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): February 18 , 2016
INTERACTIVE BROKERS GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware |
001-33440 |
30-0390693 |
(State or Other Jurisdiction
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(Commission File Number) |
(I.R.S. Employer Identification Number) |
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One Pickwick Plaza, Greenwich, CT 06830
(Address of Principal Executive Offices) (Zip Code)
(203) 618-5800
(Registrant’s Telephone Number, Including Area Code)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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.
Amendments to Bylaws
On February 18 , 2016 , the Board of Directors of Interactive Brokers Group, Inc. (the “Company”) approved an amendment to the Company’s Bylaws, effective the same date, to update Section 3 , under Article III to read as follows: “ Any director m ay resign at any ti m e upon delivery of written notice of such resignation, signed by such director, to the Board of Directors, the Chair m an of the Board or the Chief Executi v e Officer. S uch resignation sh a ll ta k e e ff ect a t the ti m e specified t h erein, or if no ti m e is specifi e d, at the ti m e of its re c eipt. Any director or the entire Board may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the combined voting power of the issued and outstanding shares of capital stock of the Corporation then entitled to vote in the election of directors.”
A copy of the Company’s Bylaws, as amended, is filed herewith as Exhibit 3.1 and is incorporated by reference.
Item 9.01. Financial Statements and Exhibits .
(d) Exhibits.
3.1 Amended Bylaws of Interactive Brokers Group, Inc. (*)
(*) Filed herewith.
SIGNATURE
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.
Dated: February 24 , 2016
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INTERACTIVE BROKERS GROUP, INC. |
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By: |
/s/ Paul J. Brody |
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Name: |
Paul J. Brody |
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Title: |
Chief Financial Officer, Treasurer
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EXHIBIT INDEX
3.1 Amended Bylaws of Interactive Brokers Group, Inc.
AMENDED AND RESTATED BYLAWS OF INTERACTIVE B R OKERS GROUP, INC.
(as of February 18, 2016)
ARTICLE I OFFICES
Section 1. Registered Office . T h e address o f the regi st ered office of Interactive
Brokers Group, Inc. (the “Corporation”) in the s t ate of Delaware is 2711 Centerville Road, Suite
400, in the City of Wil m ington, County of New Castle. The name of the Corporation’s registered agent at such address is Corporati o n Service Company. The registered office and/or regi s t ered agent of the Corporation m ay be ch a nged from ti m e to ti m e by action of the Board of Direct o rs.
Section 2. Other Offices . The C orporation m ay also have offices at such other places, b o th within and without t h e State of Del a ware, as t h e Board of Direct o rs may from t i me to ti m e deter m ine or the business of the Corporation m ay require.
ARTICLE I I MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting s . The annual m eeting of the stockholders for the election of direct o rs and for the transac t ion of such other business as properly m ay co m e before such m eeting, including, without li m itation, for the purpose of the delivery of an annual report of the Board of Directors, shall be h e ld at such place, within or without the State of Delaware (including by re m ote communication as authorized by Section 211(a)(2) of the General Corporation Law of the Sta t e of Delaware (the “ DGCL ”)), such d ate, and s u ch ti m e as designated by the Board of Directors and set forth in the notice or waiver of notice of the m eeting.
Section 2. Special Meetings . Special m eetings of the stockholders, for any purpose or purposes prescribed in the notice of the m eeting, m ay be called by the Chief Executive Officer, President, the Chair m an of the Board of D i rec t o rs, pu rs u a n t t o a resolution approved by a m ajority of the Board of Directors or pursuant to a resolution approved by holders of a majority of votes represented by shares of the Com m on Stock (as defined in Article II, Section 8). Such special m eetings of the stockholders shall be held at such places, within or without the State of Delaware (including by re m ote communication as authorized by Section 211(a)(2) of the DGCL), dates and ti m es as s h all b e spe c i f ied in the r e sp e ctive notic e s or wai v e r s of noti c e thereo f . Only business within the p urpose or p u r poses described in the notice or waiver of notice required by these Bylaws m ay be conducted at a special m eeting of the stockholders. N o
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stockholder shall have the power to require that a m eeting of the s t ockholders be held or that any m atter be voted on by the stockholders at any special m eeting, except as required by law.
Section 3. Notice . W h enever st o c k holders a re r equired or p er m itted to take action at a m eeting, a written o r printed notice of the me e ting s t ati n g the place, date, ti m e, the m eans of re m ote communications, if any, and, in the case of special m eetings, the purpose(s), of such m eeting, shall be g i ven to each st o ckholder of rec o rd entitled to vote at such m eeting not less than ten (10) nor m ore than sixty (60) days before the d a te o f the m eeti n g. All such notic e s shall be delivered, either personally or by m ail, by or at the direction of the Board of Directors, the Chief Executive O ff i c e r, the Pre s ident or the Secr e t ary, and if m ailed, such n o tice sh a ll b e dee m ed to be deliv e red when deposited in the U n ited States m ail, postage prepaid, addressed to the stockholder at his, her or its address as t h e sa m e appears on the records of the Corporation. Attendance of a stockholder at a m eeting shall c onstitute a waiver of notice of such m eeting, except when the s t ockh o lder attends for the ex pr ess purpose of objecting at the beginning of the m eeting to the transaction of any business b ecause the m eeting is not lawfully called o r convened.
Section 4. Quoru m . Except as ot h erwise pro v ided by applicable law, these Bylaws or the Cor p oration’s C e rti f i c ate of Incorporation, a m ajority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a m eeting of stockholders. If less than a m ajority of the outstanding shares are represented at a m eeting, the chair m an of the m eeting or a m ajority of the shares so represented m ay adjourn the m eeting from t i m e to ti m e in accordance with S ection 6 of this Article, until a quorum shall be present o r represented.
Section 5. Organization . Meetings of stockholders shall be presided over by the Chair m an of the Board of Directo r s, if any, or in his or her absence by the Vice Chair m an of the Board of Directors, if any, or in his or her absence by the Chief Executive Officer or the President, if any, or in his or her absence by a Vice President, if any, or in the absence of the foregoing persons, by a chair m an designated by the B o ard of Direct o rs, or in the abse n ce of such designation, by a chair m an chosen at the m eeting. The S ecretary shall act as secretary of the m eeting, but in his or her absen c e the chair m an of the m eeting ma y appoint any person to act as secretary of the m eeting.
Section 6. Adjourned Meetings . Any m eeting of the sto c kholders, annual or special, m ay adjourn from t i m e to ti m e to reconvene at t h e sa m e or so m e other place, and notice need not be given of the adjour ne d m eeting if the ti m e and place thereof are announced at the m eeting at which the adjourn m ent is taken. A t the adjou r ned m eeting at which a quorum is present, the Corporation m ay transact any business which m i ght have been tran s acted at the o ri g inal m eeting. If the a d jou r n m ent is f or more than t h irty (30) d a y s, or if a f ter the a d jou rn m ent a new record date is fixed for the adjourned m eeting, a notice of the adjourned m eeting shall be given to each stockholder of record entit l ed to vote at the m eeting.
Section 7. Vote Required . W hen a quorum is present, the affir m ative vote of the m ajority of shares present in person or repre s ented by proxy at the m e e ting and entitled to vote
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on the subject m atter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law, the rules and regulations of any stock exchange or quotation system applicable to the C orporation, t h ese Bylaws or the Corporation’s Certificate of Incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such que s tion. W here a s e parate vote by class is r equired, t h e a ff i r m ative vote of the m ajority of shares of such class present in p e rson or represented by proxy at the m eeting shall be the act of such cl ass, unless the question is one upon which by express provisions of an applicable law, the rules and regulations of any stock exchange or quotation system applicable to the Corporation, these Bylaws or the Corpora t ion’s C ertificate of Incorporation, a different vote is required, in which case such express provision shall govern and contr o l the d eci s i on of such question.
Section 8. Voting Rights . Except as otherwise provided by the DGCL or in a resolution of the Board adopted pursuant to the Corporation’s Certificate of Incorporation and these Bylaws establishing a series of Preferred Stock, at each m eeting of stockholders, each holder of shares of the Corporation’s Class A Common Stock, par value $0.01 per share (“ Class A Common Stock ”), shall be entitled to one (1) v ote for each such share, and each h o lder of the Corporation’s Class B Com m on Stock, par value $0.01 per share (“ Class B Common Stoc k ”, and togeth e r with the Cla s s A C o mmon Stock, the “ Common Stoc k ”), s hall be entitled to t h e respective nu m ber of votes as set forth in the C o rporation’s Certificate of Incorporation, in each case d e ter m ined with re f erence to t h e nu m ber of Me m bership Interests (as such term is defined in the Corporation’s C e rti f i c ate of Incorpor a ti on ) in IBG LLC, a Connecticut li m ited liability co m pany, standing in such holder’s na m e on the stock records of the Corporation m aintained in accorda n ce with Article V II, Secti o n 1 hereof (i) at t h e t im e fixed pursuant to Article VII, Section 4 of these Byla w s as the record date for the deter m ination of stockholders entitled to vote at such m eeting, or (ii) if no such record date s h all have been fixed, then at the close of business on the day next prece d ing the day on which n otice there o f shall be given. At e a ch m eeting of stockholders, all m atters (except as otherwise provided in these Byla w s and except in cases where a larger vote is required by law or by the Corporation’s C e rtificate of I n c o rporation o r these Byla w s) shall be d ecided by a m ajority of t he votes cast at such m e eting by the holders of shares of capital stock present or represe n ted by proxy and entitled to vote thereon, a quorum being present.
Section 9. Proxies . E ach st o ckh o lder of rec o rd entitled to vote at a m eeting of stockholders m ay authorize another person or persons to act for hi m , her or it by proxy. A proxy must be executed by the stockholder granting the proxy or by his, her or its attorney-in-fact. No proxy shall be voted or acted upon after the expiration of three years from its date, unless such proxy provides for a longer period. A duly executed proxy shall be i r revocable if it states that it is irrevocable and if, and only as long as, it is coup l ed with an interest sufficient in law to support an irrevocable power. A proxy m ay be m ade irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder m ay revoke any proxy which is not irr e vocable by attending the m eeting and voting in person or by filing an instru m ent in wri t ing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary of the Corporation.
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Section 10. Stockholders List . The Secretary shall pre p are and m ake availa b l e, at least ten (10) days before every m eeting of t h e stockholders, a co m plete list of the stockholders entitled to vote a t su c h m eeting a rranged in a l phabetical order, showing the address of each stockhol d er and the number of shares registered in the na m e of each stockholder. S u ch list shall be open to the exa m ination of any st ockholder, for any purpose ger m ane to the m eeting, during ordinary business hours, for a per i od of at least ten (10) days p r ior to the m eeting, either at a place within the city w h ere the m eeting is to be held, which place shall b e spe c ified in the n o tice of the m eeting or, if not so s p ecifie d , at the place where the m e e ting is to be held. The list shall also be produced and kept at t h e place of the m e eting for the du r ation of the m eeting, and m ay be inspected by any stockholder who is prese n t. T he stock le d ger shall be the only evidence as to who are the stockholders entitled to exa m ine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any m eet i ng of the stockholders.
Section 11. Notice of Stockholder B usiness and No m i nation s . (a) Annual Meetings of Stockholders .
(i) No m i nations of persons for ele c tion to the Boa r d of Direct o rs of the Corporation and the proposal of business to be considered by the stockholders m ay be m ade at an annual m eeting of stockhold e rs (A) by or at the direction of the Chair m an of t he Board or the Board of Directors general l y, (B) pursuant to the Corporation’s notice of m e eting (or any supple m ent thereto) or (C) by any stockholder of the Corporation who is entitled to vote at the m eeting and who co m p l i es with the notice procedures s e t f orth in c l a u ses (ii) and (iii) of this paragraph and who was a stockhol d er of rec o rd at t h e ti m e s u ch notice is d e li v ered to t h e Secretary of the Corporation.
(ii) For no m i nations or other business to be properly brought before an annual m eeting by a stockholder, pur s uant to clause (C) of paragraph (a)(i) of this S ection (or before a special m eeting of stockholders pursuant to paragr a ph (b) of this S ection), the stockhol d er must have g i ven ti m ely notice thereof in writing to the Secretary of the Corporation and any such proposed business o t her than the no m i nations of p e rsons for election to the Board of Directors must constitute a proper m atter for stockholder action. To be ti m ely, a stockholder’s notice shall be deliv e red to the Secretary at the p rincipal e x ecutive offices of the Corporation not less than one hundred and twenty (120) days prior to the date of t h e Corporation’s proxy state m ent released to stockholders in conne c tion with the preceding year’s an nu al m eeting; provided , however , that if the Corporation did not hold an annual m eeting the preceding year or if the date of the annual m eeting is changed by more than thirty (30) days from the date of the prece d ing year’s annual m eeting, to be ti m ely, notice by the stockholder m ust be delivered within a reasonable ti m e b e fore the Corpor a tion prints and m ails its proxy m aterials in connection with the annual m eeting. In no eve n t shall the adjourn m e nt of an annual m eeting commence a new ti m e period for the giving of a s t ockholder’s notice as described above. Such stockholder’s notice shall set for t h (A) as to each person whom the stockholder proposes to no m i nate for election or reelect i on a s a di r ect o r, all in f or m ation r el a ting to such p er son that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise
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required, in each case p u rsuant to Regulation 14A under the Securities E xchange Act of 1934, as a m ended (the “ Exchange Act ”), in each case including any successor r u le or regulation theret o , including such person’s written consent to being na m ed in the proxy state m ent as a no m i nee and to serving as a director if elected; (B) as to any other busin e ss that the stockholder proposes to bring before the m eeting, a brief description of the business desired to be brought before the m eeting, the reasons for conducting such business at the m eeting and any m aterial interest in such business of such stockholder and of any b e neficial owner on whose behalf the proposal is m ade; and ( C) as to the stockholder giving the n o tice and any beneficial owner on whose behalf the no m ination or proposal is m ade (1) the na m e a nd address of such stockholder, as they appear on the Corporation’s books, and the na m e, add r ess and phone nu m ber of such beneficial owner, (2) t h e n u mber and class of shares of capit a l stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (3) a description of any and all arrange m ents or understandings between such stockholder and such beneficial owner, (4) a re p resentation t h at the stockh o l d er is a h o lder of record of stock of t h e Corpor a ti o n entitled to vote at such m eeting and intends to appear in person or by proxy at the m eeting to propose such business or no m i nation, and (5) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group whi c h intends (A) to deliver a proxy state m ent and/or fo r m of proxy to holders of at least the percent a ge of the Corporation’s outstanding capital stock required to approve or adopt the proposal or e l ect the no m inee and/or (B) otherwise to solicit proxies from stockholders in support of such proposal or no m ination. The foregoing notice require m ents shall be dee m ed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual m eeting in co m pliance with Rule 14a-8 (or any s uccessor t h ereof) p r o mulgated under the E xchange A ct and such stockholder’s proposal has been included in a proxy state m ent that has been prepared by the Corporation to solicit proxies for such annual m eeting. The Corporation m ay require any proposed no m i nee to fu r nish such other infor m a tion as it m a y reasonably require to deter m ine the eligibility of such propo s ed nominee to serve as a director of the Corporation.
(iii) Notwithstanding anything in the second sentence of paragraph (a) ( ii) of this Section to the cont r ary, in the eve n t that the number of directors to be elected to the Board of D i rectors of the Corporation is increased and there is no public announce m e nt m ade by the Corporation na m i ng all of the no m i nees for d i rector or specifying the size of the increased Board of Directors at least one hundred and t w enty (120) days prior to the date of the Corporation’s proxy state m ent released to stock h olders in connection w i th the preceding year’s annual m eeting, a stockholder’s no t ice under this paragraph shall also be considered ti m ely, but only with r espect to n o m i nees f or any new positio n s c re ated by s uc h incr e ase, if it sh a ll b e delivered to the Secretary at the pri n cipal exec u tive o ff i ces o f the Corpo r ation n o t l a ter than the close of business on the tenth (10 t h ) day following the day on whi c h such public a nnounce m ent is first m ade by the Corporation.
(b) Special Meetings of Stockholders . Only such business as shall have been brought before the special m eeting of the stockholders pursuant to the notice or waiver of notice of the m eeting shall be conducted at such m eet i ng. No m i nations of persons for election to the Board of D i rect o rs m ay be m ade at a special m eeting of stockholders at which directors are to be
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elected pur s uant to the n otice o r waiver of notice of the m eeting ( A ) by or at the direction of the Board of D i rectors or ( B ) provided that the Board of Direct o r s has det er m ined that dire c t ors sh al l be elected pursuant to the Corporation’s notice of m e e ting, by any stockholder of the Corporation who is entitled to vote at the m eeting, who complies with t h e notice procedures set forth in this Section and who is a stockholder of record at the ti m e such notice is delivered to the Secretary of the Corporation. No m i nations by s t ockholders of persons for election to the Board of Directors m ay be m a de at s u ch special m eeting of stockholders if the stockholder’s notice as required by paragraph (a)(ii) of t h is Section sh a ll be d elive r ed to t h e S e cretary a t t h e prin c i p a l executive offices of the Corporation within a r e asonable ti m e before the Corporation prints and m ails its proxy m aterials in connection with such special m eeting or the tenth (10 t h ) day following the day on which public a nnounce m ent is first m ade of the date of the special m eeting and of the no m i nees proposed by the Board of Di r ectors to be elected at such m eeting. In no event s h all the adjo u rnment of a special m eet i ng commence a new ti m e period for the giving of a stockholder’s notice as described above.
(c) Genera l .
(i) Other than a s set f orth in Arti c le III, Section 4 hereof, only persons who are no m i nated in accordance w ith the p roc e dures s et f o r t h in t h is S e ction shall b e eligi b le to serve as directors and only such business shall be conducted at a m eeting of stockholders as shall have been brought before the m eeting in accordance w ith the procedures set forth in this Section. Except as otherwise provided by law or by the C o rporation’s Certificate of Incorporation, the chair m an of the m eeting shall ha v e t h e power a nd duty to deter m ine whether a no m ination or any business proposed to be brought before the m eeting was m ade in accordance with the procedures set forth in this Section and, if any proposed n o m i nation or business is not in co m p liance with this Section, to declare that such de f ecti v e proposal or no m ination shall be disregarded.
(ii) The date and ti m e of the open i ng and closing of the polls for each m atter upon which the s t ockholders will vote at a m eeting shall be ann o unced at t h e m eeting by the person presiding over the m eeting. The Board of Directors m ay adopt by resolution such rules and regulations for the conduct of the m eet i ng of stockholders as it shall deem a ppropriate. Except to the extent inconsistent with such r u les and regulations as adopted by the Board of Directors, the person presiding over any m eeting of stockholders shall have the right and authority to convene and to adjourn the m eeting, to prescribe such r u les, regulations and procedures and to do all such acts as, in the j u dg m ent of such presidi n g person, are appropriate for the proper conduct of the m eeting.
(iii) In advance of any m eeting of stockholders, the B o ard of Directors shall appoint one or m ore inspe c tors to act at the m eeting and m ake a written report thereof and m ay designate one or more persons as alternate i n spe c tors to repl a ce a n y inspe c tor who f ails to act. If no inspector or alternate is able to act at a m eeting of st ockholders, the person presiding at the m eeting shall appoint one or more inspectors to act at the m eeting. Each inspector, before entering upon the discharge of his duties, shall t a ke and sign an oath f aith f ully to execute the
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duties of i n spector with strict i m partiality and accor d ing to t h e be s t of his ability and m a y perform su c h other duties not inconsistent her e with as m ay be requested by the Corporation.
(iv) For purposes of this S e ction, “ public announce m en t ” shall m ean disclosure in a press release reported by the Dow Jones News Service, PR Newswire, Associated Press or comparable national news service or in a docu m e nt publicly filed by the Corporation with the Securities and Exch a nge Com m ission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(v) Notwithstanding the foregoing provisions of this Section, a stockholder shall also comply with all applicable requ i re m ents of the Exchange Act and the rules and regulations thereunder with r e spect to the m atters set forth in this Section. Nothing in this Section shall be dee m ed to affect any right of (A) a stockholder to request inclusion of proposals in the Corporation’s proxy state m ent pursuant to Rule 14a-8 under the Ex change Act or (B) the holders of any series of preferred st o ck to elect directors pursuant to any applicable provisions of the Corporation’s Certi f icate of Incorporation.
Section 12. Action W ithout Meetin g . Except as otherwise provided by or fixed pursuant to the provisions of the Corporation’s C ertificate of Incorpo r ati o n rel a ting to the r i ghts of holders of any series of preferred stock, a n y action required to be taken at any annual or special m eeting of the stockholders of the Corporation, or any action which m ay be taken at any annual or special m eeting of such stockholders, m ay be taken without a m eeting, without prior notice and without a vote, if a consent in writ i ng (or deemed to be in writing un d er applicable law), setting forth the action so taken, shall be signed by stockholders (or dee m ed to be signed by stockholders under applicable law) representing not less than the m i ni m u m number of votes that would be necessary to authorize or take such actions at a m e eting a t which all sha r es entitled to vote thereon were present and voted and shall be delivered and dated as r e quired by law. Pro m pt notice of t h e ta k i ng of such action without a meeting by less than unani m ous written con s ent shall be given to those stockhold e rs who have not consented in w r iting. The Secretary shall file such conse n ts with t h e m i nutes of the m eetings of the stockholders.
Section 13. Postpone m e nt and Cancellation of Meeting . Any previously scheduled annual or special m eeting of t h e stockholders may be postponed, and any previously scheduled annual or special m eeting of the stockholders called by the Board of Directors m ay be canceled, by resolution of the Board of Directors upon public notice given prior to the ti m e previously scheduled for such m eeting of stockholders.
ARTICLE I II
DIREC T ORS
Section 1. Powers . The business and affairs of the Corporation shall be m anaged by or under t h e direction of the B o ard of Directors. In addition to t h e powers and authorities expressly conferred upon them by these Bylaws, t h e Board of Directors, which m ay exercise all such powers of the Corporation and do all such l a wful acts and things as are not by law or by the
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Corporations’ Certificate of Inc o rporation or by these Bylaws r e quired to be exercised or done by the stockholders.
Section 2. Nu m ber, Election and T erm of Offic e . Subject to the r i ghts of the holders of any series of preferred stock to elect additional directors under specific circu m st ances, the nu m ber of dire c t ors which shall co n stit u te t h e Board of Directors s h all b e between f our (4) a n d eleven (11), to be fixed exclusively pursuant to a resolution adopted by a m ajority of the Board of Directors. The initial nu m ber of directors shall be f our (4). The directors shall be elected by a plur a lity of the votes of the shar e s p r esent in per s on or re p re s ented by pr o xy at t h e m e eting an d entitled to v ote in the election of di r ectors. Ex c ept as provided in Section 4 of this Arti c le I I I , directors shall be elected at the annual m eeting of the stockholders. Each director elected shall hold o ff i ce until a suc c essor is duly ele c ted a nd quali f ied or until his or her e a rlier de a t h , resignation or re m oval as hereinafter provided.
Section 3. R e m oval and Resignatio n . Any director m ay resign at any ti m e upon delivery of written notice of such resignation, signed by such director, to the Board of Directors, the Chair m an of the Board or the Chief Executi v e Officer. S uch resignation sh a ll ta k e e ff ect a t the ti m e specified t h erein, or if no ti m e is specifi e d, at the ti m e of its re c eipt. Any director or the entire Board may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the combined voting power of the issued and outstanding shares of capital stock of the Corporation then entitled to vote in the election of directors.
Section 4. Vacancies . Subject to the rights of the holders of any series of preferred stock to elect additional directors under specific circu m sta n ces and unless otherwise provided by the Certificate of Inc o rporation of the Corporation, vacan c ies and newly created directorships resulting f r o m any increase in the a uthorized n u mber of dir e ctors m ay be f illed by a m ajority of the directors then in office, though less than a quoru m , or by a vote of a m ajority vote of the holders of the Corporation’s outstanding stock entitl e d to vote thereon. Each director so chosen shall h o ld office until a success o r is duly ele c t e d and qualified or until his or her e arlier de a t h , resignation or re m oval as herein provided. No decrea s e in the nu m ber of authorized directors constituting the whole B oard of Dir e ctors s h all s horten the t e rm of any incu m bent director.
Section 5. Annual and Regular Meeting s . T he annual m eeting of the Board of Directors for the purpose of electing officers and for the transaction of such other business as m ay co m e before the m eeting shall be held as soon as possible following adjourn m ent of the annual m eeting of the stockholders at the place of such annual m eeting of the stockholders. Notice of such annual m eeting of the Board of Directors need not be given. The Board of Direct o rs fr o m ti m e to ti m e m ay by res o lution provide for the holding of regular m eetings and fix the place (which may be within or without the State of Delaware), date and ti m e of such m eetings. Notice of regular m eeti n gs need not be given; provided , however , that if the Board of Directors shall fix or change the time or place of any regular m eeting, notice of such action shall be m ailed pro m ptly, or sent by t e lephone, including a voice m essaging system or other system or technology designed to record and com m unicate m essages, telegraph, facsi m ile, electronic m ail
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or other electronic m eans to e ach director who shall not have been p resent at t h e m eeting at which such action was taken, addressed to him or her at his or her usual place of business, or shall be delivered to him or her personally.
Section 6. Special Meetings . Special m eetin g s of the Board of Directors shall be held whenever called b y the Chair m an of the Board of D i rect o rs, the Chief Executive Officer or the Presi d e n t, or by a majo r ity of the dire c t ors, at such place, date and ti m e as m ay be specified in the res p e c tive n o ti c es or waiv e rs o f notice of s uch m eetings. Special m eetings of the Board of Direct o rs m ay be called on at least twenty-four (24) hours’ n otice to each direct o r or such shorter notice as the person or persons calling such m e eting m ay deem necessary or appropriate in the circu m stances, if notice is given to each direct o r personally or by tele p hone, inclu d ing a voice m essaging system or other system or technology designed to record and com m unicate m essages, telegraph, facsi m ile, electronic m ail or other ele c tronic m eans, or on three (3) days’ notice from the o ff i cial date of dep o sit in the m ail if notice is m ailed to each director, addressed to him or her at his or her usual place of busi n ess. Such notice need not state the purpose or purposes of, nor the business to be transacted at, such m eeting, except as m ay otherwise be required by law or provided for by the Corporation’s C ertificate of Incorporation. A m eeting m ay be held at any ti m e without notice if all the dir e ctors are present or if those not present waive notice of the m eeting in writing either before or after such m eeting.
Section 7. Quoru m , Requir e d Vote and Adjourn m en t . A m a jority of t h e tot a l nu m ber of directors then in office shall con s tit u te a quo r um for the transaction o f business. Except as otherwise provided by the Corporati o n’s Certificate of Incorporat i on, these Bylaws or applicable law, the vote of a m ajority of directors present at a m eeting at which a quorum is present shall be the act of the Board of Directors. If a quorum s h a ll not be present at any m eeting of the Board of Directors, the directors present m ay adjourn the m eeting from t i m e to ti m e, without notice other than annou n ce m ent at t h e m eeting, until a quor u m shall be p resent.
Section 8. Organization . Meetings of the Bo a rd of Directors shall be presided over by the Chair m an of the Board of Direct o rs, if a n y, or in his or her absence by the Vice Chair m an of the Board of Direct o rs, if a ny, or in his or her abse n ce b y the Chief Executive Officer of the President, if any, or in their absence by a chair m an chosen at the m eeting. The Secretary shall act as secretary of the m eeting, but in his or her absence the chair m an of the meeting m ay appoint any person to act as secretary of the m eeting.
Section 9. Telephonic Meetings . Me m bers of the Board of Directors m ay participate in and act at any m eeting of the Board of Direc t ors through the use of a conference telephone or other communications equip m ent by m eans of which all p e r s ons parti c i p at i ng in the m eeting can hear each ot her, and participation in the m eeting pu r suant to this section s hall con s tit u te pre s ence in person at the m eeting.
Section 10. Waiver of Notice and Presu m ption of Assent . Any m e m b e r of the Board of Directors who is present at a m eeting shall be conclusively presu m ed to have waived notice of such m eeting except when such me m ber attends for the express pur p ose of objecting at the beginning of the m eeting to the transaction of any business because the m eeting is n ot law f ully
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called or convened. Such m e m ber shall be conclus i vely presu m ed to have assented to any action taken unless his or her dissent shall be entered in the m i nutes of the m e e ting or unless his or her written diss e nt to such a c tion shall be f iled with the person acting as the s ecretary of the m eeting before the adjourn m ent thereof or shall be for w arded by registered m ail to the Secretary of t h e Corporation immediately after the adjourn m ent of the m eeting. Such right to dissent shall not apply to any m e m ber who voted in favor of such action.
Section 11. Action by W ritten Consent . Unless otherwise restricted by the Corporatio n ’s Certificate of Inc o rporation, any action req u ired or per m itted to be taken at a n y m eeting of the Board of Directors m ay be taken without a meeting if all m e mbers of the Board of Direct o rs c o nsent thereto in writing, and t h e wr i ting( s ) a re fi led with the m i nutes of proceedings of the Board of Directors.
Section 12. Reliance on Accounts and Reports, et c . A direct o r shall, in the perfor m ance of his or her duties, be fully pro t ected in relying in good faith upon the records of the Corporation and upon infor m ation, opinions, reports or state m ents presented to the Corporation by any of the Corpo r ation’s officers or e m ployees, or committees desig n ated by the Board of D i rectors, or by any other person as to the m atters the direct o r reasona b l y belie v es are within such other person’s professional or exp e rt co m petence and w h o has been selected with reasonable care by or on behalf of the Corporation.
Section 13. Co m pensation of Directors . Direct o rs, as such, m ay receive, pursua n t to a resolution of the Board of Directors, fixed fees, o t her co m pensation for t h eir s er v ices as direct o rs and rei m burse m ent of expenses, including, without li m itation, their services as me m bers of com m ittees of the Board of Director s . No such fixed fees, other co m pensation or rei m burse m ent shall preclude any director from s erving the C o rporation in any other capacity and receivi n g co m pensation therefor.
ARTICLE I V
COMMITTEES
Section 1. Com m ittees . The Board of Directors shall, by resolution passed by a m ajority of the directors, designate a co mp en s ation committee, a no m inating and governance com m ittee, an audit c o mmittee an d , from t i m e to ti m e, s u ch oth e r c o mmittees to serve a t t h e pleasure of the Board of Direct o rs. Each comm i t t ee sh a ll c o nsist of two or m ore of t he directors of the Corp o ration, which to the extent per m itted by law and provided in such resol u tion or the s e Bylaws, shall have and m ay exercise the powers of the Board of Directors in the m anage m ent and affairs of the Corporation. Such com m ittee(s) shall have such na m e(s) as m ay be deter m ined f rom ti m e to ti m e by r e solution ad o pted by the Boa r d of Direct o rs. Ea c h com m ittee shall ke e p regular m i nutes of its m eetings and report the sa m e to t h e Board of Direct o rs w hen req u ired. The Board of Directors m ay des i gnate one or m ore directors as alternate m e m bers of any com m ittee, who m ay replace any absent o r di s qualified m e m ber at any m eeting of the com m ittee. In the a b sence or dis q ualification of a m e m ber of the c o mmittee, t h e m e mber or m e mbers thereof present at any m eeting and not disqualified from voting, whether or not he or
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she or they constitute a quoru m , m ay unanimously appoint another m e mber of the Board of
Direct o rs to act at the m eeting in place of any such absent or disqualified m e mber.
Section 2. Com m ittee Rule s . Each com m ittee of the Boa r d of Direct o rs m ay f i x its own rules of procedure and shall hold its m eet i ngs as provided by such rules, except as m ay otherwise be provided by the r esol u tion of the Board of Dire c t ors d e sign a ting such c o mmittee or the c h arter adopted by t h e Board of Direct o rs f o r such com m ittee. In the absence of such rules, each com m i ttee shall c o nduct its bu s iness in the sa m e m ann e r as the Board of Direct o rs conducts its bu s iness pursuant to Arti c le I II of these Byl a ws.
ARTICLE V
OFFICERS
Section 1. Nu m ber . Unless otherwise deter m ined by the Board of Direct o rs, the officers of the Corporation shall consist of a C h ief Executive Officer, a Preside n t, a S ecretary, a Treasurer a n d such o t her officers as the Board o f Directors or the Chief Executive Officer m ay deter m ine, including, but not li m ited to, one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. Any nu m b er of offices may be held by t h e sa m e person, except that no person m ay si m ultaneously hold the office of Pre s ident and Secretary. In its discretion, the Board of Directors m ay choose not to fill any o ffice for any p eriod as it m ay deem advisable.
Section 2. Election and Term of Offic e . T h e Chief Executi v e Officer, President, Secretary and Treasurer of the Corporation shall be elected a nnually by the Board of Directors at its annual meeting. The Board of Directors m ay from t i m e t o ti m e elect, or the Chief Executive Officer m ay appoint, such other officers (including one or m ore Vice P residents, Assistant Vice Preside n ts, Assista n t Secretaries a n d Assistant Treasurers) and such agents, as m ay be necessary or desirable for the conduct of the business of t h e Corporation. Such o t her officers and agents shall have such duties as shall be provided in t h ese Bylaws or as m ay be prescribed by the Board of Directors or by the Chief Executive Officer. Vacancies m ay be fill e d or new offices c re a ted and f illed a t any m eeting of the Board of Di r ectors. Ea c h o ff i cer shall h o ld o f fice until a success o r is duly ele c ted and quali f i e d or until his or her earlier de a t h, r e signation or re m oval as hereinafter provided.
Section 3. R e m oval and Resignation . Any officer or agent elected by the Board of Directors may be re m oved by the B oard of Directors when e ver in its j u dg m ent the best i n te r ests of the Corporation would be ser v ed thereby, but such re m oval s h all be without prejudice to the contract rights, if any, of the person so re m oved. Designation of an officer shall not itself create contract rights. Any officer m ay resign at any ti m e upon delivery of written notice of such resignation, signed by s u ch officer, to the Board of Direct o rs, the Chief Executi v e O f ficer or the President. Unless otherwise specified therein, such resignat i on shall take effect upon delivery.
Section 4. Vacancies . Any vacancy occurring in any office because of death, resignation, re m oval, disqualific a tion or otherwise, m ay be filled for the unexpired portion of the term by the Board of Directors.
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Section 5. Co m pensation . Compensation of all officers shall be fixed by the Board of Directors or a com m ittee the r eof, and no officer shall be prevented from receiving such co m pensation by virtue of his or her also being a director of the Corporation.
Section 6. Chief Executive Officer . The Chief Executi v e Officer s hall h ave the general control and m a nage m ent of the busin e ss and affairs of the Corporation, under the direction of the Board of Directors. He or she shall have power: (i) to select and appoint all necessary officers and employees of the Corpor a tion except such officers as under these Bylaws are to be elected by the Board of Directors, (ii) to re m ove all appointed officers or e m ployees whenever he or she shall de e m it necessary, and to m ake new appoint m ents to fill the vacancies, and (iii) to suspend from office for cause any ele c ted o ff i cer, which sh a ll be forthwith declared in writing to t h e Board of Direct o rs. The Chief E x ecuti v e O f ficer shall h a ve such o t h er a u thority and shall perfo r m such other duties as m ay be deter m ined by the Board of Directors.
Section 7. Preside n t . The Presi de nt sh a ll h a v e such aut h ority and p er f orm such duties r e l a tive to the business and aff airs of t h e Corporation as m ay be deter m ined by the Board of Direct o rs or the Chief Executive Officer. In the ab s ence of both the Chair m an and the Chief Executive Officer, the President shall preside at m eetings of the stockholders and of the directors. If the Board of Directors shall not have elected a Chief Executive Officer, the Preside n t s h all h ave s uc h autho r ity a nd shall p e r f orm such additio n al d u ties as in the s e Bylaws is provided for the office of Chief Exe c utive Officer.
Section 8. Vice Pre s i d ents and A s sista n t Vice Preside n ts . Each Vice Preside n t a n d each Assistant Vice Pre s ident shall h ave such powe r s and perform all s u ch duties as from t i m e to ti m e m ay be deter m ined by the Board of Directors, the Chief Executive Officer, the Preside n t or the senior officer to whom such offi c er reports.
Section 9. The Secretary and Assistant Secretarie s . The Secretary s h all a ttend all m eetings of the Board of Directors, all m eetings of the c o mmittees t h ereof and all m eetings o f the stockh o lders and record all the p rocee d ings of the m eetings in a book(s) to be k ept for that purpose. Under the Chief Executive Officer’s or P r esident’s supervision, t he Secre t ary sha l l ( i ) give, or cause to be given, all no t ices required to be given by t h ese Bylaws or by law; (ii) have such powers and perform such duties as the Board of Dire c t ors, the Chief Executive Of f i cer, the President or these Bylaws m ay, from ti m e to ti m e, prescribe; and (iii) have custody of the corporate seal of the C o rporation. T he Secretary, or an Ass i stant Secretary, shall have authority to affix the corporate seal to any in s t ru m ent r e quiring it and when so affixed, it m ay be attested by his or her signature or by the signature of such Assistant Secretar y . The Board of Direct o rs m ay give general authority to any other officer to affix the s eal of the C orporation and to attest the affixing by his or her signatu r e. The Assi st ant Secretary, or if there be m ore than one, the Assista n t Secretaries in the order deter m ined by t h e Board o f Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary. The Assista n t Secretaries sh a ll perform s uch other duties and have such other powers as the Board of Direct o rs, the Chief Executi v e Officer, the Preside n t or Secretary may, from t i m e to t i m e, prescribe.
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Section 10. The Treasurer and Assi s t ant Treasurer s . The Treasurer shall (i) have the custody of the corp o rate funds and securities; (ii) keep full and accurate accounts of receipts and disburse m ents in books belonging to the Corporation; (iii) deposit all m o n i es and other valuable effects in the na m e and to the cre d it of the Corporation as m ay be o r dered by the Board of Directors; (iv) cause the funds of the Corporation to be disburs e d when such disburse m ents have been duly authorized, taking proper vouchers f or s u ch disburse m ents; (v) render to the Chief Executive Officer, the Preside n t and the Board of D i rect o r s , at its regular m eeting or when t h e Board of D i rectors so requires, an account of the Corporation; and (vi) have such powers and perform su c h duties as the Board of Directors, t h e Chief Executive Officer, the Pre s ident or the s e Bylaws m ay, f rom ti m e to ti m e, prescribe. The Assistant T reasurer, or if there shall be m ore than one, t h e Assista n t Treasurers in the order det e r m ined by the Board of Direct o rs, shall, in the absence or disability of the Treasurer, per f orm the duties and exercise the powers of the Treasurer. The Assistant Treas u rers shall perform such other du t ies and have such other powers as the Board of Director s , the Chief Executi v e O f ficer, the President o r Treasur e r m ay, from ti m e to ti m e, pre s cribe.
Section 11. Other Offi c ers, Assista n t Officers a n d Agent s . Officers, as s i sta n t officers and agents, if any, other than those whose duties are provided f o r in these Bylaws, shall have such authority and perform such duties as m ay from ti m e to t i m e be prescribed by resolution of the Board of Direct o rs.
Section 12. Absence or Disability of Officers . In the case o f the ab s ence or disa b i lity of any officer of the Corporat i on and of any person hereby autho r ized to a c t in s u ch o ff i cer’s place duri n g such o ff i cer’s abse n ce or dis a bility, the Board of Dir e ctors m ay by res o lution delegate the powers and duties of such officer to any o t her o fficer or to any director, or to any other person whom it m ay select.
Section 13. Securit y . The Board of Directors m ay require any officer, agent or e m ployee of the Corporation to provide security f o r the faith f ul perfor m ance of his or her duties, in such a m ount and of such character as m ay be deter m ined from ti m e t o ti m e by the Board of Direct o rs.
Section 14. Co m pensation . The compensation of the offi c ers of the Corporation for their ser v ices as such officers shall be fix e d from ti m e t o ti m e by the Board o f Director s , provided , however , that, except to the extent otherwise re q uired by applica b le law or the rules and regulations of any stock exchange or quotation system applicable to the Corporation, the Board of Directors m ay by resolution delegate to the Chief Executi v e Officer t h e power to fix co m pensation of non-elected officers and agents appointed by the Chief Executive O fficer. An officer of the Corporati o n shall not be preve n ted from receiving co m pensation by reason of the fact that such officer is also a director of the Corporation, but any such officer who shall also be a director shall not h a ve any vote in the deter m ination of such officer’s co m pensation.
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ARTICLE VI
INDEMNIFICATION
Section 1. Nature of Inde m nity . The Corporation shall in de mni f y to the f ullest e x t e nt authorized b y the DGCL, as the same exists or m ay hereafter m ay be a m ended, any person who was or is a party or is threatened to be m ade a party to a n y threatened, pending or co m pleted action, s u it or procee d ing (hereinafter, a “ Pr o ceedin g ”), whether civil, cri m inal, ad m i nistrative, arbitrative, or investigative, or any appeal in such a Proceeding or any inquiry or investigation that co u l d lead to such a Procee d ing, by reason of the fact t h at he or she, o r a person of whom he or she is the legal representative, is or was a di r ector or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, e m ployee, agent, or si m ilar functionary of another co r poration, li m ited liability co m pany, partnership, joint venture, sole proprietorship, tru s t, e m ployee benefit plan, or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses, liability and loss (inc l uding attorneys’ fees, judg m ents, fines, ERISA excise taxes, penalties and a m ounts paid or to be paid in settle m ent) reasonably incurred by him or her or on his or h er behalf in connecti o n with such Proceeding and any a p peal therefro m , and such inde m nification shall c o ntinue as to a person w h o has cea s ed to be a d i rector, officer, e m ployee or agent and shall inure to the benefit of his or her heirs, executors and ad m i nistrators, provide d , however , that except as provided in Section 2 of this A r ticle VI with resp e ct to procee d i ngs seeking to en f orce r i g hts to ind e mni f ication, the Corporation shall inde m nify a nd advance expenses to any such person see k i n g inde m ni f ication in c o nne c tion with a proceeding (or part thereof) i n itiated by s u ch person only if such procee d ing (or part t h ereof) initiated by such person was authorized by the Board of Directors of the Corporation.
Section 2. Recovery of Unpaid Inde m nification . If a claim under Section 1 of this Arti c le VI is not paid in f ull by the Corporation within 60 days a f ter a written claim has been received by the Corporation, the clai m ant m a y at any ti m e thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if success f ul in whole or in part, the clai m ant al s o shall be e ntitled to be paid the expense of prosecuting such clai m . 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 t h e required undertaking, if any is required, has been tend e red to the Corp o ration) that t h e clai m ant has not m et the standards of conduct which m ake it per m issible under the DGCL for the Corporat i on to inde m nify the clai m ant for the a m ount clai m ed, but the burd e n of proving such defense shall be on the Corporation. Neither the failure of the C orporation (inc l uding its Board of Directors, independent legal counsel or stockholders) to have made a deter m ination prior to the commenc e m ent of such action that i n de m ni f ication of the c l ai m ant is pro p er in the c i r c u m stances because he or she has m et the applica b le s t a n d a rd of co n duct set forth in the DGCL, nor an actu a l d e te r m ination by the Corpo r ation (i n cl u ding the Board of Directors, independent legal counsel or stockholders) that the clai m ant has not m et such applicable standard of conduct, shall be a defen s e to the action or create a presu m pt i on that the clai m ant has not m et the applicable standard of conduct.
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Section 3. Successful Defense . To the e x tent that a pre s ent or for m er direct o r or officer of the Corporation has been succe s sful on t h e m erits o r o t herwise in defense of any Proceeding referred to in Section 1 of this Article VI o r in d efense of a n y clai m , issue or m atter therein, he or she shall be inde m nified against e x penses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.
Section 4. Preservation of Other Rights . The rights to inde m nifi c ation and the pay m ent of expenses incurred in defending a P r oceeding in advance of its final disposition con f erred in this Arti c l e VI shall n o t be exclu s ive of any other right which any person m ay have or hereafter acquire under any statute, provision of the Corporation’s Certificate of Incorporation, bylaw, agree m ent, vote of stockholders or disinterested d i rectors or otherwise.
Section 5. Insurance . The Corporation m ay purchase and m aintain i n surance on its own behalf and on behalf of any pe r son who is or was a director or officer of the Corporation or was serving at the request of the Co r poration as a director, officer, e m ployee or agent of another corporation, li m ited liability co m p any, partnership, joint venture, trust or other enterprise against any expens e , liability or loss assert e d against him or her or incur r ed by him or her in any such capacity, whether o r not the Co r poration would have the po w er to inde m n ify such person against such expen s e, liability o r lo s s under this Arti c le VI, provided that such insurance is available on acceptable ter m s, which deter m ination shall b e m a de by a vote of a majority of t h e Board of Direct o rs.
Section 6. Expenses . Expenses incurred by any person described in Section 1 of this Article VI in defending a Procee d ing shall b e paid by t h e Corporation in adva n ce of such Proceedin g’ s final dis p osition and without any deter m ination as to the pers o n’s ulti m ate entitle m ent to inde m ni f icatio n ; pro v ide d , however , that the pay m ent of such expen s es inc u rred by any such person in advance of t h e final d i sp o sition of a Procee d ing s hall be m ade only upon delivery to the Corporation of a written affir ma tion by such person of his or her good faith belief that he or s h e has m et the standard of conduct n ecessary for inde m nification under this Article V I and a written undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall ulti m ately be deter m ined that such person is not entitled to be inde m nified under this Article VI or otherwise.
Section 7. E m ployees and Agent s . Persons who are not covered by the foregoing provisions of this Article VI and who are or w e re e m ployees or agents of the Corporation, or who are o r were servi n g at the re q uest of t h e Corporation as e m ployees or agents of another corporation, li m ited liabil i ty co m p a ny, partnership, joint venture, trust or other enterprise, m ay be inde m nified to the e xtent a u tho r ized at any ti m e or f r om ti m e to ti m e by the Board of Directors. The expenses inc u rred by such e m ployees and agents m ay also be paid upon such ter m s and conditions, if any, as the B o ard of Directors dee m s appropriate.
Section 8. Contract Rights . The provisions of this Artic l e VI shall be dee m ed to be a contract right, and any repeal or m odification of this Article VI or any such law s h all n o t a ff ect any rig h ts or obligati o ns then existing with respect to any state of f acts or p r o ceeding then existing.
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Section 9. Severabilit y . If this Article VI or any portion hereof shall be invalidated on any ground by any court of competent jurisdi c tion, then the Corporation shall nevertheless inde m nify and hold har m less each direct o r and officer and any other person inde m nified pursuant to this Article VI as to costs, char g es and expenses (including reasonable attorneys’ fees), judg m ents, fines and a m ounts paid in settle m ent with respe c t to any action, suit or procee d ing, whether civil, cri m inal, ad m i nistrati v e or inve s ti g ati v e to the full exte n t per m itted b y any appli ca ble portion of this Arti c le VI that s hall not have been invalidated and to the fullest extent p er m itted by ap p l icable law.
Section 10. Appearance as a W itness . Notwithstanding any other provision of this Article VI, the Corporation shall pay or rei m burse expenses incurr e d by a director or officer in connection with his or her appearance as a witn e ss or other participation in a Proceeding at a ti m e when he or she is not a na m ed d e fendant or respondent in the Proceeding.
ARTICLE VII CERTIFICATES OF S TOCK
Section 1. For m . Every holder of stock in the Co r poration shall be entitled to have a certificate, signed by, or in the na m e of the Corpo r ation by (i) the Chair m a n of the Board, if any, the Pre s ident or a Vice Pre s ide n t and (ii) the Secretary or an A s sista n t Secretary of t h e Corporation, certifying the nu m ber of shares owned by such sto c kholder in the Corporation. If such a certificate is cou n ter s igned (1) by a transfer age n t or an assi s t a n t transfer agent other than the Corporation or its employee or (2) by a registr a r, other than the Corporation or its e m ployee, the s i gnat u re of any such Chair m an of the Boa r d, the Chief Executive Officer, President, Vice Preside n t, S ecretary o r Assista n t Secretary m ay be facsi m iles. In case any officer(s) who have signed, or w hose facsi m ile signature(s) have been used on, any such certif i cate(s) shall cease to be such officer( s ) of t h e Corporati o n whether b ecause of death, resig n at i on or otherwise before such certificate(s) have been delivered by the C o rporation, such certific a te(s) m ay nevertheless be issued and delivered as though the person or persons who signed such certificate(s) or whose facsi m ile signature(s) h ave been u sed thereon had not ceased to be such officer(s) of the Corporation. All certificates for shares shall b e consecutively nu m bered or otherwise identified. The na m e of the person to whom the shares re p resented t h ereby are is su ed, with the nu m ber of shares and date of issue, shall be e n tered on the books of the Corporation.
Section 2. Transfer . Transfers of stock shall be m ade only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of t he Corporation. Except where a certificate is issued in accordance with Section 3 of this Article, an outsta n ding certificate for the nu m ber of shares inv o l v ed shall b e surrendered for cancellation before a n e w certificate is iss u ed therefor.
Section 3. Lost, Stolen or Destroyed Certificate s . The Corporation m ay direct a new certificate( s ) of like ki n d to be iss u ed in pl a ce of any certificate(s) pr eviously is s ued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person clai m i ng the certificate o f stock to be lost, stolen or destroyed. W h e n
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authorizing such issue of a new certificate(s), the Corporation m ay, in its discretion and as a condition precedent to the issuance thereof, re q ui r e t h e owner of such lost, st o l en or destro y ed certificate(s), or his or her l e gal representative, to give t h e Corporation a bond sufficient to inde m nify t he Corporation against any claim t h at m ay be m ade against the Corporation on account of the loss, theft or des t ruction of any such certificate or the issuance of such new certificate.
Section 4. Fixing a R ecord Date for Stockholder Meeting s . In order that the Corporation m ay deter m ine the stockholders entitled to notice of or to vote at any m eeting of stockholders or any adjourn m ent thereof, the B o ard of Directors m ay fix a record date, which record date shall not precede the date upon which the resolution fixing the r ecord date is adopted by the Board of Directors, and which record date shall n o t b e m ore than sixty (60) n or l e ss t h an ten (10) days before the date of such m eeti n g. If no record date is fixed by t he Board of Directors, the record date for deter m ining sto c kholders entitled to notice of or to vote at a m eeting of st ockholders shall be the close of business on the day im m ed i ately p rece d ing the day on which notice is given, or if notice is waived, at the close of busi n ess on the day immediately prece d ing the day on which the m eeting is held. A deter m ination of stockholders of rec o rd entitled to notice of or to vote at a m eeting of stockholders shall apply to any adjourn m ent of the m eeting; provided , however , that the Board o f Directors m ay fix a new record date for the adjourned m eeting.
Section 5. Fixing a Record Date for Other Purpose s . In order that the Corporation m ay deter m i ne the stockholders e n titled to recei v e pay m ent of a ny dividend or other distribution or allot m ent of any rights of the stockholders e n titled to exercise any r i ghts in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors m ay fix a record date, which record date shall not precede the date up o n which the resolution fixing the record date is adopted, and which record date shall be not m ore than sixty (60) days prior to such action. If no record date is fixed, t h e record date for deter m ining stockholders for any such purpose shall be at t h e close of business on the day on which the Board of Directors adopts the r e solution relating thereto.
Section 6. Registered Stockholders . Prior to the surrender to the Corporation of the certificate( s ) for a s h are(s) of s t ock with a re q uest to rec o rd the transfer of such s hare( s ), the Corporation m ay treat t h e re g i stered owner as the person entitled to receive dividends, to vote, to receive n o tifications, a n d oth e rwise to exer c i se all t h e r i g hts and powers of an owner. The Corporation shall not be bound to recognize any eq u itable or other claim to or interest in such share(s) on the part of any other person, whether or not it shall have express or other notice thereof.
ARTICLE VIII
GEN E RAL PROVISIONS
Section 1. Dividends . Subject to any applicable provisions of law and the
Corporation’s Certificate of Incorporation, dividends upon the capital stock of the Corporation,
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m ay be declared by the Board of D i rectors at a n y regular or special m eeting. Dividends m ay be paid in cash, in property, or in shares of capital stock of the Corporation, subject to the provisions of the Corporation’s Certificate of I n corporation. Before pay m ent of any dividend, there m ay be set aside out of any funds of the C o rporation available for dividends such su m (s) as the Board of Directors from ti m e to t i m e, in its absolute discretion, thinks proper as a reserve( s ) to m eet contingencies, or for equalizing dividen d s, or for repairing or m a intaining any property of the Corporation or for any other purpose as t h e Board of D i rectors shall think conducive to the int e rest of t h e Corpor a tion, and the B oard of Directors m ay s i m ilarly m odify or abolish any such reser v e.
Section 2. Checks, Drafts or Orders . All checks, drafts or other orders for the pay m ent of money by the Corporation and all not e s and other evidences of indebtedness issued in the na m e of the Cor p oration shall be signed by such officer(s) or agent(s) of the Corporation, and in such m anner, as shall be d e ter m ined by res o lution of the Board of Directors or a du l y authorized com m ittee t h ereof.
Section 3. Contracts . The Board of Directors m ay authorize any officer( s ) o r a n y agent(s) of the Corporation to enter into any con t ract or to execute and deliver any instru m ent in the na m e of and on behalf of the Corporation, and such authority m ay be general or confined to specific instances.
Section 4. Fiscal Yea r . Unless otherwise fixed by r e solutions of the Board of
Direct o rs, t h e fiscal year of the C o rporation shall be the calendar year.
Section 5. Corporate S ea l . The B oard of Directors s h all provide a corporate seal which shall be in the fo r m of a circle and shall have inscribed thereon the na m e of the Corporation and the words “Corporate Seal, Delaware.” The seal m ay be u s ed by causing it or a f acsi m ile thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Voting Securities Owned By Corporation . Voting securities in any other corporation held by the Corporation shall be voted by the Chief Executive Of f i cer or Preside n t, unless the B oard of Directors s p ecifically confers authority to vote with respe c t t h e r eto, which authority may be general or confined to specif i c instances, upon so m e other person or officer. Any person authorized to vote sec u rities s h all have the p o wer to appoint proxies with general power of substit u tion.
Section 7. Section Headings . Section headings in these Bylaws are for convenience of re f erence only and sh a ll n o t b e gi v en any subst a ntive e ff ect in li m iting or ot h erwise construing any provision herein.
Section 8. Inconsistent Provisions . In the event that any pr o vision of th e se Bylaws is or beco m es inconsistent with any provision of t h e Corporation’s Certificate of Incorporation, the DGCL or any other applicable law, such provision of these Bylaws shall not be given any effect to the e x tent of such inconsiste n cy b ut shall otherwise be given full force and effect.
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Section 9. Forum for Adjudication of Disputes . Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (a) any derivative action or other proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or to the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (d) any action asserting a claim governed by the internal affairs doctrine. The Court of Chancery of the State of Delaware shall have the fullest authority allowed by law to issue an anti-suit injunction to enforce this forum selection clause and to preclude suit in any other forum. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to this Section and to have consented to personal jurisdiction in Delaware for the purposes of any suit in the Court of Chancery (and other specified Delaware courts) in any proceeding brought to enjoin any action by that person or entity that is inconsistent with the exclusive jurisdiction referenced in this Section and for the purposes of enforcement of this Section.
Section 10. Attorneys' Fees in Stockholder Actions . Notwithstanding anything in the Corporation’s Certificate of Incorporation to the contrary, to the fullest extent permitted by law, in the event that (i) any current or prior stockholder or anyone on their behalf (a “ Claiming Party ”) initiates, in their capacity as a current or prior stockholder, any action, suit or proceeding, whether civil, administrative or investigative or asserts any claim or counterclaim in a pending proceeding (each, a “Claim”) or joins, offers substantial assistance to or has a direct financial interest in any Claim (including any Claim purportedly filed on behalf of any other stockholder or on behalf of the Corporation) against the Corporation and/or any director, officer, or affiliate thereof (each, a “Company Party”), and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits in favor of the Claiming Party or such third party, then each Claiming Party shall be obligated jointly and severally to reimburse the applicable Company Party for all fees, costs and expenses of every kind and description (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the applicable Company Party may incur in connection with such Claim. If any provision (or any part thereof) of this Section 10 shall be held to be invalid, illegal or unenforceable facially or as applied to any circumstance for any reason whatsoever: (1) the validity, legality and enforceability of such provision (or part thereof) in any other circumstance and of the remaining provisions of this Section 10 (including, without limitation, each portion of any subsection of this Section 10 containing any such provision (or part thereof) held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (2) to the fullest extent permitted by law, the provisions of this Section 10 (including, without limitation, each such portion containing any such provision (or part thereof) held to be invalid, illegal or unenforceable) shall be construed for the benefit of the Corporation to the fullest extent permitted by law so as to (a) give effect to the intent manifested by the provision (or part thereof) held invalid, illegal or unenforceable, and (b) permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith
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service. Any person or entity purchasing or otherwise acquiring any interest in the shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 10.
ARTICLE I X
AMEND M ENTS
Subject to any express provision in the Corporation’s Certifi c ate of Incorporation to the co n t rary, these B y laws m ay be a m ended, altered or repealed:
(a) by resolution adopted by a m ajority of the Board of Directors at any special or regular m e e ting of the Board of Directors without the assent or vote of the stockholders of the Corporation if, in the case of such special m eeting only, notice of such a m end m ent, alteration or repeal is contained in the noti c e or waiver of notice of such m eeting; or
(b) at any regular or special m eeting of the stockholders upon the affir m ative vote of not less than a majority of the holders of the co m bined voting power of the outstanding shares of t h e Corporati o n entitled to vote gen e r a lly in the election of directors if, in the case of such special m eeting only, notice of such a m end m e n t, alte r ation o r r e p eal is co n t ained in the notice or waiver of notice of such m eeting.
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