Attached files
| file | filename |
|---|---|
| 8-K - WORLDGATE COMMUNICATIONS INC | v186527_8k.htm |
| EX-14.1 - WORLDGATE COMMUNICATIONS INC | v186527_ex14-1.htm |
| EX-10.2 - WORLDGATE COMMUNICATIONS INC | v186527_ex10-2.htm |
| EX-10.1 - WORLDGATE COMMUNICATIONS INC | v186527_ex10-1.htm |
SECOND
AMENDED AND RESTATED
BYLAWS
OF
WORLDGATE
COMMUNICATIONS, INC.
(a
Delaware corporation)
(effective
May 20, 2010)
ARTICLE
I.
STOCKHOLDERS
Section
1.01 Annual Meeting. An
annual meeting of the stockholders of the corporation, for the election of the
directors to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at such
place, on such date and at such time as the Board of Directors shall by
resolution each year fix.
Section
1.02 Special Meetings.
Special meetings of the stockholders, for any purpose or purposes prescribed in
the notice of the meeting, may be called only by (i) the Board of Directors,
(ii) the Chairman of the Board of Directors, (iii) the Chief Executive Officer
or (iv) the holders of at least a majority of the voting power of all of the
then outstanding shares of capital stock of the corporation; and such meetings
shall be held at such place, on such date, and at such time as they shall fix.
Business transacted at special meetings shall be confined to the purpose or
purposes stated in the notice.
Section
1.03 Place of Meetings.
All meetings of stockholders shall be held at the principal office of the
corporation unless a different place is fixed by the person or persons calling
the meeting and stated in the notice of the meeting, or shall not be held at any
place but instead shall be held solely by means of remote communication as the
Board of Directors, in its sole discretion, may determine.
Section
1.04 Notices of Meetings and
Adjourned Meetings.
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(a)
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A
notice in writing or by electronic transmission of each annual or special
meeting of the stockholders stating the place, date and hour thereof,
shall be given by the Secretary (or the person or persons calling the
meeting), not less than 10 days nor more than 60 days before the date of
the meeting, to each stockholder entitled to vote thereat, by leaving such
notice with him or her or at his or her residence or usual place of
business, by depositing it postage prepaid in the United States mail, or
by sending it by prepaid telegram, telex, overnight express courier,
facsimile, electronic transmission, as defined in Section 232(b) of the
Delaware General Corporation Law, directed to each stockholder at his or
her address as it appears on the records of the corporation, or, with
respect to electronic transmission, as consented to by the stockholder to
whom the notice is given. Notices of all meetings of stockholders shall
state the purpose or purposes for which the meeting is called. An
affidavit of the Secretary, Assistant Secretary, or transfer agent of the
corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein. No notice need be
given to any person with whom communication is unlawful or to any person
who has waived such notice either (i) in writing (which writing need not
specify the business to be transacted at, or the purpose of, the meeting)
signed by such person before or after the time of the meeting, (ii) by
electronic transmission (which electronic transmission need not specify
the business to be transacted at, or the purpose of, the meeting) sent by
him or her before or after the time of the meeting or (iii) by attending
the meeting except 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. When a meeting is adjourned to another
time and place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken except that, if the adjournment is for more than 30
days or if, after the adjournment, a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given in the
manner provided in this Section
1.04.
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(b)
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Without
limiting the manner by which notice otherwise may be given effectively to
the stockholders, any notice to stockholders given by the corporation
under any provision of the Delaware General Corporation Law, the
Certificate of Incorporation of the corporation (as currently in effect,
the “Certificate
of Incorporation”), or these Bylaws shall be effective if given by
a form of electronic transmission consented to by the stockholder to whom
the notice is given. Any such consent shall be revocable by the
stockholder by written notice to the corporation. Any such consent shall
be deemed revoked if (i) the corporation is unable to deliver by
electronic transmission two consecutive notices given by the corporation
in accordance with such consent and (ii) such inability becomes known to
the Secretary or Assistant Secretary of the corporation or to the 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. Notice given pursuant to this
Section 1.04(b) shall be deemed given: (A) if by facsimile
telecommunication, 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 specific posting, upon the
later of such posting and the giving of such separate notice; and (D) if
by any other form of electronic transmission, when directed to the
stockholder.
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Section
1.05 Quorum. At any
meeting of the stockholders, a quorum for the transaction of business shall
consist of one or more individuals appearing in person or represented by proxy
and owning or representing a majority of the shares of the corporation then
issued and outstanding and entitled to vote thereat, unless or except to the
extent that the presence of a larger number may be required by law (including as
required from time to time by the Delaware General Corporation Law or the
Certificate of Incorporation). Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes then issued and
outstanding and entitled to vote thereat who are present, in person or by proxy,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote
thereat who are present, in person or by proxy, may adjourn the meeting to
another place, date, or time. At any such adjourned session of the meeting at
which there shall be present or represented the holders of the requisite number
of shares of the corporation then issued and outstanding, any business may be
transmitted that might have been transacted at the meeting as originally
called.
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Section
1.06 Organization. Such
person as the Board of Directors may have designated or, in the absence of such
a person, the Chairman of the Board, or in his or her absence the person
designated in writing by the Chief Executive Officer, shall call to order any
meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary of the corporation, the secretary of the meeting
shall be such person as the chairman appoints.
Section
1.07 Conduct of
Business. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
or her in order.
Section
1.08 Voting. Unless
otherwise provided in the Certificate of Incorporation and subject to the
provisions of Section 4.06 hereof, each stockholder shall have one vote for each
share of stock entitled to vote held by him or her of record according to the
records of the corporation. If shares stand of record in the names of
two or more persons or if two or more persons have the same fiduciary
relationship respecting the shares then, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided to the
contrary: (a) if only one votes, his or her act binds all; or
(b) if more than one votes, the act of the majority so voting binds
all.
Section
1.09 Proxies. Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or any group of persons to act for him or her by a written or electronic
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A written proxy
shall be deemed executed if the stockholder’s name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholder’s attorney-in-fact. An
electronic proxy (which may be transmitted via telephone, electronic mail, the
Internet or such other electronic means as the Board of Directors may determine
from time to time) shall be deemed executed if the corporation receives an
appropriate electronic transmission from the stockholder or the stockholder’s
attorney-in-fact along with a pass code or other identifier which reasonably
establishes the stockholder or the stockholder’s attorney-in-fact as the sender
of such transmission. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the Delaware General
Corporation Law. A stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by delivering a
proxy in accordance with applicable law bearing a later date to the Secretary of
the corporation.
Section
1.10 Action at
Meeting. When a quorum is present at any meeting, action of
the stockholders on any matter properly brought before such meeting, other than
the election of directors, shall require, and may be effected by, the
affirmative vote of the holders of a majority in interest of the stock present
or represented by proxy and entitled to vote on the subject matter, except where
a different vote is expressly required by law, the Certificate of Incorporation
or these Bylaws, in which case such express provision shall govern and
control. Directors shall be elected by a plurality vote of the
holders of the stock present or represented by proxy and entitled to vote in the
election of directors. If the Certificate of Incorporation so
provides, no written ballot shall be required for the election of directors; if
authorized by the Board of Directors, such requirement may be satisfied by an
electronic transmission in the manner provided by law.
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Section
1.11 Consent of Stockholders in
Lieu of Meeting.
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(a)
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Unless
otherwise provided in the Certificate of Incorporation, any action that
may be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and
voted. Notice of the taking of such action shall be given
promptly to each stockholder that would have been entitled to vote thereon
at a meeting of stockholders and that did not consent thereto in
writing.
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(b)
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A
telegram, cablegram or other electronic transmission consent to an action
to be taken and transmitted by a stockholder or proxyholder, or by a
person or persons authorized to act for a stockholder or proxyholder,
shall be deemed to be written, signed and dated for the purposes of this
section, provided that any such telegram, cablegram or other electronic
transmission sets forth or is delivered with information from which the
corporation can determine (i) that the telegram, cablegram or other
electronic transmission was transmitted by the stockholder or proxyholder
or by a person or persons authorized to act for the stockholder or
proxyholder, and (ii) the date on which such stockholder or proxyholder or
authorized person or persons transmitted such telegram, cablegram or
electronic transmission. The date on which such telegram,
cablegram or electronic transmission is transmitted shall be deemed to be
the date on which such consent was signed. No consent given by
telegram, cablegram or other electronic transmission shall be deemed to
have been delivered until such consent is reproduced in paper form and
until such paper form shall be delivered to the corporation by delivery to
its registered office in this State, its principal place of business or an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery
made to a corporation’s registered office shall be made by hand or by
certified or registered mail, return receipt
requested. Notwithstanding the foregoing limitations on
delivery, consents given by telegram, cablegram or other electronic
transmission may be otherwise delivered to the principal place of business
of the corporation or to an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded if to the extent and in the manner provided by resolution of the
Board of Directors of the
corporation.
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(c)
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Any
copy, facsimile or other reliable reproduction of a consent in writing may
be substituted or used in lieu of the original writing for any and all
purposes for which the original writing could be used, provided that such
copy, facsimile or other reproduction shall be a complete reproduction of
the entire original writing.
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Section
1.12 Stockholder
Lists. At least 10 days before every meeting of stockholders,
a complete list of stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder shall be prepared and made
available. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period of at least 10
days prior to the meeting, either (a) during ordinary business hours, at
the principal place of business of the corporation, or (b) on a reasonably
accessible electronic network as permitted by law (provided that the
information required to gain access to the list is provided with the notice of
the meeting). Such list shall also 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 the meeting is held solely by
means of remote communication, then 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 the list shall be
provided with the notice of the meeting. The stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this Section 1.12 or the books of the corporation,
or to vote in person or by proxy at any meeting of stockholders.
Section
1.13 Inspectors of
Elections.
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(a)
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Applicability. Unless
otherwise provided in the Certificate of Incorporation or required by the
Delaware General Corporation Law, the following provisions of this Section
1.13 shall apply only if and when the corporation has a class of voting
stock that is: (i) listed on a national securities exchange;
(ii) authorized for quotation on an interdealer quotation system of a
registered national securities association; or (iii) held of record
by more than 2,000 stockholders; in all other cases, observance of the
provisions of this Section 1.13 shall be optional, and at the discretion
of the corporation.
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(b)
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Appointment. The
corporation shall, in advance of any meeting of stockholders, appoint one
or more inspectors of elections to act at the meeting and make a written
report thereof. The corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting
of stockholders, the person presiding at the meeting shall appoint one or
more inspectors to act at the meeting. No person who is a
candidate for office at an election may serve as an inspector at such
election.
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(c)
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Inspector’s
Oath. Each inspector of elections, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to
the best of his ability.
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(d)
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Duties of
Inspectors. At a meeting of stockholders, the inspectors
of elections shall (i) ascertain the number of shares outstanding and the
voting power of each share, (ii) determine the shares represented at a
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a
record of the disposition of any challenges made to any determination by
the inspectors, and (v) certify their determination of the number of
shares represented at the meeting, and their count of all votes and
ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
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(e)
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Opening and Closing of
Polls. 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 by the inspectors at the meeting. No
ballot, proxies or votes, nor any revocations thereof or changes thereto,
shall be accepted by the inspectors after the closing of the polls unless
the Court of Chancery upon application by a stockholder shall determine
otherwise.
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(f)
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Determinations. In
determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in
connection with proxies in accordance with Section 212(c)(2) of the
Delaware General Corporation Law, ballots and the regular books and
records of the corporation, except that the inspectors may consider other
reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or
similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder
holds of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the inspectors at
the time they make their certification of their determinations pursuant to
this Section 1.13 shall specify the precise information considered by
them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors’ belief that
such information is accurate and
reliable.
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Section
1.14 Notice of Stockholder
Business; Nominations.
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(a)
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Annual Meeting of
Stockholders.
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(i)
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Nominations
of persons for election to the Board of Directors and the proposal of
business to be considered by the stockholders shall be made at an annual
meeting of stockholders (A) pursuant to the corporation’s notice of
such meeting, (B) by or at the direction of the Board of Directors or
(C) by any stockholder of the corporation who was a stockholder of
record at the time of giving of the notice provided for in this Section
1.14, who is entitled to vote at such meeting and who complies with the
notice procedures set forth in this Section
1.14.
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(ii)
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Clause
(C) of subparagraph (a)(i) of this Section 1.14 shall be the exclusive
means for a stockholder to make nominations or submit other business
(other than matters properly brought under Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”) and included in the corporation’s notice of meeting) before
an annual meeting of stockholders. For any nomination or other
business to be properly brought before an annual meeting pursuant to
Section 1.14(a)(i) by a stockholder, the stockholder must comply with the
notice procedures set forth in these Bylaws and such other business must
otherwise be a proper matter for stockholder action. To be
timely, a stockholder’s
notice must be delivered to the Secretary at the principal executive
offices of the corporation not later than the close of business on the
sixtieth (60th) day nor earlier than the close of business on the
ninetieth (90th) day prior to the first anniversary of the preceding
year’s annual meeting; provided, however, that
in the event that the date of the annual meeting is more than thirty (30)
days before or more than sixty (60) days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the ninetieth (90th) day prior to such
annual meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such annual meeting or the close of
business on the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made by the
corporation. In no event will the public announcement of an
adjournment or postponement of an annual meeting commence a new time
period (or extend any time period) for the giving of a stockholder’s
notice as described above. Such stockholder’s notice shall set
forth: (A) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Exchange Act including such person’s written
consent to being named in the proxy statement as a nominee and to serving
as a director if elected, and the information necessary for the Board of
Directors to determine whether such proposed nominee qualifies as an
independent director under the applicable stock exchange rules; (B) as to
any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (1) the name and address
of such stockholder, as they appear on the corporation’s books, and of
such beneficial owner, (2) the class and number of shares of the
corporation that are owned beneficially and held of record by such
stockholder and such beneficial owner, and (3) the disclosure of any short
positions or other derivative positions relating to the corporation’s
shares of such stockholder and such beneficial owner, such information to
be updated to reflect any material change in such positions through the
time of the annual meeting.
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(b)
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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 corporation’s notice of such
meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation’s notice of such
meeting (i) by or at the direction of the Board of Directors or (ii) provided that
the Board of Directors has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who is a stockholder
of record at the time of giving of notice of the special meeting, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 1.14. In the event the
corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the corporation’s notice of
meeting, if the stockholder’s notice required by subparagraph (a)(ii) of
this Section 1.14 shall be delivered to the Secretary of the corporation
at the principal executive offices of the corporation not earlier than the
ninetieth (90th) day prior to such special meeting and not later than the
close of business on the later of the sixtieth (60th) day prior to such
special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
In no event will the public announcement of an adjournment or postponement
of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
above.
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(c)
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General.
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(i)
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Only
such persons who are nominated in accordance with the procedures set forth
in this Section 1.14 shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set
forth in this Section 1.14. Except as otherwise provided by law
or these Bylaws, the chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this Section 1.14 and, if any proposed
nomination or business is not in compliance herewith, to declare that such
defective proposal or nomination shall be
disregarded.
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(ii)
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For
purposes of this Section 1.14, the term “public announcement” shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange
Commission pursuant to section 13, 14 or 15(d) of the Exchange
Act.
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(iii)
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Notwithstanding
the foregoing provisions of this Section 1.14, 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 1.14 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
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(iv)
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Notwithstanding
anything in these Bylaws to the contrary (including this Section 1.14),
the right of any stockholder to nominate any person to serve on the Board
of Directors pursuant to an agreement between such person and the
corporation (including the Rights Agreement) shall supersede the
requirements of this Section 1.14. Nothing in this Section 1.14
shall be deemed to limit the rights of (A) any party to any such
agreement, or (B) the holders of any series of preferred stock to elect
directors in accordance with the provisions of an applicable preferred
stock designation or the terms of such preferred stock set forth in the
Certificate of Incorporation.
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ARTICLE
II.
DIRECTORS
Section
2.01 Powers. The business
and affairs of the corporation shall be managed by or under the direction of the
Board of Directors, which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by law or these Bylaws directed or
required to be exercised or done by the stockholders.
Section
2.02 Number of Directors;
Vacancies. The Board of Directors shall consist of seven members or such
number of members determined from time to time by a resolution of the Board of
Directors. No decrease in the authorized number of directors constituting the
Board of Directors shall shorten the term of any incumbent director. Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by the sole remaining director, and the directors
so chosen shall hold office, subject to Sections 2.05 and 2.06, until the next
annual meeting of stockholders and until their respective successors are elected
and qualified.
Section
2.03 Election and Tenure.
The term of office of each director elected to the Board of Directors at each
annual meeting of stockholders shall hold office until the next succeeding
annual meeting of stockholders and shall serve until such director’s successor
is elected and qualified, or until such director’s earlier death, resignation or
removal.
Section
2.04 Qualification. No
director need be a stockholder.
Section
2.05 Removal. Any
directors, or the entire Board of Directors, may be removed from office at any
time, with or without cause, but only by the affirmative vote of the holders of
at least a majority of the voting power of all of the then outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class. Vacancies in the Board of
Directors resulting from such removal may be filled by a majority of the
directors then in office, though less than a quorum, or by the sole remaining
director. Directors so chosen shall hold office until the next annual meeting of
stockholders and until their successors are elected and qualified.
Section
2.06 Resignation. Any
director of the corporation may resign at any time by giving written notice or
by electronic transmission to the Board of Directors, to the Chairman of the
Board of Directors, if any, to the Chief Executive Officer, to the President, or
to the Secretary, and any member of a committee may resign therefrom at any time
by giving notice as aforesaid or to the chairman or secretary of such committee.
Any such resignation shall take effect at the time specified therein or upon the
occurrence of an event described in such resignation, or, if a time or event be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
Section
2.07 Annual Meeting. The
first meeting of each newly elected Board of Directors may be held without
notice immediately after an annual meeting of stockholders (or a special meeting
of stockholders held in lieu of an annual meeting) at the same place as that at
which such meeting of stockholders was held; or such first meeting may be held
at such place and time as shall be fixed by the directors in the manner
hereinafter provided with respect to the call of special meetings.
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Section
2.08 Regular Meetings.
Regular meetings of the directors may be held at such times and places as shall
from time to time be fixed by resolution of the Board of Directors, and no
notice need be given of regular meetings held at times and places so fixed. No
notice need be given of any regular meeting, and a notice, if given, need not
specify the purposes thereof.
Section
2.09 Special Meetings.
Special meetings of the directors may be called by the Chairman of the Board of
Directors, the Lead Independent Director, if any, the Chief Executive Officer,
the President, or by at least a majority of the directors then in office, and
shall be held at the place and on the date and hour designated in the call
thereof. In the absence of all such officers, such notice may be given by the
officer or one of the directors calling the meeting.
Section
2.10 Notices. Notices of
any special meeting of the directors shall be given to each director (a) by
mailing to him or her, postage prepaid, and addressed to him or her at his or
her address as registered on the books of the corporation, or if not so
registered at his or her last known home or business address, a written notice
of such meeting at least 4 days before the meeting, (b) by delivering such
notice by hand or by telegram, telecopy, telex, facsimile, electronic
transmission (including electronic mail) or other comparable communication
equipment to him or her at least 24 hours before the meeting, addressed to him
or her at such address, or (c) by giving such notice in person or by telephone
at least 24 hours in advance of the meeting. Notice need not be given to any
director who has waived notice (a) in writing executed by him or her before or
after the meeting and filed with the records of the meeting, (b) by electronic
transmission sent by him or her before or after the meeting and filed with the
records of the meeting or (c) by attending the meeting except 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. A notice or
waiver of notice of a meeting of the directors need not specify the business to
be transacted at or the purpose of the meeting.
Section
2.11 Quorum. At any
meeting of the directors, a majority of the total number of directors fixed from
time to time by resolution of the Board of Directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption) shall constitute
a quorum for the transaction of business. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of those present (or, if not
more than two directors are present, any director present) may adjourn the
meeting from time to time to another place, date or time, without notice other
than announcement at the meeting prior to adjournment, until a quorum shall be
present.
Section
2.12 Participation in Meetings by
Conference Telephone. One or more members of the Board of Directors, or
any committee thereof, may participate in a meeting of such Board of Directors
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 2.12 shall
constitute presence in person at such meeting.
10
Section
2.13 Conduct of Business; Action
by Written Consent. At any meeting of the Board of Directors at which a
quorum is present, business shall be transacted in such order and manner as the
Board of Directors may from time to time determine, and all matters shall be
determined by the vote of a majority of the directors present, except as
otherwise provided in these Bylaws or required by law. Action may be taken by
the Board of Directors, or any committee thereof, 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 (including electronic mail),
and the writing or writings or electronic transmission or transmissions
(including electronic mail) are filed with the records of proceedings of the
Board of Directors or committee.
Section
2.14 Place of Meetings.
The Board of Directors may hold its meetings, and have an office or offices,
within or without the State of Delaware.
Section
2.15 Compensation. The
Board of Directors shall have the authority to fix compensation for directors
for their service in such capacity and to provide for payment of a fixed sum and
expenses, if any, for attendance at each regular or special meeting of the Board
of Directors. The Board of Directors shall also have the authority to fix
compensation for members of committees for their service in such capacity and to
provide for payment of a fixed sum and expenses, if any, payable to members of
committees for attending committee meetings. Nothing herein contained shall
preclude any director from serving the corporation in any other capacity and
receiving compensation for such services.
Section
2.16 Committees. The Board
of Directors may, from time to time, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have such power or authority in reference to (i) amending
the Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Subsection (a) of
Section 151 of the Delaware General Corporation Law, fix the designations and
any preferences or rights of such shares or fix the number of shares in a series
of stock or authorize the increase or decrease in the shares of any series),
(ii) adopting an agreement of merger or consolidation, (iii) recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation’s property or assets, (iv) recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or (v)
adopting, amending or repealing any Bylaws of the corporation. Such a committee
may, to the extent expressly provided in the resolution of the Board of
Directors, have the power or authority to declare a dividend or to authorize the
issuance of stock or adopt a certificate of ownership and merger pursuant to
Section 253 of the Delaware General Corporation Law.
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(a)
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At
any meeting of any committee, a majority of the whole committee shall
constitute a quorum and, except as otherwise provided by these Bylaws or
required by law, the affirmative vote of at least a majority of the
members present at a meeting at which there is a quorum shall be the act
of the committee.
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(b)
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Each
committee, except as otherwise provided by resolution of the Board of
Directors, shall fix the time and place of its meetings within or without
the State of Delaware, shall adopt its own rules and procedures, and shall
keep a record of its acts and proceedings and report the same from time to
time to the Board of Directors. In the absence of such rules, each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these
Bylaws.
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Section
2.17 Corporate Governance
Compliance. Without limiting the powers of the Board set forth in Section 2.01, if at any time during which shares
of capital stock of the corporation are listed for trading on The NASDAQ Stock
Market or any other national securities exchange or quotation system, and if the
corporation qualifies for, and elects to rely upon, the “controlled company” exemption (the
“Controlled
Company
Exemption”) to the then applicable rules of The NASDAQ Stock Market or
such other national securities exchange or quotation system, the corporation and
Board may adopt any and all measures, including with respect to the composition
of the Board of Directors and certain committees of the Board of Directors,
permitted by the Controlled Company Exemption.
ARTICLE
III.
OFFICERS
Section
3.01 Officers and Their
Election. The officers of the corporation shall be a Chief
Executive Officer, a President, a Secretary and such Vice Presidents and other
officers as the Board of Directors may from time to time determine and elect or
appoint. All officers shall perform such duties and have such powers
as the Board of Directors shall designate by resolution, or in the absence of
such resolution, as set forth in these Bylaws. The Board of Directors
may appoint one of its members to the office of Chairman of the Board of
Directors and from time to time define the powers and duties of such office
notwithstanding any other provisions of these Bylaws. All such
officers shall be elected by the Board of Directors and shall serve at the will
of the Board of Directors. Any officer may, but need not, be a
director. Two or more offices may be held by the same
person. In addition, the Board of Directors may appoint, or empower
the Chief Executive Officer to appoint, such additional officers with such
title, powers and duties as the person(s) appointing such officers may
determine, consistent with the provisions of Article III of these
Bylaws.
Section
3.02 Term of Office;
Removal. All officers shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any officers elected by the Board of Directors may be
removed at any time by the Board of Directors. If the office of any
elected officer becomes vacant for any reason, the vacancy may be left vacant or
be filled by the Board of Directors. Any officer appointed by the
Chief Executive Officer may be removed at any time, with or without cause, by
the Board of Directors or the Chief Executive Officer. If the office
of any officer appointed by the Chief Executive Officer becomes vacant for any
reason, the vacancy may be left vacant or be filled by the Board of Directors or
the Chief Executive Officer. Nothing in these Bylaws shall be
construed as creating any kind of contractual right to employment with the
corporation.
12
Section
3.03 Chairman of the Board of
Directors. The Board of Directors may, in its discretion,
elect a Chairman of the Board of Directors from among its members. He
or she may be the Chief Executive Officer of the corporation if so designated by
the Board of Directors, and he or she shall preside at all meetings of the Board
of Directors and the stockholders at which he or she is present and shall
exercise and perform such other powers and duties as may from time to time be
assigned to him or her by the Board of Directors or prescribed by the
Bylaws.
Section
3.04 Lead Independent
Director. The Board of Directors may, in its discretion, elect
a Lead Independent Director from among its members that are “independent” as
such term is defined under the rules of the stock exchange upon which the
corporation’s common stock is primarily traded (each an “Independent
Director”). He or she shall preside at all meetings at which
the Chairman of the Board of Directors is not present and shall exercise such
other powers and duties as may from time to time be assigned to him or her by
the Board of Directors or as prescribed by the Bylaws.
Section
3.05 Chief Executive
Officer. The Board of Directors may elect a Chief Executive
Officer of the corporation who may also be the Chairman of the Board of
Directors or President of the corporation or both. The Chief
Executive Officer shall, subject to the oversight of the Board of Directors,
have general supervision, direction and control of the business and the oficers,
employees and agents of the corporation. The Chief Executive Officer
shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. He or she shall from
time to time report to the Board of Directors all matters within his or her
knowledge that the interests of the corporation may require to be brought to its
notice.
Section
3.06 President. If
there is no Chief Executive Officer, the President shall be the chief executive
officer of the corporation except as the Board of Directors may otherwise
provide. The President shall perform such duties and have such powers
additional to the foregoing as the Board of Directors shall
designate.
Section
3.07 Vice
Presidents. In the absence or disability of the President, his
or her powers and duties shall be performed by the vice president, if only one,
or, if more than one, by the one designated for the purpose by the Board of
Directors. Each vice president shall perform such duties and have
such powers additional to the foregoing as the Board of Directors shall
designate.
Section
3.08 Chief Financial
Officer. The Chief Financial Officer will be responsible for
the financial affairs of the corporation and will be the chief accounting
officer for public securities purposes. If the Chief Financial
Officer is not also the Treasurer of the corporation, he or she will be
responsible for the supervision of the Treasurer. He or she will
perform all duties incident to the office of Chief Financial Officer, and other
duties as may from time to time be assigned to him or her by the Board of
Directors or as may be provided in these Bylaws.
13
Section
3.09 Secretary. Unless
otherwise set forth in a resolution of the Board of Directors, the Secretary
shall issue notices of all meetings of stockholders, of the Board of Directors
and of committees thereof where notices of such meetings are required by law or
these Bylaws; he or she shall record the proceedings of the meetings of the
stockholders and of the Board of Directors and shall be responsible for the
custody thereof in a book to be kept for that purpose; he or she shall also
record the proceedings of the committees of the Board of Directors unless such
committees appoint their own respective secretaries; he or she shall be charged
with the duty of keeping, or causing to be kept, accurate records of all stock
outstanding, stock certificates issued and stock transfers (unless the Board of
Directors shall appoint a transfer agent and/or registrar); he or she shall sign
such instruments as require his or her signature; and he or she shall have
custody of the corporate seal and shall affix and attest such seal on all
documents whose execution under seal is duly authorized. In his or
her absence at any meeting, an Assistant Secretary or the Secretary pro tempore
shall perform his or her duties thereat. It shall be the duty of the
Assistant Secretary to assist the Secretary in the performance of the
Secretary’s duties as may be delegated to him or her by the Board of Directors
or the Chief Executive Officer.
Section 3.10 Treasurer. The Treasurer
will have charge of and be responsible for all funds, securities, receipts and
disbursements of the corporation and will deposit or cause to be deposited, in
the name of the corporation, all moneys or other valuable effects in banks,
trust companies or other depositories as will, from time to time, be selected by
or under authority of the Board of Directors. If required by the
Board of Directors, the Treasurer will give a bond for the faithful discharge of
his or her duties, with surety or sureties as the Board of Directors may
determine. The Treasurer will keep or cause to be kept full and
accurate records of all receipts and disbursements in books of the corporation,
will render to the Chief Executive Officer and to the Board of Directors,
whenever requested, an account of the financial condition of the corporation,
and, in general, will perform all the duties incident to the office of the
Treasurer of a corporation and other duties as may, from time to time, be
assigned to him or her by the Board of Directors or the Chief Executive Officer
or as may be provided by law
Section
3.11 Resignations. Any
officer, agent or employee of the corporation may resign at any time by giving
written notice to the Board of Directors, to the Chairman of the Board of
Directors, if any, to the Chief Executive Officer or to the Secretary of the
corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, upon receipt thereof; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE
IV.
CAPITAL
STOCK
Section
4.01 Stock Certificates;
Uncertificated Shares. The shares of capital stock of the
corporation shall be represented by certificates, provided that the
Board of Directors may provide by resolution or resolutions that some or all of
any or all classes or series of its stock may be uncertificated
shares. Any such resolution shall not apply to shares represented by
a certificate until such certificate is surrendered to the corporation (or the
transfer agent or registrar, as the case may be). Uncertificated
shares shall be maintained in book entry and shall be eligible to participate in
a direct registration program operated by a clearing agency registered under
Section 17A of the Securities Exchange Act of
1934. Notwithstanding the adoption of such a resolution, every holder
of stock represented by certificates and upon request every holder of
uncertificated shares 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
Chief Executive Officer or the President or a Vice President, and by the Chief
Financial Officer (in his or her capacity as treasurer) or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, certifying the number of
shares owned by him or her in the corporation. Any or all of 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 the certificate is issued, such
certificate may nevertheless be issued by the corporation with the same effect
as if he or she were such officer, transfer agent or registrar at the date of
issue.
14
Section
4.02 Classes of
Stock. If the corporation shall be authorized to issue more
than one class of stock or more than one series of and class, the face or back
of each certificate issued by the corporation to represent such class or series
shall either (a) set forth in full or summarize 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 thereof, or (b) contain a statement that the corporation will
furnish a statement of the same without charge to each stockholder who so
requests. Within a reasonable time after the issuance or transfer of
uncertificated shares, the corporation shall send to the registered holder
thereof such written notice as may be required by law as to the information
required by law to be set forth or stated on stock certificates.
Section
4.03 Transfer of
Stock. Shares of stock shall be transferable only upon the
books of the corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time
prescribe. The Board of Directors may at any time or from time to
time appoint a transfer agent or agents or a registrar or registrars for the
transfer or registration of shares of stock. Except where a
certificate is issued in accordance with Section 4.05, one or more outstanding
certificates representing in the aggregate the number of shares involved shall
be surrendered for cancellation before a new certificate is issued representing
such shares.
Section
4.04 Holders of
Record. Prior to due presentment for registration of transfer,
the corporation may treat the holder of record of a share of its stock as the
complete owner thereof exclusively entitled to vote, to receive notifications
and otherwise entitled to all the rights and powers of a complete owner thereof,
notwithstanding notice to the contrary.
Section
4.05 Lost, Stolen or Destroyed
Stock Certificates. The Board of Directors may direct that a
new stock certificate or certificates, or uncertificated shares, 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. When authorizing such issue of a new certificate or
certificates, or uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates or his or
her legal representative, to agree to indemnify the corporation and/or to give
the corporation a bond in such form and amount as it may direct as to indemnify
against any claim provided by the laws of Delaware that may be made against the
corporation on account of the alleged loss, theft, or destruction of such
certificates or the issuance of such new certificate or certificates, or
uncertificated shares.
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Section
4.06 Record
Date. In order that the corporation may determine the
stockholders entitled to notice of any meeting of stockholders, the Board may
fix a record date (the “Notice Record
Date”), which record date shall not precede the date on which the
resolution fixing the record date was adopted by the Board and shall not be more
than 60 or less than ten days before the date of such meeting. The
Notice Record Date shall also be the record date for determining the
Stockholders entitled to vote at such meeting unless the Board determines, at
the time it fixes such Notice Record Date, that a later date on or before the
date of the meeting shall be the date for making such determination (the “Voting Record
Date”). For the purposes of determining the stockholders
entitled to consent to corporate action by a written consent without a meeting,
the Board of Directors may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date was adopted by
the Board of Directors and shall not be more than ten days after the date on
which the record date was fixed by the Board of Directors. For the purposes of
determining the stockholders entitled to receive payment of and dividend or
other distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the Board of Directors
may fix a record date, which record date shall not precede the date on which the
resolution fixing the record date was adopted by the Board of Directors and
shall not be more than 60 days prior to such action; provided, however, that 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, and, for determining
stockholders entitled to receive payment of and dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the
Board of Directors may fix new record dates for the adjourned
meeting.
ARTICLE
V.
MISCELLANEOUS
PROVISIONS
Section
5.01 Indemnification.
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(a)
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Right to
Indemnification. The corporation shall indemnify and
hold harmless each person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”),
by reason of the fact that he or she, or a person for whom he or she is
the legal representative, is or was a director or an 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 an “indemnitee”),
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 or officer, to the fullest extent
authorized by law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than
such law permitted the corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually and reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that
except as provided in Section 5.01(c) with respect to proceedings to
enforce rights to indemnification, the corporation shall indemnify any
such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the
corporation.
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(b)
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Right to Advancement
of Expenses. The right to indemnification conferred in Section
5.01(a) shall include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an “advancement
of expenses”); provided, however, that,
if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered
by such indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the corporation of an
undertaking (hereinafter an “undertaking”),
by or on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which there
is no further right to appeal (hereinafter a “final
adjudication”) that such indemnitee is not entitled to be
indemnified for such expenses under this Section 5.01 or
otherwise.
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(c)
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Right of Indemnitee to
Bring Suit. If a claim under Section 5.01(a) (following the final
adjudication f the action, suit or proceeding) or Section 5.01(b) is not
paid in full by the corporation within 60 days after a written claim 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 indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in
whole or in part of 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 indemnitee shall be entitled to be paid also the expense
of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of
expenses incurred in defending a proceeding in advance of a final
adjudication where the required undertaking has been tendered to the
corporation) it shall be a defense that, and (ii) any suit 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 indemnitee has not met any applicable
standard for indemnification set forth in the Delaware General Corporation
Law. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification
of the indemnitee is proper in the circumstances because the indemnitee
has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee 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 indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section 5.01 or otherwise shall be on
the corporation.
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(d)
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Non-exclusivity of
Rights. The rights to indemnification and to the advancement of
expenses conferred in this Section 5.01 shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, certificate of incorporation, by-law, agreement, vote of
disinterested directors or otherwise. The corporation’s indemnification
under this Section 5.01 of any person who is or was a director or officer
of the corporation, or is or was serving, at the request of the
corporation, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
be reduced by any amounts such person receives as indemnification (i)
under any policy of insurance purchased and maintained on his or her
behalf by the corporation, (ii) from such other corporation, partnership,
joint venture, trust or other enterprise, or (iii) under any other
applicable indemnification
provision.
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(e)
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Joint
Representation. If both the corporation and any person to be
indemnified are parties to an action, suit or proceeding (other than an
action or suit by or in the right of the corporation to procure a judgment
in its favor), counsel representing the corporation therein may also
represent such indemnified person (unless such dual representation would
involve such counsel in a conflict of interest in violation of applicable
principles of professional ethics), and the corporation shall pay all fees
and expenses of such counsel incurred during the period of dual
representation other than those, if any, as would not have been incurred
if counsel were representing only the corporation; and any allocation made
in good faith by such counsel of fees and disbursements payable under this
paragraph by the corporation versus fees and disbursements payable by any
such indemnified person shall be final and binding upon the corporation
and such indemnified person.
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(f)
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Indemnification of
Employees and Agents of the Corporation. Except to the extent that
rights to indemnification and advancement of expenses of employees or
agents of the corporation may be required by any statute, the Certificate
of Incorporation, this Section 5.01 or any other by-law, agreement, vote
of disinterested directors or otherwise, the corporation may, to the
extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement to any employee or agent
of the corporation to the fullest extent of the provisions of this Section
5.01 with respect to the indemnification and advancement of expenses of
directors and officers of the
corporation.
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(g)
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Insurance. The
corporation may maintain insurance, at its expense, to protect itself and
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 Delaware General Corporation Law (as currently in effect or
hereafter amended), the Certificate of Incorporation or these
Bylaws.
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(h)
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Settlement of
Claims. The corporation shall not be liable to indemnify any
indemnitee under this Article (a) for any amounts paid in settlement of
any action or claim effected without the corporation’s written consent,
which consent shall not be unreasonably withheld; or (b) for any judicial
award if the corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of such
action
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(i)
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Corporation as Primary
Indemnitor. As between this corporation and affiliates of this
corporation (other than its direct or indirect subsidiaries) who provide
indemnification to any indemnitee for his or her service to, or on behalf
of, this corporation (collectively, “Affiliate
Indemnitors”) (i) this corporation shall be the indemnitor of first
resort with respect to all claims indemnifiable pursuant to Section 5.01
against any such indemnitee (i.e., this corporation’s obligations to such
indemnitees are primary and any obligation of any Affiliate Indemnitor to
advance expenses or to provide indemnification for the same loss or
liability incurred by such indemnitees is secondary), (ii) this
corporation shall be required to advance to any such indemnitee the full
amount of expenses that may be advanced pursuant to this Section 5.01 and
shall be liable to any such indemnitee for the full amount of all claims
indemnifiable pursuant to this Section 5.01, without regard to any rights
any such indemnitee may have against any Affiliate Indemnitor, and (iii)
this corporation irrevocably waives, relinquishes and releases each
Affiliate Indemnitor from any and all claims against such Affiliate
Indemnitor for contribution, subrogation or any other recovery of any kind
in respect thereof. This corporation shall indemnify each Affiliate
Indemnitor directly for any amounts that such Affiliate Indemnitor pay as
indemnification or advancement on behalf of any such indemnitee and for
which such indemnitee may be entitled to indemnification from this
corporation pursuant to this Section 5.01. No advancement or payment by
any Affiliate Indemnitor on behalf of any such indemnitee with respect to
any claim for which such indemnitee has sought indemnification from this
corporation shall affect the foregoing and the Affiliate Indemnitors shall
be subrogated to the extent of such advancement or payment to all of the
rights of recovery of such indemnitee against this
corporation.
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(j)
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Subrogation.
Except as provided in Section 5.01(i) above, in the event of any payment
under this Section 5.01, the corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the indemnitee (other
than against Affiliate Indemnitors or other than against insurance not
obtained by the corporation), who shall execute all papers required and
take all action necessary to secure such rights, including execution of
such documents as are necessary to enable the Company to bring suit to
enforce such rights.
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(k)
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No Duplication of
Payments. The corporation shall not be liable under this Section
5.01 to make any payment in connection with any claim made against the
indemnitee to the extent the indemnitee has otherwise actually received
payment (under any insurance policy, agreement, vote, or otherwise) of the
amounts otherwise indemnifiable hereunder; provided, that the foregoing
shall not affect the rights of indemnitee or Affiliate Indemnitors set
forth in Section 5(i) above.
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(l)
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Nature of
Indemnification Right; Modification of Repeal of Indemnification.
Each person who is or becomes a director or officer as described in
Section 5.01(a) shall be deemed to have served or to have continued to
serve in such capacity in reliance upon the indemnity provided for in this
Section 5.01. All rights to indemnification (and the advancement of
expenses) under this Section 5.01 shall be deemed to be provided by a
contract between the corporation and the person who serves as a director
or officer of the corporation at any time while these Bylaws and other
relevant provisions of the Delaware General Corporation Law and other
applicable law, if any, are in effect. Such rights shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee’s heirs, executors and
administrators. Any modification or repeal of the foregoing provisions of
this Section 5.01 shall not adversely affect any right or protection
hereunder of any indemnitee in respect of any act or omission occurring
prior to the time of such modification or
repeal.
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Section 5.02 Rights
Agreement. The provisions set forth in these Bylaws shall be subject to
the terms and conditions of the Registration Rights and Governance Agreement
among the corporation, WGI Investor, LLC and ACN Digital Phone Service, LLC (the
“Rights
Agreement”) for so long as such agreement
remains in effect in accordance with its terms.
Section
5.03 Stock in Other
Corporations. Subject to any limitations that may be imposed by the Board
of Directors, the Chief Executive Officer, the President or any person or
persons authorized by the Board of Directors may, in the name and on behalf of
the corporation, (a) call meetings of the holders of stock or other securities
of any corporation or other organization, stock or other securities of which are
held by this corporation, (b) act, or appoint any other person or persons (with
or without powers of substitution) to act in the name and on behalf of the
corporation, or (c) express consent or dissent, as a holder of such securities,
to corporate or other action by such other corporation or
organization.
Section
5.04 Checks, Notes, Drafts and
Other Instruments. Checks, notes, drafts and other instruments for the
payment of money drawn or endorsed in the name of the corporation may be signed
by an officer or officers or person or persons authorized by the Board of
Directors to sign the same. No officer or person shall have any power or
authority to bind the corporation by contract or other instrument unless
authorized by the Board of Directors to do so.
Section
5.05 Corporate Seal. The
seal of the corporation shall be circular in form, bearing the name of the
corporation, the word “Delaware”, and the year of incorporation, and the same
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section
5.06 Books and Records.
The books, accounts and records of the corporation, except as may be otherwise
required by law, may be kept outside of the State of Delaware, at such place or
places as the Board of Directors may from time to time appoint. Except as may
otherwise be provided by law, the Board of Directors shall determine whether and
to what extent the books, accounts, records and documents of the corporation, or
any of them, shall be open to the inspection of the stockholders.
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Section
5.07 Severability. If
any term or provision of the Bylaws, or the application thereof to any person or
circumstances or period of time, shall to any extent be invalid or
unenforceable, the remainder of the Bylaws shall be valid and enforced to the
fullest extent permitted by law.
Section
5.08 Interpretations. Words
importing persons include firms, associations and corporations, all words
importing the singular number include the plural number and vice versa, and all
words importing the masculine gender include the feminine gender.
Section
5.09 Amendments. The
Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of
the corporation, subject to the power of the stockholders to adopt, amend or
repeal the Bylaws. Any adoption, amendment or repeal of the Bylaws of
the corporation by the stockholders shall require, in addition to any vote of
the holders of any class or series of stock of the corporation required by law
or by the Certificate of Incorporation, the affirmative vote of the holders of
at least a majority of the voting power of all of the then outstanding shares of
the capital stock of the corporation entitled to vote generally in the election
of directors, voting together as a single class.
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