Attached files
Exhibit
3.3
Amended: November 2, 2009
NATIONAL
FINANCIAL PARTNERS CORP.
AMENDED
AND RESTATED BY-LAWS
ARTICLE
ONE
STOCKHOLDERS
SECTION
1.1. Annual
Meetings. An annual meeting of Stockholders to elect directors
shall be held at such place, on such dates and at such times, as the Board of
Directors may from time to time fix. No additional business shall be
conducted at an annual meeting of Stockholders except for business properly
brought before such annual meeting in accordance with the procedures set forth
in Section 1.7(b) of these By-Laws.
SECTION
1.2. Special
Meetings. Unless otherwise required by law, a special meeting
of Stockholders may be called, for any purpose or purposes, at any time by
either the (i) Chairman of the Board of Directors, (ii) Chief Executive Officer
or (iii) President, and shall be called by any such officer upon receipt of a
written request made pursuant to a resolution of (i) a majority of the members
of the Board of Directors or (ii) a committee of the Board of Directors that has
been duly designated by the Board of Directors and whose power and authority
include calling such meetings. Such written request will state the
purpose or purposes of the special meeting. Notwithstanding anything
to the contrary contained herein, the ability of the Stockholders to call a
special meeting is hereby expressly denied. Any special meeting shall
be held at such time and at such place as shall be determined by the body
calling such meeting. No business shall be conducted at a special
meeting of Stockholders except for business properly brought before such special
meeting in accordance with the procedures set forth in Section 1.7(c) of these
By-Laws.
SECTION
1.3. Notice
of Meeting. For each annual or special meeting of
Stockholders, written notice shall be given stating: (i) the place, date and
hour of such meeting, (ii) the purpose or purposes for such meeting, (iii) the
means of remote communications, if any, by which Stockholders may be deemed to
be present in person and vote at such meeting, and (iv) if the list of
Stockholders required by Section 1.9 will not be at such place at least ten (10)
days prior to the meeting, the place where such list will be. The
written notice of any meeting shall be given not less than ten (10) and not more
than sixty (60) days before the date of the meeting to each Stockholder entitled
to vote at such meeting. If mailed, notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to the
Stockholder at his or her address as it appears on the records of the
Corporation.
SECTION
1.4. Quorum. Except
as otherwise required by law or the Certificate of Incorporation, the holders of
record of a majority of the shares of stock entitled to be voted present in
person or represented by proxy at a meeting of Stockholders shall constitute a
quorum for the transaction of business at the meeting. Any meeting of
the Stockholders, whether or not a quorum is present, may be adjourned, without
notice other than announcement at the meeting, from time to time to reconvene at
the same or another time or place, by the chairman of the meeting or by the
affirmative vote of a majority of the holders of record present or represented
by proxy at such meeting. At any such adjourned session of the
meeting at which there shall be present or represented the holders of record of
the requisite number of shares, any business may be transacted that might have
been transacted at the meeting as originally called.
SECTION
1.5. Organization. Each
meeting of Stockholders shall be presided over by the Chairman of the Board of
Directors, or in the absence of the Chairman of the Board of Directors by the
Chief Executive Officer, or in the absence of the Chief Executive Officer by the
President, or in the absence of President by the person designated in writing by
the Chairman of the Board of Directors, or if no such person is so designated,
then a person designated by the Board of Directors, and if no such designated
person is present, the Stockholders at the meeting in person or represented by
proxy may elect a chairman of the meeting from among the persons
present. The Secretary, or in the Secretary’s absence an Assistant
Secretary, if any, shall act as secretary of the meeting, or if no such officer
is present, a secretary of the meeting shall be designated by the chairman of
the meeting.
The order
of business at each such meeting shall be as determined by the chairman of the meeting.
The chairman of the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting and are not inconsistent with
any rules or regulations adopted by the Board of Directors pursuant to the
provisions of the Certificate of Incorporation, including the establishment of
procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the Corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls for each
item upon which a vote is to be taken.
SECTION
1.6. Voting;
Proxies. Except as otherwise provided by law or the
Certificate of Incorporation, and subject to the provisions of Section
1.10:
(a) Each
Stockholder shall at every meeting of the Stockholders be entitled to one vote
for each share of capital stock held by such Stockholder.
(b) Each
Stockholder entitled to vote at a meeting of Stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such Stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
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(c) Each
matter, including the election of directors, properly presented to any meeting
shall be decided by a majority of the votes cast on the matter; provided that,
if the number of director nominees exceeds the number of directors to be
elected, it shall be considered a contested election, and the director nominees
receiving a plurality of the votes of the shares present in person or
represented by proxy at any such meeting and entitled to vote on the election of
directors shall be elected. If, prior to the tenth day before the
date on which the Corporation mails (or otherwise disseminates) to Stockholders
its initial proxy statement in connection with such election of directors, one
or more notices of nomination are withdrawn such that the number of director
nominees no longer exceeds the number of directors to be elected, the election
shall not be considered a contested election, and the directors shall be elected
by a majority of the votes cast, but in all other cases, once an election is
determined to be a contested election, directors shall be elected by the vote of
a plurality of the votes cast on the matter.
(d) Election
of directors and the vote on any other matter presented to a meeting shall be by
written ballot only if so ordered by the chairman of the meeting.
(e) Without
limiting the manner in which a Stockholder may authorize another person or
persons to act for such Stockholder as proxy, the following shall constitute a
valid means by which a Stockholder may grant such authority:
(1) A
Stockholder may execute a writing authorizing another person or persons to act
for such Stockholder as proxy. Execution may be accomplished by the
Stockholder or such Stockholder’s authorized officer, director, employee or
agent signing such writing or causing such person’s signature to be affixed to
such writing by any reasonable means, including, but not limited to, by
facsimile signature.
(2) A
Stockholder may authorize another person or persons to act for such Stockholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the
Stockholder. If it is determined that such telegrams, cablegrams or
other electronic transmissions are valid, the inspectors shall specify the
information on which they relied.
Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission authorizing another person or persons to act as proxy for a
Stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
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SECTION 1.7. Nature
of Business at Meetings of Stockholders.
(a) The
business to be considered and brought before any annual or special meeting of
Stockholders shall be limited to only such business, including the nomination
and election of directors, as shall be properly brought before such meeting in
compliance with the procedures set forth in this Section 1.7 and Section
1.8.
(b) Business
that may be properly brought before an annual meeting of Stockholders is limited
only to business that is either (i) specified in the notice of annual meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), including proposals that
have been made properly in accordance with Rule 14a-8 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (as so amended
and inclusive of such rules and regulations, the “Exchange Act”), (ii) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof), or (iii) otherwise
properly brought before the annual meeting by any Stockholder of the Corporation
(x) who is a Stockholder of record (and, with respect to any beneficial owner,
if different, on whose behalf such business is being proposed, only if such
beneficial owner was the beneficial owner of shares of stock of the Corporation)
on the date of the giving of the notice provided for in this Section 1.7(b), on
the record date for the determination of Stockholders entitled to notice of such
annual meeting (and, if different, on the record date for the determination of
Stockholders entitled to vote at such annual meeting) and at the time of such
annual meeting and (y) who complies with the notice procedures set forth in this
Section 1.7(b). In addition to the foregoing, in order to properly
bring before the annual meeting any business (other than a nomination for
director which is covered by Section 1.8 below), a Stockholder must comply with
the following requirements:
(1) 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.
(2) To
be timely, a Stockholder’s notice to the Secretary must be delivered, by hand,
by an internationally recognized overnight courier, or by certified or
registered mail, return receipt requested, to the principal executive offices of
the Corporation not less than one hundred twenty (120) days nor more than one
hundred fifty (150) days prior to the anniversary date of the immediately
preceding annual meeting of Stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within twenty-five (25)
days before or after such anniversary date, notice by the Stockholder in order
to be timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs. In no event shall an
adjournment or postponement of an annual meeting, or the public announcement of
such an adjournment or postponement, commence a new time period (or extend any
time period) for the giving of a Stockholder’s notice as described
above.
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(3) To
be in proper written form, a Stockholder’s notice to the Secretary must set
forth:
(A) As
to each item of business that such Stockholder proposes to bring before the
annual meeting, (i) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the
annual meeting and any material interest of each Proposing Person (as defined
below) in such business, including any anticipated benefit therefrom to such
Proposing Person, (ii) the text of the proposal or business (including the text
of any resolutions proposed for consideration) and (iii) a reasonably detailed
description of all agreements, arrangements and understandings (whether written
or oral) (x) between or
among any of the Proposing Persons or (y) between or among any Proposing Person
and any other person or persons (including their names) in connection with the
proposal of such business by such Stockholder.
(B) As
to each Proposing Person, (i) the name and record address of such Proposing
Person, (ii) the class or series and number of all shares of stock of the
Corporation which are, directly or indirectly, owned beneficially or of record
by such Proposing Person and (iii) the name of each nominee holder of shares
owned beneficially but not of record by such Proposing Person, and the number of
shares of stock held by each such nominee holder (the disclosures to be made
pursuant to the foregoing clauses (i) through (iii), collectively the
“Stockholder Information”);
(C) As
to each Proposing Person, (i) whether and the extent to which any derivative
instrument, swap, option, warrant, short interest, hedge or profit interest or
other transaction has been entered into by or on behalf of such Proposing Person
with respect to stock of the Corporation, (ii) whether and the extent
to which any other transaction, agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares of stock)
has been made by or on behalf of such Proposing Person, the effect or intent of
which is to mitigate loss to, or to manage risk or benefit of stock price
changes for, such Proposing Person or to increase or decrease the voting power
or pecuniary or economic interest of such Proposing Person with respect to stock
of the Corporation and (iii) any other information relating to such Proposing
Person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with the solicitation of proxies with
respect to business brought by such person at an annual meeting of Stockholders
pursuant to Section 14 of the Exchange Act (or in any law or statute replacing
such section) and the rules and regulations promulgated thereunder (the
disclosures to be made pursuant to the foregoing clauses (i) through (iii),
collectively the “Disclosable Interests”); and
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(D) A
representation that such Stockholder is a holder of record of stock of the
Corporation entitled to vote at the annual meeting and that such Stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
For
purposes of this Section 1.7(b)(3), the term “Proposing Person” shall
mean (i) the Stockholder providing the notice of business proposed to be brought
before an annual meeting, (ii) the beneficial owner or beneficial owners, if
different, on whose behalf the notice of the business proposed to be brought
before the annual meeting is made and (iii) any affiliate or associate (each
within the meaning of Rule 12b-2 under the Exchange Act for purposes of these
By-Laws) of such Stockholder or beneficial owner.
(4) A
Stockholder providing notice of business proposed to be brought before an annual
meeting shall further update and supplement such notice, if necessary, so that
the information provided or required to be provided in such notice pursuant to
this Section 1.7 shall be true and correct as of the record date for determining
the Stockholders entitled to receive notice of the annual meeting, and such
update and supplement shall be delivered, by hand, by an internationally
recognized overnight courier, or by certified or registered mail, return receipt
requested, to the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for
determining the Stockholders entitled to receive notice of the annual
meeting.
(c) Business
that may be properly brought before a special meeting of Stockholders is limited
to business that is either (i) specified in the notice of special meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (ii) otherwise properly brought
before the special meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof). In the event the Corporation
calls a special meeting of Stockholders for the purpose of electing one or more
directors to the Board of Directors, a Stockholder intending to nominate one or
more persons for election as a director at such meeting must comply with the
procedures set forth in Section 1.8 of these By-Laws for such nomination(s) to
be properly brought before such meeting.
(d) Once
business has been properly brought before an annual or special meeting in
accordance with the procedures set forth in this Section 1.7, nothing in this
Section 1.7 shall be deemed to preclude discussion by any Stockholder of any
such business. If the chairman of an annual or special meeting
determines that business was not properly brought before such 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.
(e) Nothing
contained in this Section 1.7 shall be deemed to affect any rights of
Stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act (or any successor
provision of law).
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SECTION 1.8. 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. Nominations of persons for election to the Board of
Directors may only be made at an annual meeting of Stockholders, or, if the
Board of Directors has determined that directors shall be elected at a special
meeting (and has specified such in the notice of such special meeting), at such
special meeting of Stockholders called by the Corporation for the purpose of
electing directors, (i) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (ii) by any Stockholder of the Corporation
(x) who is a Stockholder of record (and, with respect to any beneficial owner,
if different, on whose behalf such nomination is being proposed, only if such
beneficial owner was the beneficial owner of shares of stock of the Corporation)
on the date of the giving of the notice provided for in this Section 1.8, on the
record date for the determination of Stockholders entitled to notice of such
annual or special meeting (and, if different, on the record date for the
determination of Stockholders entitled to vote at such annual or special
meeting) and at the time of such annual or special meeting and (y) who complies
with the notice procedures set forth in this Section 1.8. In addition
to the foregoing, in order to properly nominate a person for election as a
director, a Stockholder must comply with the following
requirements:
(a) 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.
(b) To
be timely, a Stockholder’s notice to the Secretary must be delivered, by hand,
by an internationally recognized overnight courier, or by certified or
registered mail, return receipt requested, to the principal executive offices of
the Corporation (i) in the case of an annual meeting, not less than one hundred
twenty (120) days nor more than one hundred fifty (150) days prior to the
anniversary date of the immediately preceding annual meeting of Stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within twenty-five (25) days before or after such anniversary
date, notice by the Stockholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs;
and (ii) in the case of a special meeting of Stockholders called for the purpose
of electing directors, not later than the close of business on the tenth (10th)
day following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs. In no event shall an adjournment or
postponement of an annual meeting or a special meeting called for the election
of directors, or the public announcement of such an adjournment or postponement,
commence a new time period (or extend any time period) for the giving of a
Stockholder’s notice as described above.
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(c) To
be in proper written form, a Stockholder’s notice to the Secretary must set
forth:
(1) As
to each Nominating Person (as defined below), the Stockholder Information (as
defined in Section 1.7(b)(3)(B), except that for purposes of this Section
1.8(c)(1) the term “Nominating Person” shall be substituted for the term
“Proposing Person” in all places it appears in Section
1.7(b)(3)(B));
(2) As
to each Nominating Person, any Disclosable Interests (as defined in Section
1.7(b)(3)(C), except that for purposes of this Section 1.8(c)(2) the
term “Nominating Person” shall be substituted for the term “Proposing Person” in
all places it appears in Section 1.7(b)(3)(C) and the disclosure in clause
(iii) of
Section 1.7(b)(3)(C) shall be made with respect to the election of directors at
the meeting);
(3) As
to each person whom a Nominating Person proposes to nominate for election as a
director, (i) the name, age, business address and residential address of the
proposed nominee and all information with respect to such proposed nominee that
would be required to be set forth in a Stockholder’s notice pursuant to this
Section 1.8 if
such proposed nominee were a Nominating Person, (ii) the principal occupation or
employment of such proposed nominee and a resume or other written statement of
the qualifications of such proposed nominee and (iii) all other information
relating to such proposed nominee 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(a)
under the Exchange Act (including such proposed nominee’s written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected);
(4) As
to each Nominating Person, a description of all agreements, arrangements or
understandings (whether written or oral) between or among any Nominating Person
and any proposed nominee or any other person or persons (including their names)
pursuant to which the nomination(s) are being made by such Nominating Person,
and any material interest of such Nominating Person in such nominations,
including any anticipated benefit therefrom to such Nominating
Person;
(5) As
to such Stockholder, a representation that such Stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and that
such Stockholder intends to appear in person or by proxy at the meeting to
nominate the person or persons named in its notice; and
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(6) As
to each proposed nominee, the Corporation may require any proposed nominee to
furnish such other information (i) as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee to serve as an
independent director of the Corporation in accordance with the Corporation’s
Director Selection Guidelines or (ii) that could be material to a reasonable
Stockholder’s understanding of the independence or lack of independence of such
proposed nominee.
For
purposes of this Section 1.8(c), the term “Nominating Person” shall mean (i) the
Stockholder providing the notice of the nomination proposed to be made at the
meeting, (ii) the beneficial owner or beneficial owners, if different, on whose
behalf the notice of the nomination proposed to be made at the meeting is made
and (iii) any affiliate or associate of such Stockholder or beneficial
owner.
(d) A
Stockholder providing notice of any nomination proposed to be made at a meeting
shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this
Section 1.8 shall be true and correct as of the record date for determining the
Stockholders entitled to receive notice of such meeting, and such update and
supplement shall be delivered, by hand, by an internationally recognized
overnight courier, or by certified or registered mail, return receipt requested,
to the Secretary at the principal executive offices of the Corporation not later
than five (5) business days after the record date for determining the
Stockholders entitled to receive notice of such meeting.
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
1.8. Stockholders seeking to nominate persons for election to the
Board of Directors must comply with this Section 1.8, and Section 1.7(b) shall
not be applicable to nominations except as expressly provided in this Section
1.8. 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.
SECTION
1.9. Adjourned
Meetings. A meeting of Stockholders may be adjourned, pursuant
to Section 1.4, from time to time to reconvene at the same or another time or
place, and notice need not be given of any such adjourned meeting if the time
and place thereof and the means of remote communications, if any, by which
Stockholders may be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is
taken. Unless the Board of Directors fixes a new record date,
Stockholders of record for an adjourned meeting shall be as originally
determined for the meeting from which the adjournment was taken. If
the adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Stockholder of record entitled to
vote. At the adjourned meeting, any business may be transacted that
might have been transacted at the meeting as originally called.
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SECTION
1.10. Consent
of Stockholder in Lieu of Meeting.
(a) Unless
otherwise provided in the Certificate of Incorporation, any action that may be
taken at any annual or special meeting of Stockholders may be taken without a
meeting, without prior notice and without a vote, if (i) one or more consents in
writing, stating the action so taken, are signed and dated by the holders of
record on the record date (established as provided in Section 1.12(b)) of
outstanding shares of the Corporation 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 on such action were present and voted, (ii)
the consents are delivered, by hand, by an internationally recognized overnight
courier, or by certified or registered mail, return receipt
requested, to the Corporation at its registered office in its state
of incorporation, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
Stockholders are recorded and (iii) the procedures set forth in Section 1.10 and
1.12(b) are satisfied. Only Stockholders of record on the record date
shall be entitled to consent to corporate action in writing without a
meeting.
(b) In
the event of the delivery, in the manner provided by this Section 1.10 and
applicable law, to the Corporation of a signed written consent or consents to
take corporate action and/or any related revocation or revocations, the
Secretary, or such other officer of the Corporation as the Board of Directors
may designate, shall provide for the safe-keeping of the consents and any
related revocations and shall promptly perform a ministerial review of the
validity of the consents and revocations. For the purpose of permitting the
Secretary or such other designated officer to perform such review, no action by
written consent and without a meeting shall be effective until such officer has
completed such officer’s review, determined that the requisite number of valid
and unrevoked consents delivered to the Corporation in accordance with this
Section 1.10 and applicable law have been obtained to authorize or take the
action specified in the consents, and certified such determination for entry in
the records of the Corporation kept for the purpose of recording the proceedings
of meetings of Stockholders. The action by written consent and without a meeting
will take effect as of the date and time of the certification of the written
consents and will not relate back to the date the written consents to take the
corporate action were delivered to the Corporation. Nothing contained
in this Section 1.10(b) shall in any way be construed to suggest or imply that
the Board of Directors or any Stockholder shall not be entitled to contest the
validity of any consent or revocation thereof, whether before or after such
certification by the Secretary or such other designated officer, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
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(c) Written
consents will not be effective to take the corporate action referred to unless
written consents sufficient to take such action are delivered to the Corporation
within sixty (60) days of the date of the earliest dated consent so
delivered. Notice of the taking of such action shall be given
promptly to each Stockholder, if any, that would have been entitled to vote on
such action at a meeting of Stockholders and that did not consent to such action
in writing.
SECTION
1.11. List
of Stockholders Entitled to Vote. At least ten (10)
days before every meeting of Stockholders, a complete list of the Stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing the
address of each Stockholder and the number of shares registered in the name of
each Stockholder, shall be prepared and shall be open to the examination of any
Stockholder for any purpose germane to the meeting, during ordinary business
hours, either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so specified,
at the place where the meeting is to be held. Such list shall be
produced and kept at the place of the meeting during the whole time of the
meeting and may be inspected by any Stockholder who is present.
SECTION
1.12. Fixing
of a Record Date. The Board of Directors, by resolution, may
fix a date for determining the Stockholders of record for any lawful action,
which record date shall not be earlier than the date of such
resolution.
(a) The
record date for Stockholders entitled to notice of or to vote at any meeting of
Stockholders or any adjournment of the meeting shall not be more than sixty (60)
nor less than ten (10) days before the date of the meeting; provided that, the
Board of Directors may fix separate record dates for notice of any such meeting
and voting at any such meeting so long as the Board of Directors determines at
the time it fixes the record date for notice of such meeting that a later date
shall be the record date for purposes of voting at such meeting. If
no such record date is fixed by the Board of Directors, the record date shall be
at the close of business on the day immediately preceding the date on which
notice is given or, if notice is waived, at the close of business on the day
immediately preceding the day on which the meeting is held. The
record date shall apply to any adjournment of the meeting unless the Board of
Directors fixes a new record date for the adjourned meeting.
(b) The
record date for determining the Stockholders entitled to consent to corporate
action in writing without a meeting shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors.
(1) Any
Stockholder of record seeking to have the Stockholders authorize or take
corporate action by written consent shall first request in writing that the
Board of Directors fix a record date for the purpose of determining the
Stockholders entitled to take such action, which request shall be in proper form
and delivered, by hand, by an internationally recognized overnight courier, or
by certified or registered mail, return receipt requested, to the Secretary of
the Corporation at the principal executive offices of the
Corporation.
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(2) To
be in proper form for purposes of this Section 1.12(b), a request by a
Stockholder for the Board of Directors to fix a record date shall set
forth:
(A) As
to each Soliciting Person (as defined below), the Stockholder Information (as
defined in Section 1.7(b)(3)(B), except that for purposes of this Section
1.12(b)(2)(A) the
term “Soliciting Person” shall be substituted for the term “Proposing Person” in
all places
it appears in 1.7(b)(3)(B));
(B) As
to each Soliciting Person, any Disclosable Interests (as defined in Section
1.7(b)(3)(C), except that for purposes of this Section 1.12(b)(2)(B) the
term “Soliciting Person” shall
be substituted for the term “Proposing Person” in all places it appears in
Section 1.7(b)(3)(C)
and the disclosure in clause (iii) of
Section 1.7(b)(3)(C) shall be made with respect to
the action or actions proposed to be taken by written consent));
(C) As
to each Soliciting Person, a representation whether such Soliciting Person
intends or is part of a group which intends to (i) deliver a proxy statement
and/or consent solicitation statement to Stockholders of at least the percentage
of the Corporation’s outstanding capital stock required to effect the action by
consent either to solicit consents or to solicit proxies to execute consents,
and/or (ii) otherwise solicit proxies or consents from Stockholders in support
of the action to be taken by consent;
(D) As
to the action or actions proposed to be taken by written consent, (i) a brief
description of the action or actions, the reasons for taking such action or
actions and any material interest of each Soliciting Person in such action or
actions, including any anticipated benefit therefrom to such Soliciting Person,
(ii) the text of the proposal (including the text of any resolutions to be
effected by consent and the language of any proposed amendment to these By-Laws)
and (iii) a reasonably detailed description of all agreements, arrangements and
understandings (whether written or oral) (x) between or among any of the
Soliciting Persons and (y) between or among any Soliciting Person and any other
person or entity (including their names) in connection with the request or such
action or actions; and
(E) As
to each Soliciting Person, the Corporation may require such Soliciting Person to
furnish such other information as it may reasonably require to determine the
validity of the request for a record date.
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For
purposes of this Section 1.12(b)(2), the term “Soliciting Person” shall mean (i)
the Stockholder making a request for the Board of Directors to fix a record date
and proposing the action or actions to be taken by written consent, (ii) the
beneficial owner or beneficial owners, if different, on whose behalf such
request is made and (iii) any affiliate or associate of such stockholder or
beneficial owner.
(3) In
connection with an action proposed to be taken by written consent, the
Stockholder seeking such action shall further update and supplement the
information previously provided to the Corporation in connection therewith, if
necessary, so that the information provided or required to be provided in such
notice pursuant to Section 1.12(b)(2) shall be true and correct as of the record
date for determining the Stockholders eligible to take such action, and such
update and supplement shall be delivered, by hand, by an internationally
recognized overnight courier, or by certified or registered mail, return receipt
requested, to the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for
determining the Stockholders eligible to take such action.
(4)
Notwithstanding anything in these By-Laws to the contrary, no action may be
taken by the Stockholders by written consent except in accordance with the
provisions of Section 1.10 and this Section 1.12(b). If the Board of Directors
shall determine that any request to fix a record date or to take stockholder
action by written consent was not properly made in accordance with this Section
1.12(b), or the Stockholder seeking to take such action does not otherwise
comply with Section 1.10 or this Section 1.12(b), then the Board of Directors
shall not be required to fix a record date and any such purported action by
written consent shall be null and void to the fullest extent permitted by
applicable law.
(5) Within
ten (10) days after receipt of a request in proper form and otherwise in
compliance with this Section 1.12(b) from any such Stockholder, the Board of
Directors may adopt a resolution fixing the record date (unless a record date
has previously been fixed by the Board of Directors pursuant to the first
sentence of this Section 1.12(b)). If no record date has been fixed
by the Board of Directors pursuant to the first sentence of this Section 1.12(b)
or otherwise within ten (10) days after the date on which such request is
received, the record date for determining Stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date after the
expiration of such ten (10) day time period on which a valid signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation in the manner described in Section 1.10(a). If no
record date has been fixed by the Board of Directors pursuant to the first
sentence of this Section 1.12(b), the record date for determining Stockholders
entitled to consent to corporate action in writing without a meeting, if prior
action by the Board of Directors is required by applicable law, shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
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(c) The
record date for determining the Stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the Stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, shall be not more than
sixty (60) days prior to such action. If no record date is fixed by
the Board of Directors, the record date for determining Stockholders for any
such action shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such action.
ARTICLE
TWO
DIRECTORS
SECTION
2.1. Powers. The
business and affairs of the Corporation shall be at the direction of the Board
of Directors. The Board may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute, by the
Certificate of Incorporation or these By-Laws directed or required to be
exercised or done by the Stockholders.
SECTION
2.2. Number;
Term of Office; Qualifications; Vacancies. The number of
directors that shall constitute the whole Board of Directors shall be three or
such number as may be determined from time to time only by action of the Board
of Directors. Directors shall be elected at the annual meeting of
Stockholders to hold office until the next annual meeting of Stockholders and
until their respective successors are elected and qualified, or until their
earlier death, resignation or removal. Vacancies and newly created
directorships arising through death, resignation, removal, an increase in the
number of directors constituting the Board of Directors or otherwise shall be
filled only by a majority of the directors then in office, although less than a
quorum, or by the sole remaining director, and the directors so chosen shall
hold office until the next annual meeting of Stockholders and until their
respective successors are elected and qualified or until their earlier death,
resignation or removal.
SECTION
2.3. Resignation. (a)
Any director of the Corporation may resign at any time by giving notice of such
resignation in writing or by electronic transmission to the Board of Directors,
the Chairman of the Board of Directors, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take effect
at the time specified in the notice or, if no time be specified, upon receipt of
the notice by the Board of Directors or one of the above-named persons; and,
unless specified in the notice (and except for a resignation described in
Article IV of the Corporation’s Corporate Governance Guidelines), acceptance of
such resignation shall not be necessary to make it effective. When
one or more directors shall resign from the Board of Directors effective at a
future date, only a majority of the directors then in office, including those
who have so resigned, shall have power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in these
By-Laws in the filling of other vacancies.
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(b) If
an incumbent director is not elected due to his or her failure to receive the
requisite amount of votes cast “for” his or her election, such director shall
promptly tender his or her resignation from the Board of Directors to the
Nominating and Corporate Governance Committee of the Board of Directors
contingent on acceptance of such resignation by the Board of
Directors. The Nominating and Corporate Governance Committee shall,
within a reasonable period of time, review the continued appropriateness of the
incumbent director remaining on the Board of Directors under the circumstances
and shall recommend to the Board of Directors whether
the Board of Directors should accept such
resignation, request that the director continue to serve on the Board of
Directors or act otherwise with respect to such incumbent
director. The Board of Directors shall decide whether to require the
incumbent director’s resignation, request that the incumbent director continue
to serve, or act otherwise with respect to such incumbent
director. Thereafter, the Corporation shall publicly disclose the
Board of Directors’ decision and the Board of Directors’ rationale regarding the
incumbent director’s resignation offer.
SECTION
2.4. Removal. Any
one or more directors may be removed, with or without cause, by the affirmative
vote or written consent of the holders of a majority of the shares entitled to
vote at an election of directors.
SECTION
2.5. Regular
and Annual Meetings; Notice. Regular meetings of the Board of
Directors shall be held at such time and at such place as the Board of Directors
may from time to time prescribe. No notice need be given of any
regular meeting, and a notice, if given, need not specify the purposes
thereof. A meeting of the Board of Directors may be held without
notice immediately after an annual meeting of Stockholders at the same place as
that at which such meeting was held.
SECTION
2.6. Special
Meetings; Notice. A special meeting of the Board of Directors
may be called at any time by the Board of Directors, the Chairman of the Board
of Directors, the Chief Executive Officer or the President and shall be called
by any of the aforementioned officers or the Secretary upon receipt of a request
to do so specifying the matter or matters, appropriate for action at such a
meeting, proposed to be presented at the meeting and signed by at least one
director. Any such meeting shall be held at such time and at such
place, within or without the state of incorporation, as shall be determined by
the body or officer calling such meeting. Reasonable notice of such
meeting stating the time, place and purposes thereof shall be
given.
SECTION 2.7. Organization. Each
meeting of the Board of Directors shall be presided over by the Chairman of the
Board of Directors, if any, or in the absence of the Chairman of the Board of
Directors by the chairman of the Nominating and Corporate Governance Committee
of the Board of Directors (the “Lead Director”), or in the absence of the Lead
Director by the person designated in writing by the Chairman of the Board of
Directors, or if no such person is so designated, then by such member of the
Board of Directors as shall be chosen at the meeting. The Secretary,
or in the Secretary’s absence an Assistant Secretary, if any, shall act as
secretary of the meeting, or if no such officer is present, a secretary of the
meeting shall be designated by the chairman of the meeting.
15
SECTION 2.8. Quorum. A
majority of directors shall constitute a quorum for the transaction of business,
but in the absence of a quorum a majority of those present (or if only one is
present, then that one director) may adjourn the meeting without notice until
such time as a quorum is present. Except as otherwise required by the
Certificate of Incorporation or these By-Laws, the vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 2.9. Meeting
by Telephone or Remote Communication. Members of the Board of
Directors or of any committee of the Board of Directors may participate in
meetings of the Board of Directors or of such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 2.10. Action
Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting if all members of the Board of
Directors or of such committee, as the case may be, consent to such action in
writing or by electronic transmission and the evidence of such consent is filed
in paper or electronic form with the minutes of proceedings of the Board of
Directors or of such committee.
SECTION 2.11. Committees. The
Board of Directors may, by resolution passed by a majority of the whole Board of
Directors, designate one or more committees, each such committee to consist of
one or more directors as the Board of Directors may from time to time
determine. Any such committee, to the extent provided in such
resolution, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, including the power to authorize the seal of the Corporation to be
affixed to all papers that may require it; but no such committee shall have such
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
Stockholders the sale, lease or exchange of all or substantially all of the
Corporation’s property and assets, recommending to the Stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws; and unless the resolution shall expressly so provide, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. In the absence of a member of a committee or in
the event a member of a committee is disqualified from voting, the member or
members of the committee present at any meeting and not disqualified from
voting, whether or not such committee member(s) constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Each
such committee shall have such name as may be determined from time to time by
the Board of Directors.
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SECTION 2.12. Compensation. A
director shall receive such sum, if any, as may from time to time be fixed by
the Board of Directors for attendance at each meeting of the Board of Directors
or of a committee and such sum, if any, for his or her services as a director or
as a member of a committee as may from time to time be fixed by the Board of
Directors. A director may also be reimbursed for his or her expenses
in attending any meeting. To the extent not inconsistent with law,
regulation or the listing standards of a nationally recognized stock exchange on
which shares of the Corporation’s stock are listed, any director who serves the
Corporation in any capacity other than as a member of the Board of Directors or
of a committee may receive compensation for such service.
ARTICLE
THREE
OFFICERS
SECTION 3.1. General. The
Board of Directors shall from time to time elect such officers of the
Corporation with the titles and duties that it designates, provided that the
Corporation shall at all times have a President and a Secretary. The
Board of Directors, in its discretion, may also choose, a Chairman of the Board
of Directors (who must be a director), a Chief Executive Officer, a Chief
Financial Officer, one or more Vice Presidents and other
officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these
By-Laws. The officers of the Corporation need not be Stockholders of
the Corporation nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the Corporation.
SECTION 3.2. Election. Except
such officers as may be appointed in accordance with the provisions of Section
3.3 of these By-Laws, the officers of the Corporation shall be elected by the
Board of Directors and such officers shall hold their offices for such terms and
shall exercise such powers and perform such duties as are provided in these
By-Laws or as shall be determined from time to time by the Board of Directors.
All officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier resignation or
removal.
SECTION 3.3. Subordinate
Officers. The Board of Directors may appoint, or may empower
any officer of the Corporation to appoint, such other officers as the business
of the Corporation may require, each of whom shall hold their offices for such
terms and shall exercise such powers and perform such duties as are provided in
these By-Laws or as shall be determined from time to time by the
Board.
SECTION 3.4. Removal. Any
officer may be removed at any time by the affirmative vote of a majority of the
Board of Directors and, any officer appointed pursuant to Section 3.3 above may
be removed at any time by any officer of the Corporation if such power of
removal has been conferred to such officer by the Board of
Directors.
SECTION
3.5. Vacancies. Any
vacancy occurring in any office of the Corporation shall be filled in the manner
prescribed in these By-Laws for regular appointments of that
office.
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SECTION 3.6. Voting
Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chief Executive Officer, the President or any
Vice President or any other officer authorized to do so by the Board of
Directors, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or
persons.
SECTION 3.7. Chairman
of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the Stockholders
and of the Board of Directors. The Chairman of the Board of Directors
shall also perform such other duties and may exercise such other powers as from
time to time may be assigned to the Chairman of the Board of Directors by these
By-Laws or by the Board of Directors.
SECTION 3.8. Chief
Executive Officer. The Chief Executive Officer, if there be
one, shall, subject to the control of the Board of Directors and, if there be
one, the Chairman of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. The Chief Executive
Officer may execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or the Chief Executive
Officer. The Chief Executive Officer shall also perform such other
duties and may exercise such other powers as from time to time may be assigned
to the Chief Executive Officer by these By-Laws or by the Board of
Directors.
SECTION 3.9. President. If
there be a Chief Executive Officer, the President shall perform such duties and
may exercise such powers as from time to time may be assigned to the President
by these By-Laws or determined by the Board of Directors. If there be
no Chief Executive Officer, the President shall have the powers and duties
prescribed in Section 3.8 of these By-Laws.
SECTION 3.10. Vice
Presidents. At the request of the President or in his or her
absence or in the event of the inability or refusal of the President to act (and
if there be no Chairman of the Board of Directors or Chief Executive Officer),
the Vice President or the Vice Presidents if there is more than one (in the
order designated by the Board of Directors) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors
from time to time may prescribe. If there be no Chairman of the Board
of Directors, no Chief Executive Officer and no Vice President, the Board of
Directors shall designate the officer of the Corporation who, in the absence of
the President or in the event of the inability or refusal of the President to
act, shall perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
President.
18
SECTION 3.11. Secretary. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of Stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties for the
standing committees of the Board of Directors when required. The
Secretary shall give, or cause to be given, notice of all meetings of the
Stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors, under whose
supervision the Secretary shall be. If the Secretary shall be unable
or shall refuse to cause to be given notice of all meetings of the Stockholders
and special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors, the Chief Executive Officer or
the President may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have the authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his or her signature. The Secretary
shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
SECTION 3.12. Chief
Financial Officer. The Chief Financial Officer, if there be
any, shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Chief Financial Officer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the President, and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his or her transactions as Chief Financial Officer and of the financial
condition of the Corporation.
SECTION 3.13. Other
Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors.
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ARTICLE
FOUR
CAPITAL
STOCK
SECTION 4.1. Certificated
or Uncertificated Form. The interest of each holder of stock
of the Corporation shall be evidenced by a certificate or certificates in such
form as the Board of Directors may from time to time prescribe or shall be
evidenced in uncertificated form pursuant to the customary arrangements for
issuing shares in such form or pursuant to such terms as the Board of Directors
may from time to time prescribe.
SECTION
4.2. Stock
Certificates. Each certificate shall be signed by or in the
name of the Corporation by the President or a Vice President and by the
Treasurer or an Assistant Treasurer, if any, or the Secretary or an Assistant
Secretary, if any. Any of or all the signatures appearing on such
certificate or certificates may be a facsimile. If any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to hold such position before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such officer, transfer agent or registrar held such position at the date
of issue.
SECTION 4.3. Transfer
of Stock. Shares of stock shall be transferable on the books
of the Corporation pursuant to applicable law and such rules and regulations as
the Board of Directors shall from time to time prescribe.
SECTION 4.4. Holders
of Record. Prior to due presentment for registration of
transfer, the Corporation may treat the holder of record of a share of its stock
as the complete owner of such share exclusively entitled to vote, to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner of such share, notwithstanding notice to the Corporation to the
contrary.
SECTION 4.5. Lost,
Stolen, Destroyed or Mutilated Certificates. If a certificate
has been lost, destroyed or wrongfully taken, a new certificate may be issued
upon such terms as the Board of Directors may from time to time
prescribe.
ARTICLE
FIVE
MISCELLANEOUS
SECTION 5.1. Indemnification
of Directors and Officers. (a) The Corporation
shall indemnify to the fullest extent authorized by law any person made or
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Corporation or any predecessor of the Corporation, or is or was a director or
officer of the Corporation serving any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor of the
Corporation, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, and such right to
indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives; provided, however, that,
except for proceedings to enforce rights to indemnification, the Corporation
shall not be obligated to indemnify any director or officer (or his or her
heirs, executors or personal or legal representatives) in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of
Directors. The right to indemnification conferred by this Section 5.1
shall include the right to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in advance of its final
disposition upon receipt by the Corporation of an undertaking by or on behalf of
the director or officer receiving advancement to repay the amount advanced if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation under this Section 5.1. The rights to
indemnification and to the advancement of expenses conferred in this Section 5.1
shall not be exclusive of any other right which any person may have or hereafter
acquire under this Certificate of Incorporation, the By-Laws of the Corporation,
any statute, agreement, vote of Stockholders or disinterested directors or
otherwise.
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(b) The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person’s status as such, whether or not the Corporation
would have the power or the obligation to indemnify such person against such
liability under the provisions of this Section 5.1.
(c) Any
repeal or modification of this Section 5.1 shall not adversely affect any rights
to indemnification and to the advancement of expenses of a director or officer
of the Corporation existing at the time of such repeal or modification with
respect to any acts or omissions occurring prior to such repeal or
modification.
(d) The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Section 5.1 to directors and officers of the Corporation.
(e) The
provisions of this Section 5.1 shall not be deemed to preclude the
indemnification of and the advancement of expenses to any person who is not
specified in this Section 5.1 but whom the Corporation has the power or
obligation to indemnify under law or otherwise.
SECTION 5.2. Waiver
of Notice. Whenever notice is required by the Certificate of
Incorporation, these By-Laws or any provisions of the general business
corporation law of the Corporation’s state of incorporation, a written waiver of
notice, signed by the person entitled to notice, whether before or after the
time required for such notice, 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 any written waiver of
notice.
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SECTION 5.3. Fiscal
Year. The fiscal year of the Corporation shall be determined
by the Board of Directors.
SECTION 5.4. Corporate
Seal. The corporate seal shall be in such form as the Board of
Directors may from time to time prescribe, and the same may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE
SIX
AMENDMENT OF BY-LAWS;
CONFORMITY TO LAW
SECTION 6.1. Amendment. To
the extent permitted by law, these By-Laws may be adopted, amended or repealed
by the Stockholders if approved by the affirmative vote of a majority of the
outstanding shares of the Corporation; or by the Board of Directors by a
majority vote of the whole Board.
SECTION 6.2. Conformity
to Law. To the extent that any provision of these By-Laws,
including any time period herein, shall be inconsistent with any provision of
the General Corporation Law of the State of Delaware, such law shall be deemed
to govern and the provisions hereof modified to the extent of any such
inconsistency.
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