Attached files
file | filename |
---|---|
8-K - FORM 8-K - Molycorp, Inc. | d75069e8vk.htm |
EX-3.1 - EX-3.1 - Molycorp, Inc. | d75069exv3w1.htm |
Exhibit 3.2
MOLYCORP, INC.
BYLAWS
As
Adopted on July 9, 2010 and in
Effect on August 3, 2010
Effect on August 3, 2010
TABLE OF CONTENTS
Page | ||||
STOCKHOLDERS MEETINGS |
1 | |||
1. Time and Place of Meetings |
1 | |||
2. Annual Meetings |
1 | |||
3. Special Meetings |
1 | |||
4. Notice of Meetings |
1 | |||
5. Inspectors |
1 | |||
6. Quorum |
2 | |||
7. Voting; Proxies |
2 | |||
8. Order of Business |
2 | |||
9. Notice of Stockholder Proposals |
2 | |||
10. Notice of Director Nominations |
4 | |||
11. Additional Provisions Relating to
the Notice of Stockholder Business
and Director Nominations |
6 | |||
12. Record Dates |
7 | |||
13. Adjournments |
8 | |||
DIRECTORS |
8 | |||
14. Function |
8 | |||
15. Number, Election and Terms |
8 | |||
16. Vacancies and Newly Created Directorships |
8 | |||
17. Removal |
8 | |||
18. Resignation |
9 | |||
19. Regular Meetings |
9 | |||
20. Special Meetings |
9 | |||
21. Quorum |
9 | |||
22. Participation in Meetings by Remote
Communications |
9 | |||
23. Committees |
9 | |||
24. Compensation |
10 | |||
25. Rules |
10 | |||
NOTICES |
10 | |||
26. Generally |
10 | |||
27. Waivers |
10 |
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
OFFICERS |
10 | |||
28. Generally |
10 | |||
29. Compensation |
11 | |||
30. Succession |
11 | |||
31. Authority and Duties |
11 | |||
STOCK |
11 | |||
32. Certificates |
11 | |||
33. Classes of Stock |
11 | |||
34. Lost, Stolen or Destroyed Certificates |
11 | |||
GENERAL |
12 | |||
35. Fiscal Year |
12 | |||
36. Reliance Upon Books, Reports and Records |
12 | |||
37. Amendments |
12 | |||
38. Certain Defined Terms |
12 |
(ii)
STOCKHOLDERS MEETINGS
1. Time and Place of Meetings. All meetings of stockholders will be held at such time
and place, within or without the State of Delaware, as may be designated by the Board of Directors
of the Company (the Board) from time to time or, in the absence of a designation by the Board,
the Chairman of the Board (the Chairman), the Chief Executive Officer or the Secretary, and
stated in the notice of the meeting. Notwithstanding the foregoing, the Board may, in its sole
discretion, determine that a meeting of stockholders will not be held at any place, but may instead
be held by means of remote communications, subject to such guidelines and procedures as the Board
may adopt from time to time. The Board may postpone and reschedule any previously scheduled annual
or special meeting of stockholders.
2. Annual Meetings. At each annual meeting of stockholders, the stockholders will
elect, by a plurality of the votes of the shares present in person or represented by proxy at such
meeting and entitled to vote on the election of Directors, the Directors to succeed those Directors
whose terms expire at such meeting and will transact such other business as may properly be brought
before the meeting in accordance with Bylaws 8, 9, 10 and 11.
3. Special Meetings. A special meeting of stockholders may be called only by (a) the
Chairman, (b) the Chief Executive Officer, or (c) the Secretary within 10 calendar days after
receipt by the Chairman and the Secretary of the written request of a majority of the total number
of Directors that the Company would have if there were no vacancies on the Board (the Whole
Board), in each case to transact only such business as is properly brought before the meeting in
accordance with Bylaw 8 and specified in the notice of the meeting. Special meetings of
holders of the outstanding Preferred Stock, if any, may be called in the manner and for the
purposes provided in the applicable Preferred Stock Designation.
4. Notice of Meetings. Written notice of every meeting of stockholders, stating the
place, if any, date and time thereof, the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting is called, will be
given, in a form permitted by Bylaw 26 or by the DGCL, not less than 10 nor more than 60
calendar days before the date of the meeting to each stockholder of record entitled to vote at such
meeting, except as otherwise provided by law. When a meeting is adjourned to another place, date,
or time, notice need not be given of the adjourned meeting if the place, if any, date and time
thereof, and the means of remote communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than 30 calendar days, or if after the adjournment a new record date is
fixed for the adjourned meeting, written notice of the place, if any, date and time thereof, and
the means of remote communications, if any, by which stockholders and proxy holders may be deemed
to be present in person and vote at such adjourned meeting must be given in conformity herewith.
At any adjourned meeting, any business may be transacted which properly could have been transacted
at the original meeting.
5. Inspectors. The Board will, in advance of any meeting of stockholders, appoint one
or more inspectors to act at the meeting and make a written report thereof. The Board may
designate one or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of stockholders, the presiding
officer of the meeting will appoint one or more inspectors to act at the meeting.
6. Quorum. Except as otherwise provided by law or in a Preferred Stock Designation,
the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present
in person or represented by proxy, will constitute a quorum at a meeting of stockholders for the
transaction of business thereat. If, however, such quorum is not present or represented at any
meeting of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, will have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present or represented.
7. Voting; Proxies. Except as otherwise provided by law, by the Companys Certificate
of Incorporation, or in a Preferred Stock Designation, each stockholder will be entitled at every
meeting of the stockholders to one vote for each share of stock having voting power standing in the
name of such stockholder on the books of the Company on the record date for the meeting and such
votes may be cast either in person or by proxy. Every proxy must be authorized in a manner
permitted by Section 212 of the General Corporation Law of the State of Delaware (the DGCL) (or
any successor provision). When a quorum is present at any meeting of stockholders, the affirmative
vote of the holders of a majority of the stock present in person or represented by proxy at the
meeting and entitled to vote on the subject matter will be the act of the stockholders in all
matters other than the election of Directors, or as otherwise provided in these Bylaws, the
Certificate of Incorporation, a Preferred Stock Designation, or by law.
8. Order
of Business. The Chairman, or such other officer of the Company
designated from time to time by a majority of the Whole Board, will call meetings of stockholders
to order and will act as presiding officer thereof. Unless otherwise determined by the Board prior
to the meeting, the presiding officer of the meeting of stockholders will also determine the order
of business and have the authority in his or her sole discretion to determine the rules of
procedure and regulate the conduct of any such meeting, including, without limitation, by imposing
restrictions on the persons (other than stockholders of the Company or their duly appointed proxy
holders) that may attend any such stockholders meeting, by ascertaining whether any stockholder or
his or her proxy holder may be excluded from any meeting of stockholders based upon any
determination by the presiding officer, in his or her sole discretion, that any such person has
disrupted or is likely to disrupt the proceedings thereat, by determining the circumstances in
which any person may make a statement or ask questions at any meeting of stockholders, by ruling on
all procedural questions that may arise during or in connection with the meeting, by determining
whether any nomination or business proposed to be brought before the meeting has been properly
brought before the meeting.
9. Notice of Stockholder Proposals.
(a) Business to Be Conducted at Annual Meeting. At an annual meeting of stockholders,
only such business may be conducted as has been properly brought before the meeting. To be
properly brought before an annual meeting, business (other than the nomination of a person for
election as a director, which is governed by Bylaw 10, and to the extent applicable,
Bylaw 11) must be (i) brought before the meeting by or at the direction of the Board
2
of Directors or (ii) otherwise properly brought before the meeting by a stockholder who
(A) has complied with all applicable requirements of this Bylaw 9 and Bylaw 11 in
relation to such business, (B) was a stockholder of record of the Company at the time of giving the
notice required by Bylaw 11(a) and is a stockholder of record of the Company at the time of
the annual meeting, and (C) is entitled to vote at the annual meeting. For the avoidance of doubt,
the foregoing clause (ii) will be the exclusive means for a stockholder to submit business before
an annual meeting of stockholders (other than proposals properly made in accordance with Rule 14a-8
under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations
promulgated thereunder, the Exchange Act) and included in the notice of meeting given by or at
the direction of the Board).
(b) Required Form for Stockholder Proposals. To be in proper written form, a
stockholders notice to the Secretary must set forth:
(i) Information Regarding the Proposing Person. As to each Proposing Person (as such
term is defined in Bylaw 11(d)(ii)):
(A) the name and address of such Proposing Person, as they appear on the Companys stock
transfer book;
(B) the class, series and number of shares of the Company beneficially owned or of record by
such Proposing Person (including any shares of any class or series of the Company as to which such
Proposing Person has a right to acquire beneficial ownership, whether such right is exercisable
immediately or only after the passage of time);
(C) a representation (1) that the stockholder giving the notice is a holder of record of stock
of the Company entitled to vote at the annual meeting and intends to appear in person or by proxy
at the annual meeting to bring such business before the annual meeting and (2) as to whether any
Proposing Person intends to deliver a proxy statement and form of proxy to holders of at least the
percentage of shares of the Company entitled to vote and required to approve the proposal and, if
so, identifying such Proposing Person;
(D) a description of any (1) option, warrant, convertible security, stock appreciation right
or similar right (including any derivative securities, as defined under Rule 16a-1 under the
Exchange Act), whether or not presently exercisable, with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any class or series of securities of the
Company or with a value derived in whole or in part from the value of any class or series of
securities of the Company, whether or not such instrument or right is subject to settlement in
whole or in part in the underlying class or series of securities of the Company or otherwise,
directly or indirectly held of record or owned beneficially by such Proposing Person and (2) each
other direct or indirect opportunity of such Proposing Person to profit or share in any profit
derived from, or to manage the risk or benefit from, any increase or decrease in the value of the
Companys securities, in each case regardless of whether (x) such interest conveys any voting
rights in such security to such Proposing Person, (y) such interest is required to be, or is
capable of being, settled through delivery of such security, or (z) such Proposing Person may have
entered into other transactions that hedge the economic effect of any such interest (any such
interest referred to in this clause (D), being a Derivative Interest);
3
(E) any proxy, contract, arrangement, understanding or relationship pursuant to which the
Proposing Person has a right to vote any shares of the Company or which has the affect of
increasing or decreasing the voting power of such Proposing Person;
(F) any rights directly or indirectly held of record or beneficially by the Proposing Person
to dividends on the shares of the Company that are separated or separable from the underlying
shares of the Company;
(G) any performance-related fees (other than an asset-based fee) to which the Proposing Person
may be entitled as a result of any increase or decrease in the value of shares of the Company or
Derivative Interests; and
(H) any other information relating to such Proposing Person that would be required to be
disclosed in a proxy statement or other filing required pursuant to Section 14(a) of the Exchange
Act to be made in connection with a general solicitation of proxies or consents by such Proposing
Person in support of the business proposed to be brought before the meeting.
(ii) Information Regarding the Proposal: As to each item of business that the
stockholder giving the notice proposes to bring before the annual meeting:
(A) a description in reasonable detail of the business desired to be brought before the annual
meeting and the reasons why such stockholder or any other Proposing Person believes that the taking
of the action or actions proposed to be taken would be in the best interests of the Company and its
stockholders;
(B) a description in reasonable detail of any material interest of any Proposing Person in
such business and a description in reasonable detail of all agreements, arrangements and
understandings among the Proposing Persons or between any Proposing Person and any other person or
entity in connection with the proposal; and
(C) the text of the proposal or business (including the text of any resolutions proposed for
consideration).
(c) A stockholder is not entitled to have its proposal included in the Companys proxy
statement and form of proxy solely as a result of such stockholders compliance with the foregoing
provisions of this Bylaw 9.
(d) If a stockholder does not appear at the annual meeting to present its proposal, such
proposed business will not be transacted (notwithstanding that proxies in respect of such vote may
have been received by the Company).
10. Notice of Director Nominations.
(a) Nomination of Directors. Subject to the rights, if any, of any series of
Preferred Stock to nominate or elect Directors under circumstances specified in a Preferred Stock
Designation, only persons who are nominated in accordance with the procedures set forth in this
Bylaw 10 will be eligible to serve as directors. Nominations of persons for election as
directors of the Company may be made only at an annual meeting of stockholders (i) by or at the
direction
4
of the Board of Directors or (ii) by a stockholder who (A) has complied with all applicable
requirements of this Bylaw 10 and Bylaw 11 in relation to such nomination, (B) was
a stockholder of record of the Company at the time of giving the notice required by
Bylaw 11(a) and is a stockholder of record of the Company at the time of the annual
meeting, and (C) is entitled to vote at the annual meeting.
(b) Required Form for Stockholder Proposals. To be in proper written form, a
stockholders notice to the Secretary must set forth:
(i) Information Regarding the Proposing Person. As to each Nominating Person (as such
term is defined in Bylaw 11(d)(iii)), the information set forth in Bylaw 9(b)(i)
(except that for purposes of this Bylaw 10, the term Nominating Person will be
substituted for the term Proposing Person in all places it appears in Bylaw 9(b)(i) and
any reference to business or proposal therein will be deemed to be a reference to the
nomination contemplated by this Bylaw 10).
(ii) Information Regarding the Nominee: As to each person whom the stockholder giving
notice proposes to nominate for election as a director:
(A) all information with respect to such proposed nominee that would be required to be set
forth in a stockholders notice pursuant to Bylaw 9(b)(i) if such proposed nominee were a
Nominating Person;
(B) all information relating to such proposed nominee that would be required to be disclosed
in a proxy statement or other filing required pursuant to Section 14(a) under the Exchange Act to
be made in connection with a general solicitation of proxies for an election of directors in a
contested election (including such proposed nominees written consent to be named in the proxy
statement as a nominee and to serve as a director if elected);
(C) all information that would be required to be disclosed pursuant to Items 403 and 404 under
Regulation S-K if the stockholder giving the notice or any other Nominating Person were the
registrant for purposes of such rule and the proposed nominee were a director or executive
officer of such registrant;
(D) a written questionnaire with respect to the identity, background and qualification of the
proposed nominee and the background of any other person or entity on whose behalf the nomination is
being made (which questionnaire will be provided by the Secretary upon written request);
(E) a written representation and agreement (in the form provided by the Secretary upon written
request) that the proposed nominee (1) is not and will not become a party to (x) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any person or
entity as to how the proposed nominee, if elected as a director of the Company, will act or vote on
any issue or question (a Voting Commitment) that has not been disclosed to the Company or (y) any
Voting Commitment that could limit or interfere with the proposed nominees ability to comply, if
elected as a director of the Company, with the proposed nominees fiduciary duties under applicable
law, (2) is not and will not become a party to any agreement, arrangement or understanding with any
person or entity other
5
than the Company with respect to any direct or indirect compensation, reimbursement or
indemnification in connection with service or action as a director that has not been disclosed
therein and (3) if elected as a director of the Company, the proposed nominee would be in
compliance and will comply, with all applicable publicly disclosed corporate governance, conflict
of interest, confidentiality and stock ownership and trading policies and guidelines of the
Company.
The Company may require any proposed nominee to furnish such other information as may be reasonably
required by the Company to determine the qualifications and eligibility of such proposed nominee to
serve as a director.
(c) A stockholder is not entitled to have its nominees included in the Companys proxy
statement solely as a result of such stockholders compliance with the foregoing provisions of this
Bylaw 10.
(d) If a stockholder does not appear at the annual meeting to present its nomination, such
nomination will be disregarded.
11. Additional Provisions Relating to the Notice of Stockholder Business and Director
Nominations.
(a) Timely Notice. To be timely, a stockholders notice required by
Bylaw 9(a) or Bylaw 10(a) must be delivered to or mailed and received by the
Secretary at the principal executive offices of the Company not less than 90 nor more than 120 calendar days prior to the first anniversary of the date on which the Company held the preceding
years annual meeting of stockholders; provided, however, that if the date of the
annual meeting is advanced more than 30 calendar days prior to or delayed by more than 30 calendar
days after the anniversary of the preceding years annual meeting, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of the 90th
calendar day prior to such annual meeting and the 10th calendar day following the day on which
public disclosure of the date of such meeting is first made. In no event will the public
disclosure of an adjournment of an annual meeting commence a new time period for the giving of a
stockholders notice as described above.
(b) Updating Information in Notice. A stockholder providing notice of business
proposed to be brought before an annual meeting pursuant to Bylaw 9 or notice of any
nomination to be made at an annual meeting pursuant to Bylaw 10 must further update and
supplement such notice, if necessary, so that the information provided or required to be provided
in such notice pursuant to Bylaw 9 or Bylaw 10, as applicable, is true and correct
at all times up to and including the date of the meeting and any adjournment or postponement
thereof. Such update and supplement will be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the Company, (i) in the case of the update and supplement
required to be made as of the record date, not later than the later of five business days after the
record date for the meeting and five business days after the first public disclosure of the record
date for the meeting, and (ii) in the case of the update and supplement required to be made as of
10 business days prior to the meeting or any adjournment or postponement thereof, not later than
eight
6
business days prior to the date for the meeting, if practicable (or, if not practicable, on
the first practicable date prior to any adjournment or postponement thereof).
(c) Determinations of Form, Etc. The presiding officer of any annual meeting will, if
the facts warrant, determine that a proposal was not made in accordance with the procedures
prescribed by Bylaw 9 and this Bylaw 11 or that a nomination was not made in
accordance with the procedures prescribed by Bylaw 10 and this Bylaw 11, and if he
or she should so determine, he or she will so declare to the meeting and the defective proposal or
nomination, as applicable, will be disregarded. If the Proposing Person or Nominating Person, as
applicable, does not appear at the annual meeting to present its proposal or nomination, as
applicable, such proposed business will not be transacted (notwithstanding that proxies in respect
of such vote may have been received by the Company) and such nomination will be disregarded,
respectively.
(d) Certain Definitions.
(i) For purposes of Bylaw 9 and Bylaw 10 and this Bylaw 11, public
disclosure means disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document filed by the Company with the Securities
and Exchange Commission pursuant to Exchange Act or furnished by the Company to stockholders; and
(ii) For purposes of Bylaw 9 and this Bylaw 11, Proposing Person means
(A) the stockholder providing the notice of business proposed to be brought before an annual
meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of
the business proposed to be brought before the annual meeting is made, and (C) any Affiliate or
Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or
beneficial owner.
(iii) For purposes of Section Bylaw 10 and this Bylaw 11, Nominating Person
means (A) the stockholder providing the notice of the nomination proposed made to be at an annual
meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of
nomination proposed to be made at the annual meeting is made, and (C) any Affiliate or Associate
(each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or beneficial
owner.
12. Record Dates. (a) In order that the Company may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the
Board may fix a record date, which will not be more than 60 nor less than 10 calendar days before
the date of such meeting. If no record date is fixed by the Board, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders will be at the close of
business on the calendar day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the calendar 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
the stockholders will apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
7
(b) In order that the Company may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board may fix a record date, which record date will not be more
than 60 calendar days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose will be at the close of business on the calendar day
on which the Board adopts the resolution relating thereto.
(c) The Company will be entitled to treat the person in whose name any share of its stock is
registered as the owner thereof for all purposes, and will not be bound to recognize any equitable
or other claim to, or interest in, such share on the part of any other person, whether or not the
Company has notice thereof, except as expressly provided by applicable law.
13. Adjournments. A meeting of stockholders may be adjourned from time to time by the
presiding officer of the meeting or the holders of a majority of the stock present in person or
represented by proxy at such meeting.
DIRECTORS
14. Function. The business and affairs of the Company will be managed under the
direction of the Board.
15. Number, Election and Terms. Subject to the rights, if any, of any series of
Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock
Designation, and to the minimum and maximum number of authorized Directors provided in the
Certificate of Incorporation, the authorized number of Directors may be determined from time to
time only (a) by a vote of a majority of the Whole Board or(b) by the affirmative vote of the
holders of at least 66-2/3% of the Voting Stock, voting together as a single class. The Directors,
other than those who may be elected by the holders of any series of the Preferred Stock, will be
classified with respect to the time for which they severally hold office in accordance with the
provisions of the Certificate of Incorporation.
16. Vacancies and Newly Created Directorships. Subject to the rights, if any, of the
holders of any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, newly created directorships resulting from any increase
in the authorized number of Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal or other cause may be filled only by the affirmative vote of
a majority of the remaining Directors then in office, even though less than a quorum of the Board,
or by a sole remaining Director. Any Director elected in accordance with the preceding sentence
will hold office for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Directors successor is elected and
qualified. No decrease in the authorized number of Directors will shorten the term of any
incumbent Director.
17. Removal. Subject to the rights, if any, of the holders of any series of Preferred
Stock specified in a Preferred Stock Designation, any Director may be removed from office by
8
the stockholders only for cause and only in the manner provided in the Certificate of
Incorporation.
18. Resignation. Any Director may resign at any time upon notice given in writing or
by electronic transmission to the Chairman or the Secretary. Any resignation is effective when the
resignation is delivered to the Company unless the resignation specified a later effective date or
an effective date determined upon the happening of an event or events.
19. Regular Meetings. Regular meetings of the Board may be held immediately after the
annual meeting of the stockholders and at such other time and place either within or without the
State of Delaware as may from time to time be determined by the Board. Notice of regular meetings
of the Board need not be given.
20. Special Meetings. Special meetings of the Board may be called by the Chairman or
the Chief Executive Officer on one days notice to each Director by whom such notice is not waived,
given in a form permitted by Bylaw 26 or by the DGCL, and will be called by the Chairman or
the Chief Executive Officer, in like manner and on like notice, on the written request of a
majority of the Whole Board. Special meetings of the Board may be held at such time and place
either within or without the State of Delaware as is determined by the Board or specified in the
notice of any such meeting.
21. Quorum. At all meetings of the Board, a majority of the Whole Board will
constitute a quorum for the transaction of business. Except for action to be taken by committees
of the Board as provided in Bylaw 23, and except for actions required by these Bylaws or
the Certificate of Incorporation to be taken by a majority of the Whole Board, the act of a
majority of the Directors present at any meeting at which there is a quorum will be the act of the
Board. If a quorum is not present at any meeting of the Board, the Directors present thereat may
adjourn the meeting from time to time to another place, time, or date, without notice other than
announcement at the meeting, until a quorum is present.
22. Participation in Meetings by Remote Communications. Members of the Board or any
committee designated by the Board may participate in a meeting of the Board or any such committee,
as the case may be, by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such participation in a
meeting will constitute presence in person at the meeting.
23. Committees. The Board may designate one or more committees, each committee to
consist of one or more of the Directors. The Board may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a committee, the
member or members 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 to act
at the meeting in the place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, or in these Bylaws, will have and may exercise all
the powers and authority of the Board in the management of the business and affairs of the Company,
and may authorize the seal of the Company to be affixed to all papers which may require it; but no
such committee will have the power or authority in reference
9
to the following matters: (a) approving or adopting, or recommending to the stockholders, any
action or matter (other than the election or removal of Directors) expressly required by the DGCL
to be submitted to stockholders for approval or (b) making, adopting, amending or repealing any
provision of these Bylaws.
24. Compensation. The Board may establish the compensation of directors, including,
without limitation, compensation for membership on the Board and on committees of the Board,
attendance at meetings of the Board or committees of the Board, and for other services provided to
the Company or at the request of the Board.
25. Rules. The Board may adopt rules and regulations for the conduct of meetings and
the oversight of the management of the affairs of the Company.
NOTICES
26. Generally. (a) Except as otherwise provided by law, these Bylaws, or the
Certificate of Incorporation, whenever by law or under the provisions of the Certificate of
Incorporation or these Bylaws notice is required to be given to any Director or stockholder, it
will not be construed to require personal notice, but such notice may be given in writing, by mail
or courier service or, to the extent permitted by the DGCL, by electronic transmission, addressed
to such Director or stockholder. Any notice sent to stockholders by mail or courier service shall
be sent to the address of such stockholder as it appears on the records of the Company, with
postage thereon prepaid, and such notice will be deemed to be given at the time when the same is
deposited in the United States mail or with the courier service. Notices sent by electronic
transmission shall be deemed effective as set forth in Section 222 of the DGCL. For purposes of
this Bylaw 26, electronic transmission means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be retained, retrieved
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
(b) Notices to Directors may be given by mail or courier service, telephone, electronic
transmission or as otherwise may be permitted by these Bylaws.
27. Waivers. Whenever any notice is required to be given by law or under the
provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed
by the person entitled to such notice, or a waiver by electronic transmission by the person
entitled to such notice, whether before or after the time of the event for which notice is to be
given, will be deemed equivalent to such notice. Attendance of a person at a meeting will
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
OFFICERS
28. Generally. The officers of the Company will be elected by the Board and will
consist of a Chief Executive Officer, a Secretary and a Treasurer. The Board may also choose any
or all of the following: a President, one or more Vice Presidents (who may be given particular
designations with respect to authority, function, or seniority), one or more Assistant
10
Secretaries, one or more Assistant Treasurers and such other officers as the Board may from
time to time determine. Notwithstanding the foregoing, the Board may authorize the Chief Executive
Officer to appoint any person to any office other than Secretary or Treasurer. Any number of
offices may be held by the same person. Any of the offices may be left vacant from time to time as
the Board may determine. In the case of the absence or disability of any officer of the Company or
for any other reason deemed sufficient by a majority of the Board, the Board may delegate the
absent or disabled officers powers or duties to any other officer or to any Director.
29. Compensation. The compensation of all officers and agents of the Company who are
also Directors of the Company will be fixed by the Board or by a committee of the Board. The Board
may fix, or delegate the power to fix, the compensation of other officers and agents of the Company
to an officer of the Company.
30. Succession. The officers of the Company will hold office until their successors
are elected and qualified or until such officers earlier death, resignation or removal. Any
officer may be removed at any time by the affirmative vote of a majority of the Whole Board. Any
vacancy occurring in any office of the Company may be filled by the Board or by the Chairman as
provided in Bylaw 28.
31. Authority and Duties. Each of the officers of the Company will have such
authority and will perform such duties as are customarily incident to their respective offices or
as may be specified from time to time by the Board.
STOCK
32. Certificates. The shares of capital stock of the Company will be represented by
certificates unless the Board provides by resolution or resolutions that some or all of any or all
classes or series of stock will be uncertificated shares. Any such resolution will not apply to
shares represented by a certificate until such certificate is surrendered to the Company.
33. Classes of Stock. The powers, designations, preferences and relative,
participating, optional, or other special rights of each class or series of stock represented by
certificates, if any, and the qualifications, limitations or restrictions of such preferences
and/or rights will be set forth in full or summarized on the face or back of the certificates
representing such class or series of stock or, in lieu thereof, on the face or back of such
certificates will be a statement that the Company will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative, participating, optional, or
other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law,
the rights and obligations of the holders of uncertificated stock and the rights and obligations of
the holders of certificates representing stock of the same class and series shall be identical.
34. Lost, Stolen or Destroyed Certificates. The Secretary may direct a new
certificate or certificates or uncertificated shares to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the
certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of
a
11
new certificate or certificates, the Secretary may require the owners of such lost, stolen or
destroyed certificate or certificates to give the Company a bond in such sum and with such surety
or sureties as the Secretary may direct as indemnity against any claims that may be made against
the Company with respect to the certificate alleged to have been lost, stolen or destroyed or the
issuance of the new certificate or uncertificated shares.
GENERAL
35. Fiscal Year. The fiscal year of the Company will end on December 31st
of each year or such other date as may be fixed from time to time by the Board.
36. Reliance Upon Books, Reports and Records. Each Director, each member of a
committee designated by the Board, and each officer of the Company will, in the performance of his
or her duties, be fully protected in relying in good faith upon the records of the Company and upon
such information, opinions, reports, or statements presented to the Company by any of the Companys
officers or employees, or committees of the Board, or by any other person or entity as to matters
the Director, committee member, or officer believes are within such other persons professional or
expert competence and who has been selected with reasonable care by or on behalf of the Company.
37. Amendments. Except as otherwise provided by law or by the Certificate of
Incorporation or these Bylaws, these Bylaws or any of them may be amended in any respect or
repealed at any time, either (a) at any meeting of stockholders, provided that any amendment or
supplement proposed to be acted upon at any such meeting has been described or referred to in the
notice of such meeting, or (b) by the Board, provided that no amendment adopted by the Board may
vary or conflict with any amendment adopted by the stockholders in accordance with the Certificate
of Incorporation and these Bylaws. Notwithstanding the foregoing and anything contained in these
Bylaws to the contrary, Bylaws 1, 3, 8, 9, 10, 11, 15,
16, 18 and 37 may not be amended or repealed by the stockholders, and no
provision inconsistent therewith may be adopted by the stockholders, without the affirmative vote
of the holders of at least 66-2/3% of the Voting Stock, voting together as a single class.
38. Certain Defined Terms. Capitalized terms used herein and not otherwise defined
have the meanings given to them in the Certificate of Incorporation.
12