UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | December 4, 2012 |
Chesapeake Utilities Corporation
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 001-11590 | 51-0064146 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
909 Silver Lake Boulevard, Dover, Delaware | 19904 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 302.734.6799 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 4, 2012, the Board of Directors of Chesapeake Utilities Corporation (the "Company") approved and adopted an amendment and restatement of the Company’s Amended and Restated Bylaws (the "Bylaws") effective as of the same date. The material amendments to the Bylaws provide for the following:
(a) Amending the advance notice periods for any business requested by a stockholder to be brought before an annual meeting under Section 2.3 of the Company’s Bylaws ("Stockholder Business"), and for any director nomination by a stockholder under Section 3.3 of the Company’s Bylaws ("Stockholder Nomination");
(b) Requiring that a stockholder appear personally or through its representative at the annual meeting to present such Stockholder Business or Stockholder Nomination;
(c) Requiring that a stockholder notify the Secretary of the Company in writing of any material changes to information required to be provided by the stockholder with regards to Stockholder Business or a Stockholder Nomination no later than the business day prior to the annual meeting, and requiring that notice include a representation as to the accuracy of the information;
(d) Adding the Chief Financial Officer as a designated officer under the Bylaws and generally describing the duties of the Chief Financial Officer; and
(e) Amending the duties of the Treasurer as specified under the Bylaws.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Chesapeake Utilities Corporation | ||||
December 7, 2012 | By: |
Beth W. Cooper
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Name: Beth W. Cooper | ||||
Title: Senior Vice President and Chief Financial Officer |
Exhibit Index
Exhibit No.
Description
Amended and Restated Bylaws, dated December 4, 2012
CHESAPEAKE UTILITIES CORPORATION
AMENDED AND RESTATED BYLAWS
December 4, 2012
ARTICLE I
OFFICES
1.1
Registered Office
. The address of the Corporations registered office in the
State of Delaware is 1013 Centre Road in the City of Wilmington, in the County of New Castle,
Delaware 19805. The name of the Corporations registered agent at such address is Corporation
Service Company.
1.2
Other Offices
. The Corporation may also have offices at such other places as the
Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
2.1
Location of Meetings
. Annual and special meetings of the stockholders shall be
held at such place within or without the State of Delaware, as the Directors may, from time to
time, fix. Whenever the Directors shall fail to fix such place, the meeting shall be held at the
principal office of the Corporation in the State of Delaware.
2.2
Annual Meeting
. The annual meeting of stockholders shall be held each year at
such time and place, within or outside of the State of Delaware, as shall be designated by the
Board of Directors and stated in the notice of the meeting. At the annual meeting the stockholders
shall elect the Directors of the Corporation and may transact any other business that is properly
brought before the meeting.
2.3
Business at Annual Meetings; Advance Notice Provision
.
(i) No business may be
transacted at an annual meeting of stockholders, other than business that is of proper matter for
stockholder action and as shall have been properly brought before the meeting. To be properly
brought before a meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b) otherwise properly brought
before the meeting by or at the direction of the Board, or (c) otherwise properly brought before
the meeting by a stockholder who complies with the notice procedures set forth in Section 2.3(ii)
below as to any business submitted by a stockholder other than director nominations which shall be
governed exclusively by Section 3.3 below. This Section 2.3 shall be the exclusive means for a
stockholder to submit business, other than director nominations, before an annual meeting of the
stockholders (other than proposals brought under Rule 14a-8 of Regulation 14A of the Securities
Exchange Act of 1934, as amended, (the Exchange Act) and included in the Corporations notice of
meeting, which proposals are not governed by these Bylaws). A stockholder that submits business
before an annual meeting of the stockholders under this Section 2.3 shall appear personally or
through its representatives at the annual meeting to present such business.
(ii) For any business (other than the nomination of directors) to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. This subsection (ii) shall constitute an advance
notice provision for annual meetings for purposes of Rule 14a-4(c)(1) under the Exchange Act. To
be timely, a stockholders notice must be received at the principal executive offices of the
Corporation not earlier than the close of business on the 120
th
day and not later than
the close of business on the 90
th
day prior to the first anniversary of the preceding
years annual meeting; provided however, that in the event the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the 120
th
day
prior to the date of such annual meeting and not later than the close of business on the later of
the 90
th
day prior to the date of such annual meeting or, if notice of the meeting is
mailed or the first public announcement of the date of such annual meeting is made less than 75
days prior to the date of such annual meeting, the 15
th
day following the date on which
such notice is mailed or such public announcement of the date of such meeting is first made by the
Corporation, whichever occurs first. In no event shall any adjournment or postponement of an
annual meeting, or the announcement thereof, commence a new time period for the giving of a
stockholders notice as described above. A stockholders notice to the Secretary shall set forth
the following information, and shall include a representation as to the accuracy of the
information: (a) a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b) the name and record
address of the stockholder proposing such business, (c) the class and number of shares of the
Corporation that are directly or indirectly, owned beneficially and/or of record by the
stockholder, (d) any option, warrant, convertible, security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price
related to any class or series of shares of the Corporation or with a value derived in whole or in
part from the value of any class or series of shares of the Corporation, whether or not the
instrument or right shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a Derivative Instrument) that is directly or indirectly
owned beneficially by the stockholder and any other direct or indirect opportunity to profit or
share in any profit derived from any increase or decrease in the value of shares of the
Corporation, (e) any proxy, contract, arrangement, understanding, or relationship pursuant to which
the stockholder has a right to vote or has granted a right to vote any shares of any security of
the Corporation, (f) any short interest in any security of the Corporation (for purposes of these
Bylaws a person shall be deemed to have a short interest in a security if the stockholder directly
or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the
opportunity to profit or share in any profit derived from any decrease in the value of the subject
security), (g) any rights to dividends on the shares of the Corporation owned beneficially by the
stockholder that are separated or separable from the underlying shares of the Corporation, (h) any
proportionate interest in shares of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership or limited liability company or similar entity in
which the stockholder is a general partner or, directly or indirectly, beneficially owns an
interest in a general partner, is the manager, managing member or directly or indirectly
beneficially owns an interest in the manager or managing member of a limited liability company or
similar entity, (i) any performance-related fees (other than an asset-based fee) that the
stockholder is entitled to based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, (j) any arrangement, rights or other interests
described in subsections (c) through (i) held by members of such stockholders immediate family
sharing the same household, (k) any other information related to the stockholder that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitation of proxies for the proposal pursuant to Section 14 of the Exchange Act and the
rules and regulations thereunder, (l) any material interest of the stockholder in such business (m)
a description of any arrangements and understandings between such stockholder and any other person
or persons in connection with the proposal of such business by such stockholder, and (n) any other
information as reasonably requested by the Corporation. The information described in subsections
(c) through (j) is hereinafter collectively referred to as the Ownership and Rights Information.
In the event that, prior to the meeting, any Ownership and Rights Information changes in any
material respect, the submitting stockholder will promptly notify the Secretary in writing of such
changes (the Amended Stockholder Notice), which notice shall include a representation as to the
accuracy of the information presented in the Amended Stockholder Notice. The Amended Stockholder
Notice shall be sent to the Secretary by such means so that it is received by the Secretary at the
Corporations offices no later than the business day prior to the meeting.
(iii) Notwithstanding the foregoing or any other provisions of these Bylaws, including Section
3.3 below, a stockholder also shall comply with all applicable laws, regulations and requirements,
including requirements of the Exchange Act and the rules and regulations thereunder, with respect
to the matters set forth in these Bylaws; provided, however, that any references in these Bylaws to
the Exchange Act or the rules and regulations thereunder are not intended to and shall not limit
the requirements applicable to proposals or nominations as to any other business to be considered
pursuant to this Section 2.3 or Section 3.3 below.
(iv) Nothing in these Bylaws 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. Notice of stockholder proposals that are, or that the submitting stockholder intends
to be, governed by Rule 14a-8 under the Exchange Act are not governed by these Bylaws.
2.4
Notice of Annual Meeting
. Written notice of the annual meeting shall be served
upon or mailed to each stockholder entitled to vote thereat at such address as appears on the books
of the Corporation, at least ten but not more than sixty days prior to the meeting. Such notice
shall state the location, date and hour of the meeting, but the notice need not specify the
business to be transacted thereat.
2.5
Special Meetings
. Special meetings of the stockholders for any purpose or
purposes, unless otherwise provided by law or by the Certificate of Incorporation, may be called by
the Chief Executive Officer and shall be called by the Chief Executive Officer or Secretary at the
request in writing of a majority of the Board of Directors, and not at the request of any other
person or persons. Such request must state the purpose or purposes of the proposed meeting.
2.6
Notice of Special Meetings
. Written notice of a special meeting shall be served
upon or mailed to each stockholder entitled to vote thereat at such address as appears on the books
of the Corporation, at least ten but not more than sixty days prior to the meeting. Such notice
shall state the location, date and hour of the meeting and shall describe the order of business to
be addressed at the meeting. Business transacted at all special meetings shall be confined to the
objects stated in the notice.
2.7
Presiding Officer at Stockholder Meetings
. The Chair of the Board shall preside
at all meetings of the stockholders, provided that the Chair may designate the Chief Executive
Officer to preside in the Chairs stead. In the Chairs absence, the Chief Executive Officer shall
preside, and in the absence of both, the Board shall appoint a person to preside.
2.8
Quorum; Adjournment
. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of
business, except as otherwise provided by law, the Certificate of Incorporation or these Amended
and Restated Bylaws (the Bylaws). If such quorum shall not be present or represented at any
meeting of the stockholders, the presiding officer of the meeting or the majority of the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have the
power to adjourn the meeting from time to time until a quorum shall be present or represented.
Even if a quorum is present or represented at any meeting of the stockholders, the presiding
officer of the meeting, for good cause, or the majority of the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have the power to adjourn the meeting
from time to time. If the time and place of the adjourned meeting are announced at any meeting at
which an adjournment is taken, no further notice of the adjourned meeting need be given; provided,
however, that if the adjournment is for more than thirty days, or if after the adjournment a new
record date for the adjourned meeting is fixed by the Board of Directors, notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting. At the adjourned
meeting the corporation may transact any business which might have been transacted at the original
meeting.
2.9
Vote Required
. In all matters other than the election of Directors, the
affirmative vote of the holders of a majority of the stock present in person or represented by
proxy and entitled to vote on the matter shall decide any question brought before a meeting unless
the question is one upon which by express provision of the Certificate of Incorporation or of these
Bylaws, or by law, a different vote is required in which case such express provision shall govern
and control the decision of such question. Directors shall be elected, by ballot, by a plurality
of the votes of the shares present in person or represented by proxy and entitled to vote at the
election of directors.
2.10
Voting; Proxies
. At any meeting of the stockholders every holder of shares
entitled to vote thereat shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more than three years
prior to the meeting, unless the instrument provides for a longer period. Each stockholder shall
have one vote for each share of stock having voting power, registered in such stockholders name on
the books of the Corporation, and except where the transfer books of the Corporation shall have
been closed or a date shall have been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any election of Directors
which shall have been transferred on the books of the Corporation within twenty days next preceding
such election of Directors.
2.11
Stockholder Lists
. At least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
with the residence of each and the number of voting shares held by each, shall be prepared by the
Secretary. Such list shall be open for ten days before the meeting for examination by any
stockholder for any purpose germane to the meeting during regular business hours at the place where
the meeting is to be held, or at such other place within the city in which the meeting is to be
held as shall be specified in the notice of the meeting, and also shall be produced and kept at the
time and place of the meeting, during the whole time thereof, and may be inspected by any
stockholder who is present.
2.12
Action Without Meeting
. No action required to be taken or which may be taken at
any annual or special meeting of stockholders may be taken without a meeting, and the power of
stockholders to consent in writing to the taking of any action is specifically denied.
ARTICLE III
DIRECTORS
3.1
Powers
. The property and business of the Corporation shall be managed by its
Board of Directors which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by law or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
3.2
Composition of the Board
. The number of Directors which shall constitute the
Board shall be fixed from time to time by resolution of a majority of directors in office;
provided, that their number shall not be less than five or more than fifteen. Directors shall be
divided into three classes, as specified in the Certificate of Incorporation. Directors shall be
elected at the annual meeting of the stockholders, and each Director shall be elected to serve
until such Directors successor shall be elected and shall qualify; provided, however, no person
shall be eligible for election or re-election as a Director of the Corporation after his or her
seventy-third birthday. The term of any director which extends beyond his or her seventy-third
birthday shall expire on the date of the annual meeting of the stockholders next following his or
her seventy-third birthday. Directors shall be stockholders. The Board of Directors, at its first
meeting after each annual meeting of stockholders, shall elect the Chair of the Board who shall
perform such duties as are specified in these Bylaws or are properly required of the Chair by the
Board of Directors.
3.3
Nominations
. Nominations for the election of Directors may be made by the Board
or by any stockholder entitled to vote for the election of Directors. Nominations proposed by the
Board shall be given by the Chair on behalf of the Board. Nominations by stockholders shall be in
writing, and in the form prescribed below, and shall be effective when delivered by hand or
received by registered first-class mail, postage prepaid, by the Secretary of the Corporation not
less than 90 days nor more than 120 days prior to any meeting of the stockholders called for the
election of Directors; provided, however, that if less than 21 days notice of the meeting is given
to stockholders, such writing shall be received by the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the meeting was mailed to
stockholders. Nominations by stockholders shall be in the form of a notice which shall set forth
(a) as to each nominee (i) the name, age, business address and, if known, residence address of such
nominee, (ii) the principal occupation or employment of such nominee, (iii) the Ownership and
Rights Information as it relates to the nominee, (iv) the consent of the nominee to serve as a
Director of the Corporation if so elected, (v) a description of all arrangements or understandings
between the stockholder and the nominee, (vi) a description of all arrangements or understandings
between the stockholder and any other person or persons pursuant to which the nomination is to be
made by the stockholder, and (vii) any other information relating to the nominee required to be
disclosed in solicitations of proxies for election of Directors, or otherwise required pursuant to
Regulation 14A under the Exchange Act, and (b) as to the stockholder giving the notice (i) the name
and address, as they appear on the Corporations books, of such stockholder, (ii) the Ownership and
Rights Information, and (iii) and any other information as reasonably requested by the Corporation.
Such stockholder notice shall include a representation as to the accuracy of the information set
forth in the notice. In addition, each nominee must complete and sign a questionnaire, in a form
provided by the Corporation, to be submitted with the stockholders notice, that inquires as to,
among other things, the nominees independence and director eligibility. In the event that, prior
to the meeting, any information required to be submitted under this Section 3.3 changes in any
material respect, the nominating stockholder will promptly notify the Secretary in writing of such
changes (the Amended Nomination Notice), which notice shall include a representation as to the
accuracy of the information presented in the Amended Nomination Notice. The Amended Nomination
Notice shall be sent by such means so that it is received by the Secretary at the Corporations
offices no later than the business day prior to the meeting.
Only those persons who are nominated in accordance with the procedures set forth in these
Bylaws shall be eligible to serve as directors. The presiding officer of the meeting may, if the
facts warrant, determine and declare to the meeting that a nomination was not made in accordance
with the foregoing procedure, and if the presiding officer should so determine, the presiding
officer shall so declare to the meeting and the defective nomination shall be disregarded. This
Section 3.3 shall be the exclusive means for a stockholder to submit business constituting director
nominations before a meeting of the stockholders (other than proposals brought under Rule 14a-8 of
Regulation 14A of the Exchange Act, which proposals are not governed by these Bylaws). A
stockholder that nominates a candidate for election as a Director at a meeting of the stockholders
under this Section 3.3 shall appear personally or through its representatives at the meeting to
present such nomination.
3.4
Vacancy
. If the office of any Director becomes vacant by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise, a majority of the
remaining Directors, though less than a quorum, shall choose a successor, who shall hold office
until the next election of the class for which such Director shall have been chosen, and until such
Directors successor shall be elected and qualified.
3.5
Resignation
. Any Director of the Corporation may resign from the Board of
Directors at any time by giving written notice to the Chair of the Board and contemporaneously to
the Secretary of the Corporation. The resignation shall be effective at the time stated therein,
and unless otherwise specified, the acceptance of such resignation shall not be necessary to make
it effective.
3.6
Meetings Generally
. The Board of Directors may hold meetings, both regular and
special, at such times and places either within or without the State of Delaware as shall from time
to time be determined by the Board.
3.7
Regular Meetings
. Regular meetings of the Board of Directors shall be held at
such times and places as shall be fixed by resolution of the Board. No notice shall be required
for regular meetings held pursuant to such resolution, except that the Secretary of the Corporation
shall promptly provide a copy of such resolution to any Director who is absent when such resolution
is adopted. In case any scheduled meeting of the Board is not held on the day fixed therefore, the
Directors shall cause the meeting to be held as soon thereafter as is convenient. At such regular
meetings directors may transact such business as may be brought before the meeting.
3.8
Special Meetings
. Special meetings of the Board may be called by the Chair of the
Board or by the Chief Executive Officer by twenty-four (24) hours notice to each Director, either
personally, by telephone, by mail, or by telegram; special meetings shall be called by the Chair of
the Board, the Chief Executive Officer or the Secretary in like manner and on like notice on the
written request of two Directors.
3.9
First Meeting
. The first meeting of each newly elected Board shall be held
immediately after the annual meeting of stockholders and at the same place, and no notice of such
meeting to the newly elected Directors shall be necessary in order legally to constitute the
meeting, provided a quorum shall be present. In the event such meeting is not held, the Directors
shall cause the meeting to be held as soon thereafter as is convenient.
3.10
Organization
. The Chair of the Board shall preside at all meetings of the Board,
provided that the Chair may designate the Chief Executive Officer to preside in the Chairs stead
provided that the Chief Executive Officer is also a Director. In the Chairs absence the Chief
Executive Officer, if the Chief Executive Officer is a Director, shall preside. In the absence of
both, the Board shall appoint a person to preside. The Secretary of the Corporation, or if the
Secretary is not present, one of the Assistant Secretaries, in the order determined by the Board,
or if an Assistant Secretary is not present, a person designated by the Board, shall take the
minutes of the meeting.
3.11
Quorum; Adjournment
. At all meetings of the Board a majority of the number of
directors fixed by the Board shall be necessary and sufficient to constitute a quorum for the
transaction of business and the act of a majority of the Directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by law or by the Certificate of Incorporation or these Bylaws. Whether or
not a quorum is present at any meeting of the Board, a majority of the Directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting.
3.12
Participation by Electronic Means
. Any one or more Directors may participate in
a meeting of the Board or any committee thereof by conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other at the
same time. Participation in a meeting by such means shall be deemed attendance in person at that
meeting.
3.13
Action Without Meeting
. Any action required to be taken or which may be taken at
any meeting of the Board or any committee thereof may be taken without a meeting if all members of
the Board or committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the records of the meetings of the Board or of the committee, as the case
may be. Any action taken pursuant to such consent shall be treated for all purposes as the act of
the Board or committee.
3.14
Appointment of Committees
. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more special or standing committees, each committee
to consist of two or more of the Directors of the Corporation. The Board of Directors may
designate one or more Directors as alternate members of any committee to replace any absent or
disqualified member at any meeting of the committee.
3.15
Meetings of Committees
. Regular and special meetings of any committee
established pursuant to this Article may be called and held subject to the same requirements with
respect to time, place and notice as are specified in these Bylaws for regular and special meetings
of the Board of Directors. At all committee meetings, a majority of the members of the committee
shall be necessary to constitute a quorum for the transaction of any business, and the act of a
majority of committee members present at a meeting at which there is a quorum shall be the act of
the committee.
3.16
Powers of Committees
. Committees of the Board of Directors, to the extent
provided in the Board resolution or permitted by law, shall have and may exercise the powers of the
Board of Directors, in the management of the business and affairs of the Corporation, and may have
power to authorize the Seal of the Corporation to be affixed to all papers which may require it.
Such committee or committees shall have such name or names as may be determined from time to time
by resolution of the Board. Except as the Board of Directors may otherwise determine, a committee
may make rules for its conduct, but unless otherwise provided by the Board or such rules, its
business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws
for the conduct of business by the Board of Directors. Each committee shall keep regular minutes
of its proceedings and report the same to the Board of Directors when required.
3.17
Compensation of Directors
. Directors shall be reimbursed for reasonable
expenses, if any, of attendance at each meeting of the Board of Directors and may be paid other
compensation in whatever form and amount the Board of Directors, by resolution, shall determine to
be reasonable. Members of special or standing committees may be allowed like compensation and
reimbursement for participation in committee meetings. Nothing contained in this section shall be
construed to preclude any Director from serving the Corporation in any other capacity, as officer,
agent, employee or otherwise, and being compensated for such service.
ARTICLE IV
NOTICES
4.1
Generally
. Whenever under the provisions of the Certificate of Incorporation or
these Bylaws, or by law, notice is required to be given to any Director or stockholder, it shall
not be construed to require personal notice, but such notice may be given in writing, by mail or by
courier service, by depositing the same in a post office or letter box, or with a courier service,
in a post-paid sealed wrapper, addressed to such Director or stockholder at such address as appears
on the books of the Corporation, or, in default of other address, to such Director or stockholder
at the last known address of such person, and notice shall be deemed to be given at the time when
the same shall be thus deposited.
4.2
Waiver of Notice
. Whenever any notice is required to be given under the
provisions of the Certificate of Incorporation or these Bylaws, or by law, a waiver thereof in
writing signed by the person or persons entitled to the notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when such person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting is not lawfully convened.
ARTICLE V
OFFICERS
5.1
Officers
. The Officers of the Corporation shall be chosen by the Board of
Directors and shall be a Chief Executive Officer, President, a Vice President, a Secretary, and a
Treasurer. The Board of Directors may also choose additional Vice Presidents, and one or more
Assistant Secretaries and Assistant Treasurers, and may appoint such other Officers and agents as
it shall deem necessary. Two or more offices may be held by the same person, except that neither
the Chief Executive Officer nor the President shall serve as the Secretary.
5.2
Election; Term of Office; Removal
. The Board of Directors at its first meeting
after each annual meeting of stockholders shall elect the Chief Executive Officer, President, one
or more Vice Presidents, the Secretary, the Treasurer, and such other Officers as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Officers of the Corporation
shall hold office until their successors are chosen and qualify in their stead, or until such time
as they may resign or be removed from office. Any Officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of the whole Board of
Directors. If the office of any Officer becomes vacant for any reason, the vacancy shall be filled
by the Board of Directors. In the case of any office other than that of the Chair, Vice Chair,
Chief Executive Officer, President, Secretary or Treasurer, the officer designated as the Chief
Executive Officer may appoint a person to serve in such office, on a temporary basis, until the
vacancy is filled by the Board.
5.3
Compensation
. The salaries of all Officers and agents of the Corporation shall be
fixed by or in the manner prescribed by the Board of Directors.
5.4
The Chair of the Board
. The Chair of the Board shall, except as otherwise
provided in these Bylaws, preside at each meeting of the stockholders and of the Board of Directors
and shall perform such other duties as may from time to time be assigned by the Board of Directors.
5.5
The Vice Chair of the Board
.
The Board of Directors may appoint a Vice Chair of
the Board. The Vice Chair of the Board shall assist the Chair of the Board and have such other
duties as may be assigned by the Board of Directors.
5.6
Designated Officers
.
(a) Chief Executive Officer. The Chief Executive Officer shall have general supervision over
the business and affairs of the Corporation and over its Officers, agents, and employees, subject,
however, to the oversight of the Board of Directors. The Chief Executive Officer shall report
directly to the Board of Directors, and shall perform such duties as are incident to the office of
the Chief Executive Officer or are properly specified and authorized by the Board of Directors.
(b) Chief Financial Officer. The Chief Financial Officer shall have general supervision over
the financial operations of the Company and perform such other duties as the Chief Executive
Officer or the Board shall prescribe, including having the custody of the corporate funds and
securities of the Corporation. The Chief Financial Officer shall render to the Chief Executive
Officer, President and Directors, at the regular meetings of the Board, or whenever they may
require it, an account of the financial condition of the Corporation.
(c) Other Designated Officers. The Board of Directors may designate officers to serve as
Chief Operating Officer, Chief Accounting Officer and other such designated positions and to
fulfill the responsibilities of such designated positions as determined by the Board of Directors
in addition to their duties as Officers as set forth in these Bylaws.
5.7
The President
. The President shall report to the Chief Executive Officer, unless
the President and Chief Executive Officer is the same person in which case the President shall
report to the Board of Directors. The President shall perform such duties as are incident to the
office of the President or are properly specified and authorized by the Board of Directors. In the
absence or disability of the Chief Executive Officer, the President shall perform the duties and
exercise the powers of the Chief Executive Officer.
5.8
Vice Presidents
. The Vice Presidents, in the order fixed by the Board of
Directors, shall, in the absence or disability of the President, perform the duties and exercise
the powers of the President, and shall perform such other duties as the Board of Directors shall
prescribe.
5.9
The Secretary
. The Secretary shall attend all meetings of the Board and all
meetings of the stockholders and record all votes and the minutes of all proceedings in a book to
be kept for that purpose and shall perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or the President. The Secretary shall keep in safe custody
the Seal of the Corporation and, when authorized by the Board, affix the same to any instrument
requiring it and, when so affixed, it shall be attested by the Secretarys signature or by the
signature of the Treasurer or an Assistant Secretary.
5.10
Assistant Secretaries
. The Assistant Secretaries, in the order fixed by the
Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as the Board of Directors
shall prescribe.
5.11
The Treasurer
. The Treasurer shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit all moneys and other
valuables in the name and to the credit of the Corporation in such depositories or other
institutions as may be designated by the Board of Directors. The Treasurer shall disburse the funds
of the Corporation by check or by electronic or wire transfer, as may be ordered by the Board,
taking proper vouchers for such disbursements and shall perform such other duties as the Chief
Executive Officer, President, Chief Financial Officer and Directors shall prescribe. The Treasurer
shall render to such persons or any of them, whenever they may require it, an account of all
transactions as Treasurer.
5.12
Assistant Treasurers
. The Assistant Treasurers, in the order fixed by the Board
of Directors, shall, in the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties as the Board of Directors shall
prescribe.
ARTICLE VI
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STOCK CERTIFICATES, TRANSFERS AND RECORD DATE
6.1
Certificates of Stock; Uncertificated Shares
. Shares of capital stock of the
Corporation may be certificated or uncertificated, as provided under the Delaware General
Corporation Law. The certificates of stock of the Corporation shall be numbered and registered in
the stock ledger and transfer books of the Corporation as they are issued. The stock certificates
of the Corporation shall be signed by the Chief Executive Officer, the President or a Vice
President and the Chief Financial Officer, the Secretary or an Assistant Secretary, and shall bear
the corporate seal, which may be a facsimile, engraved or printed. Any or all of the signatures on
the certificate may be facsimiles, engraved or printed. In the event that any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as if such person were such officer,
transfer agent, or registrar at the date of issue. Stock certificates of the Corporation shall be
in such form as provided by statute and approved by the Board of Directors. The stock record books
and the blank stock certificates books shall be kept by the Secretary or by any agency designated
by the Board of Directors for that purpose.
6.2
Registration of Transfer
. Upon surrender to the Corporation or the transfer agent
of the Corporation of a certificate for shares, if such shares are certificated, duly endorsed or
accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate or to register the issuance of uncertificated
shares to the person entitled thereto, cancel the old certificate and record the transaction upon
its books. Upon the receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance of new equivalent
uncertificated shares or certificated shares shall be recorded upon the books of the Corporation.
The Board of Directors shall have authority to make such rules and regulations not inconsistent
with law, the Certificate of Incorporation or these Bylaws, as it deems expedient concerning the
issuance, transfer and registration of certificates for shares and the shares represented thereby
and of uncertificated shares.
6.3
Record Date for Stockholders
. For the purpose of determining the stockholders
entitled to notice of or to vote at any annual or special meeting of stockholders or any
adjournment thereof, or for the purpose of determining stockholders entitled to receive payment of
any dividend or other distribution or the allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a date as the record date for any such
determination of stockholders. Such date shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other action. If no record
date is fixed, the record date for the determination of stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. When a determination of stockholders of record entitled to
notice of or to vote at any meeting of stockholders has been made as provided in this paragraph,
such determination shall apply to any adjournment thereof; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
6.4
Registered Stockholders
. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
6.5
Lost Certificates
. The Board of Directors may direct that (i) a new certificate
or certificates or (ii) uncertificated shares in place of any certificate or certificates
previously issued by the Corporation, be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of such (i) new certificate or certificates or
(ii) uncertificated shares, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or the owners legal representative, to advertise the same in such manner as it
shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
ARTICLE VII
DIVIDENDS
7.1
Power to Declare Dividends
. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
7.2
Discretion of the Board
. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as the Directors from
time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall think conducive to the interest of the Corporation,
and the Directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1
Instruments
. All checks, demands for money, notes, deeds, mortgages, bonds,
contracts and other instruments of the Corporation shall be signed by such Officer or Officers or
such other person or persons as the Board of Directors may from time to time designate.
8.2
Borrowing
. No officer, agent or employee of the Corporation shall have any power
or authority to borrow money on behalf of the Corporation, to pledge the Corporations credit, or
to mortgage or pledge the Corporations real or personal property, except within the scope and to
the extent such authority has been delegated to such person by resolution of the Board of
Directors. Such authority may be given by the Board and may be general or limited to specific
instances.
8.3
Voting Securities of Other Corporations
. Subject to any specific direction from
the Board of Directors, the officer designated as the Chief Executive Officer of the Corporation,
or any other person or persons who may from time to time be designated by the Board of Directors,
shall have the authority to vote on behalf of the Corporation the securities of any other
corporation which are owned or held by the Corporation and may attend meetings of stockholders or
execute and deliver proxies or written consents for such purpose.
8.4
Fiscal Year
. The fiscal year shall begin the first day of January in each year.
8.5
Seal
. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words Corporate Seal, Delaware. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
8.6
Books and Records of the Corporation
. The books and records of the Corporation
shall be kept at such places as the Board may from time to time determine.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
9.1
Right To Indemnification
. Each person who was or is made a party or is threatened
to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact such person 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 of a partnership, joint venture, trust or other enterprise, shall be indemnified and
held harmless by the Corporation to the fullest extent permitted by the Delaware General
Corporation Law against all expense, liability and loss (including attorneys fees, judgments,
fines or penalties and amounts paid in settlement) reasonably incurred or suffered by such person
in connection therewith, and such indemnification shall continue as to such person who has ceased
to be a Director or Officer and shall inure to the benefit of the persons heirs, executors and
administrators. For purposes of this section, persons serving as Director or Officer of the
Corporations direct or indirect wholly-owned subsidiaries shall be deemed to be serving at the
Corporations request.
9.2
Right To Advancement Of Expenses
. The right to indemnification conferred in
Paragraph (a) of this section shall include the right to be paid by the Corporation the expenses
incurred in defending any action, suit, or proceeding in advance of its final disposition, subject
to the receipt by the Corporation of an undertaking by or on behalf of such person to repay all
amounts so advanced if it shall ultimately be determined that such person is not entitled to be
indemnified.
9.3
Nonexclusivity of Rights
. The rights to indemnification and to the advancement of
expenses contained in this section shall not be exclusive of any other right which any person may
have or hereafter acquire under any law, provision of the Corporations Certificate of
Incorporation, Bylaw, agreement, vote of stockholders or disinterested Directors or otherwise.
9.4
Employee Benefit Plans
. For purposes of this section, references to other
enterprises shall include employee benefit plans; references to fines shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and references to serving at
the request of the Corporation shall include any service as a Director or Officer of the
Corporation which imposes duties on, or involves services by, such Director or Officer with respect
to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to
the best interests of the Corporation.
ARTICLE X
AMENDMENTS
10.1
Amendment of Bylaws
. These Bylaws may be altered or repealed at any regular
meeting of the stockholders or at any special meeting of the stockholders, provided notice of the
proposed alteration or repeal be contained in the notice of such special meeting, by the
affirmative vote of the holders of 75% or more of outstanding shares of capital stock entitled to
vote at such meeting and present or represented thereat. The Board of Directors may alter or
repeal the Bylaws by the affirmative vote of a majority of the entire Board at any regular meeting
of the Board or at any special meeting of the Board if notice of the proposed alteration or repeal
be contained in the notice of such special meeting.
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