Attached files
file | filename |
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S-1/A - FORM S-1/A - QUINSTREET, INC | f53797a1sv1za.htm |
EX-3.2 - EX-3.2 - QUINSTREET, INC | f53797a1exv3w2.htm |
EX-10.5 - EX-10.5 - QUINSTREET, INC | f53797a1exv10w5.htm |
EX-23.2 - EX-23.2 - QUINSTREET, INC | f53797a1exv23w2.htm |
EX-10.8 - EX-10.8 - QUINSTREET, INC | f53797a1exv10w8.htm |
EX-10.7 - EX-10.7 - QUINSTREET, INC | f53797a1exv10w7.htm |
EX-10.9 - EX-10.9 - QUINSTREET, INC | f53797a1exv10w9.htm |
EX-10.6 - EX-10.6 - QUINSTREET, INC | f53797a1exv10w6.htm |
EX-10.10 - EX-10.10 - QUINSTREET, INC | f53797a1exv10w10.htm |
Exhibit 3.4
BYLAWS
OF
QUINSTREET, INC.
(A DELAWARE CORPORATION)
(A DELAWARE CORPORATION)
Table Of Contents
Page | ||||
ARTICLE I OFFICES |
1 | |||
Section 1. Registered Office |
1 | |||
Section 2. Other Offices |
1 | |||
ARTICLE II CORPORATE SEAL |
1 | |||
Section 3. Corporate Seal |
1 | |||
ARTICLE III STOCKHOLDERS MEETINGS |
1 | |||
Section 4. Place Of Meetings |
1 | |||
Section 5. Annual Meetings |
1 | |||
Section 6. Special Meetings |
6 | |||
Section 7. Notice Of Meetings |
7 | |||
Section 8. Quorum |
7 | |||
Section 9. Adjournment And Notice Of Adjourned Meetings |
8 | |||
Section 10. Voting Rights |
8 | |||
Section 11. Joint Owners Of Stock |
8 | |||
Section 12. List Of Stockholders |
8 | |||
Section 13. Action Without Meeting |
9 | |||
Section 14. Organization |
9 | |||
ARTICLE IV DIRECTORS |
9 | |||
Section 15. Number And Term Of Office |
9 | |||
Section 16. Powers |
10 | |||
Section 17. Classes of Directors |
10 | |||
Section 18. Vacancies |
10 | |||
Section 19. Resignation |
11 | |||
Section 20. Removal |
11 | |||
Section 21. Meetings |
11 | |||
Section 22. Quorum And Voting |
12 | |||
Section 23. Action Without Meeting |
12 | |||
Section 24. Fees And Compensation |
12 | |||
Section 25. Committees |
13 | |||
Section 26. Chairman of the Board of Directors |
14 |
i.
Table Of Contents
(continued)
(continued)
Page | ||||
Section 27. Lead Independent Director |
14 | |||
Section 28. Organization |
14 | |||
ARTICLE V OFFICERS |
14 | |||
Section 29. Officers Designated |
14 | |||
Section 30. Tenure And Duties Of Officers |
15 | |||
Section 31. Delegation Of Authority |
16 | |||
Section 32. Resignations |
16 | |||
Section 33. Removal |
17 | |||
ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION |
17 | |||
Section 34. Execution Of Corporate Instruments |
17 | |||
Section 35. Voting Of Securities Owned By The Corporation |
17 | |||
ARTICLE VII SHARES OF STOCK |
17 | |||
Section 36. Form And Execution Of Certificates |
17 | |||
Section 37. Lost Certificates |
18 | |||
Section 38. Transfers |
18 | |||
Section 39. Fixing Record Dates |
18 | |||
Section 40. Registered Stockholders |
19 | |||
ARTICLE VIII OTHER SECURITIES OF THE CORPORATION |
19 | |||
Section 41. Execution Of Other Securities |
19 | |||
ARTICLE IX DIVIDENDS |
19 | |||
Section 42. Declaration Of Dividends |
19 | |||
Section 43. Dividend Reserve |
20 | |||
ARTICLE X FISCAL YEAR |
20 | |||
Section 44. Fiscal Year |
20 | |||
ARTICLE XI INDEMNIFICATION |
20 | |||
Section 45. Indemnification of Directors, Executive Officers, Other Officers,
Employees and Other Agents |
20 | |||
ARTICLE XII NOTICES |
23 | |||
Section 46. Notices |
23 | |||
ARTICLE XIII AMENDMENTS |
24 |
ii.
Table Of Contents
(continued)
(continued)
Page | ||||
Section 47. Amendments |
24 | |||
ARTICLE XIV LOANS TO OFFICERS |
25 | |||
Section 48. Loans To Officers |
25 |
iii.
BYLAWS
OF
QUINSTREET, INC.
(A DELAWARE CORPORATION)
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the corporation in the State of
Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices. The corporation shall also have and maintain an office or principal
place of business at such place as may be fixed by the Board of Directors, and may also have
offices at such other places, both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may require.
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal. The Board of Directors may adopt a corporate seal. The corporate
seal shall consist of a die bearing the name of the corporation and the inscription, Corporate
Seal-Delaware. Said seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE III
STOCKHOLDERS MEETINGS
Section 4. Place Of Meetings. Meetings of the stockholders of the corporation may be held at
such place, either within or without the State of Delaware, as may be determined from time to time
by the Board of Directors. The Board of Directors may, in its sole discretion, determine that the
meeting shall not be held at any place, but may instead be held solely by means of remote
communication as provided under the Delaware General Corporation Law (DGCL).
Section 5. Annual Meetings.
(a) The annual meeting of the stockholders of the corporation, for the purpose of election of
directors and for such other business as may properly come before it, shall be held on such date
and at such time as may be designated from time to time by the Board of Directors. Nominations of
persons for election to the Board of Directors of the corporation and the proposal of business to
be considered by the stockholders may be made at an annual meeting of
1.
stockholders: (i) pursuant to the corporations notice of meeting of stockholders (with
respect to business other than nominations); (ii) brought specifically by or at the direction of
the Board of Directors; or (iii) by any stockholder of the corporation who was a stockholder of
record at the time of giving the stockholders notice provided for in Section 5(b) below, who is
entitled to vote at the meeting and who complied with the notice procedures set forth in Section 5.
For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to
make nominations and submit other business (other than matters properly included in the
corporations notice of meeting of stockholders and proxy statement under Rule 14a-8 under the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the 1934
Act)) before an annual meeting of stockholders.
(b) At an annual meeting of the stockholders, only such business shall be conducted as is a
proper matter for stockholder action under Delaware law and as shall have been properly brought
before the meeting.
(i) For nominations for the election to the Board of Directors to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, the
stockholder must deliver written notice to the Secretary at the principal executive offices of the
corporation on a timely basis as set forth in Section 5(b)(iii) and must update and supplement such
written notice on a timely basis as set forth in Section 5(c). Such stockholders notice shall set
forth: (A) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name,
age, business address and residence address of such nominee, (2) the principal occupation or
employment of such nominee, (3) the class and number of shares of each class of capital stock of
the corporation which are owned of record and beneficially by such nominee, (4) the date or dates
on which such shares were acquired and the investment intent of such acquisition, (5) with respect
to each nominee for election or re-election to the Board of Directors, include a completed and
signed questionnaire, representation and agreement required by Section 5(e) of these Bylaws, and
(6) such other information concerning such nominee as would be required to be disclosed in a proxy
statement soliciting proxies for the election of such nominee as a director in an election contest
(even if an election contest is not involved), or that is otherwise required to be disclosed
pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder
(including such persons written consent to being named as a nominee and to serving as a director
if elected); and (B) the information required by Section 5(b)(iv). 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 an independent director of the corporation or that
could be material to a reasonable stockholders understanding of the independence, or lack thereof,
of such proposed nominee.
(ii) Other than proposals sought to be included in the corporations proxy materials pursuant
to Rule 14(a)-8 under the 1934 Act, for business other than nominations for the election to the
Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to
clause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the
Secretary at the principal executive offices of the corporation on a timely basis as set forth in
Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set
forth in Section 5(c). Such stockholders notice shall set forth: (A) as to each matter such
stockholder proposes to bring before the meeting, a brief description
2.
of the business desired to be brought before the meeting, the reasons for conducting such
business at the meeting, and any material interest (including any anticipated benefit of such
business to any Proponent (as defined below) other than solely as a result of its ownership of the
corporations capital stock, that is material to any Proponent individually, or to the Proponents
in the aggregate) in such business of any Proponent; and (B) the information required by Section
5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be
received by the Secretary at the principal executive offices of the corporation not later than the
close of business on the ninetieth (90th) day nor earlier than the close of business on
the one hundred twentieth (120th) day prior to the first anniversary of the preceding
years annual meeting; provided, however, that, subject to the last sentence of this Section
5(b)(iii), in the event that the date of the annual meeting is advanced more than thirty (30) days
prior to or delayed by more than thirty (30) days after the anniversary of the preceding years
annual meeting, notice by the stockholder to be timely must be so received 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. In no event shall an adjournment or a
postponement of an annual meeting for which notice has been given, or the public announcement
thereof has been made, commence a new time period for the giving of a stockholders notice as
described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of
the date of the notice and as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (each, a Proponent and collectively, the
Proponents): (A) the name and address of each Proponent, as they appear on the corporations
books; (B) the class, series and number of shares of the corporation that are owned beneficially
and of record by each Proponent; (C) a description of any agreement, arrangement or understanding
(whether oral or in writing) with respect to such nomination or proposal between or among any
Proponent and any of its affiliates or associates, and any others (including their names) acting in
concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing;
(D) a representation that the Proponents are holders of record or beneficial owners, as the case
may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person
or by proxy at the meeting to nominate the person or persons specified in the notice (with respect
to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with
respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents
intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders
of the corporations voting shares to elect such nominee or nominees (with respect to a notice
under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii));
(F) to the extent known by any Proponent, the name and address of any other stockholder supporting
the proposal on the date of such stockholders notice; and (G) a description of all Derivative
Transactions (as defined below) by each Proponent during the previous twelve (12) month period,
including the date of the transactions and the class, series and number of securities involved in,
and the material economic terms of, such Derivative Transactions.
3.
For purposes of Sections 5 and 6, a Derivative Transaction means any agreement, arrangement,
interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any
of its affiliates or associates, whether record or beneficial:
(w) the value of which is derived in whole or in part from the value of any class or series
of shares or other securities of the corporation,
(x) which otherwise provides any direct or indirect opportunity to gain or share in any gain
derived from a change in the value of securities of the corporation,
(y) the effect or intent of which is to mitigate loss, manage risk or benefit of security
value or price changes, or
(z) which provides the right to vote or increase or decrease the voting power of, such
Proponent, or any of its affiliates or associates, with respect to any securities of the
corporation,
which agreement, arrangement, interest or understanding may include, without limitation, any
option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right,
short position, profit interest, hedge, right to dividends, voting agreement, performance-related
fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement,
exercise or conversion in any such class or series), and any proportionate interest of such
Proponent in the securities of the corporation held by any general or limited partnership, or any
limited liability company, of which such Proponent is, directly or indirectly, a general partner or
managing member.
(c) A stockholder providing written notice required by Section 5(b)(i) or (ii) shall update
and supplement such notice in writing, if necessary, so that the information provided or required
to be provided in such notice is true and correct in all material respects as of (i) the record
date for the meeting and (ii) the date that is five (5) business days prior to the meeting and, in
the event of any adjournment or postponement thereof, five (5) business days prior to such
adjourned or postponed meeting. In the case of an update and supplement pursuant to clause (i) of
this Section 5(c), such update and supplement shall be received by the Secretary at the principal
executive offices of the corporation not later than five (5) business days after the record date
for the meeting. In the case of an update and supplement pursuant to clause (ii) of this Section
5(c), such update and supplement shall be received by the Secretary at the principal executive
offices of the corporation not later than two (2) business days prior to the date for the meeting,
and, in the event of any adjournment or postponement thereof, two (2) business days prior to such
adjourned or postponed meeting.
(d) Notwithstanding anything in Section 5(b)(iii) to the contrary, in the event that the
number of directors in an Expiring Class is increased and there is no public announcement of the
appointment of a director to such class, or, if no appointment was made, of the vacancy in such
class, made by the corporation at least ten (10) days before the last day a stockholder may deliver
a notice of nomination in accordance with Section 5(b)(iii), a stockholders notice required by
this Section 5 and which complies with the requirements in Section 5(b)(i), other than the timing
requirements in Section 5(b)(iii), shall also be considered
4.
timely, but only with respect to nominees for any new positions in such Expiring Class created
by such increase, if it shall be received by 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. For purposes of this section, an
Expiring Class shall mean a class of directors whose term shall expire at the next annual meeting
of stockholders.
(e) To be eligible to be a nominee for election or re-election as a director of the
corporation pursuant to a nomination under clause (iii) of Section 5(a), such proposed nominee or a
person on such proposed nominees behalf must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 5(b)(iii) or 5(d), as applicable) to the Secretary
at the principal executive offices of the corporation a written questionnaire with respect to the
background and qualification of such proposed nominee and the background of any other person or
entity on whose behalf the nomination is being made (which questionnaire shall be provided by the
Secretary upon written request) and a written representation and agreement (in the form provided by
the Secretary upon written request) that such person (i) is not and will not become a party to (A)
any agreement, arrangement or understanding with, and has not given any commitment or assurance to,
any person or entity as to how such person, if elected as a director of the corporation, will act
or vote on any issue or question (a Voting Commitment) that has not been disclosed to the
corporation in the questionnaire or (B) any Voting Commitment that could limit or interfere with
such persons ability to comply, if elected as a director of the corporation, with such persons
fiduciary duties under applicable law; (ii) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the corporation with respect to
any direct or indirect compensation, reimbursement or indemnification in connection with service or
action as a director of the corporation that has not been disclosed therein; and (iii) in such
persons individual capacity and on behalf of any person or entity on whose behalf the nomination
is being made, would be in compliance, if elected as a director of the corporation, and will comply
with, all applicable publicly disclosed corporate governance, conflict of interest, confidentiality
and stock ownership and trading policies and guidelines of the corporation.
(f) A person shall not be eligible for election or re-election as a director unless the person
is nominated either in accordance with clause (ii) of Section 5(a), or in accordance with clause
(iii) of Section 5(a). Except as otherwise required by law, the chairman of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to be brought before
the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth
in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws,
or the Proponent does not act in accordance with the representations in Sections 5(b)(iv)(D) and
5(b)(iv)(E), to declare that such proposal or nomination shall not be presented for stockholder
action at the meeting and shall be disregarded, notwithstanding that proxies in respect of such
nominations or such business may have been solicited or received.
(g) Notwithstanding the foregoing provisions of this Section 5, in order to include
information with respect to a stockholder proposal in the proxy statement and form of proxy for a
stockholders meeting, a stockholder must also comply with all applicable requirements of the 1934
Act and the rules and regulations thereunder. Nothing in these Bylaws
5.
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
corporations proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that
any references in these Bylaws to the 1934 Act or the rules and regulations thereunder are not
intended to and shall not limit the requirements applicable to proposals and/or nominations to be
considered pursuant to Section 5(a)(iii) of these Bylaws.
(h) For purposes of Sections 5 and 6,
(i) public announcement shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a document publicly filed
by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the 1934 Act; and
(ii) affiliates and associates shall have the meanings set forth in Rule 405 under the
Securities Act of 1933, as amended (the 1933 Act).
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation may be called, for any purpose as
is a proper matter for stockholder action under Delaware law, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer or (iii) the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption).
(b) The Board of Directors shall determine the time and place, if any, of such special
meeting. Upon determination of the time and place, if any, of the meeting, the Secretary shall
cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with the
provisions of Section 7 of these Bylaws. No business may be transacted at such special meeting
otherwise than specified in the notice of meeting.
(c) Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) by or at the direction of the
Board of Directors or (ii) by any stockholder of the corporation who is a stockholder of record at
the time of giving notice provided for in this paragraph, who shall be entitled to vote at the
meeting and who delivers written notice to the Secretary of the corporation setting forth the
information required by Section 5(b)(i). In the event the corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of Directors, any such
stockholder of record may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporations notice of meeting, if written notice setting forth
the information required by Section 5(b)(i) of these Bylaws shall be received by the Secretary at
the principal executive offices of the corporation not later than the close of business on the
later of the ninetieth (90th) day prior to such 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 of Directors to be elected at such meeting. The
stockholder shall also update and supplement such information as required under Section 5(c). In
no event shall an adjournment or a postponement of a special meeting for which notice has
6.
been given, or the public announcement thereof has been made, commence a new time period for
the giving of a stockholders notice as described above.
(d) Notwithstanding the foregoing provisions of this Section 6, a stockholder must also comply
with all applicable requirements of the 1934 Act and the rules and regulations thereunder with
respect to matters set forth in this Section 6. Nothing in these Bylaws shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the corporations proxy statement
pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylaws
to the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the
requirements applicable to nominations for the election to the Board of Directors to be considered
pursuant to Section 6(c) of these Bylaws.
Section 7. Notice Of Meetings. Except as otherwise provided by law, notice, given in writing
or by electronic transmission, of each meeting of stockholders 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, such notice to specify the place, if any, date and hour, in the case of
special meetings, the purpose or purposes of the meeting, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at
any such meeting. If mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholders address as it appears on the records of
the corporation. Notice of the time, place, if any, and purpose of any meeting of stockholders may
be waived in writing, signed by the person entitled to notice thereof, or by electronic
transmission by such person, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person, by remote communication, if applicable, or by
proxy, except when the stockholder 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. Any stockholder so waiving notice of such meeting shall be bound by the
proceedings of any such meeting in all respects as if due notice thereof had been given.
Section 8. Quorum. At all meetings of stockholders, except where otherwise provided by
statute or by the Certificate of Incorporation, or by these Bylaws, the presence, in person, by
remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of
the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of
business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to
time, either by the chairman of the meeting or by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such meeting. The stockholders
present at a duly called or convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Except as otherwise provided by statute or by applicable stock exchange rules,
or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of
directors, the affirmative vote of the majority of shares present in person, by remote
communication, if applicable, or represented by proxy at the meeting and entitled to vote generally
on the subject matter shall be the act of the stockholders. Except as otherwise provided by
statute, the Certificate of Incorporation or these Bylaws, directors shall be elected by a
plurality of the votes of the shares present in person, by remote communication, if applicable, or
represented by proxy at the meeting and entitled to vote generally on the election
7.
of directors. Where a separate vote by a class or classes or series is required, except where
otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, a
majority of the outstanding shares of such class or classes or series, present in person, by remote
communication, if applicable, or represented by proxy duly authorized, shall constitute a quorum
entitled to take action with respect to that vote on that matter. Except where otherwise provided
by statute or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the
majority (plurality, in the case of the election of directors) of shares of such class or classes
or series present in person, by remote communication, if applicable, or represented by proxy at the
meeting shall be the act of such class or classes or series.
Section 9. Adjournment And Notice Of Adjourned Meetings. Any meeting of stockholders, whether
annual or special, may be adjourned from time to time either by the chairman of the meeting or by
the vote of a majority of the shares present in person, by remote communication, if applicable, or
represented by proxy at the meeting. When a meeting is adjourned to another time or place, if any,
notice need not be given of the adjourned meeting if the time and place, if any, thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting, the
corporation may transact any business which might have been transacted at the original meeting. 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 meeting.
Section 10. Voting Rights. For the purpose of determining those stockholders entitled to vote
at any meeting of the stockholders, except as otherwise provided by law, only persons in whose
names shares stand on the stock records of the corporation on the record date, as provided in
Section 12 of these Bylaws, shall be entitled to vote at any meeting of stockholders. Every person
entitled to vote shall have the right to do so either in person, by remote communication, if
applicable, or by an agent or agents authorized by a proxy granted in accordance with Delaware law.
An agent so appointed need not be a stockholder. No proxy shall be voted after three (3) years
from its date of creation unless the proxy provides for a longer period.
Section 11. Joint Owners Of Stock. If shares or other securities having voting power stand of
record in the names of two (2) or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more
persons have the same fiduciary relationship respecting the same shares, unless the Secretary is
given written notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their acts with respect to
voting shall have the following effect: (a) if only one (1) votes, his act binds all; (b) if more
than one (1) votes, the act of the majority so voting binds all; (c) if more than one (1) votes,
but the vote is evenly split on any particular matter, each faction may vote the securities in
question proportionally, or may apply to the Delaware Court of Chancery for relief as provided in
the DGCL, Section 217(b). If the instrument filed with the Secretary shows that any such tenancy
is held in unequal interests, a majority or even-split for the purpose of subsection (c) shall be a
majority or even-split in interest.
Section 12. List Of Stockholders. The Secretary shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders entitled to
8.
vote at said meeting, arranged in alphabetical order, 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, (a) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal
place of business of the corporation. In the event that the corporation determines to make the
list available on an electronic network, the corporation may take reasonable steps to ensure that
such information is available only to stockholders of the corporation. The list shall be open to
examination of any stockholder during the time of the meeting as provided by law.
Section 13. Action Without Meeting. No action shall be taken by the stockholders except at an
annual or special meeting of stockholders called in accordance with these Bylaws, and no action
shall be taken by the stockholders by written consent or by electronic transmission.
Section 14. Organization.
(a) At every meeting of stockholders, the Chairman of the Board of Directors, or, if a
Chairman has not been appointed or is absent, the President, or, if the President is absent, a
chairman of the meeting chosen by a majority in interest of the stockholders entitled to vote,
present in person or by proxy, shall act as chairman. The Secretary, or, in his or her absence, an
Assistant Secretary directed to do so by the President, shall act as secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations of the Board of Directors, if any, the chairman
of the meeting shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate
or convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such meeting to
stockholders of record of the corporation and their duly authorized and constituted proxies and
such other persons as the chairman shall permit, restrictions on entry to the meeting after the
time fixed for the commencement thereof, limitations on the time allotted to questions or comments
by participants and regulation of the opening and closing of the polls for balloting on matters
which are to be voted on by ballot. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Unless and to the extent determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with rules of parliamentary
procedure.
ARTICLE IV
DIRECTORS
Section 15. Number And Term Of Office. The authorized number of directors of the corporation
shall be fixed in accordance with the Certificate of Incorporation. Directors need not be
stockholders unless so required by the Certificate of Incorporation. If for any cause, the
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directors shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called for that purpose in the
manner provided in these Bylaws.
Section 16. Powers. The powers of the corporation shall be exercised, its business conducted
and its property controlled by the Board of Directors, except as may be otherwise provided by
statute or by the Certificate of Incorporation.
Section 17. Classes of Directors. Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the directors shall be
divided into three classes designated as Class I, Class II and Class III, respectively. The Board
of Directors is authorized to assign members of the Board of Directors already in office to such
classes at the time the classification becomes effective. At the first annual meeting of
stockholders following the initial classification of the Board of Directors, the term of office of
the Class I directors shall expire and Class I directors shall be elected for a full term of three
years. At the second annual meeting of stockholders following such initial classification, the
term of office of the Class II directors shall expire and Class II directors shall be elected for a
full term of three years. At the third annual meeting of stockholders following such initial
classification, the term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to succeed the directors of
the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this section, each director shall serve until his
successor is duly elected and qualified or until his earlier death, resignation or removal. No
decrease in the number of directors constituting the Board of Directors shall shorten the term of
any incumbent director.
Section 18. Vacancies. Unless otherwise provided in the Certificate of Incorporation, and
subject to the rights of the holders of any series of Preferred Stock, any vacancies on the Board
of Directors resulting from death, resignation, disqualification, removal or other causes and any
newly created directorships resulting from any increase in the number of directors shall, unless
the Board of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, be filled only by the affirmative vote of a majority
of the directors then in office, even though less than a quorum of the Board of Directors, or by a
sole remaining director, and not by the stockholders, provided, however, that 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 shall, unless the Board of Directors determines by resolution that
any such vacancies or newly created directorships shall be filled by stockholders, 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, and not by the stockholders. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such directors successor shall
have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist
under this Bylaw in the case of the death, removal or resignation of any director.
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Section 19. Resignation. Any director may resign at any time by delivering his or her notice
in writing or by electronic transmission to the Secretary, such resignation to specify whether it
will be effective at a particular time. If no such specification is made, it shall be deemed
effective at the time of delivery to the Secretary. When one or more directors shall resign from
the Board of Directors, effective at a future date, 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 for the unexpired portion of the term of the Director whose
place shall be vacated and until his successor shall have been duly elected and qualified.
Section 20. Removal.
(a) Subject to the rights of any series of Preferred Stock to elect additional directors under
specified circumstances neither the Board of Directors nor any individual director may be removed
without cause.
(b) Subject to any limitation imposed by law, any individual director or directors may be
removed with cause by the affirmative vote of the holders of a majority of the voting
power of all then outstanding shares of capital stock of the corporation entitled to vote generally
at an election of directors.
Section 21. Meetings.
(a) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation,
regular meetings of the Board of Directors may be held at any time or date and at any place within
or without the State of Delaware which has been designated by the Board of Directors and publicized
among all directors, either orally or in writing, by telephone, including a voice-messaging system
or other system designed to record and communicate messages, facsimile, telegraph or telex, or by
electronic mail or other electronic means. No further notice shall be required for regular
meetings of the Board of Directors.
(b) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation,
special meetings of the Board of Directors may be held at any time and place within or without the
State of Delaware whenever called by the Chairman of the Board, the Chief Executive Officer or a
majority of the authorized number of directors.
(c) Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or
of any committee thereof, may participate in a meeting by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute presence in person at such
meeting.
(d) Notice of Special Meetings. Notice of the time and place of all special meetings of the
Board of Directors shall be orally or in writing, by telephone, including a voice messaging system
or other system or technology designed to record and communicate messages, facsimile, telegraph or
telex, or by electronic mail or other electronic means, during normal business hours, at least
twenty-four (24) hours before the date and time of the meeting. If notice is sent by US mail, it
shall be sent by first class mail, charges prepaid, at least three (3) days
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before the date of the meeting. Notice of any meeting may be waived in writing, or by
electronic transmission, at any time before or after the meeting and will be waived by any director
by attendance thereat, except when the director attends the 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.
(e) Waiver of Notice. The transaction of all business at any meeting of the Board of
Directors, or any committee thereof, however called or noticed, or wherever held, shall be as valid
as though it had been transacted at a meeting duly held after regular call and notice, if a quorum
be present and if, either before or after the meeting, each of the directors not present who did
not receive notice shall sign a written waiver of notice or shall waive notice by electronic
transmission. All such waivers shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 22. Quorum And Voting.
(a) Unless the Certificate of Incorporation requires a greater number, and except with respect
to questions related to indemnification arising under Section 45 for which a quorum shall be
one-third of the exact number of directors fixed from time to time, a quorum of the Board of
Directors shall consist of a majority of the exact number of directors fixed from time to time by
the Board of Directors in accordance with the Certificate of Incorporation; provided, however, at
any meeting whether a quorum be present or otherwise, a majority of the directors present may
adjourn from time to time until the time fixed for the next regular meeting of the Board of
Directors, without notice other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a quorum is present, all questions and
business shall be determined by the affirmative vote of a majority of the directors present, unless
a different vote be required by law, the Certificate of Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting, if all members of
the Board of Directors or committee, as the case may be, consent thereto in writing or by
electronic transmission, and such writing or writings or transmission or transmissions are filed
with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Section 24. Fees And Compensation. Directors shall be entitled to such compensation for their
services as may be approved by the Board of Directors, including, if so approved, by resolution of
the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each
regular or special meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any director from serving
the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving
compensation therefor.
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Section 25. Committees.
(a) Executive Committee. The Board of Directors may appoint an Executive Committee to consist
of one (1) or more members of the Board of Directors. The Executive Committee, to the extent
permitted by law and provided in the resolution of the Board of Directors 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, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or authority in reference
to (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 DGCL to be submitted to
stockholders for approval, or (ii) adopting, amending or repealing any Bylaw of the corporation.
(b) Other Committees. The Board of Directors may, from time to time, appoint such other
committees as may be permitted by law. Such other committees appointed by the Board of Directors
shall consist of one (1) or more members of the Board of Directors and shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions creating such committees,
but in no event shall any such committee have the powers denied to the Executive Committee in these
Bylaws.
(c) Term. The Board of Directors, subject to any requirements of any outstanding series of
Preferred Stock and the provisions of subsections (a) or (b) of this Section 25, may at any time
increase or decrease the number of members of a committee or terminate the existence of a
committee. The membership of a committee member shall terminate on the date of his death or
voluntary resignation from the committee or from the Board of Directors. The Board of Directors
may at any time for any reason remove any individual committee member and the Board of Directors
may fill any committee vacancy created by death, resignation, removal or increase in the number of
members of the committee. The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of the
committee, and, in addition, in the absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they 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.
(d) Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this Section 25 shall be held at
such times and places as are determined by the Board of Directors, or by any such committee, and
when notice thereof has been given to each member of such committee, no further notice of such
regular meetings need be given thereafter. Special meetings of any such committee may be held at
any place which has been determined from time to time by such committee, and may be called by any
director who is a member of such committee, upon notice to the members of such committee of the
time and place of such special meeting given in the manner provided for the giving of notice to
members of the Board of Directors of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be waived in writing or by
electronic transmission at any time before or after the meeting and will be waived by any director
by attendance thereat, except when the director
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attends such special 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.
Unless otherwise provided by the Board of Directors in the resolutions authorizing the creation of
the committee, a majority of the authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a majority of those present at
any meeting at which a quorum is present shall be the act of such committee.
Section 26. Chairman of the Board of Directors. The Chairman of the Board of Directors, when
present, shall preside at all meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform other duties commonly incident to the office and
shall also perform such other duties and have such other powers, as the Board of Directors shall
designate from time to time.
Section 27. Lead Independent Director. The Chairman of the Board of Directors, or if the
Chairman is not an independent director, one of the independent directors, may be designated by the
Board of Directors as lead independent director to serve until replaced by the Board of Directors
(Lead Independent Director). The Lead Independent Director will: with the Chairman of the Board
of Directors, establish the agenda for regular Board meetings and serve as chairman of Board of
Directors meetings in the absence of the Chairman of the Board of Directors; establish the agenda
for meetings of the independent directors; coordinate with the committee chairs regarding meeting
agendas and informational requirements; preside over meetings of the independent directors; preside
over any portions of meetings of the Board of Directors at which the evaluation or compensation of
the Chief Executive Officer is presented or discussed; preside over any portions of meetings of the
Board of Directors at which the performance of the Board of Directors is presented or discussed;
and perform such other duties as may be established or delegated by the Chairman of the Board of
Directors.
Section 28. Organization. At every meeting of the directors, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the Lead Independent Director, or
if the Lead Independent Director is absent, the Chief Executive Officer (if a director), or, if a
Chief Executive Officer is absent, the President (if a director), or if the President is absent,
the most senior Vice President (if a director), or, in the absence of any such person, a chairman
of the meeting chosen by a majority of the directors present, shall preside over the meeting. The
Secretary, or in his absence, any Assistant Secretary or other officer or director directed to do
so by the President, shall act as secretary of the meeting.
ARTICLE V
OFFICERS
Section 29. Officers Designated. The officers of the corporation shall include, if and when
designated by the Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The Board of Directors
may also appoint one or more Assistant Secretaries and Assistant Treasurers and such other officers
and agents with such powers and duties as it shall deem necessary. The Board of Directors may
assign such additional titles to one or more of the officers as it shall deem appropriate. Any one
person may hold any number of offices of the corporation at any one time
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unless specifically prohibited therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner designated by the Board of
Directors.
Section 30. Tenure And Duties Of Officers.
(a) General. All officers shall hold office at the pleasure of the Board of Directors and
until their successors shall have been duly elected and qualified, unless sooner removed. Any
officer elected or appointed by the Board of Directors may be removed at any time by the Board of
Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled
by the Board of Directors.
(b) Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all
meetings of the stockholders and at all meetings of the Board of Directors (if a director), unless
the Chairman of the Board of Directors or the Lead Independent Director has been appointed and is
present. Unless an officer has been appointed Chief Executive Officer of the corporation, the
President shall be the chief executive officer of the corporation and shall, subject to the control
of the Board of Directors, have general supervision, direction and control of the business and
officers of the corporation. To the extent that a Chief Executive Officer has been appointed and no
President has been appointed, all references in these Bylaws to the President shall be deemed
references to the Chief Executive Officer. The Chief Executive Officer shall perform
other duties commonly incident to the office and shall also perform such other duties and have such
other powers, as the Board of Directors shall designate from time to time.
(c) Duties of President. The President shall preside at all meetings of the stockholders and
at all meetings of the Board of Directors (if a director),, unless the Chairman of the Board of
Directors, the Lead Independent Director, or the Chief Executive Officer has been appointed and is
present. Unless another officer has been appointed Chief Executive Officer of the corporation, the
President shall be the chief executive officer of the corporation and shall, subject to the control
of the Board of Directors, have general supervision, direction and control of the business and
officers of the corporation. The President shall perform other duties commonly incident
to the office and shall also perform such other duties and have such other powers, as the Board of
Directors shall designate from time to time.
(d) Duties of Vice Presidents. The Vice Presidents may assume and perform the duties of the
President in the absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall
also perform such other duties and have such other powers as the Board of Directors or the Chief
Executive Officer, or, if the Chief Executive Officer has not been appointed or is absent, the
President shall designate from time to time.
(e) Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of
the Board of Directors and shall record all acts and proceedings thereof in the minute book of the
corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of
the stockholders and of all meetings of the Board of Directors and any committee thereof requiring
notice. The Secretary shall perform all other duties provided for in
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these Bylaws and other duties commonly incident to the office and shall also perform such
other duties and have such other powers, as the Board of Directors shall designate from time to
time. The President may direct any Assistant Secretary or other officer to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary
shall perform other duties commonly incident to the office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall designate from time to
time.
(f) Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be
kept the books of account of the corporation in a thorough and proper manner and shall render
statements of the financial affairs of the corporation in such form and as often as required by the
Board of Directors or the President. The Chief Financial Officer, subject to the order of the
Board of Directors, shall have the custody of all funds and securities of the corporation. The
Chief Financial Officer shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers as the Board of Directors or the President
shall designate from time to time. To the extent that a Chief Financial Officer has been appointed
and no Treasurer has been appointed, all references in these Bylaws to the Treasurer shall be
deemed references to the Chief Financial Officer. The President may direct the Treasurer,
if any, or any Assistant Treasurer, or the Controller or any Assistant Controller to assume and
perform the duties of the Chief Financial Officer in the absence or disability of the Chief
Financial Officer, and each Treasurer and Assistant Treasurer and each Controller and Assistant
Controller shall perform other duties commonly incident to the office and shall also perform such
other duties and have such other powers as the Board of Directors or the President shall designate
from time to time.
(g) Duties of Treasurer. Unless another officer has been appointed Chief Financial Officer of
the corporation, the Treasurer shall be the chief financial officer of the corporation and shall
keep or cause to be kept the books of account of the corporation in a thorough and proper manner
and shall render statements of the financial affairs of the corporation in such form and as often
as required by the Board of Directors or the President, and, subject to the order of the Board of
Directors, shall have the custody of all funds and securities of the corporation. The
Treasurer shall perform other duties commonly incident to the office and shall also perform such
other duties and have such other powers as the Board of Directors or the President shall designate
from time to time.
Section 31. Delegation Of Authority. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officer or agent, notwithstanding any provision
hereof.
Section 32. Resignations. Any officer may resign at any time by giving notice in writing or
by electronic transmission to the Board of Directors or to the President or to the Secretary. Any
such resignation shall be effective when received by the person or persons to whom such notice is
given, unless a later time is specified therein, in which event the resignation shall become
effective at such later time. Unless otherwise specified in such notice, the acceptance of any
such resignation shall not be necessary to make it effective. Any resignation shall be without
prejudice to the rights, if any, of the corporation under any contract with the resigning officer.
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Section 33. Removal. Any officer may be removed from office at any time, either with or
without cause, by the affirmative vote of a majority of the directors in office at the time, or by
the unanimous written consent of the directors in office at the time, or by any committee or by the
Chief Executive Officer or by other superior officers upon whom such power of removal may have been
conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES
OWNED BY THE CORPORATION
OWNED BY THE CORPORATION
Section 34. Execution Of Corporate Instruments. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or officers, or other person
or persons, to execute on behalf of the corporation any corporate instrument or document, or to
sign on behalf of the corporation the corporate name without limitation, or to enter into contracts
on behalf of the corporation, except where otherwise provided by law or these Bylaws, and such
execution or signature shall be binding upon the corporation.
All checks and drafts drawn on banks or other depositaries on funds to the credit of the
corporation or in special accounts of the corporation shall be signed by such person or persons as
the Board of Directors shall authorize so to do.
Unless authorized or ratified by the Board of Directors 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 35. Voting Of Securities Owned By The Corporation. All stock and other securities of
other corporations owned or held by the corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person
authorized so to do by resolution of the Board of Directors, or, in the absence of such
authorization, by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President.
ARTICLE VII
SHARES OF STOCK
Section 36. Form And Execution Of Certificates. The shares of the corporation shall be
represented by certificates, or shall be uncertificated if so provided by resolution or resolutions
of the Board of Directors. Certificates for the shares of stock, if any, shall be in such form as
is consistent with the Certificate of Incorporation and applicable law. Every holder of stock
represented by certificate in the corporation shall be entitled to have a certificate signed by or
in the name of the corporation by the Chairman of the Board of Directors, or the President or any
Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the corporation. Any or all of the signatures on
the certificate may be facsimiles. In case any officer, transfer agent, or registrar
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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 with the same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section 37. Lost Certificates. A new certificate or certificates shall be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or
destroyed certificate or certificates, or the owners legal representative, to agree to indemnify
the corporation in such manner as it shall require or to give the corporation a surety bond in such
form and amount as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 38. Transfers.
(a) Transfers of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock
represented by certificate, upon the surrender of a properly endorsed certificate or certificates
for a like number of shares.
(b) The corporation shall have power to enter into and perform any agreement with any number
of stockholders of any one or more classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the DGCL.
Section 39. Fixing Record Dates.
(a) In order that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors 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 of Directors, and which record date shall, subject to
applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day 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 of Directors may fix a new
record date for 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 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, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted, and
which record date shall be not more than sixty (60) days prior to such
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action. If no 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 of Directors adopts the
resolution relating thereto.
Section 40. Registered Stockholders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
Section 41. Execution Of Other Securities. All bonds, debentures and other corporate
securities of the corporation, other than stock certificates (covered in Section 36), may be signed
by the Chairman of the Board of Directors, the President or any Vice President, or such other
person as may be authorized by the Board of Directors, and the corporate seal impressed thereon or
a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an
Assistant Secretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer;
provided, however, that where any such bond, debenture or other corporate security shall be
authenticated by the manual signature, or where permissible facsimile signature, of a trustee under
an indenture pursuant to which such bond, debenture or other corporate security shall be issued,
the signatures of the persons signing and attesting the corporate seal on such bond, debenture or
other corporate security may be the imprinted facsimile of the signatures of such persons.
Interest coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer
of the corporation or such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer who shall have
signed or attested any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon or on any such interest coupon, shall have ceased to be such officer before
the bond, debenture or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by the corporation and
issued and delivered as though the person who signed the same or whose facsimile signature shall
have been used thereon had not ceased to be such officer of the corporation.
ARTICLE IX
DIVIDENDS
Section 42. Declaration Of Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be
declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of
the Certificate of Incorporation and applicable law.
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Section 43. Dividend Reserve. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the Board of Directors
from time to time, in their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think conducive to the
interests of the corporation, and the Board of Directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE X
FISCAL YEAR
Section 44. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of
the Board of Directors.
ARTICLE XI
INDEMNIFICATION
Section 45. Indemnification of Directors, Executive Officers, Other Officers, Employees and
Other Agents.
(a) Directors and Executive Officers. The corporation shall indemnify its directors
and executive officers (for the purposes of this Article XI, executive officers shall have the
meaning defined in Rule 3b-7 promulgated under the 1934 Act) to the extent not prohibited by the
DGCL or any other applicable law; provided, however, that the corporation may modify the extent of
such indemnification by individual contracts with its directors and executive officers; and,
provided, further, that the corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof) initiated by such person
unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was
authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by
the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the
DGCL or any other applicable law or (iv) such indemnification is required to be made under
subsection (d).
(b) Other Officers, Employees and Other Agents. The corporation shall have power to indemnify
its other officers, employees and other agents as set forth in the DGCL or any other applicable
law. The Board of Directors shall have the power to delegate the determination of whether
indemnification shall be given to any such person except executive officers to such officers or
other persons as the Board of Directors shall determine.
(c) Expenses. The corporation shall advance to 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, by reason of the fact that he is or was a
director or executive officer, of the corporation, or is or was serving at the request of the
corporation as a director or executive officer of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, or as a member or manager of a limited
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liability company, as a partner of a partnership or as a trustee of a trust, prior to the
final disposition of the proceeding, promptly following request therefor, all expenses incurred by
any director or executive officer in connection with such proceeding provided, however, that if the
DGCL requires, an advancement of expenses incurred by a director or executive officer in his or her
capacity as a director or executive officer (and not in any other capacity in which service was or
is rendered by such indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the corporation of an undertaking (hereinafter an
undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal
(hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified for
such expenses under this section or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (e) of this
section, no advance shall be made by the corporation to an executive officer of the corporation
(except by reason of the fact that such executive officer is or was a director of the corporation
in which event this paragraph shall not apply) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is reasonably and promptly made
(i) by a majority vote of directors who were not parties to the proceeding, even if not a quorum,
or (ii) by a committee of such directors designated by a majority vote of such directors, even
though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by
independent legal counsel in a written opinion, that the facts known to the decision-making party
at the time such determination is made demonstrate clearly and convincingly that such person acted
in bad faith or in a manner that such person did not believe to be in or not opposed to the best
interests of the corporation.
(d) Enforcement. Without the necessity of entering into an express contract, all rights to
indemnification and advances to directors and executive officers under this Bylaw shall be deemed
to be contractual rights and be effective to the same extent and as if provided for in a contract
between the corporation and the director or executive officer. Any right to indemnification or
advances granted by this section to a director or executive officer shall be enforceable by or on
behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is
made within ninety (90) days of request therefor. To the extent permitted by law, the claimant in
such enforcement action, if successful in whole or in part, shall be entitled to be paid also the
expense of prosecuting the claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such action that the claimant has not
met the standards of conduct that make it permissible under the DGCL or any other applicable law
for the corporation to indemnify the claimant for the amount claimed. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he has met the applicable standard of conduct set
forth in the DGCL or any other applicable law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel or its stockholders) that the claimant
has not met such applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct. In any suit brought by a
director or executive officer to enforce a right to indemnification or to an advancement of
expenses hereunder, the burden of proving that the
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director or executive officer is not entitled to be indemnified, or to such advancement of
expenses, under this section or otherwise shall be on the corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be
exclusive of any other right which such person may have or hereafter acquire under any applicable
statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity and as to action
in another capacity while holding office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the DGCL, or by any other
applicable law.
(f) Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to
a person who has ceased to be a director or executive officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the
corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any
person required or permitted to be indemnified pursuant to this section.
(h) Amendments. Any repeal or modification of this section shall only be prospective and
shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any
action or omission to act that is the cause of any proceeding against any agent of the corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the corporation shall nevertheless indemnify each
director and executive officer to the full extent not prohibited by any applicable portion of this
section that shall not have been invalidated, or by any other applicable law. If this section
shall be invalid due to the application of the indemnification provisions of another jurisdiction,
then the corporation shall indemnify each director and executive officer to the full extent under
any other applicable law.
(j) Certain Definitions. For the purposes of this Bylaw, the following definitions shall
apply:
(i) The term proceeding shall be broadly construed and shall include, without limitation,
the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and
the giving of testimony in, any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative.
(ii) The term expenses shall be broadly construed and shall include, without limitation,
court costs, attorneys fees, witness fees, fines, amounts paid in settlement or judgment and any
other costs and expenses of any nature or kind incurred in connection with any proceeding.
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(iii) The term the corporation shall 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, shall stand in the same
position under the provisions of this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its separate existence
had continued.
(iv) References to a director, executive officer, officer, employee, or agent of the
corporation shall include, without limitation, situations where such person is serving at the
request of the corporation as, respectively, a director, manager, partner, member, executive
officer, officer, employee, trustee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise. References to director and directors
include directors in their capacities as members of the Board of Directors and as members of any
committee (including the audit committee) of the Board of Directors.
(v) References to other enterprises shall include employee benefit plans; references to
fines shall include any excise taxes assessed on a person with respect to an employee benefit
plan; and references to serving at the request of the corporation shall include any service as a
director, 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 he
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 section.
ARTICLE XII
NOTICES
Section 46. Notices.
(a) Notice To Stockholders. Written notice to stockholders of stockholder meetings shall be
given as provided in Section 7 herein. Without limiting the manner by which notice may otherwise
be given effectively to stockholders under any agreement or contract with such stockholder, and
except as otherwise required by law, written notice to stockholders for purposes other than
stockholder meetings may be sent by US mail or nationally recognized overnight courier, or by
facsimile, telegraph or telex or by electronic mail or other electronic means.
(b) Notice To Directors. Any notice required to be given to any director may be given by the
method stated in subsection (a), as otherwise provided in these Bylaws, or by overnight delivery
service, facsimile, telex or telegram, except that such notice other than one
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which is delivered personally shall be sent to such address as such director shall have filed
in writing with the Secretary, or, in the absence of such filing, to the last known post office
address of such director.
(c) Affidavit Of Mailing. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with respect to the class of
stock affected, or other agent, specifying the name and address or the names and addresses of the
stockholder or stockholders, or director or directors, to whom any such notice or notices was or
were given, and the time and method of giving the same, shall in the absence of fraud, be prima
facie evidence of the facts therein contained.
(d) Methods of Notice. It shall not be necessary that the same method of giving notice be
employed in respect of all recipients of notice, but one permissible method may be employed in
respect of any one or more, and any other permissible method or methods may be employed in respect
of any other or others.
(e) Notice To Person With Whom Communication Is Unlawful. Whenever notice is required to be
given, under any provision of law or of the Certificate of Incorporation or Bylaws of the
corporation, to any person with whom communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or meeting which
shall be taken or held without notice to any such person with whom communication is unlawful shall
have the same force and effect as if such notice had been duly given. In the event that the action
taken by the corporation is such as to require the filing of a certificate under any provision of
the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice
was given to all persons entitled to receive notice except such persons with whom communication is
unlawful.
(f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under DGCL, any
notice given under the provisions of DGCL, the Certificate of Incorporation or the Bylaws shall be
effective if given by a single written notice to stockholders who share an address if consented to
by the stockholders at that address to whom such notice is given. Such consent shall have been
deemed to have been given if such stockholder fails to object in writing to the corporation within
sixty (60) days of having been given notice by the corporation of its intention to send the single
notice. Any consent shall be revocable by the stockholder by written notice to the corporation.
ARTICLE XIII
AMENDMENTS
Section 47. Amendments. Subject to the limitations set forth in Section 45(h) of these Bylaws
or the provisions of the Certificate of Incorporation, the Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the corporation. Any adoption, amendment or
repeal of the Bylaws of the corporation by the Board of Directors shall require the approval of a
majority of the authorized number of directors. The stockholders also shall have power to adopt,
amend or repeal the Bylaws of the corporation; provided, however, that, in
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addition to any vote of the holders of any class or series of stock of the corporation
required by law or by the Certificate of Incorporation, such action by stockholders shall require
the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of all of the then-outstanding shares of the capital stock of the corporation entitled
to vote generally in the election of directors, voting together as a single class.
ARTICLE XIV
LOANS TO OFFICERS
Section 48. Loans To Officers. Except as otherwise prohibited by applicable law, the
corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or
other employee of the corporation or of its subsidiaries, including any officer or employee who is
a director of the corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to benefit the
corporation. The loan, guarantee or other assistance may be with or without interest and may be
unsecured, or secured in such manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the corporation. Nothing in these Bylaws shall be
deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common
law or under any statute.
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