As filed with the Securities and Exchange Commission on
November 12, 2008
Registration No. 333-150876
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Amendment No. 6
to
Form S-1
REGISTRATION
STATEMENT
THE SECURITIES ACT OF
1933
Grand Canyon Education,
Inc.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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8221
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20-3356009
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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3300 W. Camelback
Road
Phoenix, Arizona 85017
(602) 639-7500
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Christopher C.
Richardson
General Counsel
Grand Canyon Education,
Inc.
3300 W. Camelback
Road
Phoenix, Arizona 85017
(602) 639-7500
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
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Steven D. Pidgeon, Esq.
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Mark A. Stegemoeller, Esq.
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David P. Lewis, Esq.
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Steven B. Stokdyk, Esq.
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DLA Piper LLP (US)
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Latham & Watkins LLP
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2415 East Camelback Road, Suite 700
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355 South Grand Avenue
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Phoenix, Arizona 85016
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Los Angeles, California 90071
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(480) 606-5100
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(213) 485-1234
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after this
registration statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box.
o
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated
filer
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Accelerated filer
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Non-accelerated
filer
þ
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Smaller reporting company
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(Do not check if a smaller reporting company)
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to said Section 8(a), shall determine.
Explanatory
Note
This Amendment No. 6 to the Registrants Registration
Statement on Form S-1 (File No. 333-150876) is being filed
solely for the purpose of filing a revised version of Exhibit
3.1 and Exhibit 3.2, and no changes or additions are being made
hereby to the prospectus that forms a part of the Registration
Statement. Accordingly, the prospectus is being omitted from
this filing.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution.
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The following are the estimated expenses to be incurred in
connection with the issuance and distribution of the securities
registered under this registration statement, other than
underwriting discounts and commissions. All amounts shown are
estimates except the SEC registration fee and the Financial
Industry Regulatory Authority, Inc. filing fee. The following
expenses will be borne solely by the registrant.
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SEC registration fee
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$
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9,491
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FINRA filing fee
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24,650
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Nasdaq listing fee
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125,000
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Legal fees and expenses
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2,500,000
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Accounting fees and expenses
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2,600,000
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Printing expenses
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550,000
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Transfer agent fees and expenses
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50,000
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Miscellaneous expenses
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240,859
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Total
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$
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6,100,000
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Item 14.
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Indemnification
of Directors and Officers.
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Section 145(a) of the DGCL provides, in general, that a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in
the right of the corporation), because he or she 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, and amounts
paid in settlement actually and reasonably incurred by the
person in connection with such action, suit, or proceeding, if
he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or
completed action or suit by or in the right of the corporation
to procure a judgment in its favor because the person 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) actually and
reasonably incurred by the person in connection with the defense
or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, except
that no indemnification shall be made with respect to any claim,
issue, or matter as to which he or she shall have been adjudged
to be liable to the corporation unless and only to the extent
that the Court of Chancery or other adjudicating court
determines that, despite the adjudication of liability but in
view of all of the circumstances of the case, he or she is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or other adjudicating court shall
deem proper.
II-1
Section 145(g) of the DGCL provides, in general, that a
corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out
of his or her status as such, whether or not the corporation
would have the power to indemnify the person against such
liability under Section 145 of the DGCL.
Section 8.1 of our bylaws that will be in effect upon
completion of this offering will provide that we will indemnify,
to the fullest extend permitted by the DGCL, any person who was
or is made or is threatened to be made a party or is otherwise
involved in any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the
fact that he, or a person for whom he is the legal
representative, is or was one of our directors or officers or,
while serving as one of our directors or officers, is or was
serving at our request as a director, officer, employee, or
agent of another corporation or of another entity, against all
liability and loss suffered and expenses (including
attorneys fees) reasonably incurred by such person,
subject to limited exceptions relating to indemnity in
connection with a proceeding (or part thereof) initiated by such
person. Section 8.1 of our bylaws that will be in effect
upon completion of this offering will further provide for the
advancement of expenses to each of our officers and directors.
Article VIII of our charter that will be in effect upon
completion of this offering will provide that, to the fullest
extent permitted by the DGCL, as the same exists or may be
amended from time to time, our directors shall not be personally
liable to us or our stockholders for monetary damages for breach
of fiduciary duty as a director. Under Section 102(b)(7) of
the DGCL, the personal liability of a director to the
corporation or its stockholders for monetary damages for breach
of fiduciary duty can be limited or eliminated except
(i) for any breach of the directors duty of loyalty
to the corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL (relating to unlawful payment of
dividend or unlawful stock purchase or redemption); or
(iv) for any transaction from which the director derived an
improper personal benefit.
We also intend to maintain a general liability insurance policy
which covers certain liabilities of directors and officers of
our company arising out of claims based on acts or omissions in
their capacities as directors or officers, whether or not we
would have the power to indemnify such person against such
liability under the DGCL or the provisions of charter or bylaws.
In connection with the sale of common stock being registered
hereby, we intend to enter into indemnification agreements with
each of our directors and our executive officers. These
agreements will provide that we will indemnify each of our
directors and such officers to the fullest extent permitted by
law and by our charter and bylaws.
In any underwriting agreement we enter into in connection with
the sale of common stock being registered hereby, the
underwriters will agree to indemnify, under certain conditions,
us, our directors, our officers and persons who control us,
within the meaning of the Securities Act, against certain
liabilities.
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Item 15.
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Recent
Sales of Unregistered Securities.
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In the three years preceding the filing of this registration
statement, we have issued the following securities that were not
registered under the Securities Act:
Preferred
Stock
On March 31, 2005, we sold $14.0 million aggregate
principal amount of notes to the Endeavour Entities. On
August 24, 2005, we sold 5,953 shares of our newly
designated Series A convertible preferred stock at a
purchase price of $3,233.67 per share, or $19.3 million
total, of which 4,948 shares were sold to the Endeavour
Entities and 1,005 shares were sold to 220 GCU, L.P. A
substantial portion of the purchase price paid by the Endeavour
Entities was paid through the contributions to us of the notes
that were previously issued to the Endeavour Entities. The sales
were made in reliance on Section 4(2) of the Securities Act.
On December 31, 2005, we issued 2,163 shares of our
newly designated Series B preferred stock and received
gross proceeds of approximately $7.0 million, or
$3,236.25 per share, in the form of a stock
II-2
subscription receivable. The receivable was subsequently paid in
April 2006. Of these shares, 1,298 were sold to the Endeavour
Entities and 865 were sold to Rich Crow Enterprises, LLC. The
sales were made in reliance on Section 4(2) of the
Securities Act.
On December 18, 2007, we sold an aggregate of
3,829 shares of our newly designed Series C preferred
stock at a purchase price of $3,500 per share, or approximately
$13.4 million total, of which 1,675 shares were sold
to the Endeavour Entities, 834 shares were sold to Rich
Crow Enterprises, LLC, and 935 shares were sold to the 220
Entities. The purchase price payable by Rich Crow Enterprises
for its shares of Series C preferred stock was paid in part
by the exchange of the 865 outstanding shares of Series B
preferred stock it purchased in 2006. The sales were made in
reliance on Rule 506 of Regulation D promulgated under
the Securities Act.
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Item 16.
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Exhibits
and Financial Statement Schedules.
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(a) Exhibits.
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Number
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Description
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1
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.1
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Form of Underwriting Agreement
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3
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.1
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Amended and Restated Certificate of Incorporation#
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3
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.2
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Amended and Restated Bylaws#
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4
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.1
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Specimen of Stock Certificate
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4
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.2
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Amended and Restated Investor Rights Agreement, dated
September 17, 2008, by and among Grand Canyon
Education, Inc. and the other parties named therein
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5
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.1
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Opinion of DLA Piper LLP (US)
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10
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.1
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Amended and Restated Executive Employment Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and Brent Richardson
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10
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.2
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Amended and Restated Executive Employment Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and Christopher Richardson
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10
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.3
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Amended and Restated Senior Management Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and John Crowley
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10
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.4
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2008 Equity Incentive Plan
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10
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.5
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2008 Employee Stock Purchase Plan
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10
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.6
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Lease Agreement, effective June 28, 2004, by and between
Spirit Finance Acquisitions, LLC and Significant Education, LLC
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10
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.7
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First Amendment to Lease Agreement, effective September 24,
2004, by and between Spirit Finance Acquisitions, LLC and
Significant Education, LLC
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10
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.8
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Second Amendment to Lease Agreement, effective August 23,
2005, by and between Spirit Master Funding, LLC and Significant
Education, LLC
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10
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.9
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Third Amendment to Lease Agreement, effective June 2006, by and
between Spirit Master Funding, LLC and Significant Education,
Inc.
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10
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.10
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Fourth Amendment to Lease Agreement, effective August 9,
2006, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.11
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Fifth Amendment to Lease Agreement, effective December 31,
2006, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.12
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Sixth Amendment to Lease Agreement, effective September 30,
2007, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.13
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Seventh Amendment to Lease Agreement, effective March 28,
2008, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.14
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License Agreement, dated June 30, 2004, by and between
Blanchard Education, LLC and Significant Education, LLC
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10
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.15
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Letter Agreement, dated February 6, 2006, by and between
The Ken Blanchard Companies and Grand Canyon University
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II-3
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Number
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Description
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10
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.16
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Amendment to License Agreement, dated May 8, 2008, by and
between Blanchard Education, LLC and Grand Canyon Education, Inc.
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10
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.17
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Collaboration Agreement, dated July 11, 2005, by and
between Mind Streams, LLC and Significant Education, LLC (as
supplemented by Project One and Project Two)
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10
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.18
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and Daniel E. Bachus
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10
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.19
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and Brian E.
Mueller
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10
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.20
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and W. Stan Meyer
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10
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.21
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Form of Director and Officer Indemnity Agreement
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23
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.1
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
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23
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.2
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Consent of Independent Registered Public Accounting Firm
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24
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.1
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Power of Attorney
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99
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.1
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Consent of David J. Johnson
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99
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.2
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Consent of Jack A. Henry
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Significant Education, LLC is the predecessor to Significant
Education, Inc., which is the former name of Grand Canyon
Education, Inc.
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#
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Filed herewith.
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Indicates a management contract or any compensatory plan,
contract or arrangement.
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(b) Financial Statement Schedules
All schedules are omitted because they are not required, are not
applicable or, the information is included in the financial
statements or the notes thereto.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers, and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by us of expenses incurred or paid by a
director, officer, or controlling person of us in the successful
defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, we will, unless in the opinion of
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
We hereby undertake that:
(i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(ii) for purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona on
November 12, 2008.
GRAND CANYON EDUCATION, INC.
Brian E. Mueller
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this
registration statement and the Power of Attorney has been signed
by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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*
Brent
D. Richardson
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Executive Chairman
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November 12, 2008
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/s/ Brian
E. Mueller
Brian
E. Mueller
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Chief Executive Officer
(Principal Executive Officer)
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November 12, 2008
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/s/ Daniel
E. Bachus
Daniel
E. Bachus
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Chief Financial Officer
(Principal Financial and Principal
Accounting Officer)
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November 12, 2008
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/s/ Christopher
C. Richardson
Christopher
C. Richardson
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General Counsel and Director
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November 12, 2008
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*
D.
Mark Dorman
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Director
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November 12, 2008
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*
Chad
N. Heath
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Director
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November 12, 2008
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*By:
/s/ Christopher
C. Richardson
Christopher
C. Richardson
Attorney-in-fact
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II-5
EXHIBIT INDEX
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Number
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Description
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1
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.1
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Form of Underwriting Agreement
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3
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.1
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Amended and Restated Certificate of Incorporation#
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3
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.2
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|
Amended and Restated Bylaws#
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4
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.1
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Specimen of Stock Certificate
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4
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.2
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Amended and Restated Investor Rights Agreement, dated
September 17, 2008, by and among Grand Canyon
Education, Inc. and the other parties named therein
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5
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.1
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Opinion of DLA Piper LLP (US)
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10
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.1
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Amended and Restated Executive Employment Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and Brent Richardson
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10
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.2
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Amended and Restated Executive Employment Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and Christopher Richardson
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10
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.3
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Amended and Restated Senior Management Agreement, dated
September 10, 2008, by and between Grand Canyon Education,
Inc. and John Crowley
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10
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.4
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2008 Equity Incentive Plan
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10
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.5
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2008 Employee Stock Purchase Plan
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10
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.6
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|
Lease Agreement, effective June 28, 2004, by and between
Spirit Finance Acquisitions, LLC and Significant Education, LLC
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10
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.7
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First Amendment to Lease Agreement, effective September 24,
2004, by and between Spirit Finance Acquisitions, LLC and
Significant Education, LLC
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10
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.8
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Second Amendment to Lease Agreement, effective August 23,
2005, by and between Spirit Master Funding, LLC and Significant
Education, LLC
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10
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.9
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Third Amendment to Lease Agreement, effective June 2006, by and
between Spirit Master Funding, LLC and Significant Education,
Inc.
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10
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.10
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Fourth Amendment to Lease Agreement, effective August 9,
2006, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.11
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Fifth Amendment to Lease Agreement, effective December 31,
2006, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.12
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Sixth Amendment to Lease Agreement, effective September 30,
2007, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.13
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Seventh Amendment to Lease Agreement, effective March 28,
2008, by and between Spirit Master Funding, LLC and Significant
Education, Inc.
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10
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.14
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License Agreement, dated June 30, 2004, by and between
Blanchard Education, LLC and Significant Education, LLC
|
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10
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.15
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Letter Agreement, dated February 6, 2006, by and between
The Ken Blanchard Companies and Grand Canyon University
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10
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.16
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Amendment to License Agreement, dated May 8, 2008, by and
between Blanchard Education, LLC and Grand Canyon Education, Inc.
|
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10
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.17
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Collaboration Agreement, dated July 11, 2005, by and
between Mind Streams, LLC and Significant Education, LLC (as
supplemented by Project One and Project Two)
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10
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.18
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and Daniel E. Bachus
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10
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.19
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and Brian E.
Mueller
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10
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.20
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Executive Employment Agreement, dated June 25, 2008, by and
between Grand Canyon Education, Inc. and W. Stan Meyer
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10
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.21
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Form of Director and Officer Indemnity Agreement
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23
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.1
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
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23
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.2
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Consent of Independent Registered Public Accounting Firm
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24
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.1
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Power of Attorney
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Number
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Description
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99
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.1
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Consent of David J. Johnson
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99
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.2
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Consent of Jack A. Henry
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Significant Education, LLC is the predecessor to Significant
Education, Inc., which is the former name of Grand Canyon
Education, Inc.
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Indicates a management contract or any compensatory plan,
contract or arrangement.
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Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
GRAND CANYON EDUCATION, INC.
A Delaware Corporation
PREAMBLE
These amended and restated bylaws (the Bylaws) are subject to, and governed by, the General
Corporate Law of the State of Delaware (the DGCL) and the amended and restated certificate of
incorporation (the Certificate) of Grand Canyon Education, 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 DGCL or the provisions of the Certificate, such provisions of the DGCL
or the Certificate, as the case may be, will be controlling.
ARTICLE I
OFFICES
1.1
Registered Office and Agent
. The registered office and registered agent of the
Corporation shall be 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 II
STOCKHOLDERS
2.1
Place of Meetings
. All meetings of stockholders shall be held at such place (if
any) within or without the State of Delaware as may be designated from time to time by the Board of
Directors or the President and Chief Executive Officer.
2.2
Annual Meeting
. The annual meeting of stockholders for the election of directors
and for the transaction of such other business as may properly be brought before the meeting shall
be held on a date to be fixed by the Board of Directors at the time and place to be fixed by the
Board of Directors and stated in the notice of the meeting. In lieu of holding an annual meeting
of stockholders at a designated place, the Board of Directors may, in its sole discretion,
determine that any annual meeting of stockholders may be held solely by means of remote
communication.
2.3
Special Meetings
. Special meetings of stockholders may be called at any time by
the Board of Directors for any purpose or purposes
prescribed in the notice of the meeting and shall be held at such place (if any), on such date and
at such time as the Board may fix. In lieu of holding a special meeting of stockholders at a
designated place, the Board of Directors may, in its sole discretion, determine that any special
meeting of stockholders may be held solely by means of remote communication. Business transacted
at any special meeting of
stockholders shall be confined to the purpose or purposes stated in the
notice of meeting.
2.4
Notice of Meetings
.
(a) Written notice of each meeting of stockholders, whether annual or special, shall be given
not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise provided herein or as required by
law (meaning here and hereafter, as required from time to time by the DGCL or the Certificate).
The notice of any meeting shall state the place, if any, date and hour of the meeting, and the
means of remote communication, if any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such meeting. The notice of a special meeting shall state, in
addition, the purpose or purposes for which the meeting is called. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the stockholder at his, her or
its address as it appears on the records of the Corporation.
(b) Notice to stockholders may be given by personal delivery, mail, or, with the consent of
the stockholder entitled to receive notice, by facsimile or other means of electronic transmission.
If mailed, such notice shall be delivered by postage prepaid envelope directed to each stockholder
at such stockholders address as it appears in the records of the Corporation and shall be deemed
given when deposited in the United States mail. Notice given by electronic transmission pursuant
to this subsection shall be deemed given: (1) if by facsimile telecommunication, when directed to a
facsimile telecommunication number at which the stockholder has consented to receive notice; (2) if
by electronic mail, when directed to an electronic mail address at which the stockholder has
consented to receive notice; (3) if by posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the
giving of such separate notice; and (4) if by any other form of electronic transmission, when
directed to the stockholder. An affidavit of the Secretary or an assistant Secretary or of the
transfer agent or other agent of the Corporation that the notice has been given by personal
delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(c) Notice of any meeting of stockholders need not be given to any stockholder if waived by
such stockholder either in a writing signed by such stockholder or by electronic
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transmission,
whether such waiver is given before or after such meeting is held. If such a waiver is given by
electronic transmission, the electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was authorized by the
stockholder.
2.5
Voting List
. The officer who has charge of the stock ledger of the Corporation
shall prepare, at least 10 days before each meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order for each class of
stock and showing the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any such stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days
prior to the meeting, in the manner provided by law. The list shall also be produced and kept at
the time and place of the meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present. This list shall determine the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each of them.
2.6
Quorum
. Except as otherwise provided by law or these Bylaws, the holders of a
majority of the shares of the capital stock of the Corporation entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum for the transaction of
business. Where a separate class vote by a class or classes or series is required, a majority of
the shares of such class or classes or series present in person or represented by proxy shall
constitute a quorum entitled to take action with respect to that vote on that matter.
2.7
Adjournments
. Any meeting of stockholders may be adjourned to any other time and
to any other place at which a meeting of stockholders may be held under these Bylaws by the
chairman of the meeting or, in the absence of such person, by any officer entitled to preside at or
to act as Secretary of such meeting, or by the holders of a majority of the shares of stock present
or represented at the meeting and entitled to vote, although less than a quorum. When a meeting is
adjourned to another place, date or time, written notice need not be given of the adjourned meeting
if the date, time, and place and the means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such adjourned meeting, are
announced at the meeting at which the adjournment is taken; provided, however, that if the date of
any adjourned meeting is more than 30 days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place,
if any, date, and time of the adjourned meeting and the means of remote communications, if any, by
which stockholders and proxy holders may be deemed to be present in person and vote at such
adjourned meeting, shall be given in conformity with Section 2.4 hereof. At the adjourned meeting,
the Corporation may transact any business that might have been transacted at the original meeting.
2.8
Voting and Proxies
. Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided by law or in the Certificate. Each stockholder of record
entitled to vote at a meeting of stockholders may vote in person or may authorize any other person
or persons to vote or act for such stockholder by written proxy executed by the stockholder or its
authorized agent or by a transmission permitted by law and delivered to the Secretary of the
Corporation. Any copy, facsimile transmission or other reliable reproduction of the writing or
transmission created pursuant to this Section may be substituted or used in lieu of the original
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writing or transmission for any and all purposes for which the original writing or transmission
could be used, provided that such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
2.9
Record Date
. The Board of Directors may fix in advance a record date for the
determination of the stockholders entitled to notice of or to vote at any meeting of stockholders
or to express consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights in respect of any change,
concession or exchange of stock, or for the purpose of any other lawful action. Such record date
shall not precede the date on which the resolution fixing the record date is adopted and shall not
be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior
to any other action to which such record date relates. 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 before the day on which notice
is given, or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to express consent to corporate action in writing
without a meeting when no prior action by the Board of Directors is necessary shall be the day on
which the first written consent is expressed. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of Directors adopts
the resolution relating to such purpose. 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.
2.10
Action at Meeting
. When a quorum is present at any meeting, any election of
directors shall be determined by a plurality of the votes cast by the stockholders entitled to vote
at the election, and any other matter shall be determined by a majority in voting power of the
shares present in person or represented by proxy and entitled to vote on the matter (or if there
are two or more classes of stock entitled to vote as separate classes, then in the case of each
such class, a majority of the shares of each such class present in person or represented by proxy
and entitled to vote on the matter) shall decide such matter, except when a different vote is
required by express provision of law, the Certificate or these Bylaws. All voting, except on the
election of directors and where otherwise prohibited by law, may be by a voice vote; provided,
however, that upon demand therefor by a stockholder entitled to vote or his, her or its proxy, a
vote by ballot shall be taken. Each ballot shall state the name of the stockholder or proxy voting
and such other information as may be required under the procedure established for the meeting. The
Corporation may, and to the extent required by law, shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as an alternate inspector to replace
any inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the extent required by law, shall,
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to faithfully execute the duties of
inspector with strict impartiality and according to the best of his or her ability.
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2.11
Notice of Stockholder Business
.
(a) At an annual or special meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought before an annual
meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (ii) properly brought before the meeting by or at
the direction of the Board of Directors, or (iii) properly brought before the meeting by a
stockholder of record. For business to be properly brought before an annual meeting by a
stockholder, it must be a proper matter for stockholder action under the DGCL and the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder proposal to be presented at an annual meeting shall be received at the
Corporations principal executive offices not earlier than the close of business on the 120th day,
nor later than the close of business on the 90th day, prior to the first anniversary of the date of
the preceding years annual meeting as first specified in the Corporations notice of meeting
(without regard to any postponements or adjournments of such meeting after such notice was first
sent), except that if no annual meeting was held in the
previous year or the date of the annual meeting is more than 30 days earlier or later than
such anniversary date, notice by the stockholders to be timely must be received not later than the
close of business on the later of the 90th day prior to the annual meeting or the 10th day
following the date on which public announcement of the date of such meeting is first made. Public
announcement for purposes hereof shall have the meaning set forth in Article III, Section 3.15(c)
of these Bylaws. 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
stockholders notice as described above. For business to be properly brought before a special
meeting by a stockholder, the business must be limited to the purpose or purposes set forth in a
request under Section 2.3.
(b) A stockholders notice to the Secretary of the Corporation shall set forth as to each
matter the stockholder proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the meeting and 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 these Bylaws, the language of the proposed amendment, (ii) the name and address,
as they appear on the Corporations books, of the stockholder proposing such business and the names
and addresses of the beneficial owners, if any, on whose behalf the business is being brought,
(iii) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote at the meeting on the date of such notice and intends to appear in person or by
proxy at the meeting to propose the business specified in the notice, (iv) any material interest of
the stockholder and such other beneficial owner in such business, (v) the class and number of
shares of the Corporation that are owned beneficially and of record by the stockholder and such
other beneficial owner, (vi) 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 stockholders notice by, or on behalf of, such stockholder or,
and (vii) any material interest of the stockholder and such other 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 or such beneficial owner, with respect
to shares of stock of the Corporation in such business.
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(c) Notwithstanding the foregoing provisions of this Section 2.11, a stockholder shall also
comply with all applicable requirements of the Securities Exchange Act of 1934 (the Exchange Act)
and the rules and regulations thereunder with respect to the matters set forth in this Section
2.11. Nothing in this Section 2.11 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
2.12
Conduct of Business
. At every meeting of the stockholders, the Chairman of the
Board, or, in his or her absence, the President, or, in his or her absence, such other person as
may be appointed by the Board of Directors, shall act as chairman. The Secretary of the
Corporation or a person designated by the chairman of the meeting shall act as Secretary of the
meeting. Unless otherwise approved by the chairman of the meeting, attendance at the stockholders
meeting is restricted to stockholders of record, persons authorized in accordance with Section 2.8
of these Bylaws to act by proxy, and officers of the Corporation. The chairman of the meeting
shall call the meeting to order, establish the agenda, and conduct the business of
the meeting in accordance therewith or, at the chairmans discretion, it may be conducted
otherwise in accordance with the wishes of the stockholders in attendance. The date and time of
the opening and closing of the polls for each matter upon which the stockholders will vote at the
meeting shall be announced at the meeting. The chairman shall also conduct the meeting in an
orderly manner, rule on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness and good faith toward
all those entitled to take part. Without limiting the foregoing, the chairman may (a) restrict
attendance at any time to bona fide stockholders of record and their proxies and other persons in
attendance at the invitation of the presiding officer or Board of Directors, (b) restrict use of
audio or video recording devices at the meeting, and (c) impose reasonable limits on the amount of
time taken up at the meeting on discussion in general or on remarks by any one stockholder. Should
any person in attendance become unruly or obstruct the meeting proceedings, the chairman shall have
the power to have such person removed from the meeting. Notwithstanding anything in the Bylaws to
the contrary, no business shall be conducted at a meeting except in accordance with the procedures
set forth in this Section 2.12 and Section 2.11 above. The chairman of a meeting may determine and
declare to the meeting that any proposed item of business was not brought before the meeting in
accordance with the provisions of this Section 2.12 and Section 2.11, and if he or she should so
determine, he or she shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
2.13
Stockholder Action Without Meeting
. Effective upon the closing of the
Corporations initial public offering of its common stock, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be effected by any consent in writing by
such stockholders. At all times prior to the closing of the Corporations initial public offering
of its common stock, any action which may be taken at any annual or special meeting of stockholders
may be taken without a meeting and without prior notice, if a consent in writing, setting forth the
actions so taken, is signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. All such consents shall be filed with the
Secretary of the Corporation and shall be maintained in the corporate records. Prompt notice of
the taking of a corporate action without a meeting by less than unanimous written consent shall be
given to those
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stockholders who have not consented in writing. An electronic transmission
consenting to an action to be taken and transmitted by a stockholder, or by a proxy holder or other
person authorized to act for a stockholder, shall be deemed to be written, signed and dated for the
purpose of this Section 2.13, provided that such electronic transmission sets forth or is delivered
with information from which the Corporation can determine (i) that the electronic transmission was
transmitted by the stockholder or by a person authorized to act for the stockholder and (ii) the
date on which such stockholder or authorized person transmitted such electronic transmission. The
date on which such electronic transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by electronic transmission shall be deemed to have been
delivered until such consent is reproduced in paper form and until such paper form 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 books
in which proceedings of meetings of stockholders are recorded.
2.14
Meetings by Remote Communication
. If authorized by the Board of Directors, and
subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders
not physically present at a meeting of stockholders may, by means of remote communication,
participate in the meeting and be deemed present in person and vote at the meeting, whether such
meeting is to be held at a designated place or solely by means of remote communication, provided
that (i) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or
proxy holder, (ii) the Corporation shall implement reasonable measures to provide such stockholders
and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxy
holder votes or takes other action at the meeting by means of remote communication, a record of
such vote or other action shall be maintained by the Corporation.
ARTICLE III
BOARD OF DIRECTORS
3.1
General Powers
. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors, who may exercise all of the powers of the Corporation
except as otherwise provided by law or the Certificate. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of
the full Board until the vacancy is filled.
3.2
Number and Term of Office
. Subject to the rights of the holders of any series of
preferred stock to elect directors under specified circumstances, the number of directors shall
initially be six (6) and, thereafter, shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board for adoption).
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All directors shall
hold office until the next annual meeting of stockholders and until their respective
successors are elected, except in the case of the death, resignation or removal of any director.
3.3
Vacancies and Newly Created Directorships
. Subject to the rights of the holders of
any series of preferred stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification or other cause (including removal from office
by a vote of the stockholders) may be filled only by a majority vote of the directors then in
office, though less than a quorum (and not by stockholders), or by the sole remaining director, and
directors so chosen shall hold office for a term expiring at the next annual meeting of
stockholders at which the term of office of the class to which they have been elected expires or
until such directors successor shall have been duly elected and qualified. No decrease in the
number of authorized directors shall shorten the term of any incumbent director.
3.4
Resignation
. Any director may resign by delivering notice in writing or by
electronic transmission to the President, Chairman of the Board or Secretary. Such resignation
shall be effective upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event.
3.5
Removal
. Subject to the rights of the holders of any series of preferred stock
then outstanding, any directors, or the entire Board of Directors, may be removed from office at
any time, but only for cause, by the affirmative vote of the holders of a majority of the voting
power of all of the outstanding shares of capital stock entitled to vote generally in the election
of directors, voting together as a single class. Vacancies in the Board of Directors resulting
from such removal may be filled by a majority of the directors then in office, though less than a
quorum, or by the sole remaining director. Directors so chosen shall hold office until the next
annual meeting of stockholders at which the term of office of the class to which they have been
elected expires.
3.6
Regular Meetings
. Regular meetings of the Board of Directors may be held without
notice at such time and place, either within or without the State of Delaware, as shall be
determined from time to time by the Board of Directors; provided that any director who is absent
when such a determination is made shall be given notice of the determination. A regular meeting of
the Board of Directors may be held without notice immediately after and at the same place as the
annual meeting of stockholders.
3.7
Special Meetings
. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President or two or more directors and may be held at any time and
place, within or without the State of Delaware.
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3.8
Notice of Special Meetings
. Notice of any special meeting of directors shall be
given to each director by whom it is not waived by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director by (i) giving notice to
such director in person or by telephone, electronic transmission or voice message system at least
24 hours in advance of the meeting, (ii) sending a facsimile to his or her last known facsimile
number, or delivering written notice by hand to his or her last known business or home address, at
least 24 hours in advance of the meeting, or (iii) mailing written notice to his or her last known
business or home address at least three days in advance of the meeting. A notice or waiver of
notice of a meeting of the Board of Directors need not specify the purposes of
the meeting. Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
3.9
Participation in Meetings by Telephone Conference Calls or Other Methods of
Communication
. Directors or any members of any committee designated by the directors may
participate in a meeting of the Board of Directors or such committee by means of conference
telephone or other communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute presence in person at
such meeting.
3.10
Quorum
. A majority of the total number of authorized directors shall constitute a
quorum at any meeting of the Board of Directors. In the absence of a quorum at any such meeting, a
majority of the directors present may adjourn the meeting from time to time without further notice
other than announcement at the meeting, until a quorum shall be present. Interested directors may
be counted in determining the presence of a quorum at a meeting of the Board of Directors or at a
meeting of a committee which authorizes a particular contract or transaction.
3.11
Action at Meeting
. At any meeting of the Board of Directors at which a quorum is
present, the vote of a majority of those present shall be sufficient to take any action, unless a
different vote is specified by law, the Certificate or these Bylaws.
3.12
Action by Written Consent
. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors may be taken
without a meeting if all members of the Board or committee, as the case may be, consent to the
action in writing or by electronic transmission, and the writings or electronic transmissions are
filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
3.13
Committees
. The Board of Directors shall designate an Audit Committee, a
Compensation Committee and a Nominating and Corporate Governance Committee, and whatever other
committees the Board of Directors deems advisable, each of which shall have and may exercise the
powers and authority of the Board of Directors to the extent provided in the charters of each
committee adopted by the Board of Directors in one or more resolutions.. The Board of Directors
may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or disqualification
of a member of a committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
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place of any such
absent or disqualified member. Each such committee shall keep minutes and make such reports as the
Board of Directors may from time to time request. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its business, but unless otherwise
provided by such rules, its business shall be conducted as nearly as possible in the same manner as
is provided in these Bylaws for the Board of Directors.
3.14
Compensation of Directors
. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director from serving the
Corporation or any of its parent or subsidiary corporations in any other capacity and receiving
compensation for such service.
3.15
Nomination of Director Candidates
.
(a) Subject to the rights of holders of any class or series of preferred stock then
outstanding, nominations for the election of directors at an annual meeting may be made by (i) the
Board of Directors or a duly authorized committee thereof or (ii) any stockholder entitled to vote
in the election of directors generally who complies with the procedures set forth in this Section
3.15 and who is a stockholder of record at the time notice is delivered to the Secretary of the
Corporation. Any stockholder entitled to vote in the election of directors generally may nominate
one or more persons for election as directors at an annual meeting only if timely notice of such
stockholders intent to make such nomination or nominations has been given in writing to the
Secretary of the Corporation. To be timely, a stockholder nomination for a director to be elected
at an annual meeting shall be received at the Corporations principal executive offices not less
than 120 calendar days in advance of the first anniversary of the date that the Corporations (or
the Corporations predecessors) proxy statement was released to stockholders in connection with
the previous years annual meeting of stockholders, except that if no annual meeting was held in
the previous year or the date of the annual meeting has been advanced by more than 30 calendar days
from the date contemplated at the time of the previous years proxy statement, notice by the
stockholders to be timely must be received not later than the close of business on the tenth day
following the day on which public announcement of the date of such meeting is first made. Each
such notice shall set forth: (i) the name and address of the stockholder who intends to make the
nomination, or the beneficial owner, if any, on whose behalf the nomination is being made and of
the person or persons to be nominated; (ii) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote for the election of directors on the date of
such notice and intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (iii) a description of all arrangements or understandings between
the stockholder or such beneficial owner and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to be made by the
stockholder; (iv) such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by
the Board of Directors; (v) the consent of each nominee to serve as a director of the Corporation
if so elected; and (vi) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner. In no event shall the
public announcement of an adjournment or postponement of an annual meeting commence a new time
period (or extend any
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time period) for the giving of a stockholders notice as described above.
Notwithstanding the third sentence of this Section 3.15(a), in the event that the number of
directors to be elected at an annual meeting is increased and there is no public announcement by
the Corporation naming the nominees for the additional directorships at least 130 days prior to the
first anniversary of the date that the Corporations (or its predecessors) proxy statement was
released to stockholders in connection with the previous years annual meeting, a stockholders
notice required by this Section 3.15(a) shall also be
considered timely, but only with respect to nominees for the additional directorships, if it
shall be delivered to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(b) Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporations notice
of meeting by or at the direction of the Board of Directors or a committee thereof or any
stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Section 3.15 and who is a stockholder of record at the time such
notice is delivered to the Secretary of the Corporation. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case may be) for election
to such position(s) as are specified in the Corporations notice of meeting, if the stockholders
notice as required by paragraph (a) of this Bylaw shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the 90th day prior to such special
meeting and not later than the close of business on the later of the 70th day prior to such special
meeting or the 10th day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for the giving of a stockholders
notice as described above.
(c) For purposes of these Bylaws, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(d) Notwithstanding the foregoing provisions of this Section 3.15, 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 3.15. Nothing in this Section
3.15 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(e) Only persons nominated in accordance with the procedures set forth in this Section 3.15
shall be eligible to serve as directors. Except as otherwise provided by law, the chairman of the
meeting shall have the power and duty (a) to determine whether a nomination was made in accordance
with the procedures set forth in this Section 3.15 and (b) if any proposed nomination was not made
in compliance with this Section 3.15, to declare that such nomination shall be disregarded.
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(f) If the chairman of the meeting for the election of directors determines that a nomination
of any candidate for election as a director at such meeting was not made in accordance with the
applicable provisions of this Section 3.15, such nomination shall be void; provided, however, that
nothing in this Section 3.15 shall be deemed to limit any voting rights upon the occurrence of
dividend arrearages provided to holders of preferred stock pursuant to the preferred stock
designation for any series of preferred stock.
ARTICLE IV
OFFICERS
4.1
Enumeration
. The officers of the Corporation shall consist of a Chief Executive
Officer, a President, a Secretary, a Treasurer, a Chief Financial Officer and such other officers
with such other titles as the Board of Directors shall determine, including, at the discretion of
the Board of Directors, a Chairman of the Board and one or more Vice Presidents and Assistant
Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate.
4.2
Election
. Officers shall be elected annually by the Board of Directors at its
first meeting following the annual meeting of stockholders. Officers may be appointed by the Board
of Directors at any other meeting.
4.3
Qualification
. No officer need be a stockholder. Any two or more offices may be
held by the same person.
4.4
Tenure
. Except as otherwise provided by law, by the Certificate or by these
Bylaws, each officer shall hold office until his or her successor is elected and qualified, unless
a different term is specified in the vote appointing him or her, or until his or her earlier death,
resignation or removal.
4.5
Resignation and Removal
. Any officer may resign by delivering his or her written
resignation to the Corporation at its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event. Any officer elected by the Board of Directors may
be removed at any time, with or without cause, by the Board of Directors.
4.6
Chairman of the Board
. The Board of Directors may appoint a Chairman of the Board.
If the Board of Directors appoints a Chairman of the Board, he or she shall perform such duties
and possess such powers as are assigned to him or her by the Board of Directors. Unless otherwise
provided by the Board of Directors, he or she shall preside at all meetings of the Board of
Directors.
4.7
Chief Executive Officer
. The Chief Executive Officer of the Corporation shall,
subject to the direction of the Board of Directors, have general supervision, direction and control
of the business and the officers of the Corporation. He shall preside at all meetings of the
stockholders and, in the absence or nonexistence of a Chairman of the Board, at all meetings of the
Board of Directors. He shall have the general powers and duties of management usually vested in
the chief executive officer of a Corporation, including general supervision, direction and control
of the
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business and supervision of other officers of the Corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors or these Bylaws.
4.8
President
. Subject to the direction of the Board of Directors and such supervisory
powers as may be given by these Bylaws or the Board of Directors to the Chairman of the Board or
the Chief Executive Officer, if such titles be held by other officers, the President shall have
general supervision, direction and control of the business and supervision of other officers of the
Corporation. Unless otherwise designated by the Board of Directors, the President
shall be the Chief Executive Officer of the Corporation. The President shall have such other
powers and duties as may be prescribed by the Board of Directors or these Bylaws. He or she shall
have power to sign stock certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other officers, employees
and agents of the Corporation, other than the Chairman of the Board and the Chief Executive
Officer.
4.9
Vice Presidents
. Any Vice President shall perform such duties and possess such
powers as the Board of Directors or the President may from time to time prescribe. In the event of
the absence, inability or refusal to act of the President, the Vice President (or if there shall be
more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform
the duties of the President and when so performing shall have the powers of and be subject to all
the restrictions upon the President. The Board of Directors may assign to any Vice President the
title of Executive Vice President, Senior Vice President or any other title selected by the Board
of Directors.
4.10
Secretary and Assistant Secretaries
. The Secretary shall perform such duties and
shall have such powers as the Board of Directors or the President may from time to time prescribe.
In addition, the Secretary shall perform such duties and have such powers as are incident to the
office of the Secretary, including, without limitation, the duty and power to give notices of all
meetings of stockholders and special meetings of the Board of Directors, to keep a record of the
proceedings of all meetings of stockholders and the Board of Directors, to maintain a stock ledger
and prepare lists of stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents. Any Assistant
Secretary shall perform such duties and possess such powers as the Board of Directors, the Chief
Executive Officer, the President or the Secretary may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there
shall be more than one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary. In the absence of
the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary Secretary to keep a record of the meeting.
4.11
Treasurer
. The Treasurer shall perform such duties and have such powers as are
incident to the office of treasurer, including without limitation, the duty and power to keep and
be responsible for all funds and securities of the Corporation, to maintain the financial records
of the Corporation, to deposit funds of the Corporation in depositories as authorized, to disburse
such funds as authorized, to make proper accounts of such funds, and to render as required by the
Board of Directors accounts of all such transactions and of the financial condition of the
Corporation.
4.12
Chief Financial Officer
. The Chief Financial Officer shall perform such duties
and shall have such powers as may from time to time be assigned to him or her by the Board of
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Directors, the Chief Executive Officer or the President. Unless otherwise designated by the Board
of Directors, the Chief Financial Officer shall be the Treasurer of the Corporation.
4.13
Salaries
. Officers of the Corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
4.14
Delegation of Authority
. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officers or agents, notwithstanding any provision
hereof.
ARTICLE V
CAPITAL STOCK
5.1
Issuance of Stock
. Subject to the provisions of the Certificate, the whole or any
part of any unissued balance of the authorized capital stock of the Corporation or the whole or any
part of any unissued balance of the authorized capital stock of the Corporation held in its
treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of
Directors in such manner, for such consideration and on such terms as the Board of Directors may
determine.
5.2
Certificates of Stock
. The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or resolutions that
some or all of any class or series of its stock shall be uncertificated shares; provided, however,
that no such resolution shall apply to shares represented by a certificate until such certificate
is surrendered to the Corporation. Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate, the Bylaws, applicable securities laws or any
agreement among any number of shareholders or among such holders and the Corporation shall have
conspicuously noted on the face or back of the certificate either the full text of the restriction
or a statement of the existence of such restriction.
5.3
Transfers
. Except as otherwise established by rules and regulations adopted by the
Board of Directors, and subject to applicable law, shares of stock may be transferred on the books
of the Corporation: (i) in the case of shares represented by a certificate, by the surrender to the
Corporation or its transfer agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the Corporation or its transfer agent may reasonably
require; and (ii) in the case of uncertificated shares, upon the receipt of proper transfer
instructions from the registered owner thereof. Except as may be otherwise required by law, the
Certificate or the Bylaws, the Corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the payment of dividends
and the right to vote with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of the Corporation in
accordance with the requirements of these Bylaws.
5.4
Lost, Stolen or Destroyed Certificates
. The Corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, or it may issue uncertificated shares if the shares represented by such
certificate have been designated as uncertificated shares in accordance with Section 5.2, upon such
terms and conditions as the Board of Directors may prescribe, including the presentation of
reasonable
evidence of such
14
loss, theft or destruction and the giving of such indemnity as the Board of
Directors may require for the protection of the Corporation or any transfer agent or registrar.
ARTICLE VI
GENERAL PROVISIONS
6.1
Fiscal Year
. The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
6.2
Corporate Seal
. The corporate seal shall be in such form as shall be approved by
the Board of Directors.
6.3
Waiver of Notice
. Whenever any notice whatsoever is required to be given by law,
by the Certificate or by these Bylaws, a waiver of such notice either in writing signed by the
person entitled to such notice or such persons duly authorized attorney, or by electronic
transmission or any other method permitted under the DGCL, whether before, at or after the time
stated in such waiver, or the appearance of such person or persons at such meeting in person or by
proxy, shall be deemed equivalent to such notice. Neither the business nor the purpose of any
meeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of
notice except attendance for the sole purpose of objecting to the timeliness of notice.
6.4
Actions with Respect to Securities of Other Corporations
. Except as the Board of
Directors may otherwise designate, the Chief Executive Officer or President or any officer of the
Corporation authorized by the Chief Executive Officer or President shall have the power to vote and
otherwise act on behalf of the Corporation, in person or proxy, and may waive notice of, and act
as, or appoint any person or persons to act as, proxy or attorney-in-fact to this Corporation (with
or without power of substitution) at any meeting of stockholders or shareholders (or with respect
to any action of stockholders) of any other Corporation or organization, the securities of which
may be held by this Corporation and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of this Corporations ownership of securities in such other
Corporation or other organization.
6.5
Evidence of Authority
. A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any
officer or representative of the Corporation shall as to all persons who rely on the certificate in
good faith be conclusive evidence of such action.
6.6
Certificate of Incorporation
. All references in these Bylaws to the Certificate
shall be deemed to refer to the Amended and Restated Certificate of Incorporation of the
Corporation, as amended and in effect from time to time.
6.7
Severability
. Any determination that any provision of these Bylaws is for any
reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of
these Bylaws.
6.8
Pronouns
. All pronouns used in these Bylaws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person or persons may
require.
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6.9
Notices
. Except as otherwise specifically provided herein or required by law, all
notices required to be given to any stockholder, director, officer, employee or agent shall be in
writing and may in every instance be effectively given by hand delivery to the recipient thereof,
by depositing such notice in the mails, postage paid, or by sending such notice by commercial
courier service, or by facsimile or other electronic transmission, provided that notice to
stockholders by electronic transmission shall be given in the manner provided in Section 232 of the
DGCL. Any such notice shall be addressed to such stockholder, director, officer, employee or agent
at his or her last known address as the same appears on the books of the Corporation. The time
when such notice shall be deemed to be given shall be the time such notice is received by such
stockholder, director, officer, employee or agent, or by any person accepting such notice on behalf
of such person, if delivered by hand, facsimile, other electronic transmission or commercial
courier service, or the time such notice is dispatched, if delivered through the mails. Without
limiting the manner by which notice otherwise may be given effectively, notice to any stockholder
shall be deemed given: (1) if by facsimile, when directed to a number at which the stockholder has
consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice; (3) if by a posting on an electronic
network together with separate notice to the stockholder of such specific posting, upon the later
of (A) such posting and (B) the giving of such separate notice; (4) if by any other form of
electronic transmission, when directed to the stockholder; and (5) if by mail, when deposited in
the mail, postage prepaid, directed to the stockholder at such stockholders address as it appears
on the records of the Corporation.
6.10
Reliance Upon Books, Reports and Records
. Each director, each member of any
committee designated by the Board of Directors, and each officer of the Corporation shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation as provided by law, including reports made to the
Corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
6.11
Time Periods
. In applying any provision of these Bylaws which require that an act
be done or not done a specified number of days prior to an event or that an act be done during a
period of a specified number of days prior to an event, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall be included.
6.12
Facsimile Signatures
. In addition to the provisions for use of facsimile
signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer
or officers of the Corporation may be used whenever and as authorized by the Board of Directors or
a committee thereof.
ARTICLE VII
AMENDMENTS
7.1
By the Board of Directors
. Except as otherwise set forth in these Bylaws, these
Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the affirmative vote of
a majority of the directors present at any regular or special meeting of the Board of Directors at
which a quorum is present.
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7.2
By the Stockholders
. Except as otherwise set forth in these Bylaws, these Bylaws
may be altered, amended or repealed or new Bylaws may be adopted by the affirmative vote of the
holders of at least 66-2/3% of the voting power of all of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote generally in any election of directors,
voting together as a single class. Such vote may be held at any annual meeting of stockholders, or
at any special meeting of stockholders provided that notice of such alteration, amendment, repeal
or adoption of new Bylaws shall have been stated in the notice of such special meeting.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
8.1
Right to Indemnification
. Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (proceeding), by reason of the fact that he or she or a person of
whom he or she is the legal representative, is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director or officer of another
Corporation, or as a controlling person of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer, or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation to provide prior to
such amendment) against all expenses, liability and loss reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors
and administrators;
provided
,
however
, that except as provided in Section 8.2 of this
Article VIII, the Corporation shall indemnify any such person seeking indemnity in connection with
a proceeding (or part thereof) initiated by such person only if (a) such indemnification is
expressly required to be made by law, (b) the proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation, (c) such indemnification is provided by the Corporation, in
its sole discretion, pursuant to the powers vested in the Corporation under the DGCL, or (d) the
proceeding (or part thereof) is brought to establish or enforce a right to indemnification or
advancement under an indemnity agreement or any other statute or law or otherwise as required under
Section 145 of the DGCL. The rights hereunder shall be contract rights and shall include the right
to be paid expenses incurred in defending any such proceeding in advance of its final disposition;
provided
,
however
, that the payment of such expenses incurred by a director or
officer of the Corporation in his or her capacity as a director or officer (and not in any other
capacity in which service was or is tendered
by such person while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of such proceeding, shall be made only
upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it should be determined ultimately by final judicial decision from
which there is no further right to appeal that such director or officer is not entitled to be
indemnified under this Section or otherwise.
8.2
Right of Claimant to Bring Suit
. If a claim under Section 8.1 is not paid in full
by the Corporation within 60 days after a written claim has been received by the Corporation, or 20
days in
17
the case of a claim for advancement of expenses, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim and, if such suit is
not frivolous or brought in bad faith, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to this Corporation) that the
claimant has not met the standards of conduct which make it permissible under the DGCL for the
Corporation to indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board
of Directors, independent legal counsel or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct. In any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall
be entitled to recover such expenses upon a final judicial decision from which there is no further
right to appeal that the indemnitee has not met any applicable standard for indemnification set
forth in the DGCL. In any suit brought by the indemnitee to enforce a right to indemnification or
to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, shall be on the Corporation.
8.3
Indemnification of Employees and Agents
. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to indemnification, and to the
advancement of related expenses, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article with respect to the indemnification of and advancement of
expenses to directors and officers of the Corporation.
8.4
Non-Exclusivity of Rights
. The rights conferred on any person in this Article VIII
shall not be exclusive of any other right which such persons may have or hereafter acquire under
any statute, provision of the Certificate, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
8.5
Indemnification Contracts
. The Board of Directors is authorized to enter into a
contract with any director, officer, employee or agent of the Corporation, or any person serving at
the request of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, including employee benefit
plans, providing for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VIII.
8.6
Insurance
. The Corporation may maintain insurance to the extent reasonably
available, at its expense, to protect itself and any such director, officer, employee or agent of
the Corporation or another Corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
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8.7
Effect of Amendment
. Any amendment, repeal or modification of any provision of
this Article VIII shall not adversely affect any right or protection of an indemnitee or his or her
successor existing at the time of such amendment, repeal or modification.
19