated. Certificates for shares of stock of the Corporation
shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman or Vice
Chairman of the Board, or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Upon the face or back of each stock certificate issued to
represent any partly paid shares, or upon the books and records of the
Corporation in the case of uncertificated partly paid shares, shall be set forth
the number and class of shares and the par value of such shares or a statement
that such shares are without par value.
(b) If
the Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock; provided that, except as otherwise provided in Section
202 of the Delaware General Corporation Law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
(c) Within
a reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth stated on
certificates pursuant to Section 151, 156, 202(a) or 218(a) of the Delaware
General Corporation Law or a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
(d) Notwithstanding
any other provision of this Article VII, the Corporation may adopt a system of
issuance, recordation and transfer of its shares by electronic or other means
not involving any issuance of certificates, provided the use of such system by
the Corporation is permitted in accordance with applicable
law.
7.2
Signatures
. Any
and all signatures on the certificate may be a facsimile and may be sealed with
the seal of the Corporation or a facsimile thereof. If any officer,
transfer agent, or registrar who has signed, or whose facsimile signature has
been placed upon, a certificate has ceased to be such officer, transfer agent,
or registrar before such certificate is issued, such certificate may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent, or registrar at the date of issue.
7.3
Replacement
of Lost, or Destroyed Certificates
. The board of directors may
direct a new certificate or certificates to be issued in place of a certificate
or certificates theretofore issued by the Corporation and alleged to have been
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or certificates representing shares to be lost or
destroyed. When authorizing such issue of a new certificate or
certificates the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.4
Transfer
of Shares
. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal
representatives. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, the Corporation or its transfer agent shall issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books. Upon receipt of proper transfer
instructions from the registered owner of uncertificated shares, the Corporation
or the transfer agent shall cancel such uncertificated shares and shall issue
new equivalent uncertificated shares or certificated shares to the person
entitled thereto, and record the transaction upon its books.
7.5
Registered
Stockholders
. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock 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 or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by law.
7.6
Regulations
. The
board of directors shall have the power and authority to make all such rules and
regulations as they may deem expedient concerning the issue, transfer, and
registration or the replacement of certificates for shares of stock of the
Corporation.
7.7
Legends
. The
board of directors shall have the power and authority to provide that
certificates representing shares of stock bear such legends as the board of
directors deems appropriate to assure that the Corporation does not become
liable for violations of federal or state securities laws or other applicable
law.
ARTICLE
8
INDEMNIFICATION
8.1
Right
of Indemnification
. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he 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 expenses (including attorneys' fees), judgments, fines, awards and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding to the fullest extent permitted by the
Delaware General Corporation Law as amended from time to
time.
8.2
Advancement
of Expenses
. Expenses incurred by an officer or director in
defending or in preparation for a civil, criminal, administrative or
investigative action, suit or proceeding, arbitration, mediation or claim in
respect thereof (collectively, “Actions”) shall be paid by the Corporation in
advance of the final disposition of such Action upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VIII. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate. As used in this Article
VIII, “expenses” shall mean any direct out-of-pocket costs reasonably related to
such Action, including, without limitation, attorneys’ fees, fees of
consultants, advisors and expert witnesses, and related
charges.
8.3
Non-Exclusive
Right
. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this Article VIII
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Corporation's Certificate of Incorporation or any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
8.4
Insurance
. The
Corporation shall have the power to 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 such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VIII.
8.5
Meaning
of Terms
. (a) For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the Corporation or
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent or another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the Corporation or surviving
or resulting corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(b) For
purposes of this Article VIII, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to
"serving at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VIII.
8.6
Continuing
Right
. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VIII shall, unless otherwise
provided when authorized or ratified, 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 a person.
8.7
Other
Indemnification
. If this Article VIII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director, officer, employee or
agent of the Corporation as to any expenses, judgments, fines, awards and
amounts paid in settlement with respect to any Action, including an Action by or
in the right of the Corporation, to the full extent permitted by an applicable
portion of this Article VIII that shall not have been invalidated and to the
full extent permitted by applicable law.
8.8
Amendment
or Repeal
. No amendment, termination or repeal of this Article
VIII or of relevant provisions of the Delaware General Corporation Law or any
other applicable law shall affect or diminish in any way the rights of any
director, officer, employee or agent of the Corporation to indemnification under
the provisions hereof with respect to any Actions arising out of, or relating
to, any actions, transactions or facts occurring prior to the final adoption of
such amendment, termination or repeal.
ARTICLE
9
MISCELLANEOUS
PROVISIONS
9.1
Dividends
. Subject
to provisions of law and the Certificate of Incorporation, dividends may be
declared by the board of directors at any regular or special meeting and may be
paid in cash, in property, or in shares of stock of the
Corporation. Such declaration and payment shall be at the discretion
of the board of directors.
9.2
Reserves
. There
may be created by the board of directors out of funds of the Corporation legally
available therefor such reserve or reserves as the directors from time to time,
in their discretion, consider proper to provide for contingencies, to equalize
dividends, or to repair or maintain any property of the Corporation, or for such
other purpose as the board of directors shall consider beneficial to the
Corporation, and the board of directors may modify or abolish any such reserve
in the manner in which it was created.
9.3
Books
and Records
. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by
each.
9.4
Fiscal
Year
. The fiscal year of the Corporation shall be fixed by
resolution of the board of directors.
9.5
Seal
. The
seal of the Corporation shall have inscribed thereon the name of the
Corporation, the year of its organization and the words “Corporate Seal,
Delaware.” The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
9.6
Resignations
. Any
director, committee member, or officer may resign by so stating at any meeting
of the board of directors or by giving written notice to the board of directors,
the Chairman of the Board, the Chief Executive Officer, the President, or the
Secretary. Such resignation shall take effect at the time specified
therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
9.7
Securities
of Other Corporations
. The Chief Executive Officer (or any
other officer designated by the board of directors) shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
9.8
Transactions
with the Corporation
. No contract or other transaction between
the Corporation and one or more of its directors and officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable, solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board of directors or committee which
authorizes the contract or transaction, or solely because any such director’s or
officer’s votes are counted for such purposes if (i) the material facts as to
the director’s or officer’s relationship or interest and as to the contract or
transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, (ii) the material facts as to the director’s or officer’s relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders, or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the board of directors, a committee or the
stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
9.9
Checks
. All
checks or demands for money and notes of the Corporation shall be signed by such
officer or officers or such other person or persons as the board of directors
may from time to time designate.
9.10
Invalid
Provisions
. If any part of these Bylaws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
9.11
Mortgages,
etc.
With respect to any deed, deed of trust, mortgage, or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is
necessary.
9.12
Headings
. The
headings used in these Bylaws have been inserted for administrative convenience
only and do not constitute matter to be construed in
interpretation.
9.13
References
. Whenever
herein the singular number is used, the same shall include the plural where
appropriate, and words of any gender should include each other gender where
appropriate.
9.14
Amendments
. These
Bylaws may be altered, amended, or repealed or new Bylaws may be adopted by (i)
the affirmative vote of a majority of the directors of the Corporation (A) at
any regular or special meeting of the board of directors, if notice of such
alteration, amendment or repeal be contained in the notice of such meeting, or
(B) by written consent of the directors of the Corporation pursuant to Section
3.13 hereof, or by (ii) the affirmative vote of the holders of a majority of the
shares of capital stock of the Corporation entitled to vote thereon, if notice
of such alteration, amendment, or repeal be contained in the notice of the
stockholders’ meeting.
The
undersigned, the Secretary of the Corporation, hereby certifies that the
foregoing Amended and Restated Bylaws were duly adopted by the Board of
Directors of the Corporation as of December 8, 2008.
By:
|
/s/ John
F. Sterling
|
|
John F. Sterling,
Secretary
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