Attached files
file | filename |
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8-K - AFH HOLDING II, INC. | v184030_8k.htm |
EX-2.1 - AFH HOLDING II, INC. | v184030_ex2-1.htm |
EX-3.1 - AFH HOLDING II, INC. | v184030_ex3-1.htm |
EX-4.1 - AFH HOLDING II, INC. | v184030_ex4-1.htm |
EX-10.3 - AFH HOLDING II, INC. | v184030_ex10-3.htm |
EX-10.2 - AFH HOLDING II, INC. | v184030_ex10-2.htm |
EX-10.4 - AFH HOLDING II, INC. | v184030_ex10-4.htm |
EX-10.1 - AFH HOLDING II, INC. | v184030_ex10-1.htm |
EX-10.5 - AFH HOLDING II, INC. | v184030_ex10-5.htm |
EX-99.1 - AFH HOLDING II, INC. | v184030_ex99-1.htm |
EX-23.1 - AFH HOLDING II, INC. | v184030_ex23-1.htm |
EX-10.7 - AFH HOLDING II, INC. | v184030_ex10-7.htm |
EX-21.1 - AFH HOLDING II, INC. | v184030_ex21-1.htm |
EX-10.6 - AFH HOLDING II, INC. | v184030_ex10-6.htm |
AFH
HOLDING II, INC.
(A
DELAWARE CORPORATION)
AMENDED AND RESTATED
BYLAWS
ARTICLE
I
|
OFFICES
|
Section
1.01 Registered Office and
Registered Agent. The registered office of the corporation in
the State of Delaware shall be as set forth in the Certificate of Incorporation,
or at such other city and county in Delaware as shall be specified from time to
time by a resolution of the Board of Directors of the corporation (the “Board of
Directors”). The registered agent of the corporation in the State of
Delaware shall be as set forth in the Certificate of Incorporation, or such
other person or entity as shall be specified from time to time by a resolution
of the Board of Directors.
Section
1.02 Other
Offices. The corporation may have other offices at such places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the corporation may
require.
ARTICLE
II
|
CORPORATE
SEAL
|
Section
2.01 Corporate
Seal. The Board of Directors may adopt a corporate
seal. Said seal may be used by causing it or a facsimile thereof to
be impressed, affixed, reproduced or otherwise.
ARTICLE
III
|
STOCKHOLDERS’
MEETINGS
|
Section
3.01 Place of
Meetings. Meetings of the stockholders of the corporation may
be held at such place, either within or without the State of Delaware, as may be
determined from time to time by the Board of Directors. If the Board
of Directors has not fixed a place for the holding of the meeting in accordance
with this Section 3.01, such meeting shall be held at the principal place of
business of the corporation.
Section
3.02 Quorum; Withdrawal During
Meeting; Adjournment. Unless otherwise required by law, the
Certificate of Incorporation of the corporation, as it may be amended, restated
or amended and restated from time to time (the “Certificate of Incorporation”),
or these Amended and Restated Bylaws (the “Bylaws”), the holders of a majority
of the stock issued and outstanding and entitled to vote at any meeting of
stockholders, present in person or represented by proxy, shall constitute a
quorum at any such meeting of stockholders. Where there is a required
quorum present when any duly organized meeting convenes, the stockholders
present may continue to transact business until adjournment, notwithstanding the
subsequent withdrawal of sufficient stockholders or proxies to reduce the total
number of voting shares below the number of shares required for a
quorum. Where a separate vote by a class or classes or series is
required, except where otherwise provided by the Delaware General Corporation
Law (the “DGCL”) or by the Certificate of Incorporation or these Bylaws, a
majority of the outstanding shares of such class or classes or series, present
in person or represented by proxy duly authorized, shall constitute a quorum
entitled to take action with respect to that vote on that
matter.
Notwithstanding
other provisions of the Certificate of Incorporation or these Bylaws, the
chairman of the meeting of stockholders or the holders of a majority of the
issued and outstanding stock entitled to vote at such meeting, present in person
or represented by proxy, at any meeting of stockholders, whether or not a quorum
is present, shall have the power to adjourn such meeting from time to time,
without any notice other than announcement at the meeting of the time and place
of the holding of the adjourned meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at such
meeting. At such adjourned meeting at which a quorum shall be present
or represented by proxy, any business may be transacted which might have been
transacted at the meeting as originally called. If a quorum is
present at the original duly organized meeting of stockholders, it is also
present at an adjourned session of such meeting.
Section
3.03 Annual
Meetings. The annual meeting of the stockholders of the
corporation, for the purpose of election of directors to succeed those whose
terms expire and for the transaction of such other business as may properly be
considered at the meeting, shall be held at such place, within or without the
State of Delaware, on such date and at such time as the Board of Directors shall
fix and set forth in the notice of the meeting. No business may be
conducted at the annual meeting of stockholders except in accordance with the
procedures set forth in Section 3.09 of these Bylaws.
Section
3.04 Special
Meetings. Unless otherwise provided in the Certificate of
Incorporation, special meetings of the stockholders for any proper purpose or
purposes may be called at any time by (i) the Chairman of the Board, (ii) the
President or (iii) a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented for
adoption). No business may be conducted at a special meeting of
stockholders except in accordance with the procedures set forth in Section 3.09
of these Bylaws.
Section
3.05 Record
Date.
(a)
In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall, subject to applicable law, not be more than sixty (60) nor less than
ten (10) days before the date of such meeting. If no record date is
fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given, or
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned
meeting.
2
(b)
In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not more than
sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section
3.06 Notice of
Meetings. Except as otherwise provided by law, notice, given
in writing or by electronic transmission, of each meeting of stockholders shall
be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at such meeting, such notice to
specify the place, if any, date and hour, in the case of special meetings, the
purpose or purposes of the meeting, by which stockholders and proxy holders may
be deemed to be present in person and vote at any such meeting. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s address as it appears
on the records of the corporation. Notice of the time, place, if any,
and purpose of any meeting of stockholders may be waived in writing, signed by
the person entitled to notice thereof, or by electronic transmission by such
person, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
Section
3.07 List of
Stockholders. The Secretary shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, (a) on a
reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (b) during ordinary business hours, at the principal place of business of the
corporation. In the event that the corporation determines to make the
list available on an electronic network, the corporation may take reasonable
steps to ensure that such information is available only to stockholders of the
corporation. The list shall be open to examination of any stockholder
during the time of the meeting as provided by law.
Section
3.08 Voting; Inspectors;
Elections.
(a)
For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law or provided in the Certificate of Incorporation, only
persons in whose names shares stand on the stock records of the corporation on
the record date, as provided in Section 3.05 of these Bylaws, shall be entitled
to vote at any meeting of stockholders. Every person entitled to vote
shall have the right to do so either in person or by an agent or agents
authorized by a proxy granted in accordance with the DGCL. An agent
so appointed need not be a stockholder. No proxy shall be voted after
three (3) years from its date of creation unless the proxy provides for a longer
period.
3
(b)
Unless otherwise required by law or provided in the
Certificate of Incorporation, each stockholder shall, on each matter submitted
to a vote at a meeting of stockholders, have one vote for each share of capital
stock entitled to vote thereon that is registered in his name on the record date
for such meeting.
(c)
At any meeting of stockholders at which a vote is to be
taken, the chairman of the meeting shall appoint one or more inspectors, each of
whom shall sign an oath or affirmation to faithfully execute the duties of
inspector with strict impartiality and according to the best of his
ability. The inspectors shall receive the ballots, count the votes
and make and sign a certificate of the result thereof. The chairman
of the meeting may appoint any person to serve as inspector, except that no
candidate for the office of director shall be appointed as an
inspector.
(d)
Except as otherwise provided by the DGCL, applicable stock
exchange rules, the Certificate of Incorporation or these Bylaws:
(1) in
all matters other than the election of directors, the affirmative vote of the
majority of shares present in person or represented by proxy at the meeting and
entitled to vote generally on the subject matter shall be the act of the
stockholders;
(2) directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote generally on the
election of directors; and
(3) where
a separate vote by a class or classes or series is required, the affirmative
vote of the majority (plurality, in the case of the election of directors) of
shares of such class or classes or series present in person or represented by
proxy at the meeting shall be the act of such class or classes or
series.
(e)
Unless otherwise provided in the Certificate of
Incorporation, cumulative voting for the election of directors shall be
prohibited.
Section
3.09 Business to be Brought
Before Stockholders’ Meetings.
(a) Notice of Stockholder
Proposals.
(1) At
any annual meeting of stockholders of the corporation, only such business shall
be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business
must be (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (ii) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(iii) otherwise properly and timely brought before the meeting by any
stockholder of the corporation in compliance with the notice procedures and
other provisions of this Section 3.09(a).
4
(2) For
business to be properly brought before an annual meeting by a stockholder, such
business, as determined by the Chairman of the Board or such other person as is
presiding over the meeting, must be a proper subject for stockholder action
under the DGCL, and such stockholder (i) must be a stockholder of record on the
date of the giving of the notice provided for in this Section 3.09(a) and on the
record date for the determination of stockholders entitled to vote at such
annual meeting, (ii) must be entitled to vote at such annual meeting, and (iii)
must comply with the notice procedures set forth in this Section
3.09(a). In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the corporation.
(3) To
be timely, a stockholder's notice must be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the corporation not
earlier than the one hundred fiftieth (150th) calendar day, and not later than
the close of business on the one hundred twentieth (120th) calendar day, prior
to the first anniversary of the immediately preceding year's annual meeting of
stockholders; provided, however, that in the
event that no annual meeting was held in the previous year or the annual meeting
is called for a date that is more than thirty (30) calendar days earlier or more
than sixty (60) calendar days later than such anniversary date, notice by the
stockholder in order to be timely must be so delivered or received not later
than the tenth (10th) calendar day following the earlier of (i) the day on which
public disclosure of the date of such annual meeting is first made, and (ii) the
receipt by such stockholder of actual notice of the date of such annual
meeting. For purposes of this Section 3.09(a) of these Bylaws, public
disclosure shall be deemed to include a disclosure made in a press release
reported by the Dow Jones News Services, Reuters, Associated Press or a
comparable national news service, in a document filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act, or in a notice pursuant to the applicable rules of an exchange
on which the securities of the corporation are listed. In no event
shall the public announcement of a postponement of the mailing of the notice for
such annual meeting or of an adjournment or postponement of the annual meeting
to a later date or time commence a new time period for the giving of a
stockholder’s notice as described above.
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(4) To
be in proper written form, a stockholder's notice to the Secretary shall set
forth in writing, as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting, including the text of the proposal or business and
the text of any resolutions proposed for consideration, (ii) the reasons for
conducting such business at the annual meeting, (iii) the name and record
address, as they appear on the corporation's stock ledger, of such stockholder
and the name and address of any Stockholder Associated Person (as defined in
Section 3.09(a)(6)), (iv) the class and series and number of shares of each
class and series of capital stock of the corporation which are owned
beneficially and/or of record by such stockholder and/or any Stockholder
Associated Person, and the date or dates such shares were acquired and the
investment intent of such acquisition (which information shall be supplemented
not later than ten (10) calendar days after the record date for the meeting to
disclose such ownership as of the record date), (v) a description of all
arrangements or understandings between such stockholder and/or any Stockholder
Associated Person, and any other person or persons (naming such person or
persons) in connection with the proposal of such business by such stockholder,
(vi) any material interest of such stockholder and/or any Stockholder Associated
Person in such business, individually or in the aggregate, including any
anticipated benefit to the stockholder or any Stockholder Associated Person
therefrom, (vii) a representation from the stockholder as to whether the
stockholder or any Stockholder Associated Person intends or is part of a group
which intends (A) to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the corporation’s outstanding capital stock
required to approve or adopt the proposal and/or (B) otherwise to solicit
proxies in support of such proposal, (viii) a representation that such
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting, that such stockholder intends to vote such stock at such
meeting, and that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting, (ix) whether and
the extent to which any hedging transaction has been engaged in by or on behalf
of such stockholder or any Stockholder Associated Person with respect to any
shares of stock of the corporation, without regard to whether such transaction
is required to be reported on a Schedule 13D in accordance with the Exchange
Act, (x) whether and the extent to which any agreement, arrangement or
understanding has been made, the effect or intent of which is to increase or
decrease the voting power of such stockholder or such Stockholder Associated
Person with respect to any shares of the capital stock of the corporation,
without regard to whether such transaction is required to be reported on a
Schedule 13D in accordance with the Exchange Act, (xi) in the event that such
business includes a proposal to amend the Certificate of Incorporation and/or
the Bylaws of the corporation, the language of the proposed amendment, and (xii)
such other information regarding each matter of business to be proposed by such
stockholder, regarding the stockholder in his or her capacity as a proponent of
a stockholder proposal, or regarding any Stockholder Associated Person, (A) as
would be required to be included in a proxy statement or other filings required
to be made in connection with solicitations of proxies pursuant to Section 14 of
the Exchange Act (or pursuant to any law or statute replacing such section), and
the rules and regulations promulgated thereunder (I) by the corporation, as to
such stockholder, any Stockholder Associated Person or the business desired to
be brought by such stockholder before the annual meeting, or (II) by the
stockholder, assuming such stockholder were to conduct a solicitation of proxies
pursuant to such Section 14; and (B) as may be required by the rules and
regulations of any stock exchange or other quotation system upon which any class
of securities of the corporation is then listed or quoted.
(5) If
the information submitted pursuant to this Section 3.09(a) by any stockholder
proposing business for consideration at an annual meeting shall be inaccurate to
any material extent, such information may be deemed not to have been provided in
accordance with this Section 3.09(a). Upon written request by the
Secretary, the Board of Directors or any committee thereof, any stockholder
proposing business for consideration at an annual meeting shall provide, within
seven (7) business days of delivery of such request (or such other period as may
be specified in such request), written verification, satisfactory in the
discretion of the Board of Directors, any committee thereof or any authorized
officer of the corporation, to demonstrate the accuracy of any information
submitted by the stockholder pursuant to this Section 3.09(a). If a
stockholder fails to provide such written verification within such period, the
information as to which written verification was requested may be deemed not to
have been provided in accordance with this Section 3.09(a).
(6) For
purposes of this Section 3.09(a) and Section 3.09(b) of these Bylaws, the
following definitions shall be applicable:
6
(i) beneficial
ownership in the corporation’s capital stock shall include, in addition to the
definition of beneficial ownership contained in Rule 13d-3 of the Exchange Act
(or any successor rule or regulation), any direct or indirect pecuniary interest
in the corporation’s capital stock;
(ii) business
day shall mean any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close;
(iii) close
of business shall mean 5:00 p.m., Eastern Time;
(iv) hedging
of the corporation’s capital stock shall mean any transaction or series of
transactions that has been entered into, or any other agreement, arrangement or
understanding (including, but not limited to, any borrowing or lending of shares
or any short interest) that has been made, the effect or intent of which is to
mitigate loss to or manage the risk or benefit of share price changes with
respect to any shares of the capital stock of the corporation;
(v) pecuniary
interest in the corporation’s capital stock shall include, but not be limited
to, the opportunity, directly or indirectly, to profit or share in any profit
derived from a transaction in the corporation’s capital stock;
(vi) indirect
pecuniary interest in the corporation’s capital stock shall include, but not be
limited to, (a) any derivative instrument which includes the opportunity,
directly or indirectly, to profit or share in any profit derived from any
increase in the value of the corporation’s capital stock, including a person’s
right to acquire the corporation’s capital stock through the exercise or
conversion of any derivative instrument, whether or not presently exercisable,
(b) a general partner’s proportionate interest in the corporation’s capital
stock held by a general or limited partnership, (c) a person’s right to
dividends that is separated or separable from the corporation’s capital stock,
(d) shares of the corporation’s capital stock held by members of a person’s
immediate family, and (e) a person’s interest in the corporation’s capital stock
that is held by a trust;
(vii) derivative
instrument shall include, but not be limited to, any option, warrant,
convertible security, stock appreciation right, or similar right with an
exercise or conversion privilege or a settlement payment or mechanism at a price
related to the value of the corporation’s capital stock, or similar instrument
with a value derived in whole or in part from the value of the corporation’s
capital stock, whether or not such instrument or right shall be subject to
settlement in the corporation’s capital stock or otherwise;
(viii) immediate
family shall include any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive
relationships;
7
(ix) short
interest in the corporation’s capital stock shall mean that the 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 corporation’s capital stock; and
(x) Stockholder
Associated Person of any stockholder shall mean (a) any person controlling,
directly or indirectly, or acting in concert with, such stockholder, (b) any
beneficial owner of shares of stock of the corporation owned of record or
beneficially by such stockholder, and (c) any person controlling, controlled by
or under common control with such Stockholder Associated Person.
(7) 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 3.09(a).
(8) Except
as otherwise required by law, the Certificate of Incorporation or these Bylaws,
the Chairman of the Board or other person presiding at an annual meeting shall
have the power and duty (i) to determine whether any business proposed to be
brought before the meeting was properly brought before the meeting in accordance
with the procedures set forth in this Section 3.09(a), including whether the
stockholder or the Stockholder Associated Person, if any, on whose behalf the
proposal is solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies in support of such stockholder’s proposal
in compliance with such stockholder’s representation as required by this Section
3.09(a) and (ii) if any proposed business was not brought in compliance with
this Section 3.09(a), to declare that such proposal is defective and shall be
disregarded.
(9) In
addition to the provisions of this Section 3.09(a), a stockholder shall also
comply with all applicable requirements of state law and all applicable
requirements of the Exchange Act, and the rules and regulations thereunder, with
respect to the matters set forth herein.
(10) Nothing
in this Section 3.09(a) shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposals in the corporation’s proxy statement pursuant
to Rule 14a-8 under the Exchange Act, or (ii) of the holders of any series of
preferred stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
(11) Notwithstanding
anything in this Section 3.09(a) to the contrary, a stockholder intending to
nominate one or more persons for election as a director at an annual meeting
must comply with Section 3.09(b) of these Bylaws for any such nomination to be
properly brought before such meeting.
(12) This
Section 3.09(a) as well as Section 3.09(b) and Section 3.09(c) of these Bylaws
have been adopted by action of the corporation’s Board of Directors subsequent
to the issuance by the Chancery Court of the State of Delaware of its opinions
in JANA Master Fund, Ltd. v.
CNET Networks, Inc., 2008 WL 660556 (Del. Ch. Mar. 13, 2008), affirmed by
C.A. No. 3447 (Del. Supr. Ct. May 13, 2008), and in Levitt Corp. v. Office Depot,
Inc., C.A. No. 3622-VCN, slip op. (Del. Ch. Apr. 14,
2008). The Board of Directors of the corporation, in approving and
adopting this Section 3.09(a) and Section 3.09(b) of these Bylaws, (i) took
notice of these two opinions and the narrow construction and narrow
interpretation accorded to the advance notice and advance nomination provisions
at issue in such opinions, and (ii) specifically intended that such a narrow
construction and narrow interpretation be avoided should the construction,
interpretation and/or enforceability of Section 3.09(a) and/or Sections 3.09(b)
and 3.09(c) of these Bylaws ever be contested, disputed, arbitrated, litigated
and/or judicially opined on.
8
(13) Notwithstanding
any other provision of these Bylaws, and notwithstanding the fact that a lesser
percentage may be specified by law, any amendment, alteration, repeal or
rescission of, or the adoption of any provisions inconsistent with, this Section
3.09(a), Section 3.09(b) and/or Section 3.09(c) shall require either (i) the
affirmative vote of not less than three-fourths (75%) of the total number of
authorized directors on the Board of Directors (whether or not there exist any
vacancies in previously authorized directorships at the time any such resolution
is presented for adoption); or (ii) the affirmative vote of the holders of the
corporation’s capital stock representing not less than three-fourths (75%) of
the votes which all stockholders would be entitled to cast at any election of
directors held at a meeting of the stockholders called for that purpose; provided that notice of such
proposed amendment, alteration, repeal or rescission is included in the notice
of such meeting, which shall also include, without limitation, the text of any
such proposed amendment or alteration and/or any resolution calling therefor or
for any repeal or rescission.
(b) Notice of Nominations by
Stockholders.
(1) Subject
to the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, dissolution or
winding up, nominations for the election of directors may be made (i) by or at
the direction of the Board of Directors or a committee appointed by the Board of
Directors, or (ii) by any stockholder of the corporation (a) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 3.09(b), on the record date for the determination of the
stockholders entitled to vote at such meeting and at the time of the annual
meeting of stockholders, (b) who is entitled to vote at the meeting for the
election of directors, and (c) who complies with the notice procedures set forth
in this Section 3.09(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.
(2) To
be timely, a stockholder's notice of nomination must be delivered to, or mailed
and received by, the Secretary at the principal executive offices of the
corporation not earlier than the one hundred fiftieth (150th) calendar day, and
not later than the close of business on the one hundred twentieth (120th)
calendar day, prior to the first anniversary of the immediately preceding year's
annual meeting; provided, however, that in the
event that no annual meeting was held in the previous year or the annual meeting
is called for a date that is more than thirty (30) calendar days earlier or more
than sixty (60) calendar days later than such anniversary date, notice by the
stockholder in order to be timely must be so delivered or received not later
than the tenth (10th) calendar day following the earlier of (i) the day on which
public disclosure of the date of such annual meeting is first made, and (ii) the
receipt by such stockholder of actual notice of the date of such annual
meeting. For purposes of this Section 3.09(b), public disclosure
shall be deemed to include a disclosure made in a press release reported by the
Dow Jones News Services, Reuters, Associated Press or a comparable national news
service, in a document filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act, or in a
notice pursuant to the applicable rules of an exchange on which the securities
of the corporation are listed. In no event shall the public
announcement of a postponement of the mailing of the notice for such annual
meeting or of an adjournment or postponement of the annual meeting to a later
date or time commence a new time period for the giving of a stockholder’s notice
as described above.
9
(3)
To be in proper written form, a stockholder's notice of
nomination to the Secretary shall set forth in writing:
(i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director (a) the name, age, business address and residence
address of the person, (b) the principal occupation and employment of the
person, (c) the class and series and number of shares of each class and series
of capital stock of the corporation which are owned beneficially or of record by
the person (which information shall be supplemented not later than ten (10)
calendar days after the record date for the meeting to disclose such ownership
as of the record date), (d) the person’s executed written consent to being named
in the proxy statement, if any, as a nominee and to serving as a director if
elected, (e) any other information relating to the person that would be required
to be disclosed (A) in a proxy statement or other filing required to be made in
connection with solicitations of proxies for election of directors, or is
otherwise required, pursuant to Section 14 of the Exchange Act (or pursuant to
any law or statute replacing such section), and the rules and regulations
promulgated thereunder, or (B) by the rules and regulations of any stock
exchange or other quotation system upon which any class of securities of the
corporation is then listed or quoted, (f) a representation from the stockholder
as to whether the stockholder or any Stockholder Associated Person intends or is
part of a group which intends (1) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the corporation’s outstanding
capital stock required to elect the person proposed as a nominee and/or (2)
otherwise to solicit proxies in support of the election of such person, and (g)
a written statement executed by the person acknowledging that, as a director of
the corporation, he or she will owe fiduciary duties, under the DGCL,
exclusively to the corporation and its stockholders and no fiduciary duties to
any specific stockholder or group of stockholders; and
10
(ii) as
to the stockholder giving the notice (a) the name and record address of such
stockholder, as they appear on the corporation's stock ledger, and the name and
address of any Stockholder Associated Person (as defined in Section 3.09(a)(6)),
(b) the class and series and number of shares of each class and series of
capital stock of the corporation which are owned beneficially and/or of record
by such stockholder and/or any Stockholder Associated Person, and the date or
dates such shares were acquired and the investment intent of such acquisition
(which information shall be supplemented not later than ten (10) calendar days
after the record date for the meeting to disclose such ownership as of the
record date), (c) a description of all arrangements or understandings between
such stockholder and/or any Stockholder Associated Person and each proposed
nominee and any other person or persons (naming such person or persons) pursuant
to which the nomination(s) are to be made by such stockholder, (d) any material
interest of such stockholder and/or any Stockholder Associated Person in the
election of such proposed nominee, individually or in the aggregate, including
any anticipated benefit to the stockholder or any Stockholder Associated Person
therefrom, (e) a representation that such stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the person or persons named in its notice, (f) whether and the extent to which
any hedging transaction has been engaged in by or on behalf of such stockholder
or any Stockholder Associated Person with respect to any shares of stock of the
corporation, without regard to whether such transaction is required to be
reported on a Schedule 13D in accordance with the Exchange Act, (g) whether and
the extent to which any agreement, arrangement or understanding has been made,
the effect or intent of which is to increase or decrease the voting power of
such stockholder or such Stockholder Associated Person with respect to any
shares of the capital stock of the corporation, without regard to whether such
transaction is required to be reported on a Schedule 13D in accordance with the
Exchange Act, and (h) any other information relating to such stockholder, in his
or her capacity as a proponent of a stockholder nomination, or any Stockholder
Associated Person that would be required to be disclosed (A) in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors, or is otherwise required, pursuant to
Section 14 of the Exchange Act (or pursuant to any law or statute replacing such
section) and the rules and regulations promulgated thereunder, or (B) by the
rules and regulations of any stock exchange or other quotation system upon which
any class of securities of the corporation is then listed or
quoted.
(4) In
addition to the information required above, the corporation may require any
proposed nominee to furnish such other information as it may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the corporation.
(5) If
the information submitted pursuant to this Section 3.09(b) by any stockholder
proposing a nominee for election as a director at an annual meeting shall be
inaccurate to any material extent, such information may be deemed not to have
been provided in accordance with this Section 3.09(b). Upon written
request by the Secretary, the Board of Directors or any committee thereof, any
stockholder proposing a nominee for election as a director at an annual meeting
shall provide, within seven (7) business days of delivery of such request (or
such other period as may be specified in such request), written verification,
satisfactory in the discretion of the Board of Directors, any committee thereof
or any authorized officer of the corporation, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section
3.09(b). If a stockholder fails to provide such written verification
within such period, the information as to which written verification was
requested may be deemed not to have been provided in accordance with this
Section 3.09(b).
(6) Notwithstanding
anything in these Bylaws to the contrary, no person shall be eligible for
election at an annual meeting as a director of the corporation unless nominated
in accordance with the procedures set forth in this Section
3.09(b).
(7) Except
as otherwise required by law, the Certificate of Incorporation or these Bylaws,
the Chairman of the Board or other person presiding at an annual meeting shall
have the power and duty (i) to determine whether any nomination proposed to be
brought before the meeting was properly made in accordance with the procedures
set forth in this Section 3.09(b), including whether the stockholder or the
Stockholder Associated Person, if any, on whose behalf the nomination is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholder’s nominee in compliance with
such stockholder’s representation as required by this Section 3.09(b), and (ii)
if any proposed nomination was not made in compliance with this Section 3.09(b)
to declare that such defective nomination is null and void and shall be
disregarded.
11
(8) Notwithstanding
anything in this Section 3.09(b) to the contrary, in the event that the number
of directors to be elected to the Board of Directors at an annual meeting of the
stockholders is increased and there is no public disclosure, naming all of the
nominees for directors or specifying the size of the increased Board of
Directors, by the corporation at least ninety (90) calendar days prior to the
first anniversary of the date of the immediately preceding annual meeting, a
stockholder’s notice required by this Section 3.09(b) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the corporation not later than the close
of business on the tenth (10th) calendar day following the earlier of the day
that the stockholder first received actual notice of such increase and the day
on which such public disclosure is first made by the corporation.
(9) In
addition to the provisions of this Section 3.09(b), a stockholder shall also
comply with all applicable requirements of state law and all applicable
requirements of the Exchange Act, and the rules and regulations thereunder, and
the rules and regulations of any exchange or quotation system on which any class
of the corporation’s securities is then listed or quoted, with respect to the
matters set forth herein.
(c) Special Meetings of
Stockholders.
(1) Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the corporation's notice of
meeting.
(2) Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors, or (iii) provided that the Board of
Directors has determined that directors shall be elected at such special
meeting, by any stockholder of the corporation who (a) is a stockholder of
record at the time of giving of notice provided for in Section 3.09(b) of these
Bylaws, (b) is a stockholder of record on the record date for the determination
of the stockholders entitled to vote at such special meeting, (c) is a
stockholder of record at the time of such special meeting, and (d) complies with
the notice procedures set forth in this Section 3.09(c).
(3) In
the event the corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, a
stockholder who complies with Section 3.09(c)(2) of these Bylaws may nominate a
person or persons (as the case may be) for election to such position as
specified in the corporation's notice of meeting if they give timely notice
thereof in proper written form to the Secretary of the corporation as provided
hereinafter.
12
(4) To
be timely and in proper form, the stockholder’s notice of nomination with
respect to a special meeting must comply with Section 3.09(b)(3) of these Bylaws
and must be delivered to the Secretary of the corporation at the principal
executive office of the corporation not later than the close of business on the
tenth (10th) calendar day following the earlier of the day that the stockholder
first received actual notice of the date of the special meeting and the nominees
proposed by the Board of Directors to be elected at such meeting and the day on
which such public disclosure is first made by the corporation. In no
event shall the public announcement of a postponement of the mailing of the
notice for such special meeting or of an adjournment or postponement of the
special meeting to a later date or time commence a new time period for the
giving of a stockholder’s notice as described above.
(5) If
the information submitted pursuant to this Section 3.09(c) by any stockholder
proposing a nominee for election as a director at a special meeting shall be
inaccurate to any material extent, such information may be deemed not to have
been provided in accordance with this Section 3.09(c). Upon written
request by the Secretary, the Board of Directors or any committee thereof, any
stockholder proposing a nominee for election as a director at a special meeting
shall provide, within seven (7) business days of delivery of such request (or
such other period as may be specified in such request), written verification,
satisfactory in the discretion of the Board of Directors, any committee thereof
or any authorized officer of the corporation, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section
3.09(c). If a stockholder fails to provide such written verification
within such period, the information as to which written verification was
requested may be deemed not to have been provided in accordance with this
Section 3.09(c).
(6) Notwithstanding
anything in these Bylaws to the contrary, no person shall be eligible for
election at a special meeting as a director of the corporation unless nominated
in accordance with the procedures set forth in this Section
3.09(c). The Chairman of the Board or other person presiding at an
annual meeting shall have the power and duty to determine whether any nomination
proposed to be brought before a special meeting was properly made in accordance
with the procedures set forth in this Section 3.09(c) and, if any proposed
nomination was not made in compliance with this Section 3.09(c), or if the
stockholder solicits proxies in support of such proposed nomination without
having made the representation required by this Section 3.09(c), to declare that
such defective nomination is null and void and shall be
disregarded.
(7) In
addition to the provisions of this Section 3.09(c), a stockholder shall also
comply with all applicable requirements of state law and all applicable
requirements of the Exchange Act, and the rules and regulations thereunder, with
respect to the matters set forth herein.
Section
3.10 Conduct of Stockholders’
Meetings.
(a) At
every meeting of stockholders, the Chairman of the Board, if there be one, shall
serve as chairman of the meeting and conduct the meeting or, in the case of a
vacancy in the office or absence of the Chairman of the Board, the Vice Chairman
of the Board (in order of seniority if more than one), or, in the absence of all
such Vice Chairmen, one of the following officers present shall serve as
chairman of the meeting and conduct the meeting in the order stated: the
President, the Executive Vice Presidents or Senior Vice Presidents in their
order of seniority, or the Secretary, or, in the absence of such officers, a
chairman chosen by the stockholders entitled to cast a majority of the votes
which all stockholders present in person or by proxy are entitled to
cast.
13
(b) The
Secretary, or, in the Secretary's absence, an Assistant Secretary, or in the
absence of both the Secretary and Assistant Secretaries, a person appointed by
the chairman of the meeting shall serve as secretary of the
meeting. In the event that the Secretary presides at a meeting of the
stockholders, an Assistant Secretary shall record the minutes of the
meeting.
(c) At
any meeting of stockholders, the time of the opening and the closing of the
polls for each matter upon which the stockholder will vote at a meeting, the
order of business and all other matters of procedure shall be determined by the
chairman of the meeting.
(d) The
chairman of the meeting may prescribe such rules, regulations and procedures and
take such action as, in the discretion of such chairman, are appropriate for the
proper conduct of the meeting. Such rules, regulations and
procedures, whether adopted by the Board of Directors or prescribed by the
chairman of the meeting, may include, without limitation (i) the establishment
of an agenda for the meeting, (ii) restricting admission to the time set for the
commencement of the meeting, (iii) limiting attendance at the meeting to
stockholders of record of the corporation entitled to vote at the meeting, their
duly authorized proxies or other such persons as the chairman of the meeting may
determine, (iv) limiting participation at the meeting on any matter to
stockholders of record of the corporation entitled to vote on such matter, their
duly authorized proxies or other such persons as the chairman of the meeting may
determine to recognize and, as a condition to recognizing any such participant,
requiring such participant to provide the Chairman with evidence of his or her
name and affiliation, whether her or she is a stockholder or a proxy for a
stockholder, and the class and series and number of shares of each class and
series of capital stock of the corporation which are owned beneficially and/or
of record by such stockholder, (v) restricting entry to the meeting after the
time fixed for the commencement thereof, (vi) limiting the time allotted to
questions or comments by participants, (vii) determining when the polls should
be opened and closed for voting, (viii) taking such actions as are necessary or
appropriate to maintain order, decorum, safety and security at the meeting, (ix)
removing any stockholder who refuses to comply with meeting procedures, rules or
guidelines as established by the chairman of the meeting, (x) recessing or
adjourning the meeting to a later date, time and place announced at the meeting
by the chairman, and (xi) complying with any state and local laws and
regulations concerning safety and security.
(e) Unless
otherwise determined by the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section
3.11 Action Without a
Meeting. No action shall be taken by the stockholders except
at an annual or special meeting of stockholders called in accordance with these
Bylaws, and no action shall be taken by the stockholders by written
consent.
14
ARTICLE
IV
|
DIRECTORS
|
Section
4.01 Power; Number; Term of
Office. The powers of the corporation shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed by or under, the direction of the Board of Directors, and subject to the
restrictions imposed by law or the Certificate of Incorporation, they may
exercise all the powers of the corporation.
Unless
otherwise provided in the Certificate of Incorporation, the number of directors
that shall constitute the Board of Directors shall be determined from time to
time by resolution of the Board of Directors (provided that no decrease in
the number of directors that would have the effect of shortening the term of an
incumbent director may be made by the Board of Directors). Each
director shall hold office for the term for which he is elected and thereafter
until his successor shall have been elected and qualified, or until his earlier
death, resignation or removal.
Unless
otherwise provided in the Certificate of Incorporation, directors need not be
stockholders or residents of the State of Delaware.
Section
4.02 Quorum; Required Vote for
Director Action. Unless otherwise required by law or in the
Certificate of Incorporation or these Bylaws, a majority of the total number of
directors shall constitute a quorum for the transaction of business of the Board
of Directors and the vote of a majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of
Directors.
Section
4.03 Vacancies in the Board of
Directors. Unless otherwise provided in the Certificate of
Incorporation, vacancies in the Board of Directors, including vacancies
resulting from an increase in the number of directors, shall be filled
exclusively by the affirmative vote of at least a majority of the remaining
members of the Board, even though less than a quorum, and not by the
stockholders, and each person so elected shall hold office until his or her
successor shall have been duly elected and qualified, except in the event of his
or her earlier resignation, removal or disqualification. A vacancy in
the Board of Directors shall be deemed to exist under this Section 4.04 in the
case of the death, removal or resignation of any director. Any
director chosen to fill a vacancy shall hold office until the next annual
meeting of stockholders and until such director’s successor shall have been
elected.
Section
4.04 Chairman of the
Board. The Board of Directors shall choose from among their
members a Chairman of the Board, who shall preside at the meetings of the Board
and perform such other duties as may be prescribed by the Board of
Directors. In the discretion of the Board of Directors, the Chairman
of the Board may, but need not, be an officer of the corporation.
15
Section
4.05 Removal. A
director may be removed from office at any time only for Cause (as defined
herein) by the affirmative vote of the holders of not less than two-thirds of
the outstanding stock of the Corporation entitled to vote, voting together as a
single class, at a duly called and convened annual or special meeting of
stockholders. For purposes hereof, “Cause” shall mean (i) a final
conviction of a felony involving moral turpitude or (ii) willful misconduct that
is materially and demonstrably injurious economically to the
Corporation. For purposes of the foregoing definition of “Cause,” no
act, or failure to act, by a director shall be considered “willful” unless
committed in bad faith and without a reasonable belief that the act or failure
to act was in the best interest of the Corporation or any Affiliate of the
Corporation. “Cause” shall not exist unless and until the Corporation has
delivered to the director a written notice of the act or failure to act that
constitutes “Cause” and, if cure is possible, such director shall not have cured
such act or omission within 90 days after the delivery of such
notice. As used in this Section 4.06, the term “Affiliate” has the
meaning given such term under Rule 12b-2 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”).
Section
4.06 Resignations of
Directors. Any director may resign at any time by delivering
his or her notice in writing or by electronic transmission to the Secretary,
such resignation to specify whether it will be effective at a particular time,
upon receipt by the Secretary or at the pleasure of the Board of
Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors.
Section
4.07 Compensation of
Directors. No director shall be entitled to any salary as
such, but directors shall be entitled to such compensation for his or her
services, in the form of cash or equity of the corporation, or a combination
thereof as may be approved by the Board of Directors from time to time,
including, if so approved, a reasonable annual fee for acting as a director and
for chairing a committee of the Board of Directors and a reasonable fee to be
paid each director for his or her services in attending meetings of the Board of
Directors or committees thereof.
Section
4.08 Regular
Meetings. Regular meetings of the Board of Directors shall be
held on such day, at such hour, and at such place, consistent with applicable
law, as the Board shall from time to time designate or as may be designated in
any notice from the Secretary calling the meeting. Notice need not be
given of regular meetings of the Board of Directors which are held at the time
and place designated by the Board of Directors. If a regular meeting
is not to be held at the time and place designated by the Board of Directors,
notice of such meeting, which need not specify the business to be transacted
thereat and which may be either oral or written, shall be given by the Secretary
to each member of the Board at least twenty-four (24) hours before the time of
the meeting.
Section
4.09 Special
Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board of Directors and shall be called whenever a
majority of the members of the Board so request in writing. A special
meeting of the Board of Directors shall be deemed to be any meeting other than
the regular meeting of the Board of Directors. Notice of the time and
place of every special meeting, which need not specify the business to be
transacted thereat and which may be either oral or written, shall be given by
the Secretary to each member of the Board at least twenty-four (24) hours before
the time of such meeting.
Section
4.10 Waiver of
Notice. The transaction of all business at any meeting of the
Board of Directors, or any committee thereof, however called or noticed, or
wherever held, shall be as valid as though it had been transacted at a meeting
duly held after regular call and notice, if a quorum be present and if, either
before or after the meeting, each of the directors not present who did not
receive notice shall sign a written waiver of notice or shall waive notice by
electronic transmission. All such waivers shall be filed with the
corporate records or made a part of the minutes of the meeting.
16
Section
4.11 Reports and
Records. The reports of officers and committees and the
records of the proceedings of all committees shall be filed with the Secretary
of the corporation and presented to the Board of Directors, if practicable, at
its next regular meeting. The Board of Directors shall keep complete
records of its proceedings in a minute book kept for that
purpose. When a director shall request it, the vote of each director
upon a particular question shall be recorded in the minutes.
Section
4.12 Action Without a
Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing or by electronic transmission, and such
writing or writings or transmission or transmissions are filed with the minutes
of proceedings of the Board of Directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic
form.
Section
4.13 Committees. The
following committees of the Board of Directors may be established by the Board
of Directors in addition to any other committee the Board of Directors may in
its discretion establish: (a) Executive Committee; (b) Audit
Committee; (c) Compensation Committee; and (d) Nominating and Corporate
Governance Committee. The term “independent,” as used in Sections
4.14, 4.15 and 4.16 of these Bylaws, shall have the meaning prescribed under
rules and regulations promulgated by the Securities and Exchange Commission or
the listing standards of any stock exchange or quotation system on which the
corporation’s securities are listed or quoted, each to the extent applicable to
the corporation.
Section
4.14 Executive
Committee. If established by the Board of Directors, the
Executive Committee shall consist of at least two (2)
directors. Meetings of the Executive Committee may be called at any
time by the Chairman of the Executive Committee and shall be called whenever two
(2) or more members of the Executive Committee so request in
writing. The Executive Committee shall have and exercise the
authority of the Board of Directors in the management of the business of the
corporation between the dates of regular meetings of the Board.
Section
4.15 Audit
Committee. If established by the Board of Directors, the Audit
Committee shall be subject to the following requirements:
(a) the
Audit Committee shall consist of at least two (2) directors, all of whom shall
be Independent and one of whom shall be an audit committee financial
expert;
(b) meetings
of the Audit Committee may be called at any time by the Chairman of the Audit
Committee and shall be called whenever two (2) or more members of the Audit
Committee so request in writing; and
17
(c) the
Audit Committee shall have the authority, powers and responsibilities as the
Board of Directors shall set forth in a resolution of the Board of Directors or
an Audit Committee Charter;
provided, however, that the
Audit Committee need not be subject to the provisions set forth in Section
4.15(a) above to the extent not required by applicable law, any rule or
regulation promulgated by the Securities and Exchange Commission, or the listing
standards of any stock exchange or quotation system on which the corporation’s
securities are listed or quoted.
Section
4.16 Compensation
Committee. If established by the Board of Directors, the
Compensation Committee shall be subject to the following
requirements:
(a) the
Compensation Committee shall consist of at least two (2) directors, all of whom
shall be Independent;
(b) meetings
of the Compensation Committee may be called at any time by the Chairman of the
Compensation Committee and shall be called whenever two (2) or more members of
the Compensation Committee so request in writing; and
(c) the
Compensation Committee shall determine the compensation of executive officers
and shall have the authority, powers and responsibilities as the Board of
Directors shall set forth in a resolution of the Board of Directors or a
Compensation Committee Charter;
provided, however, that the
Compensation Committee need not be constituted of Independent directors if not
required by applicable law, any rule or regulation promulgated by the Securities
and Exchange Commission, or the listing standards of any stock exchange or
quotation system on which the corporation’s securities are listed or
quoted:
Section
4.17 Nominating and Corporate
Governance Committee. If established by the Board of
Directors, the Nominating and Corporate Governance Committee shall be subject to
the following requirements:
(a) the
Nominating and Corporate Governance committee shall consist of at least three
(3) directors, all of whom shall be Independent;
(b) meetings
of the Nominating and Corporate Governance Committee may be called at any time
by the Chairman of the Nominating and Corporate Governance Committee and shall
be called whenever two (2) or more members of the Nominating and Corporate
Governance Committee so request in writing; and
(c) the
Nominating and Corporate Governance Committee shall have the authority, powers
and responsibilities as the Board of Directors sets forth in a resolution of the
Board of Directors or a Nominating and Corporate Governance Committee
Charter;
18
provided, however, that the
Nominating and Corporate Governance Committee need not be constituted of
Independent directors if not required by applicable law, any rule or regulation
promulgated by the Securities and Exchange Commission, or the listing standards
of any stock exchange or quotation system on which the corporation’s securities
are listed or quoted:
Section
4.18 Appointment of Committee
Members. The Board of Directors shall appoint or shall
establish a method of appointing the members of the Executive Committee, Audit
Committee, Compensation Committee, Nominating and Corporate Governance Committee
and of any other committee established by the Board of Directors, and the
Chairman of each such committee, to serve until the next annual meeting of
stockholders.
Section
4.19 Organization and
Proceedings. Each committee of the Board of Directors shall
effect its own organization by the appointment of a Secretary and such other
officers, except the Chairman, as it may deem necessary. The
Secretary of the Executive Committee shall be the Secretary of the corporation,
but the Secretary of the Audit Committee, Compensation Committee, Nominating and
Corporate Governance Committee and of any other committee need not be the
Secretary of the corporation. A record of the proceedings of all
committees shall be kept by the Secretary of such committee and filed and
presented as provided in Section 4.10 of these Bylaws.
Section
4.20 Absent or Disqualified
Committee Members. In the absence or disqualification of any
member of any committee established by the Board of Directors, the members
thereof who are present at any meeting of such committee and are not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another director to act at such meeting in the place of such
absent or disqualified member, subject to the requirements of applicable law,
any rule or regulation promulgated by the Securities and Exchange Commission, or
the listing standards of any stock exchange or quotation system on which the
corporation’s securities are listed or quoted:
Section
4.21 Absentee Participation in
Meetings. A director may participate in a meeting of the Board
of Directors or a meeting of a committee established by the Board of Directors
by use of a conference telephone or similar communications equipment, by means
of which all persons participating in the meeting can hear each
other.
ARTICLE
V
|
OFFICERS
|
Section
5.01 Officers. The
officers of the corporation shall be a Chief Executive Officer, a President, a
Secretary and a Chief Financial Officer (or Treasurer). The
corporation may have such other officers, including Vice Presidents, and
assistant officers as the Board of Directors may from time to time deem
advisable. The same individual may hold any two (2) or more
offices. The following officers shall be elected by the Board of
Directors at the time, in the manner and for such terms as the Board of
Directors from time to time shall determine: President, Secretary and Chief
Financial Officer (or Treasurer). The Board of Directors may appoint
such other officers and assistant officers as it may deem advisable, who shall
hold office for such periods as they shall determine. Any officer may
be removed at any time, with or without cause, and regardless of the term for
which such officer was elected.
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Section
5.02 Chief Executive
Officer. The Chief Executive Officer shall have general
supervision of all of the departments and business of the corporation; he or she
shall prescribe the duties of the other officers and employees and see to the
proper performance thereof. The Chief Executive Officer shall be
responsible for having all orders and resolutions of the Board of Directors
carried into effect. The Chief Executive Officer shall execute on
behalf of the corporation and may affix or cause to be affixed a seal to all
authorized documents and instruments requiring such execution, except to the
extent that signing and execution thereof shall have been delegated to some
other officer or agent of the corporation by the Board of Directors or by the
Chief Executive Officer.
Section
5.03 President. The
President shall perform such duties as are incident to his or her office or
prescribed by the Board of Directors or the Chief Executive
Officer. In the event of the absence or disability of the Chief
Executive Officer or his or her refusal to act, the President shall perform the
duties and have the powers and authorities of the Chief Executive
Officer. The President shall execute on behalf of the corporation and
may affix or cause to be affixed a seal to all authorized documents and
instruments requiring such execution, except to the extent that signing and
execution thereof shall have been delegated to some other officer or agent of
the corporation by the Board of Directors or the President.
Section
5.04 Vice
Presidents. The Vice Presidents shall perform such duties, do
such acts and be subject to such supervision as may be prescribed by the Board
of Directors, the Chief Executive Officer or the President. In the
event of the absence or disability of the Chief Executive Officer and the
President or their refusal to act, the Vice Presidents, in the order of their
rank, and within the same rank in the order of their seniority, shall perform
the duties and have the powers and authorities of the Chief Executive Officer
and President, except to the extent inconsistent with applicable
law.
Section
5.05 Secretary. The
Secretary shall act under the supervision of the Chief Executive Officer and
President or such other officer as the Chief Executive Officer or President may
designate. Unless a designation to the contrary is made at a meeting,
the Secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all of the proceedings of such meetings
in a book to be kept for that purpose, and shall perform like duties for the
standing committees when required by these Bylaws or otherwise. The
Secretary shall keep a seal of the corporation, and, when authorized by the
Board of Directors, Chief Executive Officer or the President, cause the seal to
be affixed to any documents and instruments requiring it. The
Secretary shall perform such other duties as may be prescribed by the Board of
Directors, Chief Executive Officer, President or such other supervising officer
as the Chief Executive Officer or President may designate.
Section
5.06 Chief Financial Officer (or
Treasurer). The Chief Financial Officer (or Treasurer) shall
act under the supervision of the Chief Executive Officer and President or such
other officer as the Chief Executive Officer or President may
designate. The Chief Financial Officer shall have custody of the
corporation’s funds and such other duties as may be prescribed by the Board of
Directors, Chief Executive Officer, President or such other supervising officer
as the Chief Executive Officer or President may designate. The Chief
Financial Officer shall execute on behalf of the corporation and may affix or
cause to be affixed a seal to all authorized documents and instruments requiring
such execution, except to the extent that signing and execution thereof shall
have been delegated to some other officer or agent of the corporation by the
Board of Directors or the President.
Section
5.07 Assistant
Officers. Unless otherwise provided by the Board of Directors,
each assistant officer shall perform such duties as shall be prescribed by the
Board of Directors, Chief Executive Officer, President or the officer to whom he
or she is an assistant. In the event of the absence or disability of
an officer or his or her refusal to act, his or her assistant officers shall, in
the order of their rank, and within the same rank in the order of their
seniority, have the powers and authorities of such officer.
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Section
5.08 General
Powers. The officers are authorized to do and perform such
corporate acts as are necessary in the carrying on of the business of the
corporation, subject always to the directions of the Board of
Directors.
ARTICLE
VI
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SHARES OF CAPITAL
STOCK
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Section
6.01 Form and Execution of
Certificates. The shares of the corporation shall be
represented by certificates, or shall be uncertificated. Certificates
for the shares of stock, if any, shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of
stock represented by a certificate in the corporation shall be entitled to have
a certificate signed by or in the name of the corporation by the Chairman of the
Board of Directors, or the President or any Vice President and by the Chief
Financial Officer or the Secretary or Assistant Secretary, certifying the number
of shares owned by him in the corporation. Any or all of the
signatures on the certificate may be facsimiles. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
Section
6.02 Lost
Certificates. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a
condition precedent to the issuance of a new certificate or certificates, the
owner of such lost, stolen, or destroyed certificate or certificates, or the
owner’s legal representative, to agree to indemnify the corporation in such
manner as it shall require or to give the corporation a surety bond in such form
and amount as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen, or destroyed.
Section
6.03 Transfers. Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, and, in
the case of stock represented by certificate, upon the surrender of a properly
endorsed certificate or certificates for a like number of shares.
ARTICLE
VII
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GENERAL
|
Section
7.01 Fiscal
Year. The fiscal year of the corporation shall be determined
by the Board of Directors. If no such determination has been made,
the fiscal year shall begin on January 1 and end on December 31.
Section
7.02 Emergency
Bylaws. In the event of any emergency resulting from an attack
on the United States, a nuclear or weather related disaster or another
catastrophe as a result of which a quorum cannot be readily assembled and during
the continuance of such emergency, the following Bylaw provisions shall be in
effect, notwithstanding any other provisions of these Bylaws.
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(a) A
meeting of the Board of Directors or of any committee thereof may be called by
any officer or director upon one hour’s notice to all persons entitled to notice
whom, in the sole judgment of the notifier, it is feasible to
notify;
(b) The
director or directors in attendance at the meeting of the Board of Directors or
of any committee thereof shall constitute a quorum; and
(c) These
Bylaws may be amended or repealed, in whole or in part, by a majority vote of
the directors attending any meeting of the Board of Directors, provided that such amendment
or repeal shall only be effective for the duration of such
emergency.
Section
7.03 Severability. If
any provision of these Bylaws is illegal or unenforceable as such, such
illegality or unenforceability shall not affect any other provision of these
Bylaws and such other provisions shall continue in full force and
effect.
ARTICLE
VIII
|
AMENDMENTS
|
Section
8.01 Amendment or Repeal by the
Board of Directors or Stockholders. The Board of Directors
shall have the power at any time, and from time to time, to adopt, amend and
repeal these Bylaws. Any amendment to, or repeal of, any provision of
the Bylaws which has not previously received the approval of the Board of
Directors shall require for adoption the affirmative vote of the holders of not
less than two-thirds of the outstanding stock of the Corporation entitled to
vote at a duly called and convened annual or special meeting of stockholders,
voting together as a single class, in addition to any other approval which is
required by law, the Certificate of Incorporation, these Bylaws, or
otherwise.
Section
8.02 Recording
Amendments. The text of all amendments to these Bylaws shall
be attached hereto, and a notation of the date of its adoption and a notation of
whether it was adopted by the directors or the stockholders shall be made in
Section 9.02 hereof.
ARTICLE
IX
|
ADOPTION OF BYLAWS AND
RECORD OF AMENDMENTS
THERETO.
|
Section
9.01 Adoption and Effective
Date. These Bylaws were first adopted and approved by the
Board of Directors of the corporation as of May 12, 2010. These
Bylaws shall take effect as of the date provided for in the action or resolution
of the Board of Directors approving these Bylaws.
Section
9.02 Amendments to
Bylaws.
Section(s) Amended
|
Date Amended
|
Adopted By
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