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8-K - FORM 8-K - Double-Take Software, Inc. | c03750e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - Double-Take Software, Inc. | c03750exv3w1.htm |
EX-99.1 - EXHIBIT 99.1 - Double-Take Software, Inc. | c03750exv99w1.htm |
Exhibit 3.2
BY-LAWS
OF
HA MERGER SUB, INC.
A Delaware corporation
Adopted as of May 13, 2010
ARTICLE I
OFFICES
OFFICES
Section 1. Registered Office. The registered office of the corporation in the
State of Delaware shall be located at 1209 Orange Street, in the City of Wilmington, County of New
Castle, 19801. The registered agent of the corporation for service of process at such address is
The Corporation Trust Company. The registered office and/or registered agent of the corporation
may be changed from time to time by action of the board of directors.
Section 2. Other Offices. The corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
Section 1. Meetings Generally. At least one meeting of the stockholders shall
be held each year for the purpose of electing directors and conducting any proper business as may
come before the meeting. The date, time and place of such meeting shall be determined by the
president of the corporation; provided that if the president does not act, the board of directors
shall determine the date, time and place of such meeting.
Section 2. Special Meetings. Special meetings of stockholders may be called
for any purpose and may be held at such time and place, within or without the State of Delaware, as
shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Except as
otherwise provided in the corporations certificate of incorporation, such meetings may be called
at any time by the board of directors and shall be called by the highest ranking officer then in
office (the Ranking Officer) upon the written request of holders of shares entitled to
cast not less than a majority of the votes at the meeting. Such written request shall state the
purpose or purposes of the meeting and shall be delivered to the Ranking Officer. On such written
request, the Ranking Officer shall fix a date and time for such meeting within two days of the date
requested for such meeting in such written request.
Section 3. Place of Meetings. The board of directors may designate any place,
either within or without the State of Delaware, as the place of meeting for any meeting or for any
special meeting called by the board of directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the principal executive office of the
corporation.
Section 4. Notice. Whenever stockholders are required or permitted to take
action at a meeting, written or printed notice stating the place, date, time, and. in the case of
special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the
date of the meeting. All such notices shall
be delivered, either personally, by mail, by facsimile or by electronic mail by or at the direction
of the board of directors, the president or the secretary, and if mailed, such notice shall be
deemed to be delivered (i) upon confirmation of receipt if sent by facsimile, electronic mail or
personal delivery or (ii) three (3) days after being deposited in the United States mail, postage
prepaid, addressed to the stockholder at his, her or its address as the same appears on the records
of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends 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.
Section 5. Stockholders List. The officer having charge of the stock ledger
of the corporation shall make, at least ten (10) days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at such 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, during ordinary business hours, for a period of at least ten (10) days prior to any
meeting either at a place within the city where the meeting is to be held which place shall be
specified in the notice of the meeting or, if not so specified, at the place where the meeting is
to be held. The 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.
Section 6. Quorum. The holders of at least a majority of the outstanding
shares of capital stock entitled to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or
by the certificate of incorporation. If a quorum is not present, the holders of a majority of the
shares present in person or represented by proxy at the meeting, and entitled to vote at the
meeting, may adjourn the meeting to another time and/or place. When a quorum is once present to
commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders or their proxies.
Section 7. Adjourned Meetings. 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. At the adjourned meeting the
corporation may transact any business which might have been transacted at the original meeting. If
the adjournment is for more than 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 the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting and entitled to
vote on the subject matter shall be the act of the stockholders, unless the question is one upon
which by express provisions of an applicable law or of the corporations certificate of
incorporation a different vote is required, in which case such express provision shall govern and
control the decision of such question.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by the certificate of incorporation of the corporation
or any amendments thereto and subject to Section 3 of Article VI hereof, every
stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by
proxy for each share of common stock held (or deemed held) by such stockholder (it being understood
that certain other classes or series of capital stock may, pursuant to the corporations
certificate of incorporation, be entitled to vote on as as-if converted to common stock basis).
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Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing without a meeting may
authorize another person
or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after
three (3) years from its date. unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is an interest in the stock itself or
an interest in the corporation generally. Any proxy is suspended when the person executing the
proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is
coupled with an interest and the fact of the interest appears on the face of the proxy, the agent
named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding
the presence of the person executing the proxy. At each meeting of the stockholders, and before any
voting commences, all proxies filed at or before the meeting shall be submitted to and examined by
the secretary or a person designated by the secretary and no shares may be represented or voted
under a proxy that has been found to be invalid or irregular.
Section 11. Action by Written Consent. Unless otherwise provided in the
corporations certificate of incorporation, any action required to be taken at any regular or
special meeting of stockholders of the corporation, or any action which may be taken at any regular
or special meeting of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken and bearing
the dates of signature of the stockholders who signed the consent or consents, 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 and shall be delivered to the corporation by delivery to its
registered office in the state of Delaware, or the corporations principal place of business, or an
officer or agent of the corporation having custody of the book or books in which proceedings of
meetings of the stockholders are recorded. Delivery made to the corporations registered office
shall be by hand or by certified or registered mail, return receipt requested, or by facsimile or
electronic mail, with confirmation of receipt. All consents properly delivered in accordance with
this Section shall be deemed to be recorded when so delivered. No written consent shall be
effective to take the corporate action referred to therein unless, within sixty (60) days of the
earliest dated consent delivered to the corporation as required by this section, written consents
signed by the holders of a sufficient number of shares to take such corporate action are so
recorded. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the corporation. Any action
taken pursuant to such written consent or consents of the stockholders shall have the same force
and effect as if taken by the stockholders at a meeting thereof.
ARTICLE III
DIRECTORS
DIRECTORS
Section 1. General Powers. The business and affairs of the corporation shall
be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. The number of directors which
shall constitute the first board shall be four (4). The number of directors shall be subject to
change by the vote of holders of a majority of the shares then entitled to vote at an election of
directors. The 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 in the election of directors.
The directors shall be elected in this manner at any meeting of the stockholders, except as
provided in Section 4 of this Article III. Each director elected shall hold office
until a successor is duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided.
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Section 3. Removal and Resignation. The directors shall only be removed, with
or without cause, by the holders of a majority of the shares then entitled to vote at an election
of directors. Whenever the holders of any class or series are entitled to elect one or more
directors by the provisions of the corporations certificate of incorporation, the provisions of
this Section shall apply, in respect to the removal without cause of a director or directors so
elected, to the vote of the holders of the outstanding shares of that class or series and not to
the vote of the outstanding shares as a whole. Any director may resign at any time upon written
notice to the corporation.
Section 4. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors shall be filled in the same manner in which
directors are elected pursuant to Section 2 of this Article III. Notwithstanding
the foregoing, any such vacancy shall automatically reduce the number of directors pro tanto, until
such time as the holders of the class of common stock which was entitled to elect the director
whose office is vacant shall have exercised their right to elect a director to fill such vacancy,
whereupon the number of directors shall be automatically increased pro tanto. Each director so
chosen shall hold office until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as herein provided.
Section 5. Meetings and Notice. Regular meetings of the board of directors
may be held without notice at such time and at such place as shall from time to time be determined
by resolution of the board, provided that the directors shall meet at least once per year. Special
meetings of the board of directors may be called by or at the request of any two directors or the
Ranking Officer on at least twenty-four (24) hours notice to each director, either personally, by
telephone, by mail, or by facsimile or electronic mail.
Section 6. Quorum. Required Vote and Adjournment. Each director shall be
entitled to one vote except as otherwise provided in the corporations certificate of
incorporation. Directors then in office (and specifically excluding any vacancies) and holding a
majority of the votes of all directors (or such greater number required by applicable law) shall
constitute a quorum for the transaction of business. The vote of directors holding a majority of
votes present at a meeting at which a quorum is present shall be the act of the board of directors.
If a quorum shall not be present at any meeting of the board of directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 7. Committees. The board of directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation, which to the extent provided in such resolution or these
by-laws shall have and may exercise the powers of the board of directors in the management and
affairs of the corporation except as otherwise limited by law. 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. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by the board of
directors. Each committee shall keep regular minutes of its meetings and report the same to the
board of directors when required.
Section 8. Committee Rules. Each committee of the board of directors may fix
its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the board of directors designating such committee. Unless
otherwise provided in such a resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. In the event that a member and that members
alternate, if alternates are designated by the board of directors as provided in Section 7
of this Article III, of such committee is or are absent or disqualified, the member or
members thereof present at any meeting and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in place of any such absent or
disqualified member.
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Section 9. Communications. Equipment. Members of the board of directors or
any committee thereof may participate in and act at any meeting of such board or committee through
the use of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in the meeting pursuant to this
Section shall constitute presence in person at the meeting.
Section 10. Waiver of Notice and Presumption of Consent. Any member of the
board of directors or any committee thereof who is present at a meeting shall be conclusively
presumed to have waived notice of such meeting except when such member attends 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. Such member shall be conclusively presumed to have
consented to any action taken unless his or her dissent shall be entered in the minutes of the
meeting or unless his or her written dissent to such action shall be filed with the person acting
as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered
mail to the secretary of the corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to any member who voted in favor of such action.
Section 11. Action by Written Consent. Unless otherwise restricted by the
certificate of incorporation, 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 or committee, as the case may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
OFFICERS
Section 1. Number. The officers of the corporation shall be elected by the
board of directors and may consist of a chairman of the board, president, chief executive officer,
chief financial officer, one or more vice-presidents, secretary, a treasurer, and such other
officers and assistant officers as may be deemed necessary or desirable by the board of directors.
Any number of offices may be held by the same person. In its discretion, the board of directors may
choose not to fill any office for any period as it may deem advisable, except that the offices of
president and secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office. The officers of the corporation shall
be elected at any meeting of the board of directors. Vacancies may be filled or new offices created
and filled at any meeting of the board of directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death, resignation or removal
as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the board of directors
may be removed by the board of directors whenever in its judgment the best interests of the
corporation would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board of directors for
the unexpired portion of the term by the board of directors then in office.
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Section 5. Compensation. Compensation of all officers shall be fixed by the
board of directors, and no officer shall be prevented from receiving such compensation by virtue of
his or her also being a director of the corporation.
Section 6. Chairman of the Board. The chairman of the board, if one is
appointed, shall have the powers and perform the duties incident to that position. Subject to the
powers of the board of directors, he shall be in the general and active charge of the entire
business and affairs of the corporation. He shall preside at an meetings of the board of directors
and stockholders and shall have such other powers and perform such other duties as may be
prescribed by the board of directors or provided in these by-laws. Whenever the president is unable
to serve, by reason of sickness, absence or otherwise, the chairman of the board shall perform all
the duties and responsibilities and exercise all the powers of the president.
Section 7. The President. The president shall be the chief executive officer
of the corporation; shall preside at all meetings of the stockholders and board of directors at
which he is present; subject to the powers of the board of directors, shall have general charge of
the business, affairs and property of the corporation, and control over its officers, agents and
employees; and shall see that all orders and resolutions of the board of directors are carried into
effect. The president shall execute bonds, mortgages and other contracts which the board of
directors have authorized to be executed, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be expressly delegated
by the board of directors to some other officer or agent of the corporation. The president shall
have such other powers and perform such other duties as may be prescribed by the board of directors
or as may be provided in these by-laws. If there is no chief executive officer, the president
shall also have the duties of the chief executive officer as prescribed above.
Section 8. Chief Financial Officer. The chief financial officer of the
corporation, if one is appointed, shall, under the direction of the chief executive officer (or, in
the absence of a chief executive officer, the president), be responsible for all financial and
accounting matters and for the direction of the offices of treasurer and controller. The chief
financial officer shall have such other powers and perform such other duties as may be prescribed
by the chairman of the board, the chief executive officer (or, in the absence of a chief executive
officer, the president), the president or the board of directors or as may be provided in these
by-laws.
Section 9. Vice-Presidents. The vice-president, if one is appointed, or if
there shall be more than one, the vice-presidents in the order determined by the board of directors
or by the president, shall, in the absence or disability of the president, act with all of the
powers and be subject to all the restrictions of the president. The vice-presidents shall also
perform such other duties and have such other powers as the board of directors, the chief
executive officer (or, in the absence of a chief executive officer, the president), the president
or these by-laws may, from time to time, prescribe.
Section 10. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the board of directors, all meetings of the committees thereof and all
meetings of the stockholders and record all the proceedings of the meetings in a book or books to
be kept for that purpose. Under the chief executive officers (or, in the absence of a chief
executive officer, the presidents) supervision, the secretary shall give, or cause to be given,
all notices required to be given by these by-laws or by law; shall have such powers and perform
such duties as the board of directors, the chief executive officer, (or, in the absence of a chief
executive officer, the president), the president or these by-laws may, from time to time,
prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an
assistant secretary, shall have authority to affix the corporate seal to any instrument requiring
it and when so affixed, it may be attested by his or her signature or by the signature of such
assistant secretary. The board of directors may give general authority to any other officer to
affix the seal of the corporation and to attest
the affixing by his or her signature. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors, the chief executive
officer (or, in the absence of a chief executive officer, the president), the president or the
secretary may, from time to time, prescribe.
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Section 11. The Treasurer and Assistant Treasurer. The treasurer, if one if
appointed, shall, subject to the authority of the chief financial officer, have the custody of the
corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements
in books belonging to the corporation; shall deposit all monies and other valuable effects in the
name and to the credit of the corporation as may be ordered by the board of directors; shall cause
the funds of the corporation to be disbursed when such disbursements have been duly authorized,
taking proper vouchers for such disbursements; shall render to the chief executive officer (or, in
the absence of a chief executive officer, the president), the president and the board of directors,
at its regular meeting or when the board of directors so requires, an account of the corporation;
and shall have such powers and perform such duties as the board of directors, the chief executive
officer (or, in the absence of a chief executive officer, the president), the president or these
by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer
shall give the corporation a bond (which shall be rendered every six (6) years) in such sums and
with such surety or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of the office of treasurer and for the restoration to the corporation, in
case of death, resignation, retirement, or removal from office, of all books, papers, vouchers,
money, and other property of whatever kind in the possession or under the control of the treasurer
belonging to the corporation. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors, shall in the absence or
disability of the chief financial officer, treasurer, perform the duties and exercise the powers of
the treasurer. The assistant treasurers shall perform such other duties and have such other powers
as the board of directors, the chief executive officer (or, in the absence of a chief executive
officer, the president), the president or treasurer may, from time to time, prescribe.
Section 12. Other Officers. Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are provided for in these
by-laws, shall have such authority and perform such duties as may from time to time be prescribed
by resolution of the board of directors.
Section 13. Absence or Disability of Officers. In the case of the absence or
disability of any officer of the corporation and of any person hereby authorized to act in such
officers place during such officers absence or disability, the board of directors may by
resolution delegate the powers and duties of such officer to any other officer or to any director,
or to any other person whom it may select.
ARTICLE V
INDEMNIFICATION OF OFFICERS. DIRECTORS AND OTHERS
INDEMNIFICATION OF OFFICERS. DIRECTORS AND OTHERS
Section 1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved (including involvement as a
witness) in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a proceeding), by reason of the fact that he or she is or was a director
or officer of the Corporation or, while a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, manager, officer, employee or agent of another
corporation or of a partnership, limited liability company, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an indemnitee),
whether the basis of such proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as
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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
permitted prior thereto), against all expense, liability and loss (including attorneys fees,
judgments, fines, excise exercise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such indemnification shall
continue as to an indemnitee who has ceased to be a director, manager, officer, employee or agent
and shall inure to the benefit of the indemnitees heirs, executors and administrators; provided,
however, that, except as provided in Section 2 of this Article V 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. The
right to indemnification conferred in this Section 1 of this Article V shall be a
contract right and shall include the obligation of the Corporation to pay the expenses incurred in
defending any such proceeding in advance of its final disposition (an advance of
expenses); provided, however, that, if and to the extent that the Delaware General Corporation
Law requires, an advance of expenses incurred by an indemnitee in his or her capacity as a
director, manager 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 (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 (a final adjudication)
that such indemnitee is not entitled to be indemnified for such expenses under this Section
1 of this Article V or otherwise. The Corporation may, by action of its board of
directors, provide indemnification to employees and agents of the Corporation with the same or
lesser scope and effect as the foregoing indemnification of directors and officers. The
Corporation hereby acknowledges that certain directors and officers affiliated with institutional
investors may have certain rights to indemnification, advancement of expenses and/or insurance
provided by such institutional investors or certain of their affiliates (collectively, the
Institutional Indemnitors). The Corporation hereby agrees (i) that it is the indemnitor
of first resort (i.e., its obligations to the indemnitee are primary and any obligation of the
Institutional Indemnitors to advance expenses or to provide indemnification for the same expenses
or liabilities incurred by the indemnitee are secondary), (ii) that it shall be required to advance
the full amount of expenses incurred by the indemnitee in accordance with this Article V
without regard to any rights the indemnitee may have against the Institutional Indemnitors and
(iii) that it irrevocably waives, relinquishes and releases the Institutional Indemnitors from any
and all claims against the Institutional Indemnitors for contribution, subrogation or any other
recovery of any kind in respect thereof. The Corporation further agrees that no advancement or
payment by the Institutional Indemnitors on behalf of the indemnitee with respect to any claim for
which the indemnitee has sought indemnification from the Corporation shall affect the foregoing and
the Institutional Indemnitors shall have a right of contribution and/or be subrogated to the extent
of such advancement or payment to all of the rights of recovery of the indemnitee against the
Corporation.
Section 2. Procedure for Indemnification. Any indemnification of a
director or officer of the Corporation or advance of expenses under Section 1 of this
Article V shall be made promptly, and in any event within forty five days (or, in the case
of an advance of expenses, twenty days), upon the written request of the director or officer. If a
determination by the Corporation that the director or officer is entitled to indemnification
pursuant to this Article V is required, and the Corporation fails to respond within sixty
days to a written request for indemnity, the Corporation shall be deemed to have approved the
request. If the Corporation denies a written request for indemnification or advance of expenses,
in whole or in part, or if payment in full pursuant to such request is not made within forty five
days (or, in the case of an advance of expenses, twenty days), the right to indemnification or
advances as granted by this Article V shall be enforceable by the director or officer in
any court of competent jurisdiction. Such persons costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense
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to any such action (other than an action brought to enforce a claim for the
advance of expenses where the undertaking required pursuant to Section 1 of this
Article V, if any, has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall
be on the Corporation. 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 action that indemnification of the claimant is proper in the circumstances
because he or she 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 claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. The procedure for indemnification of other employees
and agents for whom indemnification is provided pursuant to Section 1 of this Article
V shall be the same procedure set forth in this Section 2 of this Article V for
directors or officers, unless otherwise set forth in the action of the board of directors providing
indemnification for such employee or agent.
Section 3. Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a director, officer, employee
or agent of the Corporation or was serving at the request of the Corporation as a director,
manager, officer, employee or agent of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise against any expense, liability or loss asserted against
him or her and incurred by him or her in any such capacity, whether or not the Corporation would
have the power to indemnify such person against such expenses, liability or loss under the Delaware
General Corporation Law.
Section 4. Subsidiaries. To the extent any indemnitee under
Section 1 of this Article V is also entitled to indemnification from a subsidiary
of the Corporation, such indemnitee shall first look to such subsidiary for indemnification, and
only after seeking indemnification from such subsidiary shall such indemnitee seek indemnification
from the Corporation.
Section 5. Reliance. Persons who, after the date of the adoption of
this provision, become or remain directors or officers of the Corporation or who, while a director
or officer of the Corporation, become or remain a director, manager, officer, employee or agent of
a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of
expenses and other rights contained in this Article V in entering into or continuing such
service. The rights to indemnification and to the advance of expenses conferred in this
Article V shall apply to claims made against an indemnitee arising out of acts or omissions
which occurred or occur both prior and subsequent to the adoption hereof.
Section 6. Non Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under this certificate of incorporation or
under any statute, by law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7. Merger or Consolidation. For purposes of this
Article V, references to the Corporation shall include, in addition to the resulting
Corporation, any constituent Corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent Corporation, or is or was serving
at the request of such constituent Corporation as a director, manager, officer, employee or agent
of another Corporation, partnership, limited liability company, joint venture, trust or other
enterprise, shall stand in the same position under this Article V with respect to the
resulting or surviving Corporation as he or she would have with respect to such constituent
Corporation if its separate existence had continued.
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ARTICLE VI
CERTIFICATES OF STOCK
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by the chief executive officer
(or, in the absence of a chief executive officer, the president), president, chief financial
officer or a vice-president and the secretary or an assistant secretary of the corporation,
certifying the number of shares of a specific class or series owned by such holder in the
corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant
transfer agent other than the corporation or its employee or (2) by a registrar, other than the
corporation or its employee, the signature of any such chief executive officer (or, in the absence
of a chief executive officer, the president), president, chief financial officer, vice-president,
secretary, or assistant secretary may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers of the corporation whether because of
death, resignation or otherwise before such certificate or certificates have been delivered by the
corporation, such certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers of the corporation.
All certificates for shares shall be consecutively numbered or otherwise identified. The name of
the person to whom the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall
only be transferred on the books of the corporation by the holder of record thereof or by such
holders attorney duly authorized in writing, upon surrender to the corporation of the certificate
or certificates for such shares endorsed by the appropriate person or persons, with such evidence
of the authenticity of such endorsement, transfer, authorization, and other matters as the
corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that
event, it shall be the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate or certificates, and record the transaction on its books. The
board of directors may appoint a bank or trust company organized under the laws of the United
States or any state thereof to act as its transfer agent or registrar, or both in connection with
the transfer of any class or series of securities of the corporation.
Section 2. Lost Certificates. The board of directors may direct anew
certificate or certificates to be issued in place of any certificate or certificates previously
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, 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
give the corporation a bond sufficient to indemnify the corporation against any claim that may be
made against the corporation on account of the loss, theft or destruction of any such certificate
or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. 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 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 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 the close of business on the next day 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
that the board of directors may fix a new record date for the adjourned meeting.
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Section 4. Fixing a Record Date for Action by Written Consent. In order that
the corporation may determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the board of
directors, and which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the board of directors. If no record date has been
fixed by the board of directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the board of directors is
required by statute, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery to its registered
office in the State of Delaware, 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 the corporations registered office shall be by hand or by certified or
registered mail, return receipt requested or by facsimile or electronic mail, with confirmation of
receipt. If no record date has been fixed by the board of directors and prior action by the board
of directors is required by statute, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close of business on the
day on which the board of directors adopts the resolution taking such prior action.
Section 5. Fixing a Record Date for Other Purposes. In order that the
corporation may determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment or any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purposes of any other lawful
action, the board of directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, 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 6. Registered Stockholders. Prior to the surrender to the corporation
of the certificate or certificates for a share or shares of stock with a request to record the
transfer of such share or shares, the corporation may treat the registered owner as the person
entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the
rights and powers of an owner. The corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof.
Section 7. Subscriptions for Stock. Unless otherwise provided for in the
subscription agreement. subscriptions for shares shall be paid in full at such time, or in such
installments and at such times, as shall be determined by the board of directors. Any call made by
the board of directors for payment on subscriptions shall be uniform as to all shares of the same
class or as to all shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the corporation may proceed to collect the amount due in the same
manner as any debt due the corporation.
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ARTICLE VII
GENERAL PROVISIONS
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be declared by the board
of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the
capital stock, subject to the provisions of the certificate of incorporation. Before payment of any
dividend, there may be set aside out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or any other purpose and the directors may modify or
abolish any such reserve in the manner in which it was created.
Section 2. Checks. Drafts or Orders. All checks, drafts, or other orders for
the payment of money by or to the corporation and all notes and other evidences of indebtedness
issued in the name of the corporation shall be signed by such officer or officers, agent or agents
of the corporation, and in such manner, as shall be determined by resolution of the board of
directors or a duly authorized committee thereof.
Section 3. Contracts. The board of directors may authorize any officer or
officers, or any agent or agents, of the corporation to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the corporation, and such authority may be
general or confined to specific instances.
Section 4. Loans. The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be
with or without interest, and may be unsecured, or secured in such manner as the board of directors
shall approve, including, without limitation, a pledge of shares of stock of the corporation.
Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty
or warranty of the corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
Section 6. Corporate Seal. The board of directors may provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the name of the
corporation and the words Corporate Seal, Delaware. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Voting Securities Owned By Corporation. Voting securities in any
other corporation held by the corporation shall be voted by the president, unless the board of
directors specifically confers authority to vote with respect thereto, which authority may be
general or confined to specific instances, upon some other person or officer. Any person authorized
to vote securities shall have the power to appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of record, in
person or by attorney or other agent, shall, upon written demand under oath stating the purpose
thereof, have the right during the usual hours for business to inspect for any proper purpose the
corporations stock ledger, a list of its stockholders, and its other books and records, and to
make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to
such persons interest as a stockholder. In every instance where an attorney or other agent shall
be the person who seeks the right to inspection, the demand under oath shall be accompanied by a
power of attorney or such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the corporation at its
registered office in the State of Delaware or at its principal place of business.
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Section 9. Section Headings. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of these
by-laws is or becomes inconsistent with any provision of the certificate of incorporation, the
General Corporation Law of the State of Delaware or any other applicable law, the provision of
these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise
be given full force and effect.
ARTICLE VIII
AMENDMENTS
AMENDMENTS
Except for Article III and Article V hereof, these by-laws may be amended,
altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority
vote. Article V hereof may be amended, altered, or repealed at any meeting of the board of
directors only by a unanimous vote (or unanimous written consent in lieu thereof). The fact that
the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of
directors shall not divest the stockholders of the same powers.
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