Attached files
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8-K - FORM 8-K - Spectrum Brands Holdings, Inc. | y81159e8vk.htm |
EX-3.1 - EX-3.1 - Spectrum Brands Holdings, Inc. | y81159exv3w1.htm |
EX-2.1 - EX-2.1 - Spectrum Brands Holdings, Inc. | y81159exv2w1.htm |
EX-10.1 - EX-10.1 - Spectrum Brands Holdings, Inc. | y81159exv10w1.htm |
Exhibit
3.2
BYLAWS
OF
HARBINGER GROUP INC.
(A DELAWARE CORPORATION)
OF
HARBINGER GROUP INC.
(A DELAWARE CORPORATION)
Article I.
Meetings
of Stockholders
Section 1.01 Annual
Meetings. If required by applicable law, an
annual meeting of stockholders shall be held for the election of
directors at such date, time and place, if any, either within or
without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time. Only
such business as is properly designated by resolution of the
Board of Directors or otherwise brought before such meeting in
accordance with the Corporations Certificate of
Incorporation (Certificate of Incorporation) and
these Bylaws may be transacted at the annual meeting.
Section 1.02 Special
Meetings. Special meetings of stockholders
for any purpose or purposes may be called at any time by either
(a) the Chairman of the Board of Directors or (b) by
the Secretary or other officer of the Corporation upon delivery
of a written request executed by three directors or, if there
are fewer than three directors in office at that time, by all
incumbent directors, which request shall specify the purpose of
and business to be conducted at such special meeting. Special
meetings may not be called by any other person or persons.
Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.
Section 1.03 Notice
of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a notice
of the meeting shall be given that shall state the place, if
any, date and hour of the meeting, the means of remote
communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such meeting,
the record date for determining the stockholders entitled to
vote at the meeting (if such date is different from the record
date for stockholders entitled to notice of the meeting) and, in
the case of a special meeting, the purpose or purposes for which
the meeting is called. Unless otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the notice of any
meeting shall be given not less than ten nor more than
60 days before the date of the meeting to each stockholder
entitled to vote at the meeting as of the record date for
determining the stockholders entitled to notice of the meeting.
If mailed, such notice shall be deemed to be 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. The attendance of any
stockholder at a meeting, whether in person or by proxy, without
protesting at the beginning of the meeting that the meeting is
not lawfully called or convened, shall constitute a waiver of
notice by such stockholder.
Section 1.04 Adjournments. Any
meeting of stockholders, annual or special, may adjourn from
time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the
time and place 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
30 days, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
If after the adjournment a new record date for stockholders
entitled to vote is fixed for the adjourned meeting, the Board
of Directors shall fix a new record date for notice of such
adjourned meeting, and shall give notice of the adjourned
meeting to each stockholder of record entitled to vote at such
adjourned meeting as of the record date for notice of such
adjourned meeting.
Section 1.05 Quorum. Except
as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, at each meeting of stockholders the presence in
person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the
meeting shall be necessary and sufficient to constitute a
quorum. In the absence of a quorum, the person presiding over
such meeting or stockholders present acting by a majority in
voting power thereof, may adjourn the meeting from time to time
in the manner provided in Section 1.04 of these Bylaws
until a quorum shall attend. Shares of its own stock belonging
to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted
for quorum purposes;
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provided, however, that the foregoing shall not limit the
right of the Corporation or any subsidiary of the Corporation to
vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.06 Organization. Meetings
of stockholders shall be presided over by the Chairman of the
Board of Directors or, in his or her absence, by the Chief
Executive Officer or, in his or her absence, by the President
or, in his or her absence, by a Vice President or, in the
absence of the foregoing persons, by a chairman designated by
the Board of Directors or, in the absence of such designation,
by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence, or at the
request of the Secretary or the person presiding over the
meeting, any other person may be selected to act as secretary of
the meeting.
Section 1.07 Voting;
Proxies. Except as otherwise provided by or
pursuant to the provisions of the Certificate of Incorporation,
each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by
such stockholder which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of
stockholders 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. A proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is
coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any proxy which is
not irrevocable by attending the meeting and voting in person or
by delivering to the Secretary of the Corporation a revocation
of the proxy or a new proxy bearing a later date. Voting at
meetings of stockholders need not be by written ballot. At all
meetings of stockholders for the election of directors at which
a quorum is present a plurality of the votes cast shall be
sufficient to elect. All other elections and questions presented
to the stockholders at a meeting at which a quorum is present
shall, unless otherwise provided by the Certificate of
Incorporation, these Bylaws, the rules or regulations of any
stock exchange applicable to the Corporation, or applicable law
or pursuant to any regulation applicable to the Corporation or
its securities, be decided by the affirmative vote of the
holders of a majority in voting power of the shares of stock of
the Corporation which are present in person or by proxy and
entitled to vote thereon.
Section 1.08 Fixing
Date for Determination of Stockholders of
Record.
(a) In order that the Corporation may determine the
stockholders entitled to notice of 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, unless
otherwise required by law, not be more than 60 nor less than
10 days before the date of such meeting. If the Board of
Directors so fixes a date, such date shall also be the record
date for determining the stockholders entitled to vote at such
meeting unless the Board of Directors determines, at the time it
fixes such record date, that a later date on or before the date
of the meeting shall be the date for making such determination.
If no record date is fixed by the Board 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 determination
of stockholders entitled to vote at the adjourned meeting, and
in such case shall also fix as the record date for stockholders
entitled to notice of such adjourned meeting the same or an
earlier date as that fixed for determination of stockholders
entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which shall not be
more than 60 days prior to such other action. If no such
record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 1.09 List
of Stockholders Entitled to Vote. The officer
who has charge of the stock ledger shall prepare and make, at
least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting
(provided, however, if the record date for determining
the stockholders entitled to vote is less than ten days before
the date of the meeting, the list shall reflect the stockholders
entitled to vote as of the tenth day
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before the meeting date), arranged in alphabetical order, and
showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose
germane to the meeting at least ten days prior 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 meeting or (b) during ordinary
business hours at the principal place of business of the
Corporation. If the meeting is to be held at a place, then a
list of stockholders entitled to vote at the meeting shall be
produced and kept at the time and place of the meeting during
the whole time thereof and may be examined by any stockholder
who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with
the notice of the meeting. Except as otherwise provided by law,
the stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders
required by this Section 1.09 or to vote in person or by
proxy at any meeting of stockholders.
Section 1.10 Action
by Written Consent of Stockholders. To the
fullest extent and in the manner permitted by law, any action
required or permitted to be taken at a meeting of the
stockholders or of a class or series of stockholders may be
taken without a meeting of the stockholders or of such class or
series of stockholders upon the consent in writing signed by
such stockholders who would have been entitled to vote the
minimum number of votes that would be necessary to authorize the
action at a meeting at which all the stockholders entitled to
vote thereon were present and voting. The consents shall be
filed with the Secretary.
Section 1.11 Inspectors
of Election. The Corporation shall, in
advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation,
to act at the meeting or any adjournment thereof and to make a
written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector
who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the
person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his or her duties, shall take and
sign an oath to execute faithfully the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated
shall (a) ascertain the number of shares of capital stock
of the Corporation outstanding and the voting power of each such
share, (b) determine the shares of capital stock of the
Corporation represented at the meeting and the validity of
proxies and ballots, (c) count all votes and ballots,
(d) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination
by the inspectors, and (e) certify their determination of
the number of shares of capital stock of the Corporation
represented at the meeting and such inspectors count of
all votes and ballots. Such certification and report shall
specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots
cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an
election may serve as an inspector at such election.
Section 1.12 Conduct
of Meetings. The date and time of the opening
and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the
meeting by the person presiding over the meeting. The Board of
Directors may adopt by resolution such rules and regulations for
the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules
and regulations as adopted by the Board of Directors, the person
presiding over any meeting of stockholders shall have the right
and authority to convene and (for any or no reason) to adjourn
the meeting, to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such presiding
person, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the
Board of Directors or prescribed by the presiding person of the
meeting, may include, without limitation, the following:
(a) the establishment of an agenda or order of business for
the meeting; (b) rules and procedures for maintaining order
at the meeting and the safety of those present;
(c) limitations on attendance at or participation in the
meeting to stockholders entitled to vote at the meeting, their
duly authorized and constituted proxies or such other persons as
the presiding person of the meeting shall determine;
(d) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (e) limitations on
the time allotted to questions or comments by participants. The
presiding person at any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the
conduct of the meeting, shall, if the facts warrant, determine
and declare to the meeting that a
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matter or business was not properly brought before the meeting
and if such presiding person should so determine, such presiding
person shall so declare to the meeting and any such matter or
business not properly brought before the meeting shall not be
transacted or considered. Unless and to the extent determined by
the Board of Directors or the person presiding over the meeting,
meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 1.13 Notice
of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of other business to be
considered by the stockholders may be made at an annual meeting
of stockholders only:
(i) pursuant to the Corporations notice of meeting
(or any supplement thereto);
(ii) by or at the direction of the Board of Directors or
any committee thereof; or
(iii) by any stockholder of the Corporation who was a
stockholder of record of the Corporation at the time the notice
provided for in Section 1.13(c)(i) is delivered to the
Secretary of the Corporation, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in
this Section 1.13(c)(i).
(b) Special Meetings of
Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the
Corporations notice of meeting. 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
pursuant to the Corporations notice of meeting (i) by
or at the direction of the Board of Directors or any committee
thereof or (ii) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of
record at the time the notice required by
Section 1.13(c)(i) is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon
such election and who complies with the notice requirements set
forth in Section 1.13(c)(i).
(c) Stockholders Notice. For
any nominations or other business to be properly brought before
an annual meeting or special meeting by a stockholder pursuant
Section 1.13(a)(iii) or Section 1.13(b)(ii), the
stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation and any such proposed business
(other than the nominations of persons for election to the Board
of Directors) must constitute a proper matter for stockholder
action.
(i) Timing of Stockholders Notice.
(A) For a stockholders notice with respect to an
annual meeting to be timely, it must be delivered to the
Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th day, nor
earlier than the close of business on the
120th
day, prior to the first anniversary of the preceding years
annual meeting (provided, however, that in the event that
the date of the annual meeting is more than 30 days before
or more than 70 days after such anniversary date, notice by
the stockholder must be so delivered not earlier than the close
of business on the
120th day
prior to such annual meeting and not later than the close of
business on the later of the
90th day
prior to such annual meeting or the tenth day following the day
on which public announcement of the date of such meeting is
first made by the Corporation). Notwithstanding anything in the
previous sentence to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the
Corporation is increased effective at the annual meeting and
there is no public announcement by the Corporation naming the
nominees for the additional directorships at least 100 days
prior to the first anniversary of the preceding years
annual meeting, a stockholders notice required by this
Section 1.13 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it
shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business
on the
10th day
following the day on which such public announcement is first
made by the Corporation.
(B) For a stockholders notice with respect to a
special meeting of stockholders called by the Corporation for
the purpose of electing one or more directors to the Board of
Directors to be timely, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as
the case may be) for election to such
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position(s) as specified in the Corporations notice of
meeting, if the stockholders notice required by
Section 1.13(b)(ii) shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier
than the close of business on the
120th day
prior to such special meeting and not later than the close of
business on the later of the
90th day
prior to such special meeting or the
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.
(C) In no event shall the public announcement of an
adjournment or postponement of an annual meeting or special
meeting commence a new time period (or extend any time period)
for the giving of a stockholders notice as described above.
(ii) Content of Stockholders
Notice. The stockholders notice shall set
forth:
(A) as to each person whom the stockholder proposes to
nominate for election as a director (y) all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case
pursuant to and in accordance with Section 14(a) of the
Securities Exchange Act of 1934, as amended (the Exchange
Act) and the rules and regulations promulgated thereunder,
and (z) such persons written consent to being named
in the proxy statement as a nominee and to serving as a director
if elected;
(B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business
includes a proposal to amend the Bylaws of the Corporation, the
language of the proposed amendment), the reasons for conducting
such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made; and
(C) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (1) the name and address of such
stockholder, as they appear on the Corporations books, and
of such beneficial owner, (2) the class or series and
number of shares of capital stock of the Corporation which are
owned beneficially and of record by such stockholder and such
beneficial owner, (3) a description of any agreement,
arrangement or understanding with respect to the nomination or
proposal between or among such stockholder
and/or such
beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the
foregoing, including, in the case of a nomination, the nominee,
(4) a description of any agreement, arrangement or
understanding (including any derivative or short positions,
profit interests, options, warrants, convertible securities,
stock appreciation or similar rights, hedging transactions, and
borrowed or loaned shares) that has been entered into as of the
date of the stockholders notice by, or on behalf of, such
stockholder and such beneficial owners, whether or not such
instrument or right shall be subject to settlement in underlying
shares of capital stock of the Corporation, the effect or intent
of which is to mitigate loss to, manage risk or benefit of share
price changes for, or increase or decrease the voting power of,
such stockholder or such beneficial owner, with respect to
shares of stock of the Corporation, (5) a representation
that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to propose such
business or nomination, (6) a representation whether the
stockholder or the beneficial owner, if any, intends or is part
of a group which intends (x) to deliver a proxy statement
and/or form
of proxy to holders of at least the percentage of the
Corporations outstanding capital stock required to approve
or adopt the proposal or elect the nominee
and/or
(y) otherwise to solicit proxies or votes from stockholders
in support of such proposal or nomination, and (7) any
other information relating to such stockholder and beneficial
owner, if any, required to be disclosed in a proxy statement or
other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal
and/or for
the election of directors in an election contest pursuant to and
in accordance with Section 14(a) of the Exchange Act and
the rules and regulations promulgated thereunder.
(iii) Other Information. The Corporation
may require any proposed nominee to furnish such other
information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of
the Corporation, including, but not limited to, requiring
proposed nominees to respond to a questionnaire providing
information about the candidates background and
qualifications, to represent that he or she has no agreements
with
5
any third party as to voting or compensation in connection with
his or her service as a director, and to agree to abide by
applicable confidentiality, governance, conflicts, stock
ownership and trading policies of the Corporation. The foregoing
notice requirements of this Section 1.13(c) shall be deemed
satisfied by a stockholder with respect to business other than a
nomination if the stockholder has notified the Corporation of
his, her or its intention to present a proposal at an annual
meeting in compliance with applicable rules and regulations
promulgated under the Exchange Act and such stockholders
proposal has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such annual
meeting.
(d) General.
(i) Only such persons who are nominated in accordance with
the procedures set forth in this Section 1.13 shall be
eligible to be elected at an annual or special meeting of
stockholders of the Corporation to serve as directors and only
such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with
the procedures set forth in this Section 1.13. Except as
otherwise provided by law, the person presiding over the meeting
shall have the power and duty:
(A) 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 this Section 1.13 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or
proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies or
votes in support of such stockholders nominee or proposal
in compliance with such stockholders representation as
required by clause (6) of Section 1.13(c)(ii)(C)
hereof); and
(B) if any proposed nomination or business was not made or
proposed in compliance with this Section 1.13, to declare
that such nomination shall be disregarded or that such proposed
business shall not be transacted. Notwithstanding the foregoing
provisions of this Section 1.13, unless otherwise required
by law, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or
proposed business, such nomination shall be disregarded and such
proposed business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 1.13, to be
considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner of
such stockholder or must be authorized by a writing executed by
such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting
of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the
writing or electronic transmission, at the meeting of
stockholders.
(ii) For purposes of this Section 1.13, public
announcement shall include disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
other national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act and
the rules and regulations promulgated thereunder.
(iii) Notwithstanding the foregoing provisions of this
Section 1.13, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and
regulations promulgated thereunder with respect to the matters
set forth in this Section 1.13; provided however,
that any references in these Bylaws to the Exchange Act or the
rules and regulations promulgated thereunder are not intended to
and shall not limit any requirements applicable to nominations
or proposals as to any other business to be considered pursuant
to this Section 1.13 (including Section 1.13(a)(iii)
and Section 1.13(b) hereof), and compliance with
Section 1.13(a)(iii) and Section 1.13(b) shall be the
exclusive means for a stockholder to make nominations or submit
other business (other than, as provided in the last sentence of
Section 1.13(c)(iii), matters brought properly under and in
compliance with
Rule 14a-8
of the Exchange Act, as may be amended from time to time).
Nothing in this Section 1.13 shall be deemed to affect any
rights (A) of stockholders to request inclusion of
proposals in the Corporations proxy statement pursuant to
applicable rules and regulations promulgated under the Exchange
Act or (B) of the holders of any series of Preferred Stock
to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
6
Article II.
Board of
Directors
Section 2.01 Number;
Qualifications. Subject to the Certificate of
Incorporation, the Board of Directors shall initially consist of
seven members and the size of the Board of Directors may be
decreased or increased, from time to time, by resolution of the
Board of Directors. Directors need not be stockholders.
Section 2.02 Election;
Resignation; Vacancies. Each director shall
be elected in the manner specified in the Certificate of
Incorporation and these Bylaws and shall hold office until such
time as is set forth therein and herein. Any director may resign
at any time upon notice to the Corporation. Unless otherwise
provided by law or the Certificate of Incorporation, any newly
created directorship or any vacancy occurring in the Board of
Directors for any reason may be filled only by a majority of the
remaining members of the Board of Directors, although such
majority is less than a quorum, and each director so elected
shall hold office until the expiration of the term of office of
the director whom he or she has replaced or until his or her
successor is elected and qualified.
Section 2.03 Regular
Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State
of Delaware and at such times as the Board of Directors may from
time to time determine.
Section 2.04 Special
Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the
State of Delaware whenever called by the Chairman of the Board,
Chief Executive Officer, or by the Secretary upon written
request of any three members of the Board of Directors or, if
there are fewer than three directors in office at that time, by
all incumbent directors. Notice of a special meeting of the
Board of Directors shall be given by the person or persons
calling the meeting orally or in writing, by telephone,
facsimile, telegraph or telex, or by electronic mail or other
electronic means, during normal business hours, at least
24 hours before the date and time of the meeting.
Section 2.05 Telephonic
Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of
Directors, may participate in a meeting thereof 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 pursuant to this
Section 2.05 shall constitute presence in person at such
meeting.
Section 2.06 Quorum;
Vote Required for Action. At all meetings of
the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum or, if there are fewer
directors then in office than the number of directors required
to constitute such a quorum, a majority of the members of the
Board of Directors then in office shall constitute a quorum.
Except in cases in which the Certificate of Incorporation, these
Bylaws or applicable law otherwise provides, a majority of the
votes entitled to be cast by the directors present at a meeting
at which a quorum is present shall be the act of the Board of
Directors.
Section 2.07 Organization. Meetings
of the Board of Directors shall be presided over by the Chairman
of the Board of Directors or, in his or her absence, by a
chairman chosen at the meeting. The Secretary or other person
chosen by the Secretary shall act as secretary of the meeting,
but in his or her absence, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.08 Action
by Unanimous Consent of Directors. 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 such committee, as the case may be,
consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmissions are filed with
the minutes of proceedings of the Board of Directors or
committee in accordance with applicable law.
Section 2.09 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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Article III.
Committees
Section 3.01 Committees. The
Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. 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. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the
extent permitted by law and to the extent 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.
Section 3.02 Committee
Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of
its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of
these Bylaws.
Article IV.
Officers
Section 4.01 Officers. The
officers of the Corporation may consist of a Chairman of the
Board of Directors, a Chief Executive Officer, a Chief Financial
Officer, a President, one or more Vice Presidents, a Secretary,
a Treasurer, a Controller and such other officers as the Board
of Directors may from time to time determine, each of whom shall
be elected by the Board of Directors, each to have such
authority, functions or duties as set forth in these Bylaws or
as determined by the Board of Directors. Each officer shall be
chosen by the Board of Directors and shall hold office for such
term as may be prescribed by the Board of Directors and until
such persons successor shall have been duly chosen and
qualified, or until such persons earlier death,
disqualification, resignation or removal.
Section 4.02 Removal,
Resignation and Vacancies. Any officer of the
Corporation may be removed, with or without cause, by the Board
of Directors, without prejudice to the rights, if any, of such
officer under any contract to which he or she is a party. Any
officer may resign at any time upon written notice to the
Corporation, without prejudice to the rights, if any, of the
Corporation under any contract to which such officer is a party.
If any vacancy occurs in any office of the Corporation, the
Board of Directors may elect a successor to fill such vacancy
until the earlier of such officers resignation, removal,
death or until a successor shall have been duly chosen and
qualified.
Section 4.03 Chairman
of the Board of Directors. The Board of
Directors may, by resolution adopted by a majority of the Board
of Directors, at any time designate one of its members as
Chairman of the Board of Directors. The Chairman of the Board of
Directors shall preside at the meetings of the Board, shall be
responsible for the orderly conduct by the Board of Directors of
its oversight of the business and affairs of the Corporation and
its other duties as provided by law, the Certificate of
Incorporation and these Bylaws and shall have such other
authority and responsibility as the Board of Directors may
designate. A Chairman of the Board shall be considered an
officer of the Corporation unless designated as a non-executive
Chairman of the Board by a resolution of the Board of Directors.
Section 4.04 Chief
Executive Officer. The Chief Executive
Officer shall have general supervision and direction of the
business and affairs of the Corporation, shall be responsible
for corporate policy and strategy, and shall report directly to
the Board of Directors or, if directed by the Board of
Directors, to the Chairman of the Board of Directors. Unless
otherwise provided in these Bylaws, all other officers of the
Corporation shall report directly to the Chief Executive Officer
or as otherwise determined by the Chief Executive Officer. The
Chief Executive Officer shall, if present and in the absence of
the Chairman of the Board of Directors, preside at meetings of
the stockholders and of the Board of Directors.
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Section 4.05 Chief
Financial Officer. The Chief Financial
Officer shall exercise all the powers and perform the duties of
the office of the chief financial officer and in general have
overall supervision of the financial operations of the
Corporation. The Chief Financial Officer shall, when requested,
counsel with and advise the other officers of the Corporation
and shall perform such other duties as the Chief Executive
Officer or the Board of Directors may from time to time
determine.
Section 4.06 President. The
President shall be the chief operating officer of the
Corporation, with general responsibility for the management and
control of the operations of the Corporation. The President
shall have the power to affix the signature of the Corporation
to all contracts that have been authorized by the Board of
Directors or the Chief Executive Officer. The President shall,
when requested, counsel with and advise the other officers of
the Corporation and shall perform such other duties as the Chief
Executive Officer or the Board of Directors may from time to
time determine.
Section 4.07 Vice
Presidents. Each Vice President shall have
all such powers and duties as from time to time may be assigned
to him or her by the Board of Directors, the Chief Executive
Officer or the President.
Section 4.08 Treasurer. The
Treasurer shall supervise and be responsible for all the funds
and securities of the Corporation, the deposit of all moneys and
other valuables to the credit of the Corporation in depositories
of the Corporation, borrowings and compliance with the
provisions of all indentures, agreements and instruments
governing such borrowings to which the Corporation is a party,
the disbursement of funds of the Corporation and the investment
of its funds, and in general shall perform all of the duties
incident to the office of the Treasurer. The Treasurer shall,
when requested, counsel with and advise the other officers of
the Corporation and shall perform such other duties as the Chief
Executive Officer, the Chief Financial Officer or the Board of
Directors may from time to time determine.
Section 4.09 Controller. The
Controller shall be the chief accounting officer of the
Corporation. The Controller shall, when requested, counsel with
and advise the other officers of the Corporation and shall
perform such other duties as the Chief Executive Officer, the
Chief Financial Officer or the Board of Directors may from time
to time determine.
Section 4.10 Secretary. The
powers and duties of the Secretary are: (a) to act as
Secretary at all meetings of the Board of Directors, of the
committees of the Board of Directors and of the stockholders and
to record the proceedings of such meetings in a book or books to
be kept for that purpose; (b) to see that all notices
required to be given by the Corporation are duly given and
served; (c) to act as custodian of the seal of the
Corporation and affix the seal or cause it to be affixed to all
certificates of stock of the Corporation and to all documents,
the execution of which on behalf of the Corporation under its
seal is duly authorized in accordance with the provisions of
these Bylaws; (d) to have charge of the books, records and
papers of the Corporation and see that the reports, statements
and other documents required by law to be kept and filed are
properly kept and filed; and (e) to perform all of the
duties incident to the office of Secretary. The Secretary shall,
when requested, counsel with and advise the other officers of
the Corporation and shall perform such other duties as the Chief
Executive Officer or the Board of Directors may from time to
time determine.
Section 4.11 Additional
Matters. The Board of Directors, the Chief
Executive Officer and the President of the Corporation shall
have the authority to designate employees of the Corporation to
have the title of Vice President, Assistant Vice President,
Assistant Treasurer or Assistant Secretary. Any employee so
designated shall have the powers and duties determined by the
officer making such designation. The persons upon whom such
titles are conferred shall not be deemed officers of the
Corporation unless elected by the Board of Directors.
Section 4.12 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 4.13 Resignations. Any
officer may resign at any time by giving notice in writing or by
electronic transmission notice to the Board of Directors,
Chairman of the Board, President or 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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Article V.
Stock
Section 5.01 Certificates. The
shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution
or resolutions that some or all of any or all classes or series
of stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until
such certificate is surrendered to the Corporation. Every holder
of stock represented by certificates shall be entitled to have a
certificate signed by or in the name of the Corporation by the
Chairman of the Board of Directors or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary, of the Corporation
certifying the number of shares owned by such holder in the
Corporation. Any of or all the signatures on the certificate may
be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if such person
were such officer, transfer agent, or registrar at the date of
issue.
Section 5.02 Lost,
Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed,
and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owners legal
representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 5.03 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 capital stock, subject to
the provisions of the Certificate of Incorporation and
applicable law. 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 VI.
Indemnification
and Advancement of Expenses
Section 6.01 Indemnification
and Advancement of Expenses. Each person who
is or was a director of the Corporation shall be indemnified and
advanced expenses by the Corporation to the fullest extent
permitted from time to time by the General Corporation Law of
the State of Delaware as it exists on the date hereof or as it
may hereafter be amended (but, if permitted by applicable law,
in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation
to provide prior to such amendment) or any other applicable laws
as presently or hereafter in effect. The Corporation may, by
action of the Board of Directors, provide indemnification and
advance expenses to officers, employees and agents (other than
directors) of the Corporation, to directors, officers, employees
or agents of a subsidiary, and to each person serving as a
director, officer, partner, member, employee or agent of another
Corporation, partnership, limited liability company, joint
venture, trust or other enterprise, at the request of the
Corporation (each of the foregoing, a Covered
Person), with the same scope and effect as the foregoing
indemnification of directors of the Corporation. The Corporation
shall be required to indemnify any person seeking
indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was authorized by the Board of Directors or is a
proceeding to enforce such persons claim to
indemnification pursuant to the rights granted by these Bylaws
or otherwise by the Corporation. Without limiting the generality
or the effect of the foregoing, the Corporation may enter into
one or more agreements with any person which provide for
indemnification or advancement of expenses greater or different
than that provided in this Article VI.
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Section 6.02 Amendment
or Repeal. Any right to indemnification or to
advancement of expenses of any Covered Person arising hereunder
shall not be eliminated or impaired by an amendment to or repeal
of these Bylaws after the occurrence of the act or omission that
is the subject of the civil, criminal, administrative or
investigative action, suit or proceeding for which
indemnification or advancement of expenses is sought.
Section 6.03 Indemnification
and Advancement of Expenses. This
Article VI shall not limit the right of the Corporation, to
the extent and in the manner permitted by law, to indemnify and
to advance expenses to persons other than Covered Persons when
and as authorized by appropriate corporate action.
Article VII.
Miscellaneous
Section 7.01 Fiscal
Year. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
Section 7.02 Seal. The
corporate seal shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time
to time by the Board of Directors.
Section 7.03 Manner
of Notice. Except as otherwise provided
herein or permitted by applicable law, notices to directors and
stockholders shall be in writing and delivered personally or
mailed to the directors or stockholders at their addresses
appearing on the books of the Corporation. Without limiting the
manner by which notice otherwise may be given effectively to
stockholders, and except as prohibited by applicable law, any
notice to stockholders given by the Corporation under any
provision of applicable law, the Certificate of Incorporation or
these 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.
Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any stockholder who fails to
object in writing to the Corporation, within 60 days of
having been given written notice by the Corporation of its
intention to send the single notice permitted under this
Section 7.03, shall be deemed to have consented to
receiving such single written notice. Notice to directors need
not be in writing and may be given by telecopier, telephone,
electronic mail or other means of electronic transmission.
Section 7.04 Waiver
of Notice of Meetings of Stockholders, Directors and
Committees. Any waiver of notice, given by
the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be
transacted at nor the purpose of any regular or special meeting
of the stockholders, directors, or members of a committee of
directors need be specified in a waiver of notice.
Section 7.05 Form
of Records. Any records maintained by the
Corporation in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept on,
or by means of, or be in the form of, any information storage
device or method, provided that the records so kept can be
converted into clearly legible paper form within a reasonable
time.
Section 7.06 Amendment
of Bylaws. These Bylaws may be altered,
amended or repealed or new Bylaws may be adopted by the Board of
Directors or by the affirmative vote of the holders of at least
a majority of the Corporations outstanding voting stock,
subject to and only in accordance with the provisions of the
Certificate of Incorporation.
11