Attached files
file | filename |
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8-K - FORM 8-K - PostRock Energy Corp | h70087e8vk.htm |
EX-3.1 - EX-3.1 - PostRock Energy Corp | h70087exv3w1.htm |
EX-10.8 - EX-10.8 - PostRock Energy Corp | h70087exv10w8.htm |
EX-10.6 - EX-10.6 - PostRock Energy Corp | h70087exv10w6.htm |
EX-10.4 - EX-10.4 - PostRock Energy Corp | h70087exv10w4.htm |
EX-10.9 - EX-10.9 - PostRock Energy Corp | h70087exv10w9.htm |
EX-10.3 - EX-10.3 - PostRock Energy Corp | h70087exv10w3.htm |
EX-10.7 - EX-10.7 - PostRock Energy Corp | h70087exv10w7.htm |
EX-10.2 - EX-10.2 - PostRock Energy Corp | h70087exv10w2.htm |
EX-10.5 - EX-10.5 - PostRock Energy Corp | h70087exv10w5.htm |
EX-10.1 - EX-10.1 - PostRock Energy Corp | h70087exv10w1.htm |
EX-10.14 - EX-10.14 - PostRock Energy Corp | h70087exv10w14.htm |
EX-10.10 - EX-10.10 - PostRock Energy Corp | h70087exv10w10.htm |
EX-10.12 - EX-10.12 - PostRock Energy Corp | h70087exv10w12.htm |
EX-10.11 - EX-10.11 - PostRock Energy Corp | h70087exv10w11.htm |
EX-10.13 - EX-10.13 - PostRock Energy Corp | h70087exv10w13.htm |
Exhibit 3.2
BYLAWS
of
POSTROCK ENERGY CORPORATION
(hereinafter called the Corporation)
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the Corporation required by the General
Corporation Law of the State of Delaware or any successor statute (the DGCL) to be maintained in
the State of Delaware shall be the registered office named in the Certificate of Incorporation of
the Corporation, as it may be amended or restated in accordance with the DGCL from time to time
(the Certificate of Incorporation), or such other office as may be designated from time to time
by the Board of Directors of the Corporation (the Board of Directors). Should the Corporation
maintain a principal office within the State of Delaware, such registered office need not be
identical to such principal office of the Corporation.
1.2 Other Offices. The Corporation may also have offices at such other places both within and
without the State of Delaware as the Board of Directors may determine from time to time or as the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of the stockholders for the election of directors or for any
other purpose shall be held at such place, either within or without the State of Delaware, as shall
be designated from time to time by the Board of Directors. Subject to applicable law, the Board of
Directors may elect to postpone any previously scheduled meeting of stockholders.
2.2 Annual Meeting. An annual meeting of the stockholders, for the election of directors and
for the transaction of such other business as may be properly brought before the meeting, shall be
held at such place, within or without the State of Delaware, on such date, and at such time as the
Board of Directors shall fix and set forth in the notice of the meeting. At the annual meeting of
the stockholders, only such business shall be conducted as shall have been properly brought before
the annual meeting as set forth in Section 2.8 and Section 3.5 hereof. Failure to hold the annual
meeting at the designated time or otherwise shall not affect otherwise valid corporate acts or work
a forfeiture or dissolution of the Corporation.
2.3 Special Meetings. Except as otherwise required by law, or by or pursuant to the
Certificate of Incorporation, special meetings of the stockholders for any purpose or purposes may
be called at any time only (i) by the Chairman of the Board of Directors, if there is one, (ii) by
the Chief Executive Officer, if there is one, (iii) by the Board of Directors or (iv) upon the
request of at least three directors of the Corporation, and no such special meeting may be
called by any other person or persons.
2.4 Notice of Meeting. Written notice of all stockholder meetings stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered in accordance with Section 7.3 not less than 10 nor more than
60 days before the date of the meeting, by or at the direction of the Chairman of the Board, Chief
Executive Officer or Secretary of the Corporation or the person or persons calling such meeting, to
each stockholder entitled to vote at such meeting. Notice of any meeting of stockholders of the
Corporation need not be given to any stockholder of the Corporation (a) if waived by him in writing
in accordance with Section 7.3 hereof or (b) to whom (i) notice of two consecutive annual meetings,
and all notices of meetings or of the taking of action by written consent without a meeting to such
person during the period between such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first-class mail) of dividends or interest on securities during a
12-month period, in either case (i) or (ii) above, have been mailed addressed to such person at
such persons address as shown on the records of the Corporation and have been returned
undeliverable; provided, however, that the exception in (b)(i) shall not be applicable to any
notice returned as undeliverable if the notice was given by electronic transmission. If any person
to whom notice need not be given in accordance with clause (b) of the immediately preceding
sentence shall deliver to the Corporation a written notice setting forth such persons then current
address, the requirement that notice be given to such person shall be reinstated. Attendance at a
meeting of the stockholders of the Corporation shall constitute a waiver of notice of such meeting,
except when a stockholder of the Corporation attends a meeting for the express purpose of objecting
(and so expresses such objection at the beginning of the meeting) to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
2.5 Registered Holders of Shares; Closing of Share Transfer Records; Record Date.
(a) Registered Holders as Owners. The Corporation may regard the person in whose name any
shares issued by the Corporation are registered in the stock transfer records of the Corporation at
any particular time (including, without limitation, as of a record date fixed pursuant to paragraph
(b) of this Section 2.5) as the owner of those shares at that time for purposes of voting those
shares, receiving distributions thereon or notices in respect thereof, transferring those shares,
exercising rights of dissent with respect to those shares, entering into agreements with respect to
those shares, or giving proxies with respect to those shares, and shall not be bound to recognize
any equitable or other claim 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 required by law;
and neither the Corporation nor any of its officers, directors, employees or agents shall be liable
for regarding that person as the owner of those shares at that time for those purposes, regardless
of whether that person possesses a certificate for those shares.
(b) Record Date. 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, or to receive
payment of any dividend or other distribution or allotment of rights or to exercise any rights of
change, conversion or exchange of stock or for any other purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of
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stockholders, such date in any case to be not more than 60 days and, in the case of a meeting
of stockholders, not less than ten days, prior to the date on which the particular action requiring
such determination of stockholders is to be taken.
If the Board of Directors does not fix a record date for any meeting of the stockholders, the
record date for determining stockholders entitled to notice of or to vote at such meeting shall be
at the close of business on the day next preceding the day on which notice is given or, if notice
is waived in accordance with Section 7.3 of these Bylaws, at the close of business on the day next
preceding the day on which the meeting is held. If the Board of Directors does not fix a record
date for determining stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for
any other purpose, the record date shall be at the close of business on the day on which the Board
of Directors adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment or postponement of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned or postponed meeting.
2.6 Quorum of Stockholders. Unless otherwise required by law or the Certificate of
Incorporation, the presence in person or by proxy of the holders of shares of capital stock
entitled to cast a majority of the votes which could be cast at such meeting by the holders of all
outstanding shares of capital stock entitled to vote at such meeting shall constitute a quorum at
all meetings of the stockholders for the transaction of business. Broker non-votes shall be
considered present at the meeting with respect to the determination of a quorum but shall not be
considered as votes cast with respect to matters as to which no authority is granted. A quorum,
once established, shall not be broken by the withdrawal of enough votes to leave less than a
quorum. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the chairman of the meeting or the stockholders to vote thereat, present in person or
represented by proxy, shall, by the vote of holders of stock representing a majority of the voting
power of all shares present at the meeting, have the power to adjourn the meeting from time to time
in the manner provided in Section 2.7 until a quorum shall be present or represented. Where a
separate vote by a class or classes or series is required, a majority of the voting power of the
shares of such class or classes or series present in person or represented by proxy shall
constitute a quorum entitled to take action with respect to that vote on that matter.
2.7 Adjournment. Unless otherwise provided by the Certificate of Incorporation or these
Bylaws, any meeting of the stockholders may be adjourned from time to time, without notice other
than by announcement at the meeting at which such adjournment is taken, and at any such adjourned
meeting at which a quorum shall be present any action may be taken that could have been taken at
the meeting originally called; provided, however, that if the adjournment is for more than 30 days,
or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned
meeting.
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2.8 Voting by Stockholders.
(a) Voting on Matters Other than the Election of Directors. With respect to any matters as to
which no other voting requirement is specified by the DGCL, the Certificate of Incorporation or
these Bylaws, the affirmative vote required for stockholder action shall be that of a majority of
the shares present in person or represented by proxy at the meeting and entitled to vote on the
matter. Broker non-votes shall not be considered as shares present and entitled to vote as to
matters with respect to which no authority has been granted. In the case of a matter submitted for
a vote of the stockholders as to which a stockholder approval requirement is applicable under the
stockholder approval policy of any stock exchange or quotation system on which the capital stock of
the Corporation is traded or quoted, the requirements of Rule 16b-3 under the Securities Exchange
Act of 1934, as amended (the Exchange Act), or any provision of the Internal Revenue Code, in
each case for which no higher voting requirement is specified by the DGCL, the Certificate of
Incorporation or these Bylaws, the vote required for approval shall be the requisite vote specified
in such stockholder approval policy, Rule 16b-3 or Internal Revenue Code provision, as the case may
be (or the highest such requirement if more than one is applicable). For the approval or
ratification of the appointment of independent public accountants (if submitted for a vote of the
stockholders), the vote required for approval shall be a majority of the votes cast on the matter.
For this purpose, abstentions shall not be considered as votes cast.
(b) Voting in the Election of Directors. Unless otherwise provided in the DGCL or the
Certificate of Incorporation, directors shall be elected by a plurality of the votes cast by the
holders of outstanding shares of capital stock of the Corporation entitled to vote in the election
of directors at a meeting of stockholders at which a quorum is present.
(c) Stockholder Proposals (Other than Director Nominations). At an annual meeting of
stockholders of the Corporation, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been properly brought before such annual meeting. To be
properly brought before an annual meeting, business or proposals (other than any nomination of
directors of the Corporation, which is governed by Section 3.5 hereof) must (i) be specified in the
notice relating to the meeting (or any supplement thereto) given by or at the direction of the
Board of Directors in accordance with Section 2.4 hereof, (ii) otherwise be properly brought before
the annual meeting by or at the direction of the Board of Directors or (iii) be properly brought
before the meeting by a stockholder of the Corporation who (A) is a stockholder of record at the
time of the giving of such stockholders notice provided for in this Section 2.8 and on the record
date for the determination of stockholders entitled to vote at such annual meeting, (B) shall be
entitled to vote at the annual meeting and (C) complies with the requirements of this Section 2.8,
and otherwise be proper subjects for stockholder action and be properly introduced at the annual
meeting. Clause (iii) of the immediately preceding sentence shall be the exclusive means for a
stockholder to submit business or proposals (other than matters properly brought under Rule 14a-8
under the Exchange Act and included in the notice relating to the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors in accordance with Section 2.4
hereof) before an annual meeting of stockholders of the Corporation.
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For a proposal to be properly brought before an annual meeting by a stockholder of the
Corporation pursuant to these provisions, in addition to any other applicable requirements, such
stockholder must have given timely advance notice thereof in writing to the Secretary of the
Corporation. To be timely, such stockholders notice must be delivered to, or mailed and received
at, the principal executive offices of the Corporation not earlier than the close of business on
the 120th day and not later than the close of business on the 90th day prior to the first
anniversary of the annual meeting date of the immediately preceding annual meeting; provided,
however, that if the scheduled annual meeting date is called for a date that is not within 30 days
before or after such anniversary date, notice by such stockholder, to be timely, must be so
delivered or received not earlier than the close of business on the 120th day and not later than
the close of business on the later of the 90th day prior to the date of such annual meeting or, if
less than 100 days prior notice or public disclosure of the scheduled meeting date is given or
made, the 10th day following the earlier of the day on which the notice of such meeting was mailed
to stockholders of the Corporation or the day on which such public disclosure was made. For
purposes of this Section 2.8(c) and Section 3.5(a), the first anniversary of the annual meeting
date of the 2009 annual meeting shall be deemed to be June 15, 2010. In no event shall any
adjournment, postponement or deferral of an annual meeting or the announcement thereof commence a
new time period for the giving of a timely notice as described above.
Any such stockholders notice to the Secretary of the Corporation shall set forth as to each
matter such stockholder proposes to bring before the annual meeting (i) a description of the
proposal desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, together with the text of the proposal or business (including the
text of any resolutions proposed for consideration), (ii) as to such stockholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made, (A) the name and
address of such stockholder, as they appear on the Corporations books, and of such beneficial
owner, if any, and the name and address of any other stockholders known by such stockholder to be
supporting such business or proposal, (B)(1) the class or series and number of shares of capital
stock of the Corporation which are, directly or indirectly, owned beneficially and of record by
such stockholder and such beneficial owner, (2) any option, warrant, convertible security, stock
appreciation right or similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class or series of shares of capital stock of the
Corporation or with a value derived in whole or in part from the price, value or volatility of any
class or series of shares of capital stock of the Corporation or any derivative or synthetic
arrangement having characteristics of a long position in any class or series of shares of capital
stock of the Corporation, whether or not such instrument or right shall be subject to settlement in
the underlying class or series of capital stock of the Corporation or otherwise (a Derivative
Instrument) directly or indirectly owned beneficially by such stockholder and by such beneficial
owner and any other direct or indirect opportunity to profit or share in any profit derived from
any increase or decrease in the value of shares of capital stock of the Corporation, (3) any proxy,
contract, arrangement, understanding or relationship the effect or intent of which is to increase
or decrease the voting power of such stockholder or beneficial owner with respect to any shares of
any security of the Corporation, (4) any pledge by such stockholder or beneficial owner of any
security of the Corporation or any short interest of such stockholder or beneficial owner in any
security of the Corporation (for purposes of this Section 2.8(c) and Section 3.5, a person shall be
deemed to have a short interest in a security if such person directly or indirectly, through any
contract, arrangement, understanding, relationship or
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otherwise, has the opportunity to profit or share in any profit derived from any decrease in
the value of the subject security), (5) any rights to dividends on the shares of capital stock of
the Corporation owned beneficially by such stockholder and by such beneficial owner that are
separated or separable from the underlying shares of capital stock of the Corporation, (6) any
proportionate interest in shares of capital stock of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such stockholder or
beneficial owner is a general partner or, directly or indirectly, beneficially owns an interest in
a general partner and (7) any performance-related fees (other than an asset-based fee) that such
stockholder or beneficial owner is entitled to based on any increase or decrease in the value of
shares of capital stock of the Corporation or Derivative Instruments, if any, as of the date of
such notice, including, without limitation, for purposes of clauses (B)(1) through (B)(7) above,
any of the foregoing held by members of such stockholders or beneficial owners immediate family
sharing the same household (which information shall be supplemented by such stockholder and
beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose
such ownership as of the record date), and (C) any other information relating to such stockholder
and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with solicitations of proxies for the proposal, or would
otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder; (iii) any material interest of such stockholder and beneficial
owner, if any, in such business or proposal, (iv) a representation that such stockholder intends to
appear in person or by proxy at the annual meeting to bring such business before the meeting and
(v) a description of all agreements, arrangements and understandings between such stockholder and
beneficial owner, if any, and any other person or persons (including their names) in connection
with such business or proposal by such stockholder.
A stockholder providing notice of business proposed to be brought before an annual meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2.8(c) shall be true and correct as
of the record date for the meeting and as of the date that is ten business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received at, the principal executive offices of the Corporation not
later than five business days after the record date for the meeting (in the case of the update and
supplement required to be made as of the record date), and not later than eight business days prior
to the date for the meeting, if practicable (or, if not practicable, on the first practicable date
prior to the date for the meeting) or any adjournment or postponement thereof (in the case of the
update and supplement required to be made as of ten business days prior to the meeting or any
adjournment or postponement thereof). In addition, a stockholder providing notice of business
proposed to be brought before an annual meeting shall update and supplement such notice, and
deliver such update and supplement to the principal executive offices of the Corporation, promptly
following the occurrence of any event that materially changes the information provided or required
to be provided in such notice pursuant to this Section 2.8(c).
The Chairman of the Board or, if he is not presiding, the presiding officer of the meeting of
stockholders of the Corporation shall determine whether the requirements of this Section 2.8 have
been met with respect to any stockholder proposal. If the Chairman of the Board or the presiding
officer determines that any stockholder proposal was not made in accordance with the
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terms of this Section 2.8, he shall so declare at the meeting and any such proposal shall not
be acted upon at the meeting.
For purposes of this Section 2.8 and Section 3.5, public disclosure shall mean disclosure in
a press release issued by the Corporation or in a document publicly filed or furnished 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.
At a special meeting of stockholders of the Corporation, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been properly brought before
such special meeting. To be properly brought before such a special meeting, business or proposals
(other than any nomination of directors of the Corporation, which is governed by Section 3.5
hereof) must (i) be specified in the notice relating to the meeting (or any supplement thereto)
given by or at the direction of the Board of Directors in accordance with Section 2.3 and Section
2.4 hereof or (ii) constitute matters incident to the conduct of the meeting as the Chairman of the
Board or the presiding officer of the meeting shall determine to be appropriate. Stockholders
shall not be permitted to propose business to be brought before a special meeting of the
stockholders.
This Section 2.8 is expressly intended to apply to any business proposed to be brought before
an annual or special meeting of stockholders, including the presenting at an annual meeting of any
proposal properly made pursuant to Rule 14a-8 under the Exchange Act and included in the notice of
meeting given by or at the direction of the Board of Directors. In addition to the foregoing
provisions of this Section 2.8, a stockholder of the Corporation shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations thereunder with respect
to the matters set forth in this Section 2.8. Nothing in this Section 2.8 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
preferred stock if and to the extent provided for under law, the Certificate of Incorporation or
these Bylaws.
2.9 Proxies. Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for him by proxy. Such authorization must be in writing and
executed by the stockholder or his or her authorized officer, director, employee or agent. Any
copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. No proxy authorized hereby shall be
voted or acted upon more than three years from its date, unless the proxy provides for a longer
period. Proxies for use at any meeting of stockholders shall be filed with the Secretary, or such
other officer as the Board of Directors may from time to time determine by resolution, before or at
the time of the meeting. All proxies shall be received and taken charge of and all ballots shall
be received and canvassed by the secretary of the meeting who shall decide all questions relating
to the qualification of voters, the validity of the proxies and the acceptance or rejection of
votes, unless an inspector or inspectors shall have been appointed by the chairman of the meeting,
in which event such inspector or inspectors shall decide all such questions.
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2.10 Approval or Ratification of Acts or Contracts by Stockholders. The Board of Directors in
its discretion may submit any act or contract for approval or ratification at any annual meeting of
the stockholders, or at any special meeting of the stockholders called for the purpose of
considering any such act or contract, and any act or contract that shall be approved or be ratified
by the vote of the stockholders holding a majority of the issued and outstanding shares of stock of
the Corporation entitled to vote and present in person or by proxy at such meeting (provided that a
quorum is present) shall be as valid and as binding upon the Corporation and upon all the
stockholders as if it has been approved or ratified by every stockholder of the Corporation.
2.11 Organization. Such person as the Board of Directors may have designated or, in the
absence of such person, the Chairman of the Board or, in his or her absence, the Chief Executive
Officer of the Corporation or, in his or her absence, such person as may be chosen by the holders
of a majority of the voting power of the shares entitled to vote who are present, in person or by
proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary or an Assistant Secretary of the Corporation, the secretary of the
meeting shall be such person as the chairman of the meeting appoints.
2.12 Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution
such rules and regulations for the conduct of the meetings of the stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the
Board of Directors, the chairman of any meeting of the stockholders 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 appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman
of the meeting, may include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) the determination of when the polls shall open and close
for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iv) limitations on attendance at or
participation in the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement thereof; (vi)
limitations on the time allotted to questions or comments by participants; and (vii) policies and
procedures with respect to the adjournment of such 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 III
DIRECTORS
3.1 Duties and Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the authority and powers conferred
upon the Board of Directors by the DGCL or by the provisions of the Certificate of Incorporation,
the Board of Directors is authorized and empowered to exercise all such powers
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and do all such acts and things as may be exercised or done by the Corporation, subject to the
provisions of the DGCL, the Certificate of Incorporation and these Bylaws.
Except as otherwise provided by the Certificate of Incorporation or these Bylaws or to the
extent prohibited by Delaware law, the Board of Directors shall have the right (which, to the
extent exercised, shall be exclusive) to establish the rights, powers, duties, rules and procedures
that (i) from time to time shall govern the Board of Directors, including, without limiting the
generality of the foregoing, the vote required for any action by the Board of Directors and (ii)
from time to time shall affect the directors power to manage the business and affairs of the
Corporation. No Bylaw of the Corporation shall be adopted by the stockholders of the Corporation
that shall impair or impede the implementation of this Section 3.1.
3.2 Number and Term of Directors. Within any limits specified in the Certificate of
Incorporation, and subject to such rights of holders of shares of one or more outstanding series of
preferred stock of the Corporation to elect one or more directors of the Corporation under
circumstances as shall be provided by or pursuant to the Certificate of Incorporation, the number
of directors of the Corporation that shall constitute the Board of Directors shall be fixed from
time to time exclusively by, and may be increased or decreased from time to time exclusively by,
the affirmative vote of a majority of the Whole Board. The term Whole Board shall mean the total
number of authorized directors, whether or not there exist any vacancies in previously authorized
directorships. Effective at the annual meeting of stockholders scheduled to be held in 2010 and at
each annual meeting of stockholders thereafter, all director nominees shall stand for election to
terms expiring at the next succeeding annual meeting, with each director to hold office until his
or her successor shall have been duly elected and qualified or until his or her earlier death,
resignation or removal.
3.3 Vacancies. Unless otherwise provided by or pursuant to the Certificate of Incorporation,
newly created directorships resulting from any increase in the authorized number of directors of
the Corporation and any vacancies on the Board of Directors resulting from death, resignation,
removal or other cause in accordance with the Certificate of Incorporation and these Bylaws may be
filled by the affirmative vote of a majority of the remaining directors of the Corporation then in
office, even if such remaining directors constitute less than a quorum of the Board of Directors,
or, if there are no directors remaining, by the stockholders. Any director of the Corporation
elected in accordance with the preceding sentence shall serve for a term ending on the next annual
meeting of stockholders following his or her election to the Board of Directors and until such
directors successor shall have been duly elected and qualified or until his earlier death,
resignation or removal in accordance with the Certificate of Incorporation and these Bylaws.
Unless otherwise provided by or pursuant to the Certificate of Incorporation, no decrease in the
number of directors of the Corporation constituting the Board of Directors shall shorten the term
of any incumbent director of the Corporation.
3.4 Qualifications. Directors need not be residents of the State of Delaware or stockholders
of the Corporation.
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3.5 Nomination of Directors.
(a) Subject to such rights of holders of shares of one or more outstanding series of preferred
stock of the Corporation to elect one or more directors of the Corporation under circumstances as
shall be provided by or pursuant to the Certificate of Incorporation, only persons who are
nominated in accordance with the procedures set forth in this Section 3.5 shall be eligible for
election as, and to serve as, directors of the Corporation. Nominations of persons for election to
the Board of Directors may be made only at a meeting of the stockholders of the Corporation at
which directors of the Corporation are to be elected (i) by or at the direction of the Board of
Directors or (ii) (if but only if 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 of the giving of such stockholders notice provided for in this Section 3.5 and on the
record date for the determination of stockholders entitled to vote at such meeting, who shall be
entitled to vote at such meeting in the election of directors of the Corporation and who complies
with the requirements of this Section 3.5. Clause (ii) of the immediately preceding sentence shall
be the exclusive means for a stockholder to make any nomination of a person or persons for election
as a director of the Corporation at an annual meeting or special meeting. Any such nomination by a
stockholder of the Corporation shall be preceded by timely advance notice in writing to the
Secretary of the Corporation.
To be timely with respect to an annual meeting, such stockholders notice must be delivered
to, or mailed and received at, the principal executive offices of the Corporation not earlier than
the close of business on the 120th day and not later than the close of business on the 90th day
prior to the first anniversary of the annual meeting date of the immediately preceding annual
meeting; provided, however, that (1) if the scheduled annual meeting is called for a date that is
not within 30 days before or after such anniversary date, notice by such stockholder, to be timely,
must be so delivered or received not earlier than the close of business on the 120th day and not
later than the close of business on the later of the 90th day prior to the date of such annual
meeting or, if less than 100 days prior notice or public disclosure of the scheduled meeting date
is given or made, the 10th day following the earlier of the day on which the notice of such meeting
was mailed to stockholders of the Corporation or the day on which such public disclosure was made;
and (2) if the number of directors to be elected to the Board of Directors at such annual meeting
is increased and there is no prior notice or public disclosure by the Corporation naming all of the
nominees for director or specifying the size of the increased Board of Directors at least 100 days
prior to such anniversary date, a stockholders notice required by this Section 3.5(a) shall also
be considered timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the principal executive offices of the Corporation not later
than the close of business on the 10th day following the earlier of the day on which the notice of
such meeting was mailed to stockholders of the Corporation or the day on which such public
disclosure was made. To be timely with respect to a special meeting, such stockholders notice
must be delivered to, or mailed and received at, the principal executive offices of the Corporation
not earlier than the close of business on the 120th day and not later than the close of business on
the 90th day prior to the scheduled special meeting date; provided, however, that if less than 100
days prior notice or public disclosure of the scheduled meeting date is given or made, notice by
such stockholder, to be timely, must be so delivered or received not later than the close of
business on the 10th day following the earlier of the day on which the notice of such meeting was
mailed to stockholders of the Corporation or the day on which such public disclosure was made. In
no event shall any adjournment, postponement or deferral of an
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annual meeting or special meeting or the announcement thereof commence a new time period for
the giving of a stockholders notice as described above.
Any such stockholders notice to the Secretary of the Corporation shall set forth (i) as to
each person whom such stockholder proposes to nominate for election or re-election as a director of
the Corporation, (A) the name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) any other information relating to such
person that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors of the Corporation in a
contested election, or would otherwise be required, in each case pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder (including, without limitation,
the written consent of such person to having such persons name placed in nomination at the meeting
and to serve as a director of the Corporation if elected), and (D) a description of all direct and
indirect compensation and other material monetary agreements, arrangements and understandings
during the past three years, and any other material relationships, between or among such
stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is
made, and their respective affiliates and associates, or others acting in concert therewith, on the
one hand, and each proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand, including, without limitation, all information that
would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if such
stockholder and such beneficial owner, or any affiliate or associate thereof or person acting in
concert therewith, were the registrant for purposes of such rule and the nominee were a director
or executive officer of such registrant; and (ii) as to such stockholder giving the notice, the
beneficial owner, if any, on whose behalf the nomination is made and the proposed nominee, (A) the
name and address of such stockholder, as they appear on the Corporations books, and of such
beneficial owner, if any, and the name and address of any other stockholders known by such
stockholder to be supporting such nomination, (B) (1) the class or series and number of shares of
capital stock of the Corporation which are, directly or indirectly, owned beneficially and of
record by such stockholder, such beneficial owner and such nominee, (2) any Derivative Instrument
directly or indirectly owned beneficially by such stockholder, such beneficial owner and such
nominee and any other direct or indirect opportunity to profit or share in any profit derived from
any increase or decrease in the value of shares of capital stock of the Corporation, (3) any proxy,
contract, arrangement, understanding or relationship the effect or intent of which is to increase
or decrease the voting power of such stockholder, beneficial owner or nominee with respect to any
shares of any security of the Corporation, (4) any pledge by such stockholder, beneficial owner or
nominee of any security of the Corporation or any short interest of such stockholder, beneficial
owner or nominee in any security of the Corporation, (5) any rights to dividends on the shares of
capital stock of the Corporation owned beneficially by such stockholder, beneficial owner and
nominee that are separated or separable from the underlying shares of capital stock of the
Corporation, (6) any proportionate interest in shares of capital stock of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such stockholder, beneficial owner or nominee is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner and (7) any performance-related fees (other than
an asset-based fee) that such stockholder, beneficial owner or nominee is entitled to based on any
increase or decrease in the value of shares of capital stock of the Corporation or Derivative
Instruments, if any, as of the date of such notice, including, without limitation, for purposes of
clauses (B)(1) through (B)(7) above, any of the foregoing held by
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members of such stockholders, beneficial owners or nominees immediate family sharing the
same household (which information shall be supplemented by such stockholder, beneficial owner, if
any, and nominee not later than 10 days after the record date for the meeting to disclose such
ownership as of the record date), (C) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice and (D) a description
of all agreements, arrangements and understandings between such stockholder and beneficial owner,
if any, and each proposed nominee and any other person or persons (including their names) pursuant
to which the nomination(s) are to be made by such stockholder, (E) any other information relating
to such stockholder, beneficial owner, if any, and nominee that would be required to be disclosed
in a proxy statement or other filing required to be made in connection with solicitations of
proxies for election of directors of the Corporation in a contested election, or would otherwise be
required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Any such stockholders notice to the Secretary of the Corporation shall
also include or be accompanied by, with respect to each nominee for election or reelection to the
Board of Directors, a completed and signed questionnaire, representation and agreement required by
Section 3.5(b). The Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of such proposed
nominee to serve as an independent director of the Corporation or that could be material to a
reasonable stockholders understanding of the independence, or lack thereof, of such nominee.
A stockholder providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 3.5(a) shall be true and correct as
of the record date for the meeting and as of the date that is ten business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received at, the principal executive offices of the Corporation not
later than five business days after the record date for the meeting (in the case of the update and
supplement required to be made as of the record date), and not later than eight business days prior
to the date for the meeting, if practicable (or, if not practicable, on the first practicable date
prior to the date for the meeting) or any adjournment or postponement thereof (in the case of the
update and supplement required to be made as of ten business days prior to the meeting or any
adjournment or postponement thereof). In addition, a stockholder providing notice of any
nomination proposed to be made at a meeting shall update and supplement such notice, and deliver
such update and supplement to the principal executive offices of the Corporation, promptly
following the occurrence of any event that materially changes the information provided or required
to be provided in such notice pursuant to this Section 3.5(a).
In addition to the foregoing provisions of this Section 3.5, a stockholder of the Corporation
shall also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 3.5. Nothing in this
Section 3.5 shall be deemed to affect any rights of the holders of any series of preferred stock if
and to the extent provided for under law, the Certificate of Incorporation or these Bylaws.
(b) To be eligible to be a nominee for election or reelection as a director of the
Corporation, a person must deliver (in accordance with the time periods prescribed for delivery
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of notice under Section 3.5(a)) to the Secretary at the principal executive offices of the
Corporation a written questionnaire with respect to the background and qualification of such person
and the background of any other person or entity on whose behalf the nomination is being made
(which questionnaire shall be in the form 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 (A) is not and will not become a party to (1) 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 or (2) 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, (B) 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 that has not
been disclosed therein, and (C) 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.
(c) The Chairman of the Board or, if he is not presiding, the presiding officer of the meeting
of stockholders of the Corporation shall determine whether the requirements of this Section 3.5
have been met with respect to any nomination or intended nomination. If the Chairman of the Board
or the presiding officer determines that any nomination was not made in accordance with the
requirements of this Section 3.5, he shall so declare at the meeting and the defective nomination
shall be disregarded. In addition to the foregoing provisions of this Section 3.5, a stockholder
of the Corporation shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this Section 3.5.
3.6 Meetings. The Board of Directors may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from time to time be determined by the Board
of Directors. Special meetings of the Board of Directors may be called by the Chairman of the
Board, if there be one, the Chief Executive Officer, or such number of directors constituting more
than one-third of the directors then in office. Notice thereof stating the place, date and hour of
the meeting shall be given to each director either by mail not less than forty-eight (48) hours
before the time of the meeting, by telephone, telegram, facsimile transmission or other electronic
transmission not less than twenty-four (24) hours before the time of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances. Notice of any meeting need not be given to any director if waived by him in
writing, or if he shall be present at such meeting. Attendance at a meeting of the Board of
Directors shall constitute presence in person at and waiver of notice of such meeting, except where
a person attends the meeting for the express purpose of objecting (and so expresses such objection
at the beginning of the meeting) to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
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3.7 Quorum of and Action by Directors. Unless a greater number is required by law or the
Certificate of Incorporation, a majority of the directors in office shall constitute a quorum of
the Board of Directors for the transaction of business; but a majority of the directors present at
any meeting, whether there is a quorum or otherwise, may adjourn the meeting from day to day until
a quorum is present. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the vote of a majority of the directors present at any meeting at which a quorum is
present shall constitute the action of the Board of Directors.
3.8 Board and Committee Action by Unanimous Written Consent in Lieu of Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at a meeting of the Board of Directors or any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors or such committee, as the case may be, and is filed with the
Secretary of the Corporation.
3.9 Board and Committee Conference Telephone Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors, or members of any
committee designated by the Board of Directors, may participate in and hold a meeting of such Board
of Directors or committee by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can speak to and hear each other, and
attendance at a meeting pursuant to this Section 3.9 shall constitute presence in person at such
meeting, except where a person attends the meeting for the express purpose of objecting (and so
expresses such objection at the beginning of the meeting) to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
3.10 Compensation. Directors will receive such compensation for their services as may be
fixed by resolution of the Board of Directors and shall be reimbursed for their actual expenses of
attendance, if any, for each regular or special meeting of the Board; provided that nothing
contained herein shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
3.11 Removal. A director of the Corporation may be removed from office as a director, with or
without cause, by the affirmative vote of the holders of a majority of the voting power of the then
issued and outstanding shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class. Notwithstanding the foregoing, whenever
holders of outstanding shares of one or more series of preferred stock are entitled to elect
directors of the Corporation pursuant to the provisions applicable in the case of arrearages in the
payment of dividends or other defaults contained in the resolution or resolutions of the Board of
Directors providing for the establishment of any such series, any such director of the Corporation
so elected may be removed in accordance with the provisions of such resolution or resolutions.
3.12 Committees of the Board of Directors.
(a) The Board of Directors may designate from among its members one or more committees, each
of which shall be comprised of one or more of its members, and may designate one or more of its
members as alternate members of any committee, who may, subject to any
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limitations by the Board of Directors, replace absent or disqualified members at any meeting
of that committee. Any such committee, to the extent provided in such resolution or in the
Certificate of Incorporation or these Bylaws, shall have and may exercise all of the authority of
the Board of Directors to the extent permitted by the DGCL. Any such committee may authorize the
seal of the Corporation to be affixed to all papers which may require it. In addition to the
above, such committee or committees shall have such other powers and limitations of authority as
may be determined from time to time by resolution adopted by the Board of Directors.
(b) The Board of Directors shall have the power at any time to change the membership of any
such committee and to fill vacancies in it. A majority of the number of members of any such
committee shall constitute a quorum for the transaction of business unless a greater number is
required by a resolution adopted by the Board of Directors. The act of the majority of the members
of a committee present at any meeting at which a quorum is present shall be the act of such
committee, unless the act of a greater number is required by a resolution adopted by the Board of
Directors. Each such committee may elect a chairman (unless the Board of Directors appoints a
chairman) and may appoint such subcommittees and assistants as it may deem necessary. Except as
otherwise provided by the Board of Directors, meetings of any committee shall be conducted in
accordance with Sections 3.6, 3.7, 3.8, 3.9, 3.10 and 7.3 hereof. Election or appointment of a
member of a committee shall not of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors shall promptly be recorded in
the minutes and filed with the Secretary of the Corporation.
3.13 Ratification. Any transaction questioned in any stockholders derivative proceeding on
the ground of lack of authority, defective or irregular execution, adverse interest of director,
officer or stockholder, non-disclosure, miscomputation, or the application of improper principles
or practices of accounting may be ratified before or after judgment by the Board of Directors or,
if less than a quorum of directors is qualified, by a committee of qualified directors or by the
stockholders; and, if so ratified, shall have the same force and effect as if the questioned
transaction had been originally duly authorized, and said ratification shall be binding upon the
Corporation and its stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
ARTICLE IV
OFFICERS
4.1 Designation. The officers of the Corporation shall be elected or appointed by the Board
of Directors and shall consist of a Chief Executive Officer, a President, a Chief Financial
Officer, a Secretary, a Treasurer and such Executive, Senior or other Vice Presidents, Assistant
Secretaries and other officers as may be elected or appointed by the Board of Directors. Any
number of offices may be held by the same person, provided that no person holding more than one
office may sign, in more than one capacity, any certificate or other instrument required by law to
be signed by two officers. The Board of Directors shall also elect or appoint from among the
directors a person to act as Chairman of the Board who shall not be deemed to be an officer of the
Corporation unless he or she has otherwise been elected or appointed as such.
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4.2 Powers and Duties. The officers of the Corporation shall have such powers and duties as
generally pertain to their offices, except as modified herein or by the Board of Directors, as well
as such powers and duties as from time to time may be conferred by the Board of Directors. The
Chairman of the Board shall have such duties as may be assigned to him by the Board of Directors
and shall preside at meetings of the Board of Directors and at meetings of the stockholders. The
Chief Executive Officer shall have general supervision over the business, affairs and property of
the Corporation.
4.3 Vacancies. Whenever any vacancies shall occur in any office by death, resignation,
increase in the number of offices of the Corporation, or otherwise, the same shall be filled by the
Board of Directors, and the officer so elected shall hold office until such officers successor is
elected or appointed or until his earlier death, resignation or removal.
4.4 Removal. Any officer or agent elected or appointed by the Board of Directors
may be removed by the Board of Directors with or without cause at any time. Such removal shall be
without prejudice to the contract, common law, and statutory rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself create contract
rights.
4.5 Action with Respect to Securities of Other Corporations. Unless otherwise directed by the
Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, any Vice President and the Treasurer of the Corporation shall each have
power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting
of security holders of or with respect to any action of security holders of any other corporation
in which this Corporation may hold securities and otherwise to exercise any and all rights and
powers which this Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE V
CAPITAL STOCK
5.1 Shares of Stock. The capital stock of the Corporation shall be represented by
certificated or uncertificated shares, as determined by the Board of Directors. Certificates
representing such certificated shares shall be signed by the Chairman of the Board, the President
or a Vice President and either the Treasurer or an Assistant Treasurer of the Corporation, or the
Secretary or an Assistant Secretary of the Corporation, and may bear the seal of the Corporation or
a facsimile thereof. The signatures of such persons upon a certificate may be facsimiles. The
stock record books and the blank stock certificate books shall be kept by the Secretary of the
Corporation, or at the office of such transfer agent or transfer agents as the Board of Directors
may from time to time by resolution determine. In case any person who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to be Chairman of the
Board or shall have ceased to be an officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if such person were such officer at the date of its
issuance.
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5.2 Transfer of Shares. The shares of stock of the Corporation shall be transferable only on
the stock transfer books of the Corporation by the holders thereof in person or by their duly
authorized attorneys or legal representatives and, in the case of shares represented by a
certificate, the certificate being surrendered for cancellation. Until and unless the Board of
Directors appoints some other person, firm or corporation as its transfer agent (and upon the
revocation of any such appointment, thereafter until a new appointment is similarly made), the
Secretary of the Corporation shall be the transfer agent of the Corporation without the necessity
of any formal action of the Board of Directors, and the Secretary, or any person designated by him,
shall perform all of the duties thereof.
5.3 Regulations Regarding Certificates. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient concerning the issue,
transfer and registration or the replacement of certificates for shares of capital stock of the
Corporation.
5.4 Lost or Destroyed Certificates. The Chief Executive Officer, the President or any Vice
President may determine the conditions upon which a new certificate of stock may be issued in place
of a certificate which is alleged to have been lost, stolen or destroyed; and may, in its
discretion, require the owner of such certificate or his legal representative to give bond, with
sufficient surety, to indemnify the Corporation and each transfer agent and registrar against any
and all losses or claims that may arise by reason of the issue of a new certificate in the place of
the one so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
6.1 General. The Corporation shall, to the fullest extent permitted by applicable law in
effect on the date of effectiveness of these Bylaws, and to such greater extent as applicable law
may thereafter permit, indemnify and hold Indemnitee harmless from and against any and all losses,
liabilities, costs, claims, damages and, subject to Section 6.2, Expenses (as this and all other
capitalized words used in this Article VI not previously defined in these Bylaws are defined in
Section 6.15 hereof), arising out of any event or occurrence related to the fact that Indemnitee is
or was a director or an officer of the Corporation or is or was serving in another Corporate
Status.
6.2 Expenses. If Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Corporation shall indemnify Indemnitee against
all Expenses actually and reasonably incurred by him or on his behalf relating to such Matter. The
termination of any Matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such Matter. To the extent that the Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
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6.3 Advances. In the event of any threatened or pending Proceeding in which Indemnitee is a
party or is involved and that may give rise to a right of indemnification under this Article VI,
following written request to the Corporation by Indemnitee, the Corporation shall promptly pay to
Indemnitee amounts to cover Expenses reasonably incurred by Indemnitee in connection with such
Proceeding in advance of its final disposition upon the receipt by the Corporation of (i) a written
undertaking executed by or on behalf of Indemnitee providing that Indemnitee will repay the advance
if it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the
Corporation as provided in this Article VI and (ii) reasonably satisfactory evidence as to the
amount of such Expenses.
6.4 Request for Indemnification. To obtain indemnification, Indemnitee shall submit to the
Secretary of the Corporation a written claim or request. Such written claim or request shall
contain sufficient information to reasonably inform the Corporation about the nature and extent of
the indemnification or advance sought by Indemnitee. The Secretary of the Corporation shall
promptly advise the Board of Directors of such request.
6.5 Determination of Entitlement; No Change of Control. If there has been no Change of
Control at the time the request for indemnification is submitted, Indemnitees entitlement to
indemnification shall be determined in accordance with Section 145(d) of the DGCL. If entitlement
to indemnification is to be determined by Independent Counsel, the Corporation shall furnish notice
to Indemnitee within ten days after receipt of the request for indemnification notice specifying
the identity and address of Independent Counsel. The Indemnitee may, within 14 days after receipt
of such written notice, deliver to the Corporation a written objection to such selection. Such
objection may be asserted only on the ground that the Independent Counsel so selected does not meet
the requirements of Independent Counsel and the objection shall set forth with particularity the
factual basis for such assertion. If there is an objection to the selection of Independent
Counsel, either the Corporation or Indemnitee may petition the Court for a determination that the
objection is without a reasonable basis or for the appointment of Independent Counsel selected by
the Court.
6.6 Determination of Entitlement; Change of Control. If there has been a Change of Control at
the time the request for indemnification is submitted, Indemnitees entitlement to indemnification
shall be determined in a written opinion by Independent Counsel selected by Indemnitee. Indemnitee
shall give the Corporation written notice advising of the identity and address of the Independent
Counsel so selected. The Corporation may, within 14 days after receipt of such written notice of
selection, deliver to the Indemnitee a written objection to such selection. Indemnitee may, within
14 days after the receipt of such objection from the Corporation, submit the name of another
Independent Counsel and the Corporation may, within seven days after receipt of such written
notice, deliver to the Indemnitee a written objection to such selection. Any objections referred
to in this Section 6.6 may be asserted only on the ground that the Independent Counsel so selected
does not meet the requirements of Independent Counsel and such objection shall set forth with
particularity the factual basis for such assertion. Indemnitee may petition the Court for a
determination that the Corporations objection to the first or second selection of Independent
Counsel is without a reasonable basis or for the appointment as Independent Counsel selected by the
Court.
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6.7 Procedures of Independent Counsel. If a Change of Control shall have occurred before the
request for indemnification is sent by Indemnitee, Indemnitee shall be presumed (except as
otherwise expressly provided in this Article VI) to be entitled to indemnification upon submission
of a request for indemnification in accordance with Section 6.4 hereof, and thereafter the
Corporation shall have the burden of proof to overcome the presumption in reaching a determination
contrary to the presumption. The presumption shall be used by Independent Counsel as a basis for a
determination of entitlement to indemnification unless the Corporation provides information
sufficient to overcome such presumption by clear and convincing evidence or the investigation,
review and analysis of Independent Counsel convinces him by clear and convincing evidence that the
presumption should not apply.
Except in the event that the determination of entitlement to indemnification is to be made by
Independent Counsel, if the person or persons empowered under Section 6.5 or 6.6 hereof to
determine entitlement to indemnification shall not have made and furnished to Indemnitee in writing
a determination within 60 days after receipt by the Corporation of the request therefor, the
requisite determination of entitlement to indemnification shall be deemed to have been made and
Indemnitee shall be entitled to such indemnification unless Indemnitee knowingly misrepresented a
material fact in connection with the request for indemnification or such indemnification is
prohibited by applicable law. The termination of any Proceeding or of any Matter therein, by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article VI) of itself adversely affect
the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in
good faith and in a manner that he reasonably believed to be in or not opposed to the best
interests of the Corporation, or with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful. 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 of the Corporation shall be deemed to have acted in a manner not opposed to
the best interests of the Corporation.
For purposes of any determination hereunder, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal Proceeding, to have had no reasonable cause to
believe his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise or on information, opinions, reports or statements presented to
him or to the Corporation by any of the Corporations officers, employees or directors, or by any
other person as to matters the person reasonably believes are in such other persons professional
or expert competence and who has been selected with reasonable care by or on behalf of the
Corporation or another enterprise in the course of their duties or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section shall mean any other corporation or any partnership,
limited liability company, association, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this paragraph shall not be deemed to be exclusive
or to limit in any way the circumstances in which an Indemnitee may be deemed to
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have met the applicable standards of conduct for determining entitlement to rights under this
Article.
6.8 Independent Counsel Expenses. The Corporation shall pay any and all reasonable fees and
expenses of Independent Counsel incurred acting pursuant to this Article VI and in any Proceeding
to which it is a party or witness in respect of its investigation and written report and shall pay
all reasonable fees and expenses incident to the procedures in which such Independent Counsel was
selected or appointed. No Independent Counsel may serve if a timely objection has been made to his
selection until a court has determined that such objection is without a reasonable basis.
6.9 Adjudication. In the event that (i) a determination is made pursuant to Section 6.5 or
6.6 hereof that Indemnitee is not entitled to indemnification under this Article VI; (ii)
advancement of Expenses is not timely made pursuant to Section 6.3 hereof; (iii) Independent
Counsel has not made and delivered a written opinion determining the request for indemnification
(a) within 90 days after being appointed by the Court, (b) within 90 days after objections to his
selection have been overruled by the Court or (c) within 90 days after the time for the Corporation
or Indemnitee to object to his selection; or (iv) payment of indemnification is not made within
five days after a determination of entitlement to indemnification has been made or is deemed to
have been made pursuant to Section 6.5, 6.6 or 6.7 hereof, Indemnitee shall be entitled to an
adjudication by the Court of his entitlement to such indemnification or advancement of Expenses.
In the event that a determination shall have been made that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 6.9
shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination. If a Change of Control shall have occurred, in
any judicial proceeding commenced pursuant to this Section 6.9, the Corporation shall have the
burden of proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be. If a determination shall have been made or is deemed to have been made that
Indemnitee is entitled to indemnification, the Corporation shall be bound by such determination in
any judicial proceeding commenced pursuant to this Section 6.9, or otherwise, unless Indemnitee
knowingly misrepresented a material fact in connection with the request for indemnification, or
such indemnification is prohibited by law.
The Corporation shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 6.9 that the procedures and presumptions of this Article VI are not valid,
binding and enforceable. If Indemnitee, pursuant to this Section 6.9, seeks a judicial
adjudication to enforce his rights under, or to recover damages for breach of, this Article VI, and
if he prevails therein, then Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any and all Expenses actually and reasonably
incurred by him in such judicial adjudication. If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, then the Expenses incurred by Indemnitee in connection with such
judicial adjudication or arbitration shall be prorated.
6.10 Participation by the Corporation. With respect to any Proceeding: (a) the Corporation
will be entitled to participate therein at its own expense; (b) except as otherwise
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provided below, to the extent that it may wish, the Corporation (jointly with any other
indemnifying party similarly notified) will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Indemnitee; and (c) the Corporation shall not be liable to indemnify
Indemnitee under this Article VI for any amounts paid in settlement of any action or claim effected
without its written consent, which consent shall not be unreasonably withheld. After receipt of
notice from the Corporation to Indemnitee of the Corporations election to assume the defense
thereof, the Corporation will not be liable to Indemnitee under this Article VI for any legal or
other expenses subsequently incurred by Indemnitee in connection with the defense thereof other
than as otherwise provided below. Indemnitee shall have the right to employ his own counsel in
such action, suit, proceeding or investigation but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless the employment of counsel by Indemnitee has been authorized by the
Corporation, or Indemnitee shall have reasonably concluded that there is a conflict of interest
between the Corporation and Indemnitee in the conduct of the defense of such action, or the
Corporation shall not in fact have employed counsel to assume the defense of such action, in each
of which cases the fees and expenses of counsel employed by Indemnitee shall be subject to
indemnification pursuant to the terms of this Article VI. The Corporation shall not be entitled to
assume the defense of any Proceeding brought in the name of or on behalf of the Corporation or as
to which Indemnitee shall have reasonably concluded that there is a conflict of interest between
the Corporation and Indemnitee in the conduct of the defense of such action. The Corporation shall
not settle any action or claim in any manner which would impose any limitation or un-indemnified
penalty on Indemnitee without Indemnitees written consent, which consent shall not be unreasonably
withheld.
6.11 Nonexclusivity of Rights. The rights of indemnification and advancement of Expenses as
provided by this Article VI shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled to under applicable law, the Certificate of Incorporation, the Bylaws,
any agreement, a vote of stockholders or a resolution of directors, or otherwise. The rights to
indemnification and advancement of Expenses provided by, or granted pursuant to, this Article VI
shall be deemed vested at the time a person becomes a director or officer of the Corporation and no
subsequent amendment, alteration or repeal of this Article VI or any other provision of the
Certificate of Incorporation or the Bylaws shall adversely affect the rights of any person that is
or was a director or officer with respect to events, actions or circumstances occurring, in whole
or in part, prior to such amendment, alteration or repeal. The provisions of this Article VI shall
continue as to an Indemnitee whose Corporate Status has ceased for any reason and shall inure to
the benefit of his or its heirs, executors, administrators, successors or assigns. Neither the
provisions of this Article VI nor those of any agreement to which the Corporation is a party shall
be deemed to preclude the indemnification of any person who is not specified in this Article VI as
having the right to receive indemnification or is not a party to any such agreement, but whom the
Corporation has the power or obligation to indemnify under the provisions of the DGCL.
6.12 Insurance and Subrogation. The Corporation shall not be liable under this Article VI to
make any payment of amounts otherwise indemnifiable hereunder if, but only to the extent that,
Indemnitee has otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.
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In the event of any payment hereunder, the Corporation shall be subrogated to the extent of
such payment to all the rights of recovery of Indemnitee, who shall execute all papers required and
take all action reasonably requested by the Corporation to secure such rights, including execution
of such documents as are necessary to enable the Corporation to bring suit to enforce such rights.
6.13 Severability. If any provision or provisions of this Article VI shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby;
and, to the fullest extent possible, the provisions of this Article VI shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
6.14 Certain Actions Where Indemnification Is Not Provided. Notwithstanding any other
provision of this Article VI, no person shall be entitled to indemnification or advancement of
Expenses under this Article VI with respect to any Proceeding, or any Matter therein, brought or
made by such person against the Corporation.
6.15 Definitions. For purposes of this Article VI:
Change of Control means a change in control of the Corporation after the date
Indemnitee acquired his Corporate Status, which shall be deemed to have occurred in any one
of the following circumstances occurring after such date: (i) there shall have occurred an
event that is or would be required to be reported with respect to the Corporation in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Exchange Act, if the Corporation is
or were subject to such reporting requirement; (ii) any person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) shall have become the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 40% or more of the combined voting power of the Corporations then
outstanding voting securities without prior approval of at least two-thirds of the members
of the Board of Directors in office immediately prior to such persons attaining such
percentage interest; (iii) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which members of the
Board of Directors in office immediately prior to such transaction or event constitute less
than a majority of the Board of Directors thereafter; or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constituted the Board of
Directors (including, for this purpose, any new director whose election or nomination for
election by the Corporations stockholders was approved by a vote of at least two-thirds of
the directors then still in office who were directors at the beginning of such period) cease
for any reason to constitute at least a majority of the Board of Directors.
Corporate Status describes the status of an individual as a present or former
director or officer of the Corporation, or as a director, officer or other designated legal
representative of any other corporation, partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise for which an
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individual is or was serving as a director, officer or other designated legal
representative at the request of the Corporation.
Court means the Court of Chancery of the State of Delaware or any other court of
competent jurisdiction.
Expenses shall include all reasonable attorneys fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
Indemnitee includes any person who is, or is threatened to be made, a witness in or a
party to any Proceeding by reason of his Corporate Status.
Independent Counsel means a law firm, or a member of a law firm, that is experienced
in matters of corporate law and neither presently is, nor in the five years previous to his
selection or appointment has been, retained to represent: (i) the Corporation or Indemnitee
in any matter material to either such party or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder.
Matter is a claim, a material issue or a substantial request for relief.
Proceeding includes any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative, except one initiated by an Indemnitee pursuant to
Section 6.9 hereof to enforce his rights under this Article VI.
6.16 Notices. Promptly after receipt by Indemnitee of notice of the commencement of any
Proceeding, Indemnitee shall, if he anticipates or contemplates making a claim for indemnification
or advancement of Expenses pursuant to the terms of this Article VI, notify the Corporation of the
commencement of such Proceeding; provided, however, that any delay in so notifying the Corporation
shall not constitute a waiver or release by Indemnitee of rights hereunder and that any omission by
Indemnitee to so notify the Corporation shall not relieve the Corporation from any liability that
it may have to Indemnitee otherwise than under this Article VI. Any communication required or
permitted to the Corporation shall be addressed to the Secretary of the Corporation and any such
communication to Indemnitee shall be addressed to Indemnitees address as shown on the
Corporations records unless he specifies otherwise and shall be personally delivered, delivered by
U.S. Mail, or delivered by commercial express overnight delivery service. Any such notice shall be
effective upon receipt.
6.17 Contractual Rights. The right to be indemnified or to the advancement or reimbursement
of Expenses (i) is a contract right based upon good and valuable consideration, pursuant to which
Indemnitee may sue as if these provisions were set forth in a separate written contract between
Indemnitee and the Corporation, (ii) is and is intended to be retroactive and shall be available as
to events occurring prior to the adoption of these provisions and (iii) shall
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continue after any rescission or restrictive modification of such provisions as to events
occurring prior thereto.
6.18 Savings Clause. If any provision of this Article VI of the Bylaws is determined by a
court having jurisdiction over the matter to require the Corporation to do or refrain from doing
any act that is in violation of applicable law, the court shall be empowered to modify or reform
such provision so that, as modified or reformed, such provision provides the maximum of
indemnification permitted by law and such provision, as so modified or reformed, and the balance of
this Article VI shall be applied in accordance with their terms. Without limiting the generality
of the foregoing, if any portion of this Article VI of the Bylaws shall be invalidated on any
ground, the Corporation shall nevertheless indemnify an Indemnitee to the full extent permitted by
an applicable portion of this Article VI of the Bylaws that shall not have been invalidated and to
the full extent permitted by law with respect to that portion that has been invalidated.
6.19 Successors and Assigns. This Article VI of the Bylaws shall be binding upon the
Corporation, its successors and assigns.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Bylaw Amendments. The Board of Directors shall have the power 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 Whole Board. The
stockholders shall also have the power to adopt, amend or repeal the Bylaws of the Corporation at
any annual meeting before which such matter has been properly brought in accordance with Sections
2.2 and 2.8(c) hereof, or at any special meeting if notice of the proposed amendment is contained
in the notice of said special meeting, by the affirmative vote of the holders of a majority of the
voting power of the then issued and outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class. No
Bylaws hereafter adopted, or any amendments thereto, shall invalidate any prior act of the Board of
Directors that was valid at the time it was taken.
7.2 Books and Records. The Corporation shall keep books and records of account and shall keep
minutes of the proceedings of its stockholders, its Board of Directors and each committee of its
Board of Directors.
7.3 Notice; Waiver. Whenever, under any provisions of these Bylaws, notice is required to be
given to any stockholder, it may be given personally, by mail or by a form of electronic
transmission consented to by the stockholder to whom the notice is given, to the fullest extent
allowed under the DGCL. Notice by mail to a stockholder shall be deemed to be sufficient if
deposited in the United States mail, postage prepaid, and addressed to last known post office
address of such stockholder as shown on the stock records of the Corporation.
Any notice required to be given to any director or committee member may be given by any method
that creates a record of its content that may be retained, retrieved and reviewed by the recipient,
except that such notice, other than one which is delivered personally, shall be sent
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to such address (whether physical, telephonic, electronic or otherwise) as such director shall
have specified in writing to the Secretary or, in the absence of such specification, to the last
known post office address of such director or committee member.
All notices given by mail, as above provided, shall be deemed to have been given as at the
time of mailing, and all notices given by telephonic, electronic or other similarly instantaneous
means shall be deemed to have been given as of the sending time recorded at the time of
transmission.
Whenever any notice is required to be given to any stockholder, director or committee member
under the provisions of the DGCL or under the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be equivalent to the giving of such notice. Attendance of
a person at a meeting shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be specified in any written
waiver of notice unless so required by the Certificate of Incorporation or these Bylaws.
7.4 Resignations. Any director or officer may resign at any time. Such resignation shall be
made in writing and shall take effect at the time specified therein, or, if no time be specified,
at the time of its receipt by the Chief Executive Officer or the Secretary of the Corporation. The
acceptance of a resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
7.5 Seal. The seal of the Corporation, if any, shall be in such form as the Board of
Directors may adopt.
7.6 Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of December of
each year or as otherwise provided by a resolution adopted by the Board of Directors.
7.7 Facsimile Signatures. In addition to the provisions for the use of facsimile signatures
elsewhere specifically authorized in these Bylaws, facsimile signatures of the Chairman of the
Board, any other director, or any officer or officers of the Corporation may be used whenever and
as authorized by the Board of Directors.
7.8 Reliance upon Books, Reports and Records. Each director and each member of any committee
designated by the Board of Directors shall, in the performance of his duties, be fully protected in
relying in good faith upon the records of the corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors, or by any other person as to matters the director or member
reasonably believes are within such other persons professional or expert competence and who has
been selected with reasonable care by or behalf of the Corporation.
As last amended on March 5, 2010
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