Attached files
file | filename |
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10-K - FORM 10-K - Resolute Energy Corp | d71534e10vk.htm |
EX-21 - EX-21 - Resolute Energy Corp | d71534exv21.htm |
EX-32 - EX-32 - Resolute Energy Corp | d71534exv32.htm |
EX-3.1 - EX-3.1 - Resolute Energy Corp | d71534exv3w1.htm |
EX-23.4 - EX-23.4 - Resolute Energy Corp | d71534exv23w4.htm |
EX-99.2 - EX-99.2 - Resolute Energy Corp | d71534exv99w2.htm |
EX-10.1 - EX-10.1 - Resolute Energy Corp | d71534exv10w1.htm |
EX-31.1 - EX-31.1 - Resolute Energy Corp | d71534exv31w1.htm |
EX-23.1 - EX-23.1 - Resolute Energy Corp | d71534exv23w1.htm |
EX-23.2 - EX-23.2 - Resolute Energy Corp | d71534exv23w2.htm |
EX-23.3 - EX-23.3 - Resolute Energy Corp | d71534exv23w3.htm |
EX-99.1 - EX-99.1 - Resolute Energy Corp | d71534exv99w1.htm |
EX-31.2 - EX-31.2 - Resolute Energy Corp | d71534exv31w2.htm |
EX-10.14 - EX-10.14 - Resolute Energy Corp | d71534exv10w14.htm |
EX-10.13 - EX-10.13 - Resolute Energy Corp | d71534exv10w13.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
RESOLUTE ENERGY CORPORATION,
a Delaware corporation
(the Corporation)
(Adopted
as of September 25, 2009 )
AMENDED AND RESTATED
BY-LAWS
OF
RESOLUTE ENERGY CORPORATION
BY-LAWS
OF
RESOLUTE ENERGY CORPORATION
ARTICLE I
OFFICES
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation within the State of Delaware shall be located at either
(a) the principal place of business of the Corporation in the State of Delaware or (b) the office
of the corporation or individual acting as the Corporations registered agent in Delaware.
Section 1.2 Additional Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such
other offices and places of business, both within and outside the State of Delaware, as the Board
of Directors of the Corporation (the Board) may from time to time determine or as the business
and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
STOCKHOLDERS MEETINGS
Section 2.1 Annual Meetings. The annual meeting of stockholders shall be held at such place and time and on such date as
shall be determined by the Board and stated in the notice of the meeting, provided that the Board
may in its sole discretion determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication pursuant to Section 9.5(a). At
each annual meeting, the stockholders shall elect directors of the Corporation and may transact any
other business as may properly be brought before the meeting.
Section 2.2 Special Meetings. Except as otherwise required by applicable law or provided in the Corporations Amended and
Restated Certificate of Incorporation, as the same may be amended or restated from time to time
(the Certificate of Incorporation), special meetings of stockholders, for any purpose or
purposes, may be called only by the Chairman of the Board, the Chief Executive Officer, the
President or the Board pursuant to a resolution adopted by a majority of the Whole Board (as
defined below). Special meetings of stockholders shall be held at such place and time and on such
date as shall be determined by the Board and stated in the Corporations notice of the meeting,
provided that the Board may in its sole discretion determine that the meeting shall not be held at
any place, but may instead be held solely by means of remote communication pursuant to Section
9.5(a). Whole Board shall mean the total number of directors the Corporation would have if
there were no vacancies.
Section 2.3 Notices. Notice of each stockholders meeting stating the place, if any, date, and time of the meeting,
and the means of remote communication, if any, by which stockholders and proxyholders may be deemed
to be present in person and vote at such meeting, shall be given in the manner permitted by
Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than
10 nor more than 60 days before the date of the meeting. If said notice is for a stockholders
meeting other than an annual meeting, it shall in addition state the
purpose or purposes for which the meeting is called, and the business transacted at such meeting
shall be limited to the matters so stated in the Corporations notice of meeting (or any supplement
thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any
special meeting of stockholders as to which notice has been given may be cancelled, by the Board
upon public announcement (as defined in Section 2.7(c)) given before the date previously
scheduled for such meeting.
Section 2.4 Quorum. Except as otherwise provided by applicable law, the Certificate of Incorporation or these
By-Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of
outstanding capital stock of the Corporation representing a majority of the voting power of all
outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such meeting, except that when specified
business is to be voted on by a class or series of stock voting as a class, the holders of shares
representing a majority of the voting power of the outstanding shares of such class or series shall
constitute a quorum of such class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the stockholders, the chairman of
the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6
until a quorum shall attend. The stockholders present at a duly convened meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum. Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the voting power of the shares entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation or any such other corporation to vote shares
held by it in a fiduciary capacity.
Section 2.5 Voting of Shares.
(a) Voting Lists. The Secretary shall prepare, or shall cause the officer or agent
who has charge of the stock ledger of the Corporation to prepare, at least 10 days before every
meeting of stockholders, a complete list of the stockholders of record entitled to vote thereat
arranged in alphabetical order and showing the address and the number of shares registered in the
name of each stockholder. Nothing contained in this Section 2.5(a) shall require the
Corporation to include electronic mail addresses or other electronic contact information on such
list. Such list shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or (ii) during ordinary business
hours, at the principal place of business of the Corporation. If the Corporation determines to
make the list available on an electronic network, the Corporation may take reasonable steps to
ensure that such information is available only to stockholders of the Corporation. If the meeting
is to be held at a place, then the list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present. If
a meeting of stockholders is to be held solely by means of remote communication as permitted by
Section 9.5(a), the list shall be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of meeting.
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The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of
stockholders.
(b) Manner of Voting. At any stockholders meeting, every stockholder entitled to vote
may vote in person or by proxy. If authorized by the Board, the voting by stockholders or
proxyholders at any meeting conducted by remote communication may be effected by a ballot submitted
by electronic transmission (as defined in Section 9.3), provided that any such electronic
transmission must either set forth or be submitted with information from which the Corporation can
determine that the electronic transmission was authorized by the stockholder or proxyholder. The
Board, in its discretion, or the chairman of the meeting of stockholders, in such persons
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may authorize another
person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer period. Proxies need
not be filed with the Secretary of the Corporation until the meeting is called to order, but shall
be filed with the Secretary before being voted. Without limiting the manner in which a stockholder
may authorize another person or persons to act for such stockholder as proxy, either of the
following shall constitute a valid means by which a stockholder may grant such authority.
(i) A stockholder may execute a writing authorizing another person or persons to act
for such stockholder as proxy. Execution may be accomplished by the stockholder or such
stockholders authorized officer, director, employee or agent signing such writing or
causing such persons signature to be affixed to such writing by any reasonable means,
including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such stockholder
as proxy by transmitting or authorizing the transmission of an electronic transmission to
the person who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such electronic
transmission must either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote. Subject to the rights of the holders of one or more series of
preferred stock of the Corporation (Preferred Stock), voting separately by class or series, to
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elect directors pursuant to the terms of one or more series of Preferred Stock, the election
of directors shall be determined by a plurality of the votes cast by the stockholders present in
person or represented by proxy at the meeting and entitled to vote thereon. All other matters
shall be determined by the vote of a majority of the votes cast by the stockholders present in
person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is
one upon which, by applicable law, the Certificate of Incorporation, these By-Laws or applicable
stock exchange rules, a different vote is required, in which case such provision shall govern and
control the decision of such matter.
(e) Inspectors of Election. The Board may, and shall if required by law, in advance
of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be
employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board
may appoint one or more persons as alternate inspectors to replace any inspector who fails to act.
If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his
or her duties, shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The inspectors shall
ascertain and report the number of outstanding shares and the voting power of each; determine the
number of shares present in person or represented by proxy at the meeting and the validity of
proxies and ballots; count all votes and ballots and report the results; determine and retain for a
reasonable period a record of the disposition of any challenges made to any determination by the
inspectors; and certify their determination of the number of shares represented at the meeting and
their count of all votes and ballots. No person who is a candidate for an office at an election
may serve as an inspector at such election. Each report of an inspector shall be in writing and
signed by the inspector or by a majority of them if there is more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be the report of the
inspectors.
Section 2.6 Adjournments. Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting,
from time to time, whether or not there is a quorum, to reconvene at the same or some other place.
Notice need not be given of any such adjourned meeting if the date, time, place, if any, thereof,
and the means of remote communication, if any, by which stockholders and proxyholders may be deemed
to be present in person and vote at such adjourned meeting are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class
or series of stock entitled to vote separately as a class, as the case may be, may transact any
business that might have been transacted at the original meeting. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting.
Section 2.7 Advance Notice for Business.
(a) Annual Meetings of Stockholders. No business may be transacted at an annual
meeting of stockholders, other than business that is either (i) specified in the Corporations
notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii)
otherwise properly brought before the annual meeting by or at the direction of the
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Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the
Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for
in this Section 2.7(a) and who is entitled to vote at such annual meeting and (y) who
complies with the notice procedures set forth in this Section 2.7(a). Except for proposals
properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(the Exchange Act), and included in the notice of meeting given by or at the direction of the
Board, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose
business to be brought before an annual meeting of stockholders. Stockholders seeking to nominate
persons for election to the Board must comply with Section 3.2, and this Section
2.7 shall not be applicable to nominations.
(i) In addition to any other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the Secretary of
the Corporation and such business must otherwise be a proper matter for stockholder action.
Subject to Section 2.7(a)(iv), a stockholders notice to the Secretary with respect
to such business, to be timely, must (x) comply with the provisions of this Section
2.7(a)(i) and (y) be timely updated by the times and in the manner required by
the provisions of Section 2.7(a)(iii). A stockholders notice must be received by
the Secretary at the principal executive offices of the Corporation not later than the close
of business on the 90th day nor earlier than the opening of business on the 120th day before
the anniversary date of the immediately preceding annual meeting of stockholders; provided,
however, that if the annual meeting is called for a date that is not within 45 days before
or after such anniversary date, notice by the stockholder to be timely must be so received
not earlier than the opening of business on the 120th day before the meeting and not later
than the later of (x) the close of business on the 90th day before the meeting or (y) the
close of business on the 10th day following the day on which public announcement of the date
of the annual meeting is first made by the Corporation. Notwithstanding the previous
sentence, for purposes of determining whether a stockholders notice shall have been
received in a timely manner for the annual meeting of stockholders in 2010, to be timely, a
stockholders notice must have been received not later than the close of business on
February 11, 2010 nor earlier than the opening of business on January 12, 2010. The public
announcement of an adjournment or postponement of an annual meeting shall not commence a new
time period for the giving of a stockholders notice as described in this Section
2.7(a).
(ii) To be in proper written form, a stockholders notice to the Secretary with respect
to any business (other than nominations) must set forth (A) as to each such matter such
stockholder proposes to bring before the annual meeting (1) a brief description of the
business desired to be brought before the annual meeting and any material interest in such
business of such stockholder and any Stockholder Associated Person (as defined below),
individually or in the aggregate, (2) the text of the proposal or business (including the
text of any resolutions proposed for consideration and if such business includes a proposal
to amend these By-Laws, the text of the proposed amendment) and (3) the reasons for
conducting such business at the annual meeting, (B) the name and address of the stockholder
proposing such business, as they appear on the Corporations books, and the name and address
of any Stockholder Associated Person,
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(C) the class or series and number of shares of capital stock of the Corporation that
are owned of record or are directly or indirectly owned beneficially by such stockholder and
by any Stockholder Associated Person, (D) any option, warrant, convertible security, stock
appreciation right, swap 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 the
Corporation or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right is subject to
settlement in the underlying class or series of shares of the Corporation or otherwise (a
Derivative Instrument) directly or indirectly owned beneficially by such stockholder or by
any Stockholder Associated Person and any other direct or indirect opportunity of such
stockholder or any Stockholder Associated Person to profit or share in any profit derived
from any increase or decrease in the value of shares of the Corporation, (E) any proxy
(other than a revocable proxy given in response to a solicitation made pursuant to Section
14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A),
contract, arrangement, understanding or relationship pursuant to which such stockholder or
any Stockholder Associated Person has a right to vote any shares of the Corporation, (F) any
short interest in any security of the Corporation held by such stockholder or any
Stockholder Associated Person (for purposes of this Section 2.7 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 otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the value of the subject
security), (G) any rights owned beneficially by such stockholder or Stockholder Associated
Person to dividends on the shares of the Corporation that are separated or separable from
the underlying shares of the Corporation, (H) any proportionate interest in shares of the
Corporation or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder or any Stockholder Associated Person is a general
partner or, directly or indirectly, beneficially owns an interest in a general partner, (I)
any performance-related fees (other than an asset-based fee) that such stockholder or any
Stockholder Associated Person is entitled to based on any increase or decrease in the value
of shares of the Corporation or Derivative Instruments, if any, including without limitation
any such interests held by members of such stockholders or any Stockholder Associated
Persons immediate family sharing the same household, (J) a description of all agreements,
arrangements or understandings (written or oral) between or among such stockholder, any
Stockholder Associated Person or any other person or persons (including their names) in
connection with the proposal of such business by such stockholder, (K) any other information
relating to such stockholder and any Stockholder Associated Person that would be required to
be disclosed in a proxy statement or other filings required to be made in connection with
solicitation of proxies for election of directors (even if an election contest is not
involved), or would be otherwise required, in each case pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder, (L) 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 (M) a statement of whether such stockholder or any
Stockholder Associated Person intends, or is part of a group that intends, to solicit
proxies in connection with the proposal.
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(iii) 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
2.7(a) shall be true and correct as of the record date for the meeting and as of the
date that is 10 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 by,
the Secretary at the principal executive offices of the Corporation (x) in the case of the
update and supplement required to be made as of the record date, not later than five
business days after the record date for the meeting and (y) in the case of the update and
supplement required to be made as of 10 business days prior to the meeting or any
adjournment or postponement thereof, as applicable, not later than eight business days prior
to the date for the meeting or any adjournment or postponement thereof, if practicable (or
if not practicable, on the first practicable date prior to the date for the meeting or such
adjournment or postponement thereof).
(iv) The foregoing notice requirements of this Section 2.7(a) shall be deemed
satisfied by a stockholder as to any proposal (other than nominations) if the stockholder
has notified the Corporation of such stockholders intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act,
and such stockholders proposal has been included in a proxy statement prepared by the
Corporation to solicit proxies for such annual meeting. No business shall be conducted at
the annual meeting of stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 2.7(a), provided, however,
that once business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 2.7(a) shall be deemed to preclude
discussion by any stockholder of any such business. If the Board or the chairman of the
annual meeting determines that any stockholder proposal was not made in accordance with the
provisions of this Section 2.7(a) or that the information provided in a
stockholders notice does not satisfy the information requirements of this Section
2.7(a), such proposal shall not be presented for action at the annual meeting.
Notwithstanding the foregoing provisions of this Section 2.7(a), if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual meeting of
stockholders of the Corporation to present the proposed business, such proposed business
shall not be transacted, notwithstanding that proxies in respect of such matter may have
been received by the Corporation.
(v) In addition to the provisions of this Section 2.7(a), a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth herein. Nothing in this
Section 2.7(a) shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporations proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board may be
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made at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting only pursuant to Section 3.2.
(c) Definitions. For purposes of these By-Laws, public announcement shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act; and
Stockholder Associated Person shall mean for any stockholder (i) any person controlling, directly
or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of shares of
stock of the Corporation owned of record or beneficially by such stockholder, or (iii) any person
controlling, controlled by or under common control with such person referred to in the preceding
clauses (i) and (ii).
Section 2.8 Conduct of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the
Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief
Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to
act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the
President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of
the President or if the President is not a director, such other person as shall be appointed by the
Board. The date and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the
meeting. The Board may adopt such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent with these By-Laws or
such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders
shall have the right and authority to convene and to adjourn the meeting, 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 or prescribed by the chairman of the meeting, may include, without limitation,
the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules
and procedures for maintaining order at the meeting and the safety of those present; (c)
limitations on attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (e) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be
the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant
Secretary so appointed to act by the chairman of the meeting. In the absence (or inability or
refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9 No Action by Consent of Stockholders in Lieu of Meeting. Except as otherwise expressly provided by the terms of any series of Preferred Stock permitting
the holders of such series of Preferred Stock to act by written consent, any action required or
permitted to be taken by stockholders of the Corporation must be effected at a duly called annual
or special meeting of the stockholders and may not be effected by written consent in lieu of a
meeting.
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ARTICLE III
DIRECTORS
DIRECTORS
Section 3.1 Powers. The business and affairs of the Corporation shall be managed by or under the direction of the
Board, which may exercise all such powers of the Corporation and do all such lawful acts and things
as are not by statute or by the Certificate of Incorporation or by these By-Laws required to be
exercised or done by the stockholders. Directors need not be stockholders or residents of the State
of Delaware.
Section 3.2 Advance Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance with the following procedures shall be
eligible for election as directors by the stockholders of the Corporation, except as may be
otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights
of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for
election to the Board at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors as set forth in the Corporations notice
of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any
stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 3.2 and who is entitled to vote in the election of
directors at such meeting and (y) who complies with the notice procedures set forth in this
Section 3.2.
(b) In addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a stockholders notice to the Secretary must (x)
comply with the provisions of this Section 3.2(b) and (y) be timely updated by the times
and in the manner required by the provisions of Section 3.2(e). A stockholders notice
must be received by the Secretary at the principal executive offices of the Corporation (i) in the
case of an annual meeting, not later than the close of business on the 90th day nor earlier than
the opening of business on the 120th day before the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that if the annual meeting is called for a date
that is not within 45 days before or after such anniversary date, notice by the stockholder to be
timely must be so received not earlier than the opening of business on the 120th day before the
meeting and not later than the later of (x) the close of business on the 90th day before the
meeting or (y) the close of business on the 10th day following the day on which public announcement
of the date of the annual meeting is first made by the Corporation; and (ii) in the case of a
special meeting of stockholders called for the purpose of electing directors, not earlier than the
opening of business on the 120th day before the meeting and not later than the later of
(x) the close of business on the 90th day before the meeting or (y) the close of
business on the 10th day following the day on which public announcement of the date of the special
meeting is first made by the Corporation. Notwithstanding the previous sentence, for purposes of
determining whether a stockholders notice shall have been received in a timely manner for the
annual meeting of stockholders in 2010, to be timely, a stockholders notice must have been
received not later than the close of business on February 11, 2010 nor earlier than the opening of
business on January 12, 2010. The public announcement of an adjournment or postponement of
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an annual meeting or special meeting shall not commence a new time period for the giving of a
stockholders notice as described in this Section 3.2.
(c) Notwithstanding anything in paragraph (b) to the contrary, if the number of directors to
be elected to the Board at an annual meeting is greater than the number of directors whose terms
expire on the date of the annual meeting and there is no public announcement by the Corporation
naming all of the nominees for the additional directors to be elected or specifying the size of the
increased Board before the close of business on the 90th day prior to the anniversary date of the
immediately preceding annual meeting of stockholders, a stockholders notice required by this
Section 3.2 shall also be considered timely, but only with respect to nominees for the
additional directorships created by such increase that are to be filled by election at such annual
meeting, if it shall be received by the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the date on which such
public announcement was first made by the Corporation.
(d) To be in proper written form, a stockholders notice to the Secretary must set forth (i)
as to each person whom the stockholder proposes to nominate for election as a director (A) the
name, age, business address and residence address of the person, (B) the principal occupation or
employment of the person, (C) the class or series and number of shares of capital stock of the
Corporation that are owned of record or are directly or indirectly owned beneficially by the
person, (D) any Derivative Instrument directly or indirectly owned beneficially by 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 the Corporation and (E) any other information relating to the
person that would be required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice (A) the name and address of such stockholder as they appear on the
Corporations books, and the name and address of any Stockholder Associated Person, (B) the class
or series and number of shares of capital stock of the Corporation that are owned of record or
directly or indirectly owned beneficially by such Stockholder and any Stockholder Associated
Person, (C) any Derivative Instrument directly or indirectly owned beneficially by such stockholder
or Stockholder Associated Person and any other direct or indirect opportunity of such stockholder
or any Stockholder Associated Person to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation, (D) any proxy (other than a revocable proxy
given in response to a solicitation made pursuant to Section 14(a) of the Exchange Act by way of a
solicitation statement filed on Schedule 14A), contract, arrangement, understanding or relationship
pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any
shares of the Corporation, (E) any short interest in any security of the Corporation held by such
stockholder or any Stockholder Associated Person (for purposes of this Section 3.2 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 otherwise, has the opportunity to
profit or share in any profit derived from any decrease in the value of the subject security), (F)
any rights beneficially owned, directly or indirectly, by such stockholder or Stockholder
Associated Person to dividends on the shares of the Corporation that are separated or separable
from the underlying shares of the Corporation, (G) any proportionate interest in shares of the
Corporation or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which
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such stockholder or any Stockholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, (H) any performance-related fees
(other than an asset-based fee) that such stockholder or any Stockholder Associated Person is
entitled to based on any increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, including without limitation any such interests held by members of
such stockholders or any Stockholder Associated Persons immediate family sharing the same
household, (I) a description of all agreements, arrangements or understandings (written or oral)
between or among such stockholder, any Stockholder Associated Person, any proposed nominee or any
other person or persons (including their names) pursuant to which the nomination or nominations are
to be made by such stockholder, (J) a representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice, (K) any other
information relating to such stockholder and any Stockholder Associated Person that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder, (L) 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 or any
Stockholder Associated Person, 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 the stockholder making the
nomination and any Stockholder Associated Person, or any person acting in concert therewith, was
the registrant for purposes of such rule and the nominee was a director or executive officer of
such registrant and (M) a statement of whether such stockholder or any Stockholder Associated
Person intends, or is part of a group that intends, to solicit proxies for the election of the
proposed nominee. Such notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
(e) A stockholder providing notice of a director nomination 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 3.2 shall be true and correct as of the record date
for the meeting and as of the date that is 10 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 by, the Secretary at the principal executive offices of the Corporation (x) in the case of
the update and supplement required to be made as of the record date, not later than five business
days after the record date for the meeting and (y) in the case of the update and supplement
required to be made as of 10 business days prior to the meeting or any adjournment or postponement
thereof, as applicable, not later than eight business days prior to the date for the meeting or any
adjournment or postponement thereof, if practicable (or if not practicable, on the first
practicable date prior to the date for the meeting or such adjournment or postponement thereof).
In addition, at the request of the Board, a proposed nominee shall furnish to the Secretary of the
Corporation within ten days after receipt of such request such 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,
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and if such information is not furnished within such time period, the notice of such
directors nomination shall not be considered to have been timely given for purposes of this
Section 3.2.
(f) If the Board or the chairman of the meeting of stockholders determines that any nomination
was not made in accordance with the provisions of this Section 3.2, then such nomination
shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of
this Section 3.2, if the stockholder (or a qualified representative of the stockholder)
does not appear at the meeting of stockholders of the Corporation to present the nomination, such
nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may
have been received by the Corporation.
(g) In addition to the provisions of this Section 3.2, a stockholder shall also comply
with all of the applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in this Section 3.2 shall
be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the
Certificate of Incorporation or the right of the Board to fill newly created directorships and
vacancies on the Board pursuant to the Certificate of Incorporation.
Section 3.3 Compensation. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board
shall have the authority to fix the compensation of directors. The directors may be reimbursed
their expenses, if any, of attendance at each meeting of the Board and may be paid either a fixed
sum for attendance at each meeting of the Board or other compensation as director. No such payment
shall preclude any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of committees of the Board may be allowed like compensation and
reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
BOARD MEETINGS
Section 4.1 Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders
meeting at the place of the annual stockholders meeting unless the Board shall fix another time and
place and give notice thereof in the manner required herein for special meetings of the Board. No
notice to the directors shall be necessary to legally convene this meeting, except as provided in
this Section 4.1.
Section 4.2 Regular Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times,
dates and places as shall from time to time be determined by the Board.
Section 4.3 Special Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or the Chief
Executive Officer and (b) shall be called by the Chairman of the Board, President or Secretary on
the written request of at least a majority of directors then in office, or the sole director, as
the case may be, and shall be held at such time, date and place as may be determined by the person
calling the meeting or, if called upon the request of directors or the sole director, as specified
in such written request. Notice of each special meeting of the Board shall be given, as provided
in Section 9.3, to each director (i) at least 24 hours before the
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meeting if such notice is oral notice given personally or by telephone or written notice given by
hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days
before the meeting if such notice is sent by a nationally recognized overnight delivery service;
and (iii) at least five days before the meeting if such notice is sent through the United States
mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by
the officer who called the meeting or the directors who requested the meeting. Any and all
business that may be transacted at a regular meeting of the Board may be transacted at a special
meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of
Incorporation, or these By-Laws, neither the business to be transacted at, nor the purpose of, any
special meeting need be specified in the notice or waiver of notice of such meeting. A special
meeting may be held at any time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with Section 9.4.
Section 4.4 Quorum; Required Vote. A majority of the Whole Board shall constitute a quorum for the transaction of business at any
meeting of the Board, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board, except as may be otherwise specifically provided
by applicable law, the Certificate of Incorporation or these By-Laws. If a quorum shall not be
present at any meeting, a majority of the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5 Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be, consent thereto in
writing or by electronic transmission, and the writing or writings or electronic transmission or
transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the
Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form
and shall be in electronic form if the minutes are maintained in electronic form.
Section 4.6 Organization. The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he
or she shall be a director) or, in the absence (or inability or refusal to act) of the Chief
Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she
shall be a director) or in the absence (or inability or refusal to act) of the President or if the
President is not a director, a chairman elected from the directors present. The Secretary shall
act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of
the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting.
In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the
chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
COMMITTEES OF DIRECTORS
Section 5.1 Establishment. The Board may by resolution passed by a majority of the Whole Board designate one or more
committees, each committee to consist of one or more of the
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directors of the Corporation. Each committee shall keep regular minutes of its meetings and report
the same to the Board when required. The Board shall have the power at any time to fill vacancies
in, to change the membership of, or to dissolve any such committee.
Section 5.2 Available Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by
applicable law and by resolution of the Board, shall have and may exercise all of the powers and
authority of the Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3 Alternate Members. The Board may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee.
Section 5.4 Procedures. Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a
committee shall be determined by such committee. At meetings of a committee, a majority of the
number of members of the committee (but not including any alternate member, unless such alternate
member has replaced any absent or disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business. The act of a majority of the
members present at any meeting at which a quorum is present shall be the act of the committee,
except as otherwise specifically provided by applicable law, the Certificate of Incorporation,
these By-Laws or the Board. If a quorum is not present at a meeting of a committee, the members
present may adjourn the meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in
these By-Laws, each committee designated by the Board may make, alter, amend and repeal rules for
the conduct of its business. In the absence of such rules each committee shall conduct its
business in the same manner as the Board is authorized to conduct its business pursuant to
Article III and Article IV of these By-Laws.
ARTICLE VI
OFFICERS
OFFICERS
Section 6.1 Officers. The officers of the Corporation elected by the Board shall be a Chief Executive Officer, a
President, a Treasurer, a Secretary and such other officers (including without limitation a
Chairman of the Board (if the Board designates the Chairman of the Board as an officer), Chief
Financial Officer, Vice Presidents, Assistant Secretaries and Assistant Treasurers) as the Board
from time to time may determine. Officers elected by the Board shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific provisions of this
Article VI. Such officers shall also have such powers and duties as from time to time may
be conferred by the Board. The Chairman of the Board (if appointed and designated as an officer),
the Chief Executive Officer or the President may also appoint such other officers (including
without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable
for the conduct of the business of the Corporation. Such other officers shall have such powers and
duties and shall hold their offices for such terms as may be provided in these By-Laws or as may be
prescribed by the Board or, if such officer has been appointed by the Chairman of the Board (if
appointed and designated as an officer), the Chief Executive Officer or the President, as may be
prescribed by the appointing officer.
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(a) Chairman of the Board. If a Chairman of the Board is appointed and designated as
an officer of the Corporation by the Board, the Chairman of the Board shall preside when present at
all meetings of the stockholders and the Board. The Chairman of the Board shall advise and counsel
the Chief Executive Officer and other officers and shall exercise such powers and perform such
duties as shall be assigned to or required of the Chairman of the Board from time to time by the
Board or these By-Laws. If and when a Chairman of the Board is not appointed or is only appointed
as a director and not designated as an officer of the Corporation by the Board (i.e. only director
status), then only the powers of the Chairman of the Board in Sections 2.2 and 4.3 shall have
effect, and all other references to the existence, powers and duties of the Chairman of the Word in
these Bylaws shall have no force or effect.
(b) Chief Executive Officer. The Chief Executive Officer shall be the chief executive
officer of the Corporation, shall have general supervision of the affairs of the Corporation and
general control of all of its business subject to the ultimate authority of the Board, and shall be
responsible for the execution of the policies of the Board. In the absence (or inability or
refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) shall preside when present at all meetings of the stockholders and the Board.
(c) President. The President shall be the chief operating officer of the Corporation
and shall, subject to the authority of the Chief Executive Officer and the Board, have general
management and control of the day-to-day business operations of the Corporation and shall consult
with and report to the Chief Executive Officer. The President shall put into operation the
business policies of the Corporation as determined by the Chief Executive Officer and the Board and
as communicated to the President by the Chief Executive Officer and the Board. The President shall
make recommendations to the Chief Executive Officer on all operational matters that would normally
be reserved for the final executive responsibility of the Chief Executive Officer. In the absence
(or inability or refusal to act) of the Chairman of the Board and the Chief Executive Officer, the
President (if he or she shall be a director) shall preside when present at all meetings of the
stockholders and the Board.
(d) Vice Presidents. In the absence (or inability or refusal to act) of the
President, the Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated by the Board) shall perform the duties and have the powers of
the President. Any one or more of the Vice Presidents may be given an additional designation of
rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the stockholders, the Board and (as
required) committees of the Board and shall record the proceedings of such meetings in books
to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board and shall perform such other
duties as may be prescribed by the Board, the Chairman of the Board, the Chief Executive
Officer or the President. The Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or any Assistant Secretary, shall have authority to affix the
same to any instrument requiring it, and when so affixed, it may be attested by his or her
signature or by the signature of such Assistant Secretary.
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The Board may give general authority to any other officer to affix the seal of the
Corporation and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept, at the principal executive office
of the Corporation or at the office of the Corporations transfer agent or registrar, if one
has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the
stockholders and their addresses, the number and classes of shares held by each and, with
respect to certificated shares, the number and date of certificates issued for the same and
the number and date of certificates cancelled.
(f) Assistant Secretaries. The Assistant Secretary or, if there be more than one, the
Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or
refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Treasurer. The Treasurer shall perform all duties commonly incident to that
office (including, without limitation, the care and custody of the funds and securities of the
Corporation which from time to time may come into the Treasurers hands and the deposit of the
funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer
or the President may authorize).
(h) Assistant Treasurers. The Assistant Treasurer or, if there shall be more than
one, the Assistant Treasurers in the order determined by the Board shall, in the absence (or
inability or refusal to act) of the Treasurer, perform the duties and exercise the powers of the
Treasurer.
Section 6.2 Term of Office; Removal; Vacancies. The elected officers of the Corporation shall be elected annually by the Board at its first
meeting held after each annual meeting of stockholders. All officers elected by the Board shall
hold office until the next annual meeting of the Board and until their successors are duly elected
and qualified or until their earlier death, resignation, retirement, disqualification, or removal
from office. Any officer may be removed, with or without cause, at any time by the Board. Any
officer appointed by the Chairman of the Board, the Chief Executive Officer or the President may
also be removed, with or without cause, by the Chairman of the Board, the Chief Executive Officer
or the President, as the case may be, unless the Board otherwise provides. Any vacancy occurring
in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any
office appointed by the Chairman of the Board, the Chief Executive Officer or the President may be
filled by the Chairman of the Board, the Chief Executive Officer or the President, as the case may
be, unless the Board then determines that such office shall thereupon be elected by the Board, in
which case the Board shall elect such officer.
Section 6.3 Other Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove
such officers and agents or delegate the power to remove same, as it shall from time to time deem
necessary or desirable.
Section 6.4 Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or
these By-Laws otherwise provide. Officers need not be stockholders or residents of the State of
Delaware.
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ARTICLE VII
SHARES
SHARES
Section 7.1 Certificated and Uncertificated Shares. The shares of the Corporation shall be represented by certificates, provided that the Board may
provide by resolution or resolutions that some or all of any or all classes or series of its stock
shall be uncertificated shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption
of such a resolution by the Board, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a certificate signed in
accordance with Section 7.3 representing the number of shares registered in certificate
form. The Corporation shall not have power to issue a certificate representing shares in bearer
form.
Section 7.2 Multiple Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the Corporation shall (a) cause the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences or rights to be set forth
in full or summarized on the face or back of any certificate that the Corporation issues to
represent shares of such class or series of stock or (b) in the case of uncertificated shares,
within a reasonable time after the issuance or transfer of such shares, send to the registered
owner thereof a written notice containing the information required to be set forth on certificates
as specified in clause (a) above; provided, however, that, except as otherwise provided by
applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back
of such certificate or, in the case of uncertificated shares, on such written notice a statement
that the Corporation will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences or rights.
Section 7.3 Signatures. Each certificate representing capital stock of the Corporation shall be signed by or in the name
of the Corporation by (a) the Chairman of the Board, the Chief Executive Officer, the President or
a Vice President and (b) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4 Consideration and Payment for Shares.
(a) Subject to applicable law and the Certificate of Incorporation, shares of stock may be
issued for such consideration, having in the case of shares with par value a value not less than
the par value thereof, and to such persons, as determined from time to time by the
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Board. The consideration may consist of any tangible or intangible property or benefit to the
Corporation including cash, promissory notes, services performed, contracts for services to be
performed or other securities.
(b) Subject to applicable law and the Certificate of Incorporation, shares may not be issued
until the full amount of the consideration has been paid, unless upon the face or back of each
certificate issued to represent any partly paid shares of capital stock or upon the books and
records of the Corporation in the case of partly paid uncertificated shares, there shall have been
set forth the total amount of the consideration to be paid therefor and the amount paid thereon up
to and including the time said certificate representing certificated shares or said uncertificated
shares are issued.
Section 7.5 Lost, Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate representing shares claims that such certificate has been
lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing
such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate
before the Corporation has notice that the certificate representing such shares has been acquired
by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made against the Corporation
on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements
imposed by the Corporation.
(b) If a certificate representing shares has been lost, apparently destroyed or wrongfully
taken, and the owner fails to notify the Corporation of that fact within a reasonable time after
the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded
from asserting against the Corporation any claim for registering such transfer or a claim to a new
certificate representing such shares or such shares in uncertificated form.
Section 7.6 Transfer of Stock.
(a) If a certificate representing shares of the Corporation is presented to the Corporation
with an indorsement requesting the registration of transfer of such shares or an instruction is
presented to the Corporation requesting the registration of transfer of uncertificated shares, the
Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate representing such shares has
been surrendered;
(ii) (A) with respect to certificated shares, the indorsement is made by the person
specified by the certificate as entitled to such shares; (B) with respect to uncertificated
shares, an instruction is made by the registered owner of such uncertificated shares; or (C)
with respect to certificated shares or uncertificated shares, the indorsement or instruction
is made by any other appropriate person or by an agent who has actual authority to act on
behalf of the appropriate person;
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(iii) the Corporation has received a guarantee of signature of the person signing such
indorsement or instruction or such other reasonable assurance that the indorsement or
instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate any restriction on transfer imposed by the
Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for such transfer as shall be provided for under applicable
law have been satisfied.
(b) Whenever any transfer of shares shall be made for collateral security and not absolutely,
the Corporation shall so record such fact in the entry of transfer if, when the certificate for
such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the
transferor and transferee request the Corporation to do so.
Section 7.7 Registered Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the
Corporation or of an instruction requesting registration of transfer of uncertificated shares, the
Corporation may treat the registered owner as the person exclusively entitled to inspect for any
proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all
the rights and powers of the owner of such shares, except that a person who is the beneficial owner
of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon
providing documentary evidence of beneficial ownership of such shares and satisfying such other
conditions as are provided under applicable law, may also so inspect the books and records of the
Corporation.
Section 7.8 Effect of the Corporations Restriction on Transfer.
(a) A written restriction on the transfer or registration of transfer of shares of the
Corporation or on the amount of shares of the Corporation that may be owned by any person or group
of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such
shares or, in the case of uncertificated shares, contained in a notice sent by the Corporation to
the registered owner of such shares within a reasonable time after the issuance or transfer of such
shares, may be enforced against the holder of such shares or any successor or transferee of the
holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with
like responsibility for the person or estate of the holder.
(b) A restriction imposed by the Corporation on the transfer or the registration of shares of
the Corporation or on the amount of shares of the Corporation that may be owned by any person or
group of persons, even if otherwise lawful, is ineffective against a person without actual
knowledge of such restriction unless: (i) the shares are certificated and such restriction is
noted conspicuously on the certificate; or (ii) the shares are uncertificated and such restriction
was contained in a notice sent by the Corporation to the registered owner of such shares within a
reasonable time after the issuance or transfer of such shares.
Section 7.9 Regulations. The Board shall have power and authority to make such additional rules and regulations, subject
to any applicable requirement of law, as the Board may
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deem necessary and appropriate with respect to the issue, transfer or registration of transfer of
shares of stock or certificates representing shares. The Board may appoint one or more transfer
agents or registrars and may require for the validity thereof that certificates representing shares
bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
Section 8.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a proceeding), by reason of the fact that
he or she is or was a director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter a Covered Person),
whether the basis of such proceeding is alleged action in an official capacity as a director,
officer, employee or agent, or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the fullest extent
authorized or permitted by applicable law, as the same exists or may hereafter be amended, against
all expense, liability and loss (including, without limitation, attorneys fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by
such Covered Person in connection with such proceeding; provided, however, that, except as provided
in Section 8.3 with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify a Covered Person in connection with a proceeding (or part thereof)
initiated by such Covered Person only if such proceeding (or part thereof) was authorized by the
Board.
Section 8.2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, a Covered Person
shall also have the right to be paid by the Corporation the expenses (including, without
limitation, attorneys fees) incurred in defending, testifying, or otherwise participating in any
such proceeding in advance of its final disposition (hereinafter an advancement of expenses);
provided, however, that, if the Delaware General Corporation Law (DGCL) requires, an advancement
of expenses incurred by a Covered Person in his or her capacity as a director or officer of the
Corporation (and not in any other capacity in which service was or is rendered by such Covered
Person, including, without limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an undertaking), by or on behalf of
such Covered Person, to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a final
adjudication) that such Covered Person is not entitled to be indemnified for such expenses under
this Article VIII or otherwise.
Section 8.3 Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the
Corporation within 60 days after a written claim therefor has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the Covered Person may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim. If
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successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the Covered Person shall also
be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought
by the Covered Person to enforce a right to indemnification hereunder (but not in a suit brought by
a Covered Person to enforce a right to an advancement of expenses) it shall be a defense that, and
(b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final
adjudication that, the Covered Person has not met any applicable standard for indemnification set
forth in the DGCL. Neither the failure of the Corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the Covered Person is proper in the circumstances because the Covered Person has
met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the
Corporation (including a determination by its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its stockholders) that the Covered
Person has not met such applicable standard of conduct, shall create a presumption that the Covered
Person has not met the applicable standard of conduct or, in the case of such a suit brought by the
Covered Person, shall be a defense to such suit. In any suit brought by the Covered Person to
enforce a right to indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the Covered Person is not entitled to be indemnified, or to such advancement
of expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4 Non-Exclusivity of Rights. The rights provided to Covered Persons pursuant to this Article VIII shall not be
exclusive of any other right that any Covered Person may have or hereafter acquire under applicable
law, the Certificate of Incorporation, these By-Laws, an agreement, a vote of stockholders or
disinterested directors, or otherwise.
Section 8.5 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and/or any director,
officer, employee or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the
DGCL.
Section 8.6 Indemnification of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the
manner authorized or permitted by law to indemnify and to advance expenses to persons other than
Covered Persons. Without limiting the foregoing, the Corporation may, to the extent authorized
from time to time by the Board, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation and to any other person who is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, to the fullest extent of the provisions of this Article VIII with
respect to the indemnification and advancement of expenses of Covered Persons under this
Article VIII.
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Section 8.7 Amendments. Any repeal or amendment of this Article VIII by the Board or the stockholders of the
Corporation or by changes in applicable law, or the adoption of any other provision of these
By-Laws inconsistent with this Article VIII, shall, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or change in applicable law permits
the Corporation to provide broader indemnification rights to Covered Persons on a retroactive basis
than permitted prior thereto), and will not in any way diminish or adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior to such repeal or
amendment or adoption of such inconsistent provision.
Section 8.8 Certain Definitions. For purposes of this Article VIII, (a) references to other enterprise shall include
any employee benefit plan; (b) references to fines shall include any excise taxes assessed on a
person with respect to an employee benefit plan; (c) references to serving at the request of the
Corporation shall include any service that imposes duties on, or involves services by, a person
with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who
acted in good faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner not opposed to the best interest of the Corporation for purposes of Section 145 of the
DGCL.
Section 8.9 Contract Rights. The rights provided to Covered Persons pursuant to this Article VIII (a) shall be
contract rights based upon good and valuable consideration, pursuant to which a Covered Person may
bring suit as if the provisions of this Article VIII were set forth in a separate written
contract between the Covered Person and the Corporation, (b) shall fully vest at the time the
Covered Person first assumes his or her position as a director, officer, employee or agent, (c) are
intended to be retroactive and shall be available with respect to any act or omission occurring
prior to the adoption of this Article VIII, (d) shall continue as to a Covered Person who
has ceased to be a director, officer, employee or agent, and (e) shall inure to the benefit of the
Covered Persons heirs, executors and administrators.
Section 8.10 Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article VIII shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this Article VIII
(including, without limitation, each such portion of this Article VIII containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 9.1 Place of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which
notice is required under these By-Laws is not designated in the notice of such meeting, such
meeting shall be held at the principal business office of the Corporation; provided, however, if
the Board has, in its sole discretion, determined that a meeting shall not be held at any place,
but instead shall be held by means of remote communication pursuant to Section 9.5 hereof,
then such meeting shall not be held at any place.
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Section 9.2 Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date,
which shall not precede the date upon which the resolution fixing the record date is adopted by the
Board, and which record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If no record date is fixed by the Board, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the business day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted, and which record date shall
be not more than 60 days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
Section 9.3 Means of Giving Notice.
(a) Notice to Directors. Whenever under applicable law, the Certificate of
Incorporation or these By-Laws notice is required to be given to any director, such notice shall be
given either (i) in writing and sent by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day delivery, (ii) by means of facsimile
telecommunication or other form of electronic transmission, or (iii) by oral notice given
personally or by telephone. A notice to a director will be deemed given as follows: (i) if given
by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent
through the United States mail, when deposited in the United States mail, with postage and fees
thereon prepaid, addressed to the director at the directors address appearing on the records of
the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery
service, when deposited with such service, with fees thereon prepaid, addressed to the director at
the directors address appearing on the records of the Corporation, (iv) if sent by facsimile
telecommunication, when sent to the facsimile transmission number for such director appearing on
the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail
address for such director appearing on the records of the Corporation, or (vi) if sent by any other
form of electronic transmission, when sent to the address, location or number (as applicable) for
such director appearing on the records of the Corporation.
(b) Notice to Stockholders. Whenever under applicable law, the Certificate of
Incorporation or these By-Laws notice is required to be given to any stockholder, such notice may
be given (i) in writing and sent either by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day delivery, or (ii) by means of a
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form of electronic transmission consented to by the stockholder, to the extent permitted by,
and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder
shall be deemed given as follows: (i) if given by hand delivery, when actually received by the
stockholder, (ii) if sent through the United States mail, when deposited in the United States mail,
with postage and fees thereon prepaid, addressed to the stockholder at the stockholders address
appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a
nationally recognized overnight delivery service, when deposited with such service, with fees
thereon prepaid, addressed to the stockholder at the stockholders address appearing on the stock
ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by
the stockholder to whom the notice is given and otherwise meeting the requirements set forth above,
(A) if by facsimile transmission, when directed to a number at which the stockholder has consented
to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice, (C) if by a posting on an electronic network
together with separate notice to the stockholder of such specified posting, upon the later of (1)
such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic
transmission, when directed to the stockholder. A stockholder may revoke such stockholders
consent to receiving notice by means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is
unable to deliver by electronic transmission two consecutive notices given by the Corporation in
accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant
Secretary or to the Corporations transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.
(c) Electronic Transmission. Electronic transmission means any form of
communication, not directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process, including but not
limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and
cablegram.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which
notice otherwise may be given effectively by the Corporation to stockholders, any notice to
stockholders given by the Corporation under any provision of the DGCL, the Certificate of
Incorporation or these By-Laws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the stockholders at that address to whom such
notice is given. A stockholder may revoke such stockholders consent by delivering written notice
of such revocation to the Corporation. Any stockholder who fails to object in writing to the
Corporation within 60 days of having been given written notice by the Corporation of its intention
to send such a single written notice shall be deemed to have consented to receiving such single
written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under
the DGCL, the Certificate of Incorporation or these By-Laws, to any person with whom communication
is unlawful, the giving of such notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license or permit to give such notice
to such person. Any action or meeting that shall be taken or held
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without notice to any such person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. If the action taken by the Corporation is
such as to require the filing of a certificate with the Secretary of State of Delaware, the
certificate shall state, if such is the fact and if notice is required, that notice was given to
all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required to be given by the Corporation, under any provision of the DGCL,
the Certificate of Incorporation or these By-Laws, to any stockholder to whom (1) notice of two
consecutive annual meetings of stockholders and all notices of stockholder meetings or of the
taking of action by written consent of stockholders without a meeting to such stockholder during
the period between such two consecutive annual meetings, or (2) all, and at least two payments (if
sent by first-class mail) of dividends or interest on securities during a 12-month period, have
been mailed addressed to such stockholder at such stockholders address as shown on the records of
the Corporation and have been returned undeliverable, the giving of such notice to such stockholder
shall not be required. Any action or meeting that shall be taken or held without notice to such
stockholder shall have the same force and effect as if such notice had been duly given. If any
such stockholder shall deliver to the Corporation a written notice setting forth such stockholders
then-current address, the requirement that notice be given to such stockholder shall be reinstated.
If the action taken by the Corporation is such as to require the filing of a certificate with the
Secretary of State of Delaware, the certificate need not state that notice was not given to persons
to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception
in subsection (1) of the first sentence of this paragraph to the requirement that notice be given
shall not be applicable to any notice returned as undeliverable if the notice was given by
electronic transmission.
Section 9.4 Waiver of Notice. Whenever any notice is required to be given under applicable law, the Certificate of
Incorporation, or these By-Laws, a written waiver of such notice, signed before or after the date
of such meeting by the person or persons entitled to said notice, or a waiver by electronic
transmission by the person entitled to said notice, shall be deemed equivalent to such required
notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting
shall constitute a waiver of notice of such meeting, except where a person attends for the express
purpose of objecting to the transaction of any business on the ground that the meeting was not
lawfully called or convened.
Section 9.5 Meeting Attendance via Remote Communication Equipment.
(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and
subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not
physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of stockholders, whether such
meeting is to be held at a designated place or solely by means of remote communication,
provided that (A) the Corporation shall implement reasonable measures to verify that each
person deemed present and permitted to vote at the meeting by means
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of remote communication is a stockholder or proxyholder, (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxyholders a reasonable
opportunity to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (C) if any stockholder or proxyholder
votes or takes other action at the meeting by means of remote communication, a record of
such votes or other action shall be maintained by the Corporation.
(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of
Incorporation or these By-Laws, members of the Board or any committee thereof may participate in a
meeting of the Board or any committee thereof by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other. Such participation in a meeting shall constitute presence in person at the meeting, except
where a person participates in the meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6 Dividends. The Board may from time to time declare, and the Corporation may pay, dividends (payable in
cash, property or shares of the Corporations capital stock) on the Corporations outstanding
shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 9.7 Reserves. The Board may set apart out of the funds of the Corporation available for dividends a reserve or
reserves for any proper purpose and may abolish any such reserve.
Section 9.8 Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these
By-Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and
delivered in the name and on behalf of the Corporation by such officer or officers or other
employee or employees of the Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the Board may determine. The
Chairman of the Board, the Chief Executive Officer, the President or any Vice President may execute
and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf
of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President may delegate powers to execute and
deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of
the Corporation to other officers or employees of the Corporation under such persons supervision
and authority, it being understood, however, that any such delegation of power shall not relieve
such officer of responsibility with respect to the exercise of such delegated power.
Section 9.9 Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.
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Section 9.10 Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The
seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise
reproduced.
Section 9.11 Books and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at
such place or places as may from time to time be designated by the Board.
Section 9.12 Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by
electronic transmission to the Chairman of the Board, the Chief Executive Officer, the President or
the Secretary. The resignation shall take effect at the time specified therein, or at the time of
receipt of such notice if no time is specified or the specified time is earlier than the time of
such receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 9.13 Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board,
the Chief Executive Officer, the President or the Board may direct, from time to time, shall be
bonded for the faithful performance of their duties and for the restoration to the Corporation, in
case of their death, resignation, retirement, disqualification or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in their possession or under
their control belonging to the Corporation, in such amounts and by such surety companies as the
Chairman of the Board, the Chief Executive Officer, the President or the Board may determine. The
premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the
custody of the Secretary.
Section 9.14 Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other
instruments relating to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, the Chief Executive Officer, the President
or any Vice President. Any such officer, may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities, or to
consent in writing, in the name of the Corporation as such holder, to any action by such
corporation, and at any such meeting or with respect to any such consent shall possess and may
exercise any and all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed. The Board may from time to
time confer like powers upon any other person or persons.
Section 9.15 Amendments. The Board shall have the power to adopt, amend, alter or repeal the By-Laws. The affirmative
vote of a majority of the Whole Board shall be required to adopt, amend, alter or repeal the
By-Laws. The By-Laws also may be adopted, amended, altered or repealed by the stockholders;
provided, however, that in addition to any vote of the holders of any class or series of capital
stock of the Corporation required by applicable law or the Certificate of Incorporation, the
affirmative vote of the holders of at least
662/3% of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal
the By-Laws.
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