Attached files
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8-K - LPL INVESTMENT HOLDINGS INC. - LPL Financial Holdings Inc. | b81692e8vk.htm |
EX-4.1 - EX-4.1 - LPL Financial Holdings Inc. | b81692exv4w1.htm |
EX-10.4 - EX-10.4 - LPL Financial Holdings Inc. | b81692exv10w4.htm |
EX-10.2 - EX-10.2 - LPL Financial Holdings Inc. | b81692exv10w2.htm |
EX-10.3 - EX-10.3 - LPL Financial Holdings Inc. | b81692exv10w3.htm |
EX-10.1 - EX-10.1 - LPL Financial Holdings Inc. | b81692exv10w1.htm |
EX-10.5 - EX-10.5 - LPL Financial Holdings Inc. | b81692exv10w5.htm |
EX-10.6 - EX-10.6 - LPL Financial Holdings Inc. | b81692exv10w6.htm |
Exhibit 3.1
LPL INVESTMENT HOLDINGS INC. (the Corporation)
SECOND AMENDED & RESTATED BYLAWS
SECOND AMENDED & RESTATED BYLAWS
SECTION 1 STOCKHOLDERS
Section 1.1. Annual Meeting.
An annual meeting of the stockholders for the election of directors to succeed those whose
term expire and for the transaction of such other business as may properly come before the meeting
shall be held at the place, if any, within or without the State of Delaware, on the date and at the
time that the Board of Directors shall each year fix. Unless stated otherwise in the notice of the
annual meeting of the stockholders of the Corporation, such annual meeting shall be at the
principal office of the Corporation.
Section 1.2. Advance Notice of Nominations and Proposals of Business.
Following the first annual meeting of stockholders that occurs at least 90 days following the
Corporations public announcement that Hellman & Friedman Capital Partners V, L.P., Hellman &
Friedman Capital Partners V (Parallel), L.P., Hellman & Friedman Capital Associates V, L.P.
(collectively, H&F) and TPG Partners IV, L.P. (TPG), together with their
respective affiliates or successors (collectively, the Sponsors), have ceased
collectively to beneficially own (directly or indirectly) 40% or more of the Corporations
outstanding shares of common stock, the following provisions of this Section 1.2 shall apply:
(a) Nominations of persons for election to the Board of Directors and proposals for other
business to be transacted by the stockholders at an annual meeting of stockholders may be made (i)
pursuant to the Corporations notice with respect to such meeting (or any supplement thereto), (ii)
by or at the direction of the Board of Directors or any committee thereof or (iii) by any
stockholder of record of the Corporation who (A) was a stockholder of record at the time of the
giving of the notice contemplated in Section 1.2(b), (B) is entitled to vote at such meeting and
(C) has complied with the notice procedures set forth in this Section 1.2(a). Subject to Section
1.2(i), clause (iii) of this Section 1.2 shall be the exclusive means for a stockholder to make
nominations or propose other business (other than matters properly brought pursuant to applicable
provisions of federal law, including the Securities Exchange Act of 1934 (as amended from time to
time, the Act)) before an annual meeting of stockholders.
(b) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of Section 1.2(a), (i) the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation with the information contemplated by
Section 1.2(c), and (ii) the business must be a proper matter for stockholder action under the
General Corporation Law of the State of Delaware (the DGCL). The notice requirements of
this Section 1.2 shall be deemed satisfied by a stockholder with respect to business other than a
nomination if the stockholder has notified the Corporation of his, her or its intention to present
a proposal at an annual meeting in compliance with applicable rules and regulations promulgated
under the Act and such stockholders proposal has been
included in a proxy statement prepared by the Corporation to solicit proxies for such annual
meeting.
(c) To be timely, a stockholders notice must be delivered to the Secretary of the Corporation
at the principal executive offices of the Corporation on a date (i) not later than the close of
business on the 90th day nor earlier than the close of business on the 120th
day prior to the anniversary date of the prior years annual meeting or (ii) if there was no annual
meeting in the prior year or if the date of the current years annual meeting is more than 30 days
before or after the anniversary date of the prior years annual meeting, on or before 10 days after
the day on which the date of the current years annual meeting is first disclosed in a public
announcement. In no event shall any adjournment or postponement of an annual meeting or the
announcement thereof commence a new time period for the delivery of such notice. Such notice from
a stockholder must state (i) as to each nominee that the stockholder proposes for election or
reelection as a director, (A) all information relating to such nominee that would be required to be
disclosed in solicitations of proxies for the election of such nominee as a director pursuant to
Regulation 14A under the Act and such nominees written consent to serve as a director if elected,
and (B) a description of all direct and indirect compensation and other material monetary
arrangements, agreements or understandings during the past three years, and any other material
relationship, if any, between or concerning such stockholder and its respective affiliates or
associates, or others with whom they are acting in concert, on the one hand, and the proposed
nominee, and his or her respective affiliates or associates, on the other hand; (ii) as to each
proposal that the stockholder seeks to bring before the meeting, a brief description of such
proposal, the reasons for making the proposal at the meeting, the text of the proposal or business
(including the text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the bylaws of the Corporation, the language of the proposed
amendment) and any material interest that the stockholder has in the proposal; and (iii) (A) the
name and address of the stockholder giving the notice and the Stockholder Associate Person (as
defined below), if any, on whose behalf the nomination or proposal is made, (B) the class (and, if
applicable, series) and number of shares of stock of the Corporation that are, directly or
indirectly, owned beneficially or of record by the stockholder or any Stockholder Associated Person
(as defined below), (C) any option, warrant, convertible security, stock appreciation right or
similar right with an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class (or, if applicable, series) of shares of stock of the Corporation or
with a value derived in whole or in part from the value of any class (or, if applicable, series) of
shares of stock of the Corporation, whether or not such instrument or right shall be subject to
settlement in the underlying class or series of capital stock of the Corporation or otherwise
(each, a Derivative Instrument) directly or indirectly owned beneficially or of record by
such stockholder or any Stockholder Associated Person and any other direct or indirect opportunity
to profit or share in any profit derived from any increase or decrease in the value of shares of
stock of the Corporation of the stockholder or any Stockholder Associated Person, (D) any proxy,
contract, arrangement, understanding or relationship pursuant to which such stockholder or any
Stockholder Associated Person has a right to vote any securities of the Corporation, (E) any
proportionate interest in shares of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such stockholder or any Stockholder
Associated Person is a general partner or beneficially owns an interest in a general partner, (F)
any performance-related fees (other than an asset-based fee) that such stockholder or any
Stockholder Associated Person is entitled to based on any increase or
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decrease in the value of the shares of stock of the Corporation or Derivative Instruments, (G)
any other information relating to such stockholder and Stockholder Associated Person, if any,
required to be disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies for, as applicable, the proposal and/or for the election of directors
in an election contest pursuant to and in accordance with Section 14(a) of the Act, (H) a
representation that the stockholder is a holder of record of the Corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to propose such business or
nomination, and (I) whether either the stockholder intends to deliver a proxy statement and form of
proxy to holders of, in the case of a proposal, at least the percentage of the Corporations voting
shares required under applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporations voting shares reasonably believed
by such stockholder to be sufficient to elect such nominee or nominees or otherwise to solicit
proxies or votes from stockholders in support of such proposal or nomination. For purposes of
these bylaws, a Stockholder Associated Person of any stockholder means (i) any affiliate or
associate (as those terms are defined in Rule 12b-2 under the Act) of the stockholder that owns
beneficially or of record any capital stock or other securities of the Corporation and (ii) any
person acting in concert with such stockholder or any affiliate or associate of such stockholder
with respect to the capital stock or other securities of the Corporation. In addition, any nominee
proposed by a stockholder shall complete a questionnaire, in a form provided by the Corporation,
within 10 days of receipt of the form of questionnaire from the Corporation.
(d) Subject to the certificate of incorporation of the Corporation (the Certificate of
Incorporation), Section 1.2(i) and applicable law, only persons nominated in accordance with
procedures stated in this Section 1.2 shall be eligible for election as and to serve as a member of
the Board of Directors and the only business that shall be conducted at an annual meeting of
stockholders is the business that has been brought before the meeting in accordance with the
procedures set forth in this Section 1.2. The chairman of the meeting shall have the power and the
duty to determine whether a nomination or any proposal has been made according to the procedures
stated in this Section 1.2 and, if any nomination or proposal does not comply with this Section
1.2, unless otherwise required by law, the nomination or proposal shall be disregarded.
(e) For purposes of this Section 1.2, public announcement means disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable 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 Act.
(f) Notwithstanding the foregoing provisions of this Section 1.2, a stockholder shall also
comply with all applicable requirements of the Act and the rules and regulations thereunder with
respect to matters set forth in this Section 1.2. Nothing in this Section 1.2 shall affect any
rights, if any, of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to applicable provisions of federal law, including the Act.
(g) Notwithstanding the foregoing provisions of this Section 1.2, unless otherwise required by
law, if the stockholder (or a qualified representative of the stockholder)
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does not appear at the annual or special meeting of stockholders of the Corporation to present
a nomination or proposed business, such nomination shall be disregarded and such proposed business
shall not be transacted, notwithstanding that proxies in respect of such vote may have been
received by the corporation. For purposes of this Section 1.2, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer, manager or partner
of such stockholder or must be authorized by a writing executed by such stockholder or an
electronic transmission delivered by such stockholder to act for such stockholder as proxy at the
meeting of stockholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(h) Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporations notice of meeting (1) by or at the
direction of the Board of Directors or any committee thereof or (2) 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 the notice provided for in this Section 1.2
is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon
such election and who complies with the notice procedures set forth in this Section 1.2. 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 entitled to vote in such election of
directors may nominate a person or persons (as the case may be) for election to such position(s) as
specified in the corporations notice of meeting, if the stockholders notice required by paragraph
(b) of this Section 1.2 shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 120th day prior to such
special meeting and not later than the close of business on the later of the 90th 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 shall 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 stockholders notice as described above.
(i) All provisions of this Section 1.2 are subject to, and nothing in this Section 1.2 shall
in any way limit the exercise, or the method or timing of the exercise of, the rights of any person
granted by the Corporation to nominate directors.
Section 1.3. Special Meetings; Notice.
Special meetings of the stockholders of the Corporation may be called only in the manner set
forth in the Certificate of Incorporation. Notice of every special meeting of the stockholders of
the Corporation shall state the purpose or purposes of such meeting. Except as otherwise required
by law, the business conducted at a special meeting of stockholders of the Corporation shall be
limited exclusively to the business set forth in the Corporations notice of meeting, and the
individual or group calling such meeting shall have exclusive authority to determine the business
included in such notice.
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Section 1.4. Notice of Meetings.
Notice of the place, if any, date and time of all meetings of stockholders of the Corporation,
the record date for determining the stockholders entitled to vote at the meeting (if such date is
different from the record date for stockholders entitled to notice of the meeting) and the means of
remote communications, if any, by which stockholders and proxy holders may be deemed present and
vote at such meeting, and, in the case of all special meetings of stockholders, the purpose or
purposes of the meeting, shall be given, not less than 10 nor more than 60 days before the date on
which such meeting is to be held, to each stockholder entitled to notice of the meeting.
The Corporation may postpone or cancel any previously called annual or special meeting of
stockholders of the Corporation by making a public announcement (as defined in Section 1.2(e)) of
such postponement or cancellation prior to the meeting. When a previously called annual or special
meeting is postponed to another time, date or place, if any, notice of the place (if any), date and
time of the postponed meeting, the record date for determining the stockholders entitled to vote at
the meeting (if such date is different from the record date for stockholders entitled to notice of
the meeting) and the means of remote communications, if any, by which stockholders and proxy
holders may be deemed present and vote at such postponed meeting, shall be given in conformity with
this Section 1.4.
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, thereof and the means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be present and vote at such adjourned
meeting are announced at the meeting at which the adjournment is taken; however, if the
date of any adjourned meeting is more than 30 days, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting, or if after the adjournment a
new record date for stockholders entitled to vote is fixed for the adjourned meeting the Board of
Directors shall fix a new record date for notice of such adjourned meeting in conformity herewith
to each stockholder of record entitled to vote at such adjourned meeting as of the record date for
notice of such adjourned meeting. At any adjourned meeting, any business may be transacted that
may have been transacted at the original meeting.
Section 1.5. Quorum.
At any meeting of the stockholders, the holders of shares of stock of the Corporation entitled
to cast a majority of the total votes entitled to be cast by the holders of all outstanding shares
of capital stock of the Corporation entitled to vote generally in the election of directors
(Voting Stock), present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number is required by
applicable law or the Certificate of Incorporation. If a separate vote by one or more classes or
series is required, the holders of shares entitled to cast a majority of the total votes entitled
to be cast by the holders of the shares of the class or classes or series, present in person or
represented by proxy, shall constitute a quorum entitled to take action with respect to that vote
on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting may adjourn the
meeting to another place, if any, date and time.
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Section 1.6. Organization.
The chairman of the Board or, in his or her absence, the person whom the Board of Directors
designates or, in the absence of that person or the failure of the Board of Directors to designate
a person, the Chief Executive Officer of the Corporation or, in his or her absence, the person
chosen by the holders of a majority of the shares of capital stock entitled to vote who are
present, in person or by proxy, shall call to order any meeting of the stockholders of the
Corporation and act as chairman of the meeting. In the absence of the Secretary of the
Corporation, the secretary of the meeting shall be the person the chairman appoints.
Section 1.7. Conduct of Business.
The chairman of any meeting of stockholders of the Corporation shall determine the order of
business and the rules of procedure for the conduct of such meeting, including the manner of voting
and the conduct of discussion as he or she determines to be in order. The chairman shall have the
power to adjourn the meeting to another place, if any, date and time. The date and time of the
opening and closing of the polls for each matter upon which the stockholders will vote at the
meeting shall be announced at the meeting. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of the meeting shall have the right
and authority to convene and (for any or no reason) to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are
appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the chairman of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting to stockholders
entitled to vote at the meeting, their duly authorized and constituted proxies or such other
persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The chairman of the meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a nomination or matter of business was
not properly brought before the meeting and if such chairman should so determine, such chairman
shall so declare to the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held
in accordance with the rules of parliamentary procedure.
Section 1.8. Proxies; Inspectors.
(a) At any meeting of the stockholders, every stockholder entitled to vote may vote in person
or by proxy authorized by an instrument in writing or by a transmission permitted by applicable
law.
(b) Prior to a meeting of the stockholders of the Corporation, the Corporation shall appoint
one or more inspectors to act at a meeting of stockholders of the Corporation and make a written
report thereof. The Corporation may designate one or more persons as alternate
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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 may, and to the extent
required by applicable law, shall, appoint one or more inspectors to act at the meeting. Each
inspector, before beginning the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of inspectors. The inspectors shall have the duties
prescribed by applicable law.
Section 1.9. Voting.
Except as otherwise required by the rules or regulations of any stock exchange applicable to
the Corporation or pursuant to any law or regulation applicable to the Corporation or its
securities or by the Certificate of Incorporation or these bylaws, all matters other than the
election of directors shall be determined by a majority of the votes cast on the matter
affirmatively or negatively. All elections of directors shall be determined by a plurality of the
votes cast.
Section 1.10. Action by Written Consent.
Except as otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken by the stockholders of the Corporation may be effected by a consent in
writing by such stockholders.
Section 1.11. Stock List.
A complete list of stockholders of the Corporation entitled to vote at any meeting of
stockholders of the Corporation, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in the name of such
stockholder, shall be open to the examination of any such stockholder, for any purpose germane to a
meeting of the stockholders of the Corporation, for a period of at least 10 days before the meeting
(i) on a reasonably accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting or (ii) during ordinary business
hours at the principal place of business of the Corporation; provided, however, if
the record date for determining the stockholders entitled to vote is less than 10 days before the
meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day before
such meeting date. If the meeting is to be held at a place, then a list of stockholders entitled
to vote at the meeting shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be examined by any stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic
network, and the information required to access such list shall be provided with the notice of the
meeting.
Except as otherwise provided by law, the stock ledger shall be the sole evidence of the
identity of the stockholders entitled to vote at a meeting and the number of shares held by each
stockholder.
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SECTION 2 BOARD OF DIRECTORS
Section 2.1. General Powers and Qualifications of Directors.
The business and affairs of the Corporation shall be managed by or under the direction of the
Board of Directors. In addition to the powers and authorities these bylaws expressly confer upon
them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by the DGCL or by the Certificate of Incorporation or by these bylaws
required to be exercised or done by the stockholders. Directors need not be stockholders of the
Corporation to be qualified for election or service as a director of the Corporation.
Section 2.2. Removal; Resignation.
Except as otherwise provided for in the Certificate of Incorporation, any director or the
entire Board of Directors may be removed, with or without cause, by the holders of a majority of
the voting power of the Voting Stock, voting together as a single class. Any director may resign
at any time upon notice given in writing, including by electronic transmission, to the Corporation.
Section 2.3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at the place (if any), on the date
and at the time as shall have been established by the Board of Directors and publicized among all
directors. A notice of a regular meeting, the date of which has been so publicized, shall not be
required.
Section 2.4. Special Meetings.
Special meetings of the Board of Directors may be called by the President or by two or more
directors then in office or, if the Board of Directors then includes a director nominated or designated for nomination by TPG or H&F, by any director nominated or designated for nomination by TPG or H&F and shall be held at the place, if any, on the date and at the time as he,
she or they shall fix. Notice of the place, if any, date and time of each special meeting shall be
given to each director either (a) by mailing written notice thereof not less than five days before
the meeting, or (b) by telephone, facsimile or other means of electronic transmission providing
notice thereof not less than twenty-four hours before the meeting. Any and all business may be
transacted at a special meeting of the Board of Directors.
Section 2.5. Quorum.
At any meeting of the Board of Directors, a majority of the total number of directors then in
office shall constitute a quorum for all purposes, provided that so long as the Sponsors
collectively beneficially own (directly or indirectly) a majority of the voting power of the
Corporations Voting Stock, it shall be necessary to constitute a quorum, in addition to a majority
of the total number of directors then in office (a) that one director nominated or designated for
nomination by either TPG or H&F be present (other than attendance for the sole purpose of
objecting to the transaction of any business because the meeting is not lawfully called or
convened) and (b) for an action of the Board of Directors taken at a meeting to be valid, directors that constitute a quorum must be present at the time that the vote on such action is taken. For the avoidance of doubt, so long as the Sponsors collectively beneficially own (directly or indirectly) a majority of the voting power of the Corporations Voting Stock, if directors that constitute a quorum are not present at the time that the vote on any action is taken, a quorum shall not be constituted with respect to such action, and any vote taken with respect to such action shall not be a valid action of the Board of Directors, notwithstanding that a quorum of the Board of Directors may have been present at the commencement of such meeting. If a quorum shall fail to attend any meeting, a majority of those present may adjourn
the meeting to another place, if any, date or time, without further notice or waiver thereof.
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Section 2.6. Participation in Meetings By Conference Telephone or Other
Communications Equipment.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting
of the Board of Directors or committee thereof by means of conference telephone or other
communications equipment by means of which all directors participating in the meeting can hear each
other director, and such participation shall constitute presence in person at the meeting.
Section 2.7. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in the order and manner
that 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, provided a quorum is present at the time such
matter is acted upon, except as otherwise provided in the Certificate of Incorporation or these
bylaws or required by applicable law. The Board of Directors or any committee thereof may take
action without a meeting if all members thereof consent thereto in writing or by electronic
transmission, and the writing or writings, or electronic transmission or electronic transmissions,
are filed with the minutes of proceedings of the Board of Directors or any committee thereof. Such
filing shall be in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section 2.8. Compensation of Directors.
The Board of Directors shall be authorized to fix the compensation of directors. The
directors of the Corporation shall be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and shall be reimbursed a fixed sum for attendance at each meeting of the
Board of Directors, paid an annual retainer or paid other compensation, including equity
compensation, as directors of the Corporation. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor. Members of
committees shall be paid compensation for attending committee meetings and/or have their expenses,
if any, of attendance of each meeting of such committee reimbursed.
SECTION 3 COMMITTEES
Section 3.1. Committees of the Board of Directors.
The Board of Directors may designate committees of the Board of Directors, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of
Directors and shall, for those committees, appoint a director or directors to serve as the member
or members, designating, if it desires, other directors as alternate members who may replace any
absent or disqualified member at any meeting of such committee. In the absence or disqualification
of any member of any committee and any alternate member in his or her place, the member or members
of the committee present at the meeting and not disqualified from voting, whether or not he or she
or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors
to act at the meeting in the place of the absent or disqualified member. All provisions of this
Section 3.1 are subject to, and nothing in this Section 3.1 shall in any way limit the exercise or
method or timing of the exercise of, the rights
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of any person granted by the Corporation with respect to the existence, duties, composition or
conduct of any committee of the Board of Directors.
SECTION 4 OFFICERS
Section 4.1. Generally.
The officers of the Corporation shall consist of a President, one or more Vice Presidents, a
Secretary, a Treasurer and other officers as may from time to time be appointed by the Board of
Directors. Each officer shall hold office until his or her successor is elected and qualified or
until his or her earlier resignation or removal. Any number of offices may be held by the same
person. The salaries of officers appointed by the Board of Directors shall be fixed from time to
time by the Board of Directors or a committee thereof or by the officers as may be designated by
resolution of the Board of Directors.
Section 4.2. President.
Unless otherwise determined by the Board of Directors, the President shall be the Chief
Executive Officer of the Corporation. Subject to the provisions of these bylaws and to the
direction of the Board of Directors, he or she shall have the responsibility for the general
management and control of the business and affairs of the Corporation and shall perform all duties
and have all powers that are commonly incident to the office of chief executive or which are
delegated to him or her by the Board of Directors. He or she shall have the power to sign all
stock certificates, contracts and other instruments of the Corporation that are authorized and
shall have general supervision and direction of all of the other officers, employees and agents of
the Corporation.
Section 4.3. Vice President.
Each Vice President shall have the powers and duties delegated to him or her by the Board of
Directors or the President. One Vice President may be designated by the Board of Directors to
perform the duties and exercise the powers of the President in the event of the Presidents absence
or disability.
Section 4.4. Treasurer.
The Treasurer shall have the responsibility for maintaining the financial records of the
Corporation. He or she shall make such disbursements of the funds of the Corporation as are
authorized and shall render from time to time an account to the Board of Directors of all such
transactions and of the financial condition of the Corporation. The Treasurer shall also perform
other duties as the Board of Directors may from time to time prescribe.
Section 4.5. Secretary.
The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings
of the stockholders and the Board of Directors. He or she shall have charge of the corporate books
and shall perform other duties as the Board of Directors may from time to time prescribe.
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Section 4.6. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties of any officer to
any other officer or agent, notwithstanding any provision hereof.
Section 4.7. Removal.
The Board of Directors may remove any officer of the Corporation at any time, with or without
cause.
Section 4.8. Action with Respect to Securities of Other Companies.
Unless otherwise directed by the Board of Directors, the President, or any officer of the
Corporation authorized by the President, shall have power to vote and otherwise act on behalf of
the Corporation, in person or by proxy, at any meeting of stockholders or equityholders of, or with
respect to any action of, stockholders or equityholders of any other entity in which the
Corporation may hold securities and otherwise to exercise any and all rights and powers which the
Corporation may possess by reason of its ownership of securities in such other entity.
SECTION 5 STOCK
Section 5.1. Certificates of Stock.
Shares of the capital stock of the Corporation may be certificated or uncertificated, as
provided in the DGCL. Stock certificates shall be signed by, or in the name of the Corporation by,
(i) the chairman of the Board (if any) or the vice-chairman of the Board (if any), the President or
a Vice President, and (ii) the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer, certifying the number of shares owned by such stockholder. Any signatures on
a certificate may be by facsimile.
Section 5.2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an
office of the Corporation (within or without the State of Delaware) or by transfer agents
designated to transfer shares of the stock of the Corporation.
Section 5.3. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to regulations as the Board of Directors may establish concerning
proof of the loss, theft or destruction and concerning the giving of a satisfactory bond or
indemnity.
Section 5.4. Regulations.
The issue, transfer, conversion and registration of certificates of stock of the Corporation
shall be governed by other regulations as the Board of Directors may establish.
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Section 5.5. Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of 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, unless otherwise required by law, not be
more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of
Directors so fixes a date, such date shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes
such record date, that a later date on or before the date of the meeting shall be the date for
making such determination. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day on which the meeting is held.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such other action. If no such 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 INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1. Indemnification.
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person (an Indemnitee) who
was or is made, or is threatened to be made, a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (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 an officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer, employee, member, trustee
or agent of another corporation or of a partnership, joint venture, trust, nonprofit entity or
other enterprise (including, but not limited to, service with respect to employee benefit plans)
(any such entity, an Other Entity), against all liability and loss suffered (including, but not
limited to, expenses (including, but not limited to, attorneys fees and expenses), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such Indemnitee in
connection with such Proceeding). Notwithstanding the preceding sentence, the Corporation
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shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof)
commenced by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the
Indemnitee was authorized by the Board of Directors of the Corporation or the Proceeding (or part
thereof) relates to the enforcement of the Corporations obligations under this Section 6.1.
Section 6.2. Advancement of Expenses.
The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses
(including, but not limited to, attorneys fees and expenses) incurred by an Indemnitee in defending any proceeding in advance of its
final disposition, provided, however, that, to the extent required by law, such payment of expenses
in advance of the final disposition of the proceeding shall be made only upon receipt of an
undertaking by the Indemnitee to repay all amounts advanced if it should be ultimately determined
that the Indemnitee is not entitled to be indemnified under this Section 6 or otherwise.
Section 6.3. Claims.
If a claim for indemnification (following the final disposition of such proceeding) or
advancement of expenses under this Section 6 is not paid in full
within sixty (60) days after a written
claim therefor by the Indemnitee has been received by the Corporation, the Indemnitee may file suit
to recover the unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law.
In any such action the Corporation shall have the burden of proving that the Indemnitee is not
entitled to the requested indemnification or advancement of expenses under applicable law.
Section 6.4. Insurance.
The Corporation shall purchase and maintain insurance on behalf of any person who is or was a
director, officer, trustee, employee or agent of the Corporation, or was serving at the request of
the Corporation as a director, officer, trustee, employee or agent of an Other Entity, against any
liability asserted against the person and incurred by the person in any such capacity, or arising
out of his or her status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions of this Section 6.
Section 6.5. Non-Exclusivity of Rights.
The rights conferred on any Indemnitee by this Section 6 are not exclusive of other rights
arising under any bylaw, agreement, vote of directors or stockholders or otherwise, and shall inure
to the benefit of the heirs and legal representatives of such Indemnitee.
Section 6.6. Amounts Received from an Other Entity.
Subject to Section 6.7, the Corporations obligation, if any, to indemnify or to advance
expenses to any Indemnitee who was or is serving at the Corporations request as a director,
officer, employee, member, trustee or agent of an Other Entity shall be reduced by any amount such Indemnitee may
collect as indemnification or advancement of expenses from such Other Entity.
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Section 6.7. Indemnification Priority.
As between the Corporation and any other person (other than an entity directly or indirectly
controlled by the Corporation) who provide indemnification to the Indemnitees for their service to,
or on behalf of, the Corporation (collectively, the Secondary Indemnitors) (i) the Corporation
shall be the full indemnitor of first resort in respect of indemnification or advancement of
expenses in connection with any Jointly Indemnifiable Claims (as defined below), pursuant to and in
accordance with the terms of this Section 6, irrespective of any right of indemnification,
advancement of expenses or other right of recovery any Indemnitee may have from any Secondary
Indemnitor (i.e., the Corporations obligations to such Indemnitees are primary and any obligation
of any Secondary Indemnitor to advance expenses or to provide indemnification for the same loss or
liability incurred by such Indemnitees is secondary to the Corporations obligations), (ii) the
Corporation shall be required to advance the full amount of expenses incurred by any such
Indemnitee and shall be liable for the full amount of all liability and loss suffered by such
Indemnitee (including, but not limited to, expenses (including, but not limited to, attorneys fees
and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by
such Indemnitee in connection with such Proceeding), without regard to any rights any such
Indemnitee may have against any Secondary Indemnitor, and (iii) the Corporation irrevocably waives,
relinquishes and releases each Secondary Indemnitor from any and all claims against such Secondary
Indemnitor for contribution, subrogation or any other recovery of any kind in respect thereof. The
Corporation shall indemnify each Secondary Indemnitor directly for any amounts that such Secondary
Indemnitor pays as indemnification or advancement on behalf of any such Indemnitee and for which
such Indemnitee may be entitled to indemnification from the Corporation in connection with Jointly
Indemnifiable Claims. No right of indemnification, advancement of expenses or other right of
recovery that an Indemnitee may have from any Secondary Indemnitor shall reduce or otherwise alter
the rights of the Indemnitee or the obligations of the Corporation hereunder. No advancement or
payment by any Secondary Indemnitor on behalf of any such Indemnitee with respect to any claim for
which such Indemnitee has sought indemnification from the Corporation shall affect the foregoing
and the Secondary Indemnitors shall be subrogated to the extent of such advancement or payment to
all of the rights of recovery of such Indemnitee against the Corporation. Each Indemnitee shall
execute all papers reasonably required and shall do all things that may be reasonably necessary to
secure the rights of such Indemnitees Secondary Indemnitors under this Section 6.7, including the
execution of such documents as may be necessary to enable the Secondary Indemnitors effectively to
bring suit to enforce such rights, including in the right of the Corporation. Each of the
Secondary Indemnitors shall be third-party beneficiaries with respect to this Section 6.7, entitled
to enforce this Section 6.7. As used in this Section 6.7, the term Jointly Indemnifiable Claims
shall be broadly construed and shall include, without limitation, any action, suit, proceeding or
other matter for which an Indemnitee shall be entitled to indemnification or advancement of
expenses from both a Secondary Indemnitor and the Corporation, whether pursuant to Delaware law,
any agreement or certificate of incorporation, bylaws, partnership agreement, operating agreement,
certificate of formation, certificate of limited partnership or comparable organizational documents
of the Corporation or the Secondary Indemnitors, as applicable.
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Section 6.8. Amendment or Repeal.
Any right to indemnification or to advancement of expenses of any Indemnitee arising hereunder
shall not be eliminated or impaired by an amendment to or repeal of this Section 6 after the
occurrence of the act or omission that is the subject of the civil, criminal, administrative or
investigative action, suit, proceeding or other matter for which indemnification or advancement of
expenses is sought.
Section 6.9. Other Indemnification and Advancement of Expenses.
This Section 6 shall not limit the right of the Corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than Indemnitees when and
as authorized by appropriate corporate action.
Section 6.10. Reliance.
Indemnitees who after the date of the adoption of this Section 6 become or remain an
Indemnitee described in Section 6.1 will be conclusively presumed to have relied on the rights to
indemnity, advancement of expenses and other rights contained in this Section 6 in entering into or
continuing the service. The rights to indemnification and to the advancement of expenses conferred
in this Section 6 will apply to claims made against any Indemnitee described in Section 6.1 arising
out of acts or omissions that occurred or occur either before or after the adoption of this Section
6 in respect of service as a director or officer of the corporation or other service described in
Section 6.1.
SECTION 7 NOTICES
Section 7.1. Notices.
Except as otherwise provided herein or permitted by applicable law, notices to directors and
stockholders shall be in writing and delivered personally or mainlined to the directors or
stockholders at their addresses appearing on the books of the Corporation. If mailed, notice to a
stockholder of the Corporation shall be deemed given when deposited in the mail, postage prepaid,
directed to a stockholder at such stockholders address as it appears on the records of the
Corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders of the Corporation may be given by electronic transmission
in the manner provided in Section 232 of the DGCL.
Section 7.2. Waivers.
A written waiver of any notice, signed by a stockholder or director, or a waiver by electronic
transmission by such person or entity, whether given before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required to be given to such
person or entity. Neither the business nor the purpose of any meeting need be specified in the
waiver. Attendance at any meeting shall constitute waiver of notice except attendance for the sole
purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened.
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SECTION 8 MISCELLANEOUS
Section 8.1. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name of the Corporation,
which seal shall be in the charge of the Secretary. If and when so directed by the Board of
Directors, duplicates of the seal may be kept and used by the Treasurer or by an Assistant
Secretary or Assistant Treasurer.
Section 8.2. Reliance upon Books, Reports, and Records.
Each director and each member of any committee designated by the Board of Directors of the
Corporation shall, in the performance of his or her duties, be fully protected in relying in good
faith upon the books and records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers, agents or employees, or committees
of the Board of Directors so designated, or by any other person or entity as to matters which such
director or committee member reasonably believes are within such other persons or entitys
professional or expert competence and that has been selected with reasonable care by or on behalf
of the Corporation.
Section 8.3. Fiscal Year.
The fiscal year of the Corporation shall be as fixed by the Board of Directors.
Section 8.4. Time Periods.
In applying any provision of these bylaws that requires that an act be done or not be done a
specified number of days before an event or that an act be done during a specified number of days
before an event, calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
SECTION 9 AMENDMENTS
These bylaws may be altered, amended or repealed in accordance with the Certificate of
Incorporation and the DGCL.
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