SIXTH AMENDED AND RESTATED BYLAWS
of
Autobytel Inc.
(a Delaware corporation)
TABLE OF CONTENTS
|
|
Page
|
ARTICLE I
OFFICES
|
1
|
|
Section
1.01
|
REGISTERED
OFFICE
|
1
|
|
Section
1.02
|
PRINCIPAL
OFFICE
|
1
|
|
Section
1.03
|
OTHER
OFFICES
|
1
|
|
|
|
1
|
ARTICLE II
MEETINGS OF
STOCKHOLDERS
|
1
|
|
S
ection
2.01
|
ANNUAL
MEETINGS
|
1
|
|
S
ection
2.02
|
SPECIAL
MEETINGS
|
1
|
|
S
ection
2.03
|
PLACE OF
MEETINGS
|
1
|
|
Section
2.04
|
NOTICE OF
MEETINGS
|
2
|
|
Section
2.05
|
QUORUM
|
2
|
|
Section
2.06
|
VOTING
|
2
|
|
Section
2.07
|
LIST OF
STOCKHOLDERS
|
3
|
|
Section
2.08
|
INSPECTOR OF
ELECTION
|
3
|
|
Section
2.09
|
STOCKHOLDER ACTION
WITHOUT MEETINGS
|
4
|
|
Section
2.10
|
ADVANCE NOTICE
PROVISION FOR NOMINATION OF DIRECTORS
|
4
|
|
Section
2.11
|
ADVANCE
NOTICE PROVISION FOR PROPOSING BUSINESS AT A STOCKHOLDERS’
MEETING
|
6
|
|
Section
2.12
|
ORGANIZATION
|
8
|
|
Section
2.13
|
CONDUCT OF
MEETINGS
|
8
|
|
|
|
|
ARTICLE III BOARD
OF DIRECTORS
|
|
|
Section
3.01
|
GENERAL
POWERS
|
8
|
|
Section
3.02
|
NUMBER
|
8
|
|
Section
3.03
|
ELECTION
OF DIRECTORS
|
9
|
|
Section
3.04
|
RESIGNATIONS
|
9
|
|
Section
3.05
|
VACANCIES
|
9
|
|
Section
3.06
|
PLACE
OF MEETING; TELEPHONE CONFERENCE MEETING
|
9
|
|
Section
3.07
|
FIRST
MEETING
|
9
|
|
Section
3.08
|
REGULAR
MEETINGS
|
9
|
|
Section
3.09
|
SPECIAL
MEETINGS
|
10
|
|
Section
3.10
|
QUORUM AND
ACTION
|
10
|
|
Section
3.11
|
ACTION BY
CONSENT
|
10
|
|
Section
3.12
|
COMPENSATION
|
10
|
|
Section
3.13
|
COMMITTEES
|
11
|
|
Section
3.14
|
MEETINGS
AND ACTIONS OF COMMITTEES
|
11
|
|
Section
3.15
|
CHAIRMAN OF THE
BOARD
|
11
|
|
|
|
|
ARTICLE IV
OFFICERS
|
|
|
Section
4.01
|
OFFICERS
|
11
|
|
Section
4.02
|
ELECTION
|
11
|
|
Section
4.03
|
SUBORDINATE
OFFICERS
|
12
|
|
Section
4.04
|
REMOVAL
AND RESIGNATION
|
12
|
|
Section
4.05
|
VACANCIES
|
12
|
|
Section
4.06
|
CHIEF
EXECUTIVE OFFICER
|
12
|
|
Section
4.07
|
PRESIDENT
|
12
|
|
Section
4.08
|
CHIEF
OPERATING OFFICER
|
12
|
|
Section
4.09
|
CHIEF
FINANCIAL OFFICER
|
12
|
|
Section
4.10
|
VICE
PRESIDENT
|
13
|
|
Section
4.11
|
SECRETARY
|
13
|
|
Section
4.12
|
ASSISTANT
SECRETARY
|
13
|
ARTICLE
V CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS,
ETC
|
|
|
|
Section
5.01
|
EXECUTION
OF CONTRACTS
|
13
|
|
|
Section
5.02
|
CHECKS,
DRAFTS, ETC.
|
14
|
|
|
Section
5.03
|
DEPOSIT
|
14
|
|
|
Section
5.04
|
GENERAL
AND SPECIAL BANK ACCOUNTS
|
14
|
|
|
|
|
|
|
ARTICLE
VI SHARES AND THEIR TRANSFER
|
|
|
Section
6.01
|
CERTIFICATES
FOR STOCK
|
14
|
|
|
Section
6.02
|
TRANSFER
OF STOCK
|
15
|
|
|
Section
6.03
|
REGULATIONS
|
15
|
|
|
Section
6.04
|
LOST,
STOLEN, DESTROYED AND MUTILATED CERTIFICATES
|
15
|
|
|
Section
6.05
|
RECORD
DATE
|
15
|
|
|
Section
6.06
|
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS
|
16
|
|
|
Section
6.07
|
SPECIAL
DESIGNATION ON CERTIFICATES
|
16
|
|
|
|
|
|
|
ARTICLE
VII INDEMNIFICATION
|
|
|
Section
7.01
|
ACTIONS
OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION
|
17
|
|
|
Section
7.02
|
ACTIONS
BY OR IN THE RIGHT OF THE CORPORATION
|
17
|
|
|
Section
7.03
|
DETERMINATION
OF RIGHT OF INDEMNIFICATION
|
17
|
|
|
Section
7.04
|
INDEMNIFICATION
AGAINST EXPENSES OF SUCCESSFUL PARTY
|
17
|
|
|
Section
7.05
|
ADVANCE
OF EXPENSES
|
17
|
|
|
Section
7.06
|
OTHER
RIGHTS AND REMEDIES
|
18
|
|
|
Section
7.07
|
INSURANCE
|
18
|
|
|
Section
7.08
|
CONSTITUENT
CORPORATIONS
|
18
|
|
|
Section
7.09
|
EMPLOYEE
BENEFIT PLANS
|
18
|
|
|
Section
7.10
|
TERM
|
18
|
|
|
Section
7.11
|
SEVERABILITY
|
18
|
|
|
Section
7.12
|
AMENDMENTS
|
18
|
|
|
|
|
|
|
ARTICLE
VIII RECORDS AND REPORTS
|
|
|
Section
8.01
|
MAINTENANCE
OF RECORDS
|
19
|
|
|
Section
8.02
|
INSPECTION
BY DIRECTORS
|
19
|
|
|
|
|
|
|
ARTICLE
IX MISCELLANEOUS
|
|
|
Section
9.01
|
SEAL
|
19
|
|
|
Section
9.02
|
WAIVER
OF NOTICES
|
19
|
|
|
|
LOANS AND
GUARANTIES
|
19
|
|
|
Section 9.04
|
GENDER
|
19
|
|
|
|
AMENDMENTS
|
19
|
|
|
|
|
|
|
ARTICLE
X FORUM FOR ADJUDICATION OF DISPUTES
|
|
|
Section
10.01
|
FORUM
|
20
|
|
|
Section
10.02
|
PERSONAL
JURISDICTION
|
20
|
|
|
Section
10.03
|
ENFORCEABILITY
|
20
|
|
|
|
|
|
|
CERTIFICATE OF
SECRETARY
|
21
|
|
SIXTH AMENDED AND RESTATED BYLAWS
of
Autobytel Inc.
(a
Delaware corporation)
ARTICLE
I
Section 1.01
REGISTERED OFFICE. The registered office of Autobytel Inc.
(hereinafter called the “
Corporation
”) shall be at such
place in the State of Delaware as shall be designated by the Board
of Directors (hereinafter called the “
Board
”).
Section 1.02
PRINCIPAL OFFICE. The principal office for the transaction of the
business of the Corporation shall be at such location, within or
without the State of Delaware, as shall be designated by the
Board.
Section 1.03 OTHER
OFFICES. The Corporation may also have an office or offices at such
other place or places, either within or without the State of
Delaware, as the Board may from time to time determine or as the
business of the Corporation may require.
ARTICLE
II
Section 2.01 ANNUAL
MEETINGS. Annual meetings of the stockholders of the Corporation
for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings shall
be held each year at such time, date and place, if any, as the
Board shall determine by resolution. In the absence of such
designation, the annual meeting of stockholders shall be held at
3:00 p.m., on the third Thursday in June at the principal office of
the Corporation. However, if such day falls on a legal holiday,
then the meeting shall be held at the same time and place on the
next succeeding full business day.
Section 2.02
SPECIAL MEETINGS. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time
by the Board, or by a committee of the Board which has been duly
designated by the Board and whose powers and authority, as provided
in a resolution of the Board or in these Bylaws, include the power
to call such meetings, or by the Chairman of the Board, or by the
President, but such special meetings may not be called by any other
person or persons; provided, however, that if and to the extent
that any special meeting of stockholders may be called by any other
person or persons specified in any provision of the
Corporation’s certificate of incorporation
(“
Certificate of
Incorporation
”) or any amendment thereto or any
certificate filed under Section 151(g) of the General Corporation
Law of the State of Delaware (or its successor statute as in effect
from time to time hereafter) (“
General Corporation Law of
Delaware
”), then such special meeting may also be
called by, or at the direction of, the person or persons, in the
manner, at the time and for the purposes so specified.
Section 2.03 PLACE
OF MEETINGS. All meetings of the stockholders shall be held at such
places, if any, within or without the State of Delaware, as
designated by the Board and specified in the respective notices or
waivers of notice thereof. In the absence of any such designation,
stockholders’ meetings shall be held at the principal
executive office of the Corporation.
Section 2.04 NOTICE
OF MEETINGS. Except as otherwise required by law, notice of each
meeting of the stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at
such meeting as of the record date for determining the stockholders
entitled to notice of the meeting. Notice may be given (i) by
delivering a typewritten or printed notice thereof to such
stockholder personally, (ii) by depositing such notice in the
United States mail or nationally recognized overnight courier, in a
postage prepaid envelope, directed to such stockholder at such
stockholder’s address furnished by such stockholder to the
Secretary of the Corporation for such purpose or, if such
stockholder shall not have furnished to the Secretary such
stockholder’s address for such purpose, then at such
stockholder’s address as it appears on the records of the
Corporation, or (iii) subject to the prior consent of the
stockholder to whom the notice is to be given, by email or other
form of electronic transmission as permitted by Section 232 of the
General Corporation Law of Delaware. Except as otherwise expressly
required by law, no publication of any notice of a meeting of the
stockholders shall be required. Every notice of a meeting of the
stockholders shall state the place, if any, date and hour of the
meeting, the record date for determining the stockholders entitled
to vote at the meeting (if such date is different from the record
date for stockholders entitled to notice of the meeting), the means
of remote communication, if any, by which stockholders may be
deemed present and, in the case of a special meeting, the purpose
or purposes for which the meeting is called (no business other than
that specified in the notice of special meeting may be transacted).
The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees who, at the time
of the notice, the Board intends to present for
election.
An
affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the Secretary, Assistant
Secretary or any transfer agent of the Corporation giving the
notice, shall, in the absence of fraud, be prima facie evidence of
the giving of such notice.
Section 2.05
QUORUM. Except as otherwise provided by statute or by the
certificate of incorporation, the holders of record of a majority
in voting power of the shares of stock of the Corporation issued
and outstanding and entitled to be voted, present in person or by
proxy, shall constitute a quorum for the transaction of business at
any meeting of the stockholders of the Corporation or any
adjournment thereof. The stockholders present at a duly called or
held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. In the absence of
a quorum at any meeting or any adjournment thereof, a majority in
voting power of the shares of stock present in person or by proxy
and entitled to vote thereat, or any officer entitled to preside at
or to act as secretary of such meeting, may adjourn such meeting
from time to time. Notice need not be given of any such adjourned
meeting if the time and place, if any, thereof and the means of
remote communications, if any, by which stockholders and proxy
holders may be deemed present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken. At any such adjourned meeting at which a quorum is present
any business may be transacted which might have been transacted at
the meeting as originally called. If the adjournment is for more
than thirty (30) days, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting. If after the adjournment a new record date for
stockholders entitled to vote is fixed for the adjourned meeting,
the Board shall fix a new record date for notice of such adjourned
meeting, and shall give notice of the adjourned meeting to each
stockholder of record entitled to vote at such adjourned meeting as
of the record date for notice of such adjourned
meeting.
At each
meeting of the stockholders, each stockholder shall be entitled to
vote in person or by proxy each share or fractional share of the
stock of the Corporation which has voting rights on the matter in
question and which shall have been held by such stockholder and
registered in such stockholder’s name on the books of the
Corporation on the record date for the determination of
stockholders entitled to vote at such meeting.
Shares
of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to
vote nor be counted for quorum purposes. Notwithstanding the
foregoing, persons holding stock of the Corporation in a fiduciary
capacity shall be entitled to vote such stock. Persons whose stock
is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation the pledgor shall have
expressly empowered the pledgee to vote thereon, in which case only
the pledgee, or the pledgee’s proxy, may represent such stock
and vote thereon. Stock having voting power standing of record in
the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the
entirety or otherwise, or with respect to which two or more persons
have the same fiduciary relationship respecting the same shares,
shall be voted in accordance with the provisions of the General
Corporation Law of Delaware.
Any
such voting rights may be exercised by the stockholder entitled
thereto in person or by such stockholder’s proxy appointed in
accordance with the General Corporation Law of Delaware; provided,
however, that no proxy shall be voted or acted upon after three (3)
years from its date unless said proxy shall provide for a longer
period. A stockholder may revoke any proxy which is not irrevocable
by attending the meeting and voting in person or by delivering to
the Secretary of the Corporation a revocation of the proxy or a new
proxy bearing a later date. At any meeting of the stockholders all
matters, except
as otherwise
provided
in the Certificate of Incorporation, in these
Bylaws, the rules or regulations of any stock exchange applicable
to the Corporation, applicable law or pursuant to any regulation
applicable to the Corporation or its securities, shall be decided
by the vote of a majority in voting power of the shares present in
person or by proxy and entitled to vote thereat and thereon. The
vote at any meeting of the stockholders on any question need not be
by ballot, unless so directed by the chairman of the meeting. On a
vote by ballot, each ballot shall be signed by the stockholder
voting, or by such stockholder’s proxy if there be such
proxy, and it shall state the number of shares voted. The
revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212(e)
of the General Corporation Law of Delaware.
Section 2.07 LIST
OF STOCKHOLDERS. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting (provided, however, if
the record date for determining the stockholders entitled to vote
is less than ten (10) days before the date of the meeting, the list
shall reflect the stockholders entitled to vote as of the tenth day
before the meeting date), arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting, (i) on a reasonably
accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of
meeting or (ii) during ordinary business hours at the principal
place of business of the Corporation. The list of stockholders must
also be open to examination at the meeting as required by
applicable law. If the meeting is to be held at a place, then a
list of stockholders entitled to vote at the meeting shall be
produced and kept at the time and place of the meeting during the
whole time thereof and may be examined by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of
the meeting. Except as otherwise provided by law, the stock ledger
shall be the only evidence as to who are the stockholders entitled
to examine the list of stockholders required by this Section 2.07
or to vote in person or by proxy at any meeting of
stockholders.
Section 2.08
INSPECTOR OF ELECTION. The Corporation may, and shall if required
by law, in advance of any meeting of stockholders, appoint one or
more inspectors of election, who may be employees of the
Corporation, to act at the meeting or any adjournment thereof and
to make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector
who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before entering upon the
discharge of such inspector’s duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of the inspector’s
ability. The inspector or inspectors so appointed or designated
shall (i) ascertain the number of shares of capital stock of the
Corporation outstanding and the voting power of each such share,
(ii) determine the shares of capital stock of the Corporation
represented at the meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their
determination of the number of shares of capital stock of the
Corporation represented at the meeting and such inspectors’
count of all votes and ballots. Such certification and report shall
specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast
at any meeting of stockholders of the Corporation, the inspectors
may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as
an inspector at such election.
Section 2.09
STOCKHOLDER ACTION WITHOUT MEETINGS. Unless otherwise provided by
the Certificate of Incorporation, any action required by the
General Corporation Law of Delaware to be taken at any annual or
special meeting of the stockholders, or any action which may be
taken at any annual or special meeting of the stockholders, may be
taken without a meeting, without prior notice and without a vote,
if a consent in writing setting forth the action so taken shall be
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the books in which minutes of
proceedings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. Prompt notice of the
taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting if
the record date for notice of such meeting had been the date that
written consents signed by a sufficient number of holders to take
the action were delivered to the Corporation.
Section 2.10
ADVANCE NOTICE PROVISION FOR NOMINATION OF DIRECTORS. Only persons
who are nominated in accordance with the following procedures shall
be eligible for election as directors of the Corporation, except as
may be otherwise provided in the Certificate of Incorporation with
respect to the right of holders of preferred stock of the
Corporation to nominate and elect a specified number of directors
in certain circumstances. Nominations of persons for election to
the Board may be made at any annual meeting of stockholders or at
any special meeting of stockholders called for the purpose of
electing directors, (a) if specified in the notice of meeting (or
any supplement thereto) given by or at the discretion of the Board
(or a duly authorized committee thereof), (b) by or at the
direction of the Board (or any duly authorized committee thereof)
or (c) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice
provided for in this Section 2.10 and on the record date for the
determination of stockholders entitled to vote at such meeting and
(ii) who complies with the notice procedures set forth in this
Section 2.10.
In
addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the
Corporation.
To be
timely, a stockholder’s notice to the Secretary must be
delivered to or mailed and received at the principal executive
offices of the Corporation (a) in the case of an annual meeting,
not less than ninety (90) days nor more than one hundred and twenty
(120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders;
provided
,
however
, that in the event that
the date of the annual meeting is more than thirty (30) days before
or more than seventy (70) days after such anniversary date, notice
by the stockholder must be so delivered not earlier than the close
of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the
later of the ninetieth (90
th
) day prior to such
annual meeting or the tenth (10
th
) day following the
day on which public announcement of the date of such meeting is
first made by the Corporation; and (b) in the case of a special
meeting of stockholders called for the purpose of electing
directors, not earlier than the close of business on the one
hundred twentieth (120th) day prior to such special meeting and not
later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the
Board to be elected at such meeting.
To be
in proper written form, a stockholder’s notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age,
business address and residence address of the person; (ii) the
principal occupation or employment of the person; (iii) (A) the
class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the
person, and (B) the name of each nominee holder of shares of
capital stock of the Corporation owned beneficially but not of
record by such person or affiliates or associates of such person
and the number of shares held by each such nominee; (iv) a
description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests,
options, warrants, stock appreciation or similar rights, hedging
transactions and borrowed or loaned shares) that has been entered
into as of or prior to, and is in effect as of, the date of the
stockholder’s notice by, or on behalf of, such person or any
affiliates or associates of such person, the effect or intent of
which is to mitigate loss to, manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such
person or any affiliate or associate of such person, with respect
to shares of stock of the Corporation; and (v) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities Exchange Act of
1934, as amended (the “
Exchange Act
”), and the rules and
regulations promulgated thereunder; and (b) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf
the nomination is made (i) the name and record address of such
stockholder as they appear on the Corporation’s books, and of
such beneficial owner; (ii) (A) the class or series and number of
shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder and such beneficial
owner, and (B) the name of each nominee holder of shares of capital
stock of the Corporation owned beneficially but not of record by
such stockholder or beneficial owner and the number of shares held
by each such nominee; (iii) a description of all arrangements or
understandings between such stockholder and/or such beneficial
owner and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to
be made by such stockholder; (iv) a description of any agreement,
arrangement or understanding (including any derivative or short
positions, profit interests, options, warrants, stock appreciation
or similar rights, hedging transactions and borrowed or loaned
shares) that has been entered into as of the date of the
stockholder’s notice by, or on behalf of, such stockholder
and such beneficial owners, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, such stockholder
or such beneficial owner, with respect to shares of stock of the
Corporation; (v) a representation that such stockholder is a holder
of record of the stock of the Corporation as of the date of the
stockholder’s notice required by this Section 2.10 and that
such stockholder intends to be a holder of record of stock of the
Corporation on the record date for the determination of
stockholders entitled to vote at such meeting; (vii) that such
stockholder intends to appear in person or by proxy at the meeting
to nominate the persons named in its notice; (viii) a
representation whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends (1) to deliver a
proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding capital stock
required to elect the nominee and/or (2) otherwise to solicit
proxies or votes from stockholders in support of such nomination;
and (ix) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of
proxies for election of directors pursuant to and in accordance
with Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected. The Corporation may
require any proposed nominee to furnish such other information as
it may reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the
Corporation.
Notwithstanding the
foregoing, in the event that the number of directors to be elected
to the Board is increased effective at the annual meeting and there
is no public announcement by the Corporation naming the nominees
for the additional directorships at least one hundred (100) days
prior to the first anniversary of the preceding year’s annual
meeting, a stockholder’s notice required by this Section
shall also be considered timely, but only with respect to nominees
for the additional directorships, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth (10th) day following
the day on which such public announcement is first made by the
Corporation.
No
person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section 2.10. If the chairman of the meeting
determines that a nomination was not made in accordance with the
foregoing procedures, the chairman shall declare to the meeting
that the nomination was defective and such defective nomination
shall be disregarded.
Notwithstanding the
foregoing provisions of this Section 2.10, unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination,
such nomination shall be disregarded, notwithstanding that proxies
in respect of such vote may have been received by the Corporation.
For purposes of this Section 2.10, to be considered a qualified
representative of the stockholder, a person must be a duly
authorized officer, manager or partner of such stockholder or must
be authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders, and such
person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
For
purposes of this Section 2.10, “public announcement”
shall include disclosure in a press release reported by the Dow
Jones News Service, Associated Press or other national news service
or in a document publicly filed or furnished by the Corporation
with or to the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act. Compliance with this
Section 2.10 shall be the exclusive means for a stockholder to make
nominations.
Section 2.11
ADVANCE NOTICE PROVISION FOR PROPOSING BUSINESS AT A
STOCKHOLDERS’ MEETING. No business may be transacted at an
annual meeting of stockholders, other than business that is either
(a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board (or any duly authorized
committee thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board (or any duly
authorized committee thereof) or (c) otherwise properly brought
before the annual meeting by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the
notice provided for in this Section 2.11 and on the record date for
the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth
in this Section 2.11.
In
addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written
form to the Secretary of the Corporation and any proposed business
must constitute a proper matter for stockholder
action.
To be
timely, a stockholder’s notice to the Secretary must be
delivered to or mailed and received at the principal executive
offices of the Corporation not less than ninety (90) days nor more
than one hundred and twenty (120) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders;
provided
,
however
, that in
the event that the date of the annual meeting is more than thirty
(30) days before or more than seventy (70) days after such
anniversary date, notice by the stockholder must be so delivered
not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the
close of business on the later of the ninetieth (90th) day prior to
such annual meeting or the tenth (10th) day following the day on
which public announcement of the date of such meeting is first made
by the Corporation.
To be
in proper written form, a stockholder’s notice to the
Secretary must set forth (a) as to each matter such stockholder
proposes to bring before the annual meeting a brief description of
the business desired to be brought before the annual meeting, the
text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such
business includes a proposal to amend the Bylaws of the
Corporation, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made, and (b) as to
the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the proposal is made (i) the name and record
address of such stockholder as they appear on the
Corporation’s books, and of the beneficial owner; (ii) (A)
the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
stockholder and such beneficial owner, and (B) the name of each
nominee holder of shares of capital stock of the Corporation owned
beneficially but not of record by such stockholder or beneficial
owner and the number of shares held by each such nominee; (iii) a
description of all arrangements or understandings between such
stockholder and/or beneficial owner and any other person or persons
(including their names) in connection with the proposal of such
business by such stockholder and such beneficial owner and any
material interest of such stockholder and/or beneficial owner in
such business; (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit
interests, options, warrants, stock appreciation or similar rights,
hedging transactions and borrowed or loaned shares) that has been
entered into as of or prior to, and is in effect as of, the date of
the stockholder's notice by, or on behalf of, such stockholder and
such beneficial owners, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, such stockholder
or such beneficial owner, with respect to shares of stock of the
Corporation; (v) a representation that such stockholder is a holder
of record of stock of the Corporation as of the date of the giving
of the stockholder’s notice required by this Section 2.11 and
intends to be a holder of record of stock of the Corporation on the
record date for the determination of stockholders entitled to vote
at such annual meeting date; (vi) a representation that such
stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting; and (vii) a
representation whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends (1) to deliver a
proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding capital stock
required to approve or adopt the proposal and/or (2) otherwise to
solicit proxies or votes from stockholders in support of such
proposal.
The
foregoing notice requirements of this Section 2.11 shall be deemed
satisfied by a stockholder with respect to business other than a
nomination if the stockholder has notified the Corporation of such
stockholder’s intention to present a proposal at an annual
meeting in compliance with applicable rules and regulations
promulgated under the Exchange Act and such stockholder’s
proposal has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual
meeting.
No
business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance
with the procedures set forth in this Section 2.11. If the chairman
of an annual meeting determines that business was not properly
brought before the annual meeting in accordance with the foregoing
procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such
business shall not be transacted.
Notwithstanding the
foregoing provisions of this Section 2.11, unless otherwise
required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual meeting of
stockholders of the Corporation to present proposed business, such
proposed business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 2.11, to be considered a
qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or
must be authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for
such stockholder as proxy at the meeting of stockholders, and such
person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders.
For
purposes of this Section 2.11, “public announcement”
shall include disclosure in a press release reported by the Dow
Jones News Service, Associated Press or other national news service
or in a document publicly with or furnished by the Corporation with
or to the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
Notwithstanding the
foregoing provisions of this Section 2.11, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set
forth in this Section 2.11; provided, however, that any references
in these Bylaws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit any requirements
applicable to proposals as to any other business to be considered
pursuant to this Section 2.11, and compliance with this Section
2.11 shall be the exclusive means for a stockholder to submit other
business (other than, as provided in the fifth paragraph of this
Section 2.11, matters brought properly under and in compliance with
Rule 14a-8 of the Exchange Act, as may be amended from time to
time). Nothing in this Section 2.11 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to applicable rules
and regulations promulgated under the Exchange Act.
Section 2.12
ORGANIZATION. The Chief Executive Officer, or in the absence of the
Chief Executive Officer, the Chairman of the Board, shall call the
meeting of the stockholders to order, and shall act as chairman of
the meeting. In the absence of the Chief Executive Officer, the
Chairman of the Board, and all of the Vice Presidents, the
stockholders shall appoint a chairman for such meeting. The
chairman of any meeting of stockholders shall determine the order
of business and the procedures at the meeting, including such
matters as the regulation of the manner of voting and the conduct
of business. The Secretary of the Corporation shall act as
secretary of all meetings of the stockholders, but in the absence
of the Secretary at any meeting of the stockholders, the chairman
of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.13
CONDUCT OF MEETINGS. The date and time of the opening and the
closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting by the
chairman of the meeting. The Board may adopt by resolution such
rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the
Board, the chairman of any meeting of stockholders shall have the
right and authority to convene and (for any or no reason) to recess
and/or adjourn the meeting, to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such
person, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or
prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting
to stockholders entitled to vote at the meeting, their duly
authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (iv) restrictions on entry
to the meeting after the time fixed for the commencement thereof;
and (v) limitations on the time allotted to questions or comments
by participants. The chairman of any meeting of stockholders, in
addition to making any other determinations that may be appropriate
to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was
not properly brought before the meeting and if the chairman should
so determine, the chairman shall so declare to the meeting and any
such matter or business not properly brought before the meeting
shall not be transacted or considered. Unless and to the extent
determined by the Board or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure.
ARTICLE
III
Section 3.01
GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by or under the direction of the
Board, which may exercise all of the powers of the Corporation,
except such as may be otherwise provided in the Certificate of
Incorporation or required by applicable law.
Section 3.02
NUMBER. The authorized number of directors of the Corporation shall
be eight (8) members until changed by an amendment of this Section
3.02. Directors need not be stockholders in the
Corporation.
Section 3.03
ELECTION OF DIRECTORS. The directors shall be elected by the
stockholders of the Corporation, and at each election the persons
receiving the greatest number of votes, up to the number of
directors then to be elected, shall be the persons then elected.
The election of directors is subject to any provisions contained in
the Certificate of Incorporation relating thereto, including any
provisions for a classified board.
Except
as provided in Sections 3.04 and 3.05 of these Bylaws, at each
annual meeting of stockholders, directors will be elected to serve
from the time of election and qualification until the third annual
meeting following election.
Section 3.04
RESIGNATIONS. Any director of the Corporation may resign at any
time by giving notice in writing or by electronic transmission to
the Board or to the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or, if
the time is not specified, it shall take effect immediately upon
its delivery; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Section 3.05
VACANCIES. Except as otherwise provided in the Certificate of
Incorporation or these Bylaws, any vacancy on the Board, whether
because of death, resignation, disqualification, an increase in the
number of directors or any other cause, may be filled by vote of
the majority of the remaining directors, although less than a
quorum, or by a sole remaining director. Each director so chosen to
fill a vacancy shall hold office until such director’s
successor shall have been elected and shall qualify or until such
director shall resign or shall have been removed. No reduction of
the authorized number of directors shall have the effect of
removing any director prior to the expiration of the
director’s term of office.
Upon
the resignation of one or more directors from the Board, effective
at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill
such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided hereinabove in the
filling of other vacancies.
Unless
otherwise provided in the Certificate of Incorporation or these
Bylaws:
(i)
Vacancies and newly
created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the
right to vote as a single class may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole
remaining director.
(ii)
Whenever the holders of
any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the Certificate of
Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the
directors elected by such class or classes or series thereof then
in office, or by a sole remaining director so elected.
Section 3.06 PLACE
OF MEETING; TELEPHONE CONFERENCE MEETING. The Board may hold any of
its meetings at such place or places within or without the State of
Delaware as the Board may from time to time by resolution designate
or as shall be designated by the person or persons calling the
meeting or in the notice or waiver of notice of any such meeting.
Directors may participate in any regular or special meeting of the
Board by means of telephone conference or other communications
equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation
shall constitute presence in person at such meeting.
Section 3.07 FIRST
MEETING. The Board shall meet as soon as practicable after each
annual election of directors and notice of such first meeting shall
not be required.
Section 3.08
REGULAR MEETINGS. Regular meetings of the Board may be held at such
times as the Board shall from time to time by resolution determine.
If any day fixed for a meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting shall be
held at the same hour and place on the next succeeding business day
which is not a legal holiday. Except as provided by law, notice of
regular meetings need not be given.
Section 3.09
SPECIAL MEETINGS. Special meetings of the Board may be called at
any time by the Chairman of the Board or the President or by any
three (3) directors, to be held at the principal office of the
Corporation, or at such other place or places, within or without
the State of Delaware, as the person or persons calling the meeting
may designate.
Notice
of the time and place of special meetings shall be given to each
director either (i) by mailing or otherwise sending to the director
a written notice of such meeting, charges prepaid, addressed to the
director at the director’s respective address as it is shown
upon the records of the Corporation, or if it is not so shown on
such records or is not readily ascertainable, at the place in which
the meetings of the directors are regularly held, at least
seventy-two (72) hours prior to the time of the holding of such
meeting; (ii) by orally communicating the time and place of the
special meeting to him or her at least forty-eight (48) hours prior
to the time of the holding of such meeting; or (iii) via facsimile,
email or other electronic transmission, transmitted to the director
at the director’s facsimile number, email address or other
electronic address as it is shown upon the records of the
Corporation, at least forty-eight (48) hours prior to the time of
the holding of such meeting. Any of the notices as above provided
shall be due legal and personal notice to such director. Any oral
notice given personally or by telephone may be communicated either
to the director or to a person at the office of the director who
the person giving the notice has reason to believe will promptly
communicate it to the director.
Whenever notice is
required to be given, either to a stockholder or a director, under
any provision of the General Corporation Law of Delaware, the
Certificate of Incorporation or these Bylaws, a waiver thereof,
either in writing or by electronic transmission, given by the
person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting, whether in person or by proxy, shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at nor the purpose of any regular or
special meeting of directors or committee of directors need be
specified in any written waiver of notice.
All
such waivers shall be filed with the corporate records or made a
part of the minutes of the meeting.
Section 3.10 QUORUM
AND ACTION. Except as otherwise provided in these Bylaws or by law,
the presence of a majority of the authorized number of directors
shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be
decided at any such meeting, a quorum being present, by the
affirmative vote of a majority of the directors present. In the
absence of a quorum, a majority of directors present at any meeting
may adjourn the same from time to time until a quorum shall be
present. Notice of the time and place of holding an adjourned
meeting of the Board need not be given unless the meeting is
adjourned for more than twenty-four (24) hours. If the meeting is
adjourned for more than twenty-four (24) hours, then notice of the
time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section
3.09 of these Bylaws, to the directors who were not present at the
time of adjournment. The directors shall act only as a Board, and
the individual directors shall have no power as such. A meeting at
which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the quorum for that
meeting.
Section 3.11 ACTION
BY CONSENT. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or of such committee,
as the case may be, consent thereto in writing or by electronic
transmission and such writing or writings or electronic
transmissions are filed with the minutes of proceedings of the
Board or such committee. Such action by written consent shall have
the same force and effect as the unanimous vote of such
directors.
Section 3.12
COMPENSATION. No stated salary need be paid to directors, as such,
for their services but, as fixed from time to time by resolution of
the Board, the directors may receive directors’ fees,
compensation (including without limitation cash compensation and/or
the grant of stock options or stock) and reimbursement for expenses
for attendance at directors’ meetings, for serving on
committees and for discharging their duties; provided that nothing
herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor.
Section 3.13
COMMITTEES. Pursuant to Section 141(c)(2) of the General
Corporation Law of Delaware, the Board may, by resolution,
designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board will
establish and maintain an Audit Committee and a Compensation
Committee. Any committee of the Board, to the extent permitted by
law and to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it, but no committee of the
Board shall have the power or authority in reference to the
following matter: (i) approving or adopting, or recommending to the
stockholders, any action or matter (other than the election or
removal of directors) expressly required by the General Corporation
Law of Delaware to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the
Corporation.
The
Board may designate one or more directors as alternative members of
any committee who may replace any absent or disqualified member at
any committee meeting. In the absence or disqualification of any
member of any such committee, the members thereof present at any
meeting and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of such absent or
disqualified member.
A
majority of the members, or replacements thereof, of any such
committee shall constitute a quorum for the transaction of
business. Every act or decision done or made by the affirmative
vote of a majority of the members, or replacements thereof, present
at a meeting of the committee at which a quorum is present shall
constitute the act or decision of such committee.
Section 3.14
MEETINGS AND ACTIONS OF COMMITTEES. Meetings and actions of
committees shall be governed by, and held and taken in accordance
with, the following provisions of Article III of these Bylaws:
Section 3.06 (place of meetings; meetings by telephone), Section
3.08 (regular meetings), Section 3.09 (special meetings; notice),
Section 3.10 (quorum and action), and Section 3.11 (action by
consent), with such changes in the context of those Bylaws as are
necessary to substitute the committee and its members for the Board
and its members; provided, however, that the time of regular
meetings of committees may be determined either by resolution of
the Board or by resolution of the committee and that special
meetings of committees may also be called by resolution of the
Board. The Board may adopt rules for the governance of any
committee not inconsistent with the provisions of these
Bylaws.
Section 3.15
CHAIRMAN OF THE BOARD. The Board may elect a Chairman of the Board
and may have one or more Vice Chairmen. The Chairman of the Board
and the Vice Chairmen shall be appointed from time to time by the
Board and shall have such powers and duties as shall be designated
by the Board.
ARTICLE
IV
Section 4.01
OFFICERS. The officers of the Corporation shall be a Chief
Executive Officer, a President, a Chief Financial Officer and a
Secretary. The Corporation may also have, at the discretion of the
Board, one or more Vice Presidents (who may include a Chief
Operating Officer and a Chief Accounting Officer), one or more
Assistant Vice Presidents, a Treasurer, one or more Assistant
Secretaries, and such other officers as may be appointed in
accordance with the provisions of Section 4.03 of these Bylaws. One
person may hold two or more offices, except that the Secretary may
not also hold the office of President. The salaries of all officers
of the Corporation above the rank of Vice President shall be fixed
by the Board, unless at the discretion of the Board, the Board
elects to fix the salaries of officers at or below the rank of Vice
President.
Section 4.02
ELECTION. The officers of the Corporation, except such officers as
may be appointed in accordance with the provisions of Section 4.03
or Section 4.05 of these Bylaws, shall be chosen annually by the
Board, and each shall hold such officer’s office until such
officer shall resign or shall be removed or otherwise disqualified
to serve, or until such officer’s successor shall be elected
and qualified.
Section 4.03
SUBORDINATE OFFICERS. The Board may appoint, or may authorize the
Chief Executive Officer to appoint, such other officers below the
rank of President as the business of the Corporation may require,
including without limitation Vice Presidents and Assistant
Secretaries, each of whom shall have such authority and perform
such duties as are provided in these Bylaws or as the Board or the
Chief Executive Officer
from time to time may specify, and
shall hold office until such officer shall resign or shall be
removed or otherwise disqualified to serve.
Section 4.04
REMOVAL AND RESIGNATION. Any officer may be removed, with or
without cause (subject to any right such officer may have under an
employment contract with the Corporation), by the Board, at any
regular or special meeting of the Board, or, except in case of an
officer chosen by the Board, by the Chief Executive Officer upon
whom such power of removal may be conferred by the
Board.
Any
officer may resign at any time by giving a notice, in writing or by
electronic transmission, to the Board, the Chairman of the Board,
the President or the Secretary of the Corporation. Any such
resignation shall take effect at the date of the delivery of such
notice or at any later time specified therein; and unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective; provided that this provision shall
not supersede any powers of the Board or the Chief Executive
Officer pursuant to this Section 4.04.
Section 4.05
VACANCIES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the
manner prescribed in these Bylaws for the regular appointments to
such office.
Section 4.06 CHIEF
EXECUTIVE OFFICER. The Chief Executive Officer of the Corporation
shall, subject to the control of the Board, have general
supervision, direction and control of the business and affairs of
the Corporation. Such officer shall preside at all meetings of
stockholders and the Board. Such officer shall have the general
powers and duties of management usually vested in the chief
executive officer of a corporation and shall have such other powers
and duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to
such officer by the Board or as prescribed by these Bylaws. In the
absence or disability of the President, the Chief Executive
Officer, in addition to said officer’s assigned duties and
powers, shall perform all the duties of the President and when so
acting shall have all the powers and be subject to all restrictions
upon the President.
Section 4.07
PRESIDENT. The President shall exercise and perform such powers and
duties with respect to the administration of the business and
affairs of the Corporation as may from time to time be assigned to
such officer by the Chief Executive Officer (unless the President
is also the Chief Executive Officer) or by the Board or as is
prescribed by these Bylaws. In the absence or disability of the
Chief Executive Officer, the President shall perform all of the
duties of the Chief Executive Officer and when so acting shall have
all the powers and be subject to all the restrictions upon the
Chief Executive Officer.
Section 4.08 CHIEF
OPERATING OFFICER. If a Chief Operating Officer is appointed in
accordance with these Bylaws, the Chief Operating Officer shall
exercise and perform such powers and duties with respect to the
administration of the business and affairs of the Corporation as
may from time to time be assigned to the Chief Operating Officer by
the Chief Executive Officer or by the Board. In the absence or
disability of both the Chief Executive Officer and the President,
the Chief Operating Officer shall perform all of the duties of the
Chief Executive Officer and when so acting shall have all the
powers and be subject to all the restrictions upon the Chief
Executive Officer.
Section 4.09 CHIEF
FINANCIAL OFFICER. The Chief Financial Officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business
transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all
reasonable times be open to inspection by any director for a
purpose reasonably related to such individual’s position as
director. Unless a Treasurer for the Corporation has been appointed
in accordance with these Bylaws, the Chief Financial Officer shall
also be the Treasurer.
The
Chief Financial Officer shall deposit all money and other valuables
in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board. The Chief Financial
Officer shall disburse the funds of the Corporation as may be
ordered by the Board, shall render to the President and directors,
whenever they request it, an account of all of such officer’s
transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have such other powers and
perform such other duties as may be prescribed by the Board or
these Bylaws.
Section 4.10 VICE
PRESIDENT. The Vice President(s), if any, shall exercise and
perform such powers and duties with respect to the administration
of the business and affairs of the Corporation as from time to time
may be assigned to each of them by the President, by the Chief
Executive Officer, by the Board or as is prescribed by these
Bylaws. A Vice President may also be designated as a “Senior
Vice President” or “Executive Vice President.” In
the absence or disability of the President, the Vice Presidents, in
order of their rank as fixed by the Board, or if not ranked, the
Vice President designated by the Board, shall perform all of the
duties of the President and when so acting shall have all of the
powers of and be subject to all the restrictions upon the
President. A Vice President may be designated the Chief Accounting
Officer who may be the Chief Financial Officer, and any person so
designated shall have such powers as is customary for a Chief
Accounting Officer.
Section 4.11
SECRETARY. The Secretary shall keep, or cause to be kept, a book of
minutes at the principal office for the transaction of the business
of the Corporation, or such other place as the Board may order, of
all meetings of directors and stockholders, with the time and place
of holding, whether regular or special, and if special, how
authorized and the notice thereof given, the names of those present
at directors’ meetings, the number of shares present or
represented at stockholders’ meetings and the proceedings
thereof.
The
Secretary shall keep, or cause to be kept, at the principal office
for the transaction of the business of the Corporation or at the
office of the Corporation’s transfer agent, a share register,
or a duplicate share register, showing the names of the
stockholders and their addresses, the number and classes of shares
held by each, the number and date of certificates issued for the
same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The
Secretary shall give, or cause to be given, notice of all the
meetings of the stockholders and of the Board required by these
Bylaws or by law to be given and shall keep the seal of the
Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board or
these Bylaws. If for any reason the Secretary shall fail to give
notice of any special meeting of the Board called by one or more of
the persons identified in Section 3.09 of these Bylaws, or if the
Secretary shall fail to give notice of any special meeting of the
stockholders called by one or more of the persons identified in
Section 2.02 of these Bylaws, then any such person or persons may
give notice of any such special meeting.
Section 4.12
ASSISTANT SECRETARY. The Assistant Secretary, if any, or, if there
is more than one, the Assistant Secretaries in the order determined
by the Board (or if there be no such determination, then in the
order of their election) shall, in the absence of the Secretary or
in the event of the Secretary’s inability or refusal to act,
perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
ARTICLE
V
CONTRACTS, CHECKS, DRAFTS, BANK
ACCOUNTS, ETC.
Section 5.01
EXECUTION OF CONTRACTS. The Board, except as otherwise provided in
these Bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the
name and on behalf of the Corporation, and such authority may be
general or confined to specific instances; and unless so authorized
by the Board or by these Bylaws or in the case of the Chief
Executive Officer, Chief Operating Officer or Chief Financial
Officer, within the agency power of such officer, no officer, agent
or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or in any amount. Unless so
authorized or ratified by the Board or within the agency power of
an officer, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for
any amount.
Section 5.02 CHECKS, DRAFTS,
ETC. All checks, drafts or other orders for payment of money, notes
or other evidence of indebtedness, issued in the name of or payable
to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time shall be
determined by resolution of the Board. Each such person shall give
such bond, if any, as the Board may require.
Section 5.03
DEPOSIT. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in
such banks, trust companies or other depositories as the Board may
select, or as may be selected by any officer or officers, assistant
or assistants, agent or agents, attorney or attorneys, of the
Corporation to whom such power shall have been delegated by the
Board. For the purpose of deposit and for the purpose of collection
for the account of the Corporation, the President, the Chief
Executive Officer, the Chief Financial Officer or any Vice
President (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the
Corporation who shall be determined by the Board from time to time)
may endorse, assign and deliver checks, drafts and other orders for
the payment of money which are payable to the order of the
Corporation.
Section 5.04
GENERAL AND SPECIAL BANK ACCOUNTS. The Board from time to time may
authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as
the Board may select or as may be selected by an officer or
officers, assistant or assistants, agent or agents, or attorney or
attorneys of the Corporation to whom such power shall have been
delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent
with the provisions of these Bylaws, as it may deem
expedient.
ARTICLE
VI
SHARES AND THEIR
TRANSFER
Section 6.01
CERTIFICATES FOR STOCK. The shares of the Corporation shall be
represented by certificates, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or
series of stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Every holder of
stock represented by certificates shall be entitled to have a
certificate signed by or in the name of the Corporation by the
Chairman or Vice Chairman of the Board, if any, or the President or
a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation
certifying the number of shares owned by such holder in the
Corporation. Any of or all the signatures on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of
issue.
Certificates for
shares shall be of such form as the Board may designate and shall
state the name of the record holder of the shares represented
thereby; its number; date of issuance; the number of shares for
which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and
the qualifications, limitations or restrictions of such preferences
and/or rights, if any; a statement or summary of liens, if any; a
conspicuous notice of restrictions upon transfer or registration of
transfer, if any; a statement as to any applicable voting trust
agreement; and if the shares be assessable, or, if assessments are
collectible by personal action, a plain statement of such
facts.
In the
case of uncertificated shares, except as otherwise determined by
the Board, the Corporation shall, within a reasonable time after
the issuance or transfer of uncertificated stock, send to the
registered owner thereof a written notice setting forth the above.
Notices to registered owners shall be in such form as the Board may
designate.
A
record shall be kept of the respective names of the persons, firms
or corporations owning the stock of the Corporation, either
represented by certificates or uncertificated, the number and class
of shares respectively owned, and the respective dates thereof, and
in case of cancellation, the respective dates of cancellation.
Every certificate surrendered to the Corporation for exchange or
transfer shall be canceled, and no new certificate or certificates
shall be issued in exchange for any existing certificate until such
existing certificate shall have been so canceled, except in cases
provided for in Section 6.04 of these Bylaws.
Section 6.02 TRANSFER OF
STOCK. Transfer of shares of stock of the Corporation shall be made
only on the books of the Corporation by the registered holder
thereof, or by the registered holder’s attorney thereunto
authorized by power of attorney duly executed and filed with the
Secretary, or with a transfer clerk or a transfer agent appointed
as provided in Section 6.03 of these Bylaws, and (i) in the case of
certificated shares, upon surrender of the certificate or
certificates for such shares properly endorsed and the payment of
all taxes thereon, and (ii) in the case of uncertificated shares,
upon receipt of proper instructions from the registered owner of
the uncertificated shares and the Corporation's satisfaction that
the transfer complies with all applicable law including applicable
tax laws. The person in whose name shares of stock stand on the
books of the Corporation shall be deemed the owner thereof for all
purposes in regards to the Corporation. Whenever any transfer of
shares shall be made for collateral security, and not absolutely,
such fact shall be stated expressly in the entry of transfer if,
when the certificate or certificates shall be presented to the
Corporation for transfer or when the proper instruction from the
registered owner of the uncertificated shares for transfer shall be
received by the Corporation, as the case may be, both the
transferor and the transferee request the Corporation to do
so.
Section 6.03
REGULATIONS. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with these Bylaws, concerning
the issue, transfer and registration of certificated and
uncertificated shares of the Corporation and the issue of any
notices or statements in connection with uncertificated shares. The
Board may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one
or more registrars, and may require all certificates for stock and
all notices or statements in connection with uncertificated shares
to bear the signature or signatures of any of them.
Section 6.04 LOST,
STOLEN, DESTROYED AND MUTILATED CERTIFICATES. In any case of loss,
theft, destruction or mutilation of any certificate of stock,
another may be issued, or book-entry for an uncertificated share
may be entered, at the Corporation's option, in its place upon
proof of such loss, theft, destruction or mutilation and upon the
giving of a bond of indemnity to the Corporation in such form and
in such sums as the Board may direct and in the case of mutilation,
upon surrender of the mutilated certificate; provided, however,
that a new certificate may be issued, or book-entry for an
uncertificated share may be entered, without requiring any bond
when, in the judgment of the Board, it is proper to do
so.
Section 6.05 RECORD
DATE.
(a) In
order that the Corporation may determine the stockholders entitled
to notice of any meeting of stockholders or any adjournment
thereof, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board, and which record date shall, unless
otherwise required by law, not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If the Board so
fixes a date, such date shall also be the record date for
determining the stockholders entitled to vote at such meeting
unless the Board determines, at the time it fixes such record date,
that a later date on or before the date of the meeting shall be the
date for making such determination. If no record date is fixed by
the Board, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record
date for stockholders entitled to notice of such adjourned meeting
the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance herewith at the
adjourned meeting.
(b) In
order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or
allotment of any rights, or 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 may fix a record
date, which shall not be more than sixty (60) days prior to such
other action. If no such record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close
of business on the day on which the Board adopts the resolution
relating thereto.
(c) If
stockholder action by written consent is not eliminated or
restricted by the Corporation’s Certificate of Incorporation,
in order that the Corporation may determine the stockholders
entitled to express consent to corporate action in writing without
a meeting, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board, and which record date shall not be
more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board. If no record date
for determining stockholders entitled to express consent to
corporate action in writing without a meeting is fixed by the
Board, (i) when no prior action of the Board is required by law,
the record date for such purpose shall be the first date on which a
signed written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation in accordance with
applicable law, and (ii) if prior action by the Board is required
by law, the record date for such purpose shall be at the close of
business on the day on which the Board adopts the resolution taking
such prior action.
Section 6.06
REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The President or
any Vice President and the Secretary or any Assistant Secretary of
the Corporation are authorized to vote, represent and exercise on
behalf of the Corporation all rights incident to all shares of, or
interests in, any other entity or entities standing in the name of
the Corporation. The authority herein granted to said officers to
vote or represent on behalf of the Corporation any and all shares
or interests held by the Corporation in any other entity or
entities may be exercised either by such officers in person or by
any person authorized to do so by proxy or power of attorney duly
executed by said officers.
Section 6.07
SPECIAL DESIGNATION ON CERTIFICATES.
If the
Corporation is authorized to issue more than one class of stock or
more than one series of any class, then (i) in the case of
certificated shares, the powers, the designations, the preferences,
the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall
be set forth in full or summarized on the face or back of the
certificate that the Corporation shall issue to represent such
class or series of stock; provided, however, that, except as
otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set
forth on the face or back of the certificate that the Corporation
shall issue to represent such class or series of stock a statement
that the Corporation will furnish without charge to each
stockholder who so requests the powers, the designations, the
preferences and the relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences
and/or rights, or (ii) in the case of uncertificated shares, except
as otherwise determined by the Board, the Corporation shall, within
a reasonable time after the issuance or transfer of uncertificated
stock, send to the registered owner thereof a written notice
setting forth the powers, the designations, the preferences, the
relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights which
would otherwise have been required to be set forth or stated on the
face or back of the share certificate, or a statement that the
Corporation will furnish without charge to each stockholder who so
requests the powers, the designations, the preferences and the
relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The
above can be set forth on the same notice as provided in Section
6.01 of these Bylaws.
ARTICLE
VII
Section 7.01
ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same
now exists or may hereafter be amended, indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of
the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise or as a member of any committee or similar body, against
expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person’s
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which the person reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, that the person had
reasonable cause to believe that the person’s conduct was
unlawful.
Section 7.02
ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation
shall, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware as the same now exists or may
hereafter be amended, indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or as a
member of any committee or similar body, against expenses
(including attorneys’ fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner
the person reasonably believed to be in, or not opposed to, the
best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
Section 7.03
DETERMINATION OF RIGHT OF INDEMNIFICATION. Any indemnification
under Section 7.01 or 7.02 of these Bylaws (unless ordered by a
court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in
the circumstances because such person has met the applicable
standard of conduct set forth in Sections 7.01 and 7.02 of these
Bylaws. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination, (i)
by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum; (ii) by
a committee of such directors designated by a majority vote of such
directors, even though less than a quorum; (iii) if there are no
such directors, or if such directors so direct, by independent
legal counsel in a written opinion; or (iv) by the
stockholders.
Section 7.04
INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article VII, to the
extent that a present or former director, officer, employee or
agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in Section 7.01 or 7.02 of these Bylaws, or in defense of any
claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys’ fees) actually and
reasonably incurred by the person in connection
therewith.
Section 7.05
ADVANCE OF EXPENSES. Expenses (including attorneys’ fees)
incurred by a present or former officer or director in defending a
civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board upon receipt of an
undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the Corporation as authorized
in this Article VII. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as
the Board deems appropriate.
Section 7.06 OTHER
RIGHTS AND REMEDIES. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other Sections of
this Article VII shall not be deemed exclusive and are declared
expressly to be nonexclusive of any other rights to which those
seeking indemnification or advancements of expenses may be entitled
under any bylaw , agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in said person’s
official capacity and as to action in another capacity while
holding such office.
Section 7.07
INSURANCE. Upon resolution passed by the Board, the Corporation may
purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or as a member of any
committee or similar body against any liability asserted against
any such person and incurred by said person in any such capacity,
or arising out of such person’s status as such, whether or
not the Corporation would have the power to indemnify said person
against such liability under the provisions of this Article
VII.
Section 7.08
CONSTITUENT CORPORATIONS. For the purposes of this Article VII,
references to “the Corporation” include in addition to
the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers and
employees or agents, so that any person who is or was a director,
officer, employee or agent, of such constituent corporation or is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or as a
member of any committee or similar body shall stand in the same
position under the provisions of this Article VII with respect to
the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate
existence had continued.
Section 7.09
EMPLOYEE BENEFIT PLANS. For the purposes of this Article VII,
references to “other enterprises” shall include
employee benefit plans; references to “fines” shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to “serving at the
request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner 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” as referred
to in this Article VII.
Section 7.10 TERM.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise
provided when authorized or ratified, continue as to a person who
has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
Section 7.11
SEVERABILITY. If any part of this Article VII shall be found, in
any action, suit or proceeding or appeal therefrom or in any other
circumstances or as to any particular officer, director, employee
or agent to be unenforceable, ineffective or invalid for any
reason, the enforceability, effect and validity of the remaining
parts or of such parts in other circumstances shall not be
affected, except as otherwise required by applicable
law.
Section 7.12
AMENDMENTS. The foregoing provisions of this Article VII shall be
deemed to constitute a contract between the Corporation and each of
the persons entitled to indemnification and/or advancement of
expenses hereunder, for as long as such provisions remain in
effect. Any amendment to the foregoing provisions of this Article
VII which limits or otherwise adversely affects the scope of
indemnification, advancement of expenses or other rights of any
such persons hereunder shall, as to such persons, apply only to
claims arising, or causes of action based on actions or events
occurring, after such amendment and delivery of notice of such
amendment is given to the person or persons so affected. Until
notice of such amendment is given to the person or persons whose
rights hereunder are adversely affected, such amendment shall have
no effect on such rights of such persons hereunder. Any person
entitled to indemnification and/or advancement of expenses under
the foregoing provisions of this Article VII shall, as to any act
or omission occurring prior to the date of receipt of such notice,
be entitled to indemnification and/or advancement of expenses to
the same extent as had such provisions continued as Bylaws of the
Corporation without such amendment.
ARTICLE
VIII
Section 8.01
MAINTENANCE OF RECORDS. The Corporation shall, either, at its
principal executive office or at such place or places as designated
by the Board, keep a record of its stockholders listing their names
and addresses and the number and class of shares held by each
stockholder, a copy of these Bylaws as amended to date, accounting
books and other records of its business and
properties.
Section 8.02
INSPECTION BY DIRECTORS. Any director shall have the right to
examine the Corporation’s stock ledger, a list of its
stockholders and its other books and records for a purpose
reasonably related to such person’s position as a director in
accordance with applicable law.
ARTICLE
IX
Section 9.01 SEAL.
The Board shall provide a corporate seal, which shall be in the
form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in
the State of Delaware and showing the year of
incorporation.
Section 9.02 WAIVER
OF NOTICES. Any waiver of notice, either in writing or by
electronic transmission, given by the person entitled to notice,
whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at nor the purpose of any regular or
special meeting of the stockholders, directors, or members of a
committee of directors need be specified in a waiver of
notice.
Section 9.03 LOANS
AND GUARANTIES. To the extent not prohibited by law, the
Corporation may lend money to, or guarantee any obligation of, and
otherwise assist any officer or other employee of the corporation
or of its subsidiaries, including any officer who is a director,
whenever, in the judgment of the Board, such loan, guaranty or
assistance may reasonably be expected to benefit the Corporation.
The loan, guaranty or other assistance may be with or without
interest, and may be unsecured or secured in such manner as the
Board shall approve, including, without limitation, a pledge of
shares of stock of the Corporation. Nothing contained in this
Section 9.03 shall be deemed to deny, limit or restrict the powers
of guaranty or warranty of the Corporation at common law or under
any statute.
Section 9.04
GENDER. All personal pronouns used in these Bylaws shall include
the other genders, whether used in the masculine, feminine or
neuter gender, and the singular shall include the plural, and vice
versa, whenever and as often as may be appropriate.
Section 9.05
AMENDMENTS. These Bylaws, or any of them, may be rescinded,
altered, amended or repealed, and new bylaws may be made (i) by
resolution of the Board or (ii) by the stockholders, by the vote of
a majority of the voting power of the outstanding shares of voting
stock of the Corporation, at an annual meeting of stockholders,
without previous notice, or at any special meeting of stockholders,
provided that notice of such proposed amendment, modification,
repeal or adoption is given in the notice of special meeting;
provided, however, that Section 2.02 of these Bylaws can only be
amended if that Section as amended would not conflict with the
Corporation’s Certificate of Incorporation. Any bylaw made or
altered by the stockholders may be altered or repealed by the Board
or may be altered or repealed by the stockholders.
ARTICLE X
FORUM FOR ADJUDICATION OF DISPUTES
Section 10.01 FORUM
.
Unless the Corporation consents in writing to the
selection of an alternative forum, to the fullest extent permitted
by law, the sole and exclusive forum for any stockholder (including
any beneficial owner, within the meaning of Section 13(d) of the
Exchange Act) to bring (i) any derivative action or proceeding
brought on behalf of the Corporation, (ii) any action asserting a
claim of breach of a fiduciary duty owed by any current or former
director, officer, or stockholder of the Corporation to the
Corporation or the Corporation’s stockholders, (iii) any
action asserting a claim arising pursuant to any provision of the
General Corporation Law of Delaware or the Certificate of
Incorporation or Bylaws (as either may be amended from time to
time) or (iv) any action asserting a claim governed by the internal
affairs doctrine, shall be
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).
Section 10.02 PERSONAL JURISDICTION. If any action
the subject matter of which is within the scope of Section 10.01 of
these Bylaws is filed in a court other than 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) (a “
Foreign
Action
”) in the name of
any stockholder (including any beneficial owner, within the meaning
of Section 13(d) of the Exchange Act), such stockholder shall be
deemed to have consented to (a) the personal jurisdiction of the
state and federal courts located within the State of Delaware in
connection with any action brought in any such court to enforce
Section 10.01 of these Bylaws and (b) having service of process
made upon such stockholder in any such action by service upon such
stockholder’s counsel in the Foreign Action as agent for such
stockholder.
Section
10.03 ENFORCEABILITY. Any person or entity purchasing or otherwise
acquiring any interest in shares of stock of the Corporation shall
be deemed to have notice of and consented to the provisions of this
Article X. If any provision of this Article X shall be held to be
invalid, illegal or unenforceable as applied to any person or
entity or circumstance for any reason whatsoever, then, to the
fullest extent permitted by law, the validity, legality and
enforceability of such provision in any other circumstance and of
the remaining provisions of this Article X (including, without
limitation, each portion of any sentence of this Article X
containing any such provision held to be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or
unenforceable) and the application of such provision to other
persons or entities and circumstances shall not in any way be
affected or impaired thereby.
CERTIFICATE OF SECRETARY
The
undersigned certifies:
(1)
That
the undersigned is duly elected and acting Secretary of Autobytel
Inc., a Delaware corporation (“
Corporation
”); and
(2)
That
the foregoing Sixth Amended and Restated Bylaws constitute the
Bylaws of the Corporation as duly adopted by the Board of Directors
at a meeting held on April 13, 2017, to be effective April 13,
2017.
IN
WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of the Corporation as of April 13, 2017.
|
/s/Glenn E.
Fuller
|
|
Glenn E. Fuller,
Secretary
|
|
|
[SEAL]