Attached files
file | filename |
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S-1 - FORM S-1 - Global Brokerage, Inc. | y86406sv1.htm |
EX-3.1 - EX-3.1 - Global Brokerage, Inc. | y86406exv3w1.htm |
EX-23.2 - EX-23.2 - Global Brokerage, Inc. | y86406exv23w2.htm |
EX-16.1 - EX-16.1 - Global Brokerage, Inc. | y86406exv16w1.htm |
EX-23.1 - EX-23.1 - Global Brokerage, Inc. | y86406exv23w1.htm |
EX-23.6 - EX-23.6 - Global Brokerage, Inc. | y86406exv23w6.htm |
EX-23.7 - EX-23.7 - Global Brokerage, Inc. | y86406exv23w7.htm |
EX-23.4 - EX-23.4 - Global Brokerage, Inc. | y86406exv23w4.htm |
EX-23.3 - EX-23.3 - Global Brokerage, Inc. | y86406exv23w3.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
FXCM INC.
ARTICLE I.
STOCKHOLDERS
Section 1. The annual meeting of the stockholders of FXCM Inc. (the Corporation) for the
purpose of electing directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on such date, and at such time and place, if any, within
or without the State of Delaware as may be designated from time to time by the Board of Directors
of the Corporation (the Board).
Section 2. Subject to the rights of the holders of any class or series of preferred stock of
the Corporation, special meetings of the stockholders of the Corporation may be called only by or
at the direction of the Board, the Chairman of the Board or the Chief Executive Officer of the
Corporation.
Section 3. Except as otherwise provided by law, the certificate of incorporation of the
Corporation or these By-Laws, notice of the date, time, place (if any), 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, 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, in the case of a special meeting, the purpose or purposes of the meeting of
stockholders shall be given not more than sixty (60), nor less than ten (10), days previous
thereto, to each stockholder entitled to vote at the meeting as of the record date for determining
stockholders entitled to notice of the meeting at such address as appears on the records of the
Corporation.
Section 4. The holders of a majority in voting power of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business, except as otherwise provided
herein, by statute or by the certificate of incorporation of the Corporation; but if at any meeting
of stockholders there shall be less than a quorum present, the chairman of the meeting or, by a
majority in voting power thereof, the stockholders present may, to the extent permitted by law,
adjourn the meeting from time to time without further notice other than announcement at the meeting
of the date, time and place, if any, of the adjourned meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. If after the
adjournment a new record date for stockholders entitled to vote is fixed for the adjourned
meeting, the Board shall fix a new record date for notice of such adjourned meeting, and shall give
notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date for notice of such adjourned meeting. Notwithstanding the foregoing,
where a separate vote by a class or series or classes or series is required, a majority in voting
power of the outstanding shares of such class or series 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.
Section 5. The Chairman of the Board, or in the Chairmans absence or at the Chairmans
direction, the Chief Executive Officer, or in the Chief Executive Officers absence or at the Chief
Executive Officers direction, any officer of the Corporation shall call all meetings of the
stockholders to order and shall act as chairman of any such meetings. The Secretary of the
Corporation or, in such officers absence, an Assistant Secretary shall act as secretary of the
meeting. If neither the Secretary nor an Assistant Secretary is present, the chairman of the
meeting shall appoint a secretary of the meeting. The Board may adopt such rules and regulations
for the conduct of the meeting of stockholders as it shall deem appropriate. Unless otherwise
determined by the Board prior to the meeting, the chairman of the meeting shall determine the order
of business and shall have the authority in his or her discretion to regulate the conduct of any
such meeting, including, without limitation, convening the meeting and adjourning the meeting
(whether or not a quorum is present), announcing the date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote, imposing restrictions on the
persons (other than stockholders of record of the Corporation or their duly appointed proxies) who
may attend any such meeting, establishing procedures for the dismissal of business not properly
presented, maintaining order at the meeting and safety of those present, restricting entry to the
meeting after the time fixed for commencement thereof and limiting the circumstances in which any
person may make a statement or ask questions at any meeting of stockholders.
Section 6. At all meetings of stockholders, any stockholder entitled to vote thereat shall
be entitled to vote in person or by proxy, but no proxy shall be voted after three years from its
date, unless such proxy provides for a longer period. Without limiting the manner in which a
stockholder may authorize another person or persons to act for the stockholder as proxy pursuant to
the General Corporation Law of the State of Delaware (the DGCL), the following shall constitute a
valid means by which a stockholder may grant such authority: (1) a stockholder may execute a
writing authorizing another person or persons to act for the stockholder as proxy, and execution of
the writing may be accomplished by the stockholder or the stockholders authorized officer,
director, employee or agent signing such writing or causing his or her signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile signature; or (2)
a stockholder may authorize another person or persons to act for the stockholder as proxy by
transmitting or authorizing the transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy solicitation firm,
proxy support service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth or be submitted with information from
which it can be determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined
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that such telegrams, cablegrams or other electronic transmissions are valid, the inspector or
inspectors of stockholder votes or, if there are no such inspectors, such other persons making that
determination shall specify the information upon which they relied.
A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder
may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by
delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a
later date.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to the preceding paragraph of this Section 6 may be substituted or
used in lieu of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Proxies shall be filed with the secretary of the meeting prior to or at the commencement of
the meeting to which they relate.
Section 7. When a quorum is present at any meeting, the vote of the holders of a majority of
the votes cast shall decide any question brought before such meeting, unless the question is one
upon which by express provision of the certificate of incorporation of the Corporation, these
By-Laws or the DGCL a different vote is required, in which case such express provision shall govern
and control the decision of such question. Notwithstanding the foregoing, where a separate vote by
a class or series or classes or series is required and a quorum is present, the affirmative vote of
a majority of the votes cast by shares of such class or series or classes or series shall be the
act of such class or series or classes or series, unless the question is one upon which by express
provision of the certificate of incorporation of the Corporation, these By-Laws or the DGCL a
different vote is required, in which case such express provision shall govern and control the
decision of such question.
Section 8. (A) In order that the Corporation may determine the stockholders
entitled to notice of any meeting of stockholders or any adjournment thereof, the Board 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, and which record date shall, unless otherwise required by law,
not be more than sixty nor less than ten days before the date of such meeting. If the Board 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 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, 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 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
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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 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
adopts the resolution relating thereto.
Section 9. At any time when the certificate of incorporation of the Corporation permits
action by one or more classes of stockholders of the Corporation to be taken by written consent,
the provisions of this section shall apply. All consents properly delivered in accordance with the
certificate of incorporation of the Corporation, this section and the DGCL shall be deemed to be
recorded when so delivered. No written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the
Corporation as required by this section, written consents signed by the holders of a sufficient
number of shares to take such corporate action are so recorded. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the action had been taken at a meeting,
would have been entitled to notice of the meeting if the record date for notice of such meeting had
been the date that written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation. Any action taken pursuant to such written consent or consents
of the stockholders shall have the same force and effect as if taken by the stockholders at a
meeting thereof. In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting, the Board 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, and which date shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board. If no record date has been fixed by the Board, the
record date for determining stockholders entitled to consent to corporate action in writing without
a meeting, when no prior action by the Board is required by statute, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be taken is delivered
to the Corporation by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. If no record date has been fixed by the
Board and prior action by the Board is required by statute, the record date for determining
stockholders entitled to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board adopts the resolution taking such prior action.
Section 10. The officer who has charge of the stock ledger of the Corporation shall prepare
and make at least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting (provided, however, if the record date for determining
the stockholders entitled to vote is less than ten days before the date of the meeting, the list
shall reflect the stockholders entitled to vote as of the tenth day before the meeting date),
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arranged in alphabetical order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior
to 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. In the event that
the Corporation determines to make the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available only to stockholders of the
Corporation. 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 inspected 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.
Section 11. The Board, in advance of all meetings of the stockholders, may appoint one or
more inspectors of stockholder votes, who may be employees or agents of the Corporation or
stockholders or their proxies, but not directors of the Corporation or candidates for election as
directors. In the event that the Board fails to so appoint one or more inspectors of stockholder
votes or, in the event that one or more inspectors of stockholder votes previously designated by
the Board fails to appear or act at the meeting of stockholders, the chairman of the meeting may
appoint one or more inspectors of stockholder votes to fill such vacancy or vacancies. Inspectors
of stockholder votes appointed to act at any meeting of the stockholders, before entering upon the
discharge of their duties, shall take and sign an oath to faithfully execute the duties of
inspector of stockholder votes with strict impartiality and according to the best of their ability
and the oath so taken shall be subscribed by them. Inspectors of stockholder votes shall, subject
to the power of the chairman of the meeting to open and close the polls, take charge of the polls,
and, after the voting, shall make a certificate of the result of the vote taken.
Section 12. (A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board and the proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders only (a) pursuant to the Corporations notice of
meeting (or any supplement thereto) delivered pursuant to Article I, Section 3 of these By-Laws,
(b) by or at the direction of the Board or any committee thereof or (c) by any stockholder of the
Corporation who is entitled to vote on such election or such other business at the meeting, who
complied with the notice procedures set forth in subparagraphs (2) and (3) of this paragraph (A) of
this By-Law and who was a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, and, in the case of business other than nominations of persons for election to the
Board, such other business must be a proper matter for stockholder action. To be timely, a
stockholders notice shall be delivered to the Secretary at the principal executive offices of the
Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the
first anniversary of the preceding years annual meeting; provided, however, that in
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the event that the date of the annual meeting is advanced by more than twenty (20) days, or delayed
by more than seventy (70) days, from such anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the 120th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is first made. For
purposes of the application of Rule 14a-4(c) of the Securities Exchange Act of 1934, as amended
(the Exchange Act) (or any successor provision), the date for notice specified in this paragraph
(A)(2) shall be the earlier of the date calculated as hereinbefore provided or the date specified
in paragraph (c)(1) of Rule 14a-4. For purposes of the first annual meeting following the adoption
of these By-Laws, the date of the first anniversary of the preceding years annual meeting shall be
deemed to be May 20, 2010.
Such stockholders notice shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or re-election as a director all information relating to such person that
is required to be disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Section 14(a) of the Exchange Act and the rules and regulations
promulgated thereunder, including such persons written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; (b) as to any other business that
the stockholder proposes to bring before the meeting, a brief description of the business desired
to be brought before the meeting, the 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 these By-Laws, the language of the proposed amendment), the reasons for conducting such
business at the meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; (c) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Corporations books, and of such
beneficial owner, (ii) the class or series and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (iii) a representation
that the stockholder intends to appear in person or by proxy at the meeting to propose such
business or nomination, (iv) a representation whether the stockholder or the beneficial owner, if
any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of
proxy to holders of at least the percentage of the Corporations outstanding capital stock required
to approve or adopt the proposal or elect the nominee and/or (B) otherwise to solicit proxies from
stockholders in support of such proposal or nomination and (v) any other information relating to
such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or
other filings 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 Exchange Act and the rules and regulations promulgated
thereunder; (d) a description of any agreement, arrangement or understanding with respect to the
nomination or proposal and/or the voting of shares of any class or series of stock of the
Corporation between or among the stockholder giving the notice, the beneficial owner, if any, on
whose behalf the nomination or proposal is made, any of their respective affiliates or associates
and/or any others acting in concert with any of the foregoing (collectively, proponent persons);
and (e) a description of any agreement, arrangement or understanding (including without limitation
any contract to purchase or sell, acquisition or grant of any option, right or warrant to purchase
or sell, swap or other instrument)
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the intent or effect of which may be (i) to transfer to or from any proponent person, in whole or
in part, any of the economic consequences of ownership of any security of the Corporation, (ii) to
increase or decrease the voting power of any proponent person with respect to shares of any class
or series of stock of the Corporation and/or (iii) to provide any proponent person, directly or
indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise
benefit economically from, any increase or decrease in the value of any security of the
Corporation. A stockholder providing notice of a proposed nomination for election to the Board or
other business proposed to be brought before a meeting (whether given pursuant to this paragraph
(A)(2) or paragraph (B) of this By-Law) shall update and supplement such notice from time to time
to the extent necessary so that the information provided or required to be provided in such notice
shall be true and correct as of the record date for the meeting and as of the date that is fifteen
(15) days prior to the meeting or any adjournment or postponement thereof; such update and
supplement shall be delivered in writing to the Secretary at the principal executive offices of the
Corporation not later than five (5) days after the record date for the meeting (in the case of any
update and supplement required to be made as of the record date), and not later than ten (10) days
prior to the date for the meeting or any adjournment or postponement thereof (in the case of any
update and supplement required to be made as of fifteen (15) days prior to the meeting or any
adjournment or postponement thereof). The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this By-Law to the
contrary, in the event that the number of directors to be elected to the Board is increased,
effective after the time period for which nominations would otherwise be due under paragraph (A)(2)
of this By-Law, and there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board made by the Corporation at least eighty (80) days prior
to the first anniversary of the preceding years annual meeting, a stockholders notice required by
this By-Law shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the tenth day
following the day on which a public announcement of such increase is first made by the Corporation;
provided that, if no such announcement is made at least ten (10) days before the meeting, then no
such notice shall be required.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations
notice of meeting pursuant to Article I, Section 3 of these By-Laws. Nominations of persons for
election to the Board may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporations notice of meeting (a) by or at the direction of the Board or
a committee thereof or (b) provided that the Board has determined that directors shall be elected
at such meeting, by any stockholder of the Corporation who is entitled to vote on such election at
the meeting, who complies with the notice procedures set forth in this By-Law and who is a
stockholder of record at the time such notice is delivered to the Secretary of the Corporation. In
the event the Corporation calls a special meeting of stockholders for the purpose of electing one
or more directors to the Board, 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
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such position(s) as specified in the Corporations notice of meeting if the stockholders notice as
required by paragraph (A)(2) of this By-Law shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than 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 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 to be elected at such meeting.
(C) General. (1) Only persons who are nominated in accordance with the procedures set forth
in this By-Law shall be eligible to serve as directors and only such business shall be conducted at
a meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this By-Law. Except as otherwise provided by law, the certificate of
incorporation of the Corporation or these By-Laws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this By-Law and, if any proposed
nomination or business is not in compliance with this By-Law, to declare that such defective
nomination shall be disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 12, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or 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 12, 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.
(2) For purposes of this By-Law, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed or furnished by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) For purposes of this By-Law, no adjournment or postponement or notice of adjournment or
postponement of any meeting shall be deemed to constitute a new notice of such meeting for purposes
of this Section 12, and in order for any notification required to be delivered by a stockholder
pursuant to this Section 12 to be timely, such notification must be delivered within the periods
set forth above with respect to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this By-Law, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-Law; provided however, that any references in these
By-Laws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to
and shall not limit any requirements applicable to nominations or
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proposals as to any other business to be considered pursuant to this By-Law (including paragraphs
(A)(1)(c) and (B) hereof), and compliance with paragraphs (A)(1)(c) and (B) of this By-Law shall be
the exclusive means for a stockholder to make nominations or submit other business. Nothing in this
By-Law shall apply to the right, if any, of the holders of any series of Preferred Stock (as
defined in the certificate of incorporation of the Corporation) to elect directors pursuant to any
applicable provisions of the certificate of incorporation of the Corporation.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. The Board shall consist, subject to the certificate of incorporation of the
Corporation, of such number of directors as shall from time to time be fixed exclusively by
resolution adopted by affirmative vote of the majority of the Board. Directors shall (except as
hereinafter provided for the filling of vacancies and newly created directorships) be elected by
the holders of a plurality of the votes cast by the holders of shares present in person or
represented by proxy at the meeting and entitled to vote on the election of such directors. A
majority of the total number of directors then in office (but not less than one-third of the number
of directors constituting the entire Board) shall constitute a quorum for the transaction of
business. Except as otherwise provided by law, these By-Laws or by the certificate of incorporation
of the Corporation, the act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board. Directors need not be stockholders.
Section 2. Subject to the certificate of incorporation of the Corporation, unless otherwise
required by law, any newly created directorship on the Board that results from an increase in the
number of directors and any vacancy occurring in the Board shall be filled only by a majority of
the directors then in office, although less than a quorum, or by a sole remaining director.
Section 3. Meetings of the Board shall be held at such place, if any, within or without the
State of Delaware as may from time to time be fixed by resolution of the Board or as may be
specified in the notice of any meeting. Regular meetings of the Board shall be held at such times
as may from time to time be fixed by resolution of the Board and special meetings may be held at
any time upon the call of the Chairman of the Board or the Chief Executive Officer, by oral or
written notice, including telegraph, telex or transmission of a telecopy, e-mail or other means of
electronic transmission, duly served on or sent and delivered to each director to such directors
address, e-mail address or telephone or telecopy number as shown on the books of the Corporation
not less than twenty-four (24) hours before the meeting. The notice of any meeting need not
specify the purposes thereof. A meeting of the Board may be held without notice immediately after
the annual meeting of stockholders at the same place, if any, at which such meeting is held.
Notice need not be given of regular meetings of the Board held at times fixed by resolution of the
Board. Notice of any meeting need not be given to any director who shall attend such meeting
(except when the director 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), or who shall waive notice thereof, before or after such meeting, in writing (including
by electronic transmission).
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Section 4. Notwithstanding the foregoing, whenever the holders of any one or more series of
Preferred Stock issued by the Corporation shall have the right, voting separately as a series or
separately as a class with one or more such other series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, removal, and other features of such
directorships shall be governed by the terms of the certificate of incorporation of the Corporation
(including any certificate of designation relating to any series of Preferred Stock) applicable
thereto. The number of directors that may be elected by the holders of any such series of
Preferred Stock shall be in addition to the number fixed pursuant to the certificate of
incorporation of the Corporation and these By-Laws. Except as otherwise expressly provided in the
terms of such series, the number of directors that may be so elected by the holders of any such
series of stock shall be elected for terms expiring at the next annual meeting of stockholders, and
vacancies among directors so elected by the separate vote of the holders of any such series of
Preferred Stock shall be filled by the affirmative vote of a majority of the remaining directors
elected by such series, or, if there are no such remaining directors, by the holders of such series
in the same manner in which such series initially elected a director.
Section 5. If at any meeting for the election of directors, the Corporation has outstanding
more than one class of stock, and one or more such classes or series thereof are entitled to vote
separately as a class to elect directors, and there shall be a quorum of only one such class or
series of stock, that class or series of stock shall be entitled to elect its quota of directors
notwithstanding absence of a quorum of the other class or series of stock.
Section 6. The Board may from time to time establish one or more committees of the Board to
serve at the pleasure of the Board, which shall be comprised of such members of the Board and have
such duties as the Board shall from time to time determine. Any director may belong to any number
of committees of the Board. The Board may also establish such other non-Board committees with such
members (whether or not directors) and with such duties as the Board may from time to time
determine. 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. Unless otherwise provided in the certificate of incorporation of
the Corporation, these By-Laws or the resolution of the Board designating the committee, a
committee may create one or more subcommittees, each subcommittee to consist of one or more members
of the committee, and delegate to a subcommittee any or all of the powers and authority of the
committee.
Section 7. Unless otherwise restricted by the certificate of incorporation of the
Corporation or these By-Laws, any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing (including by electronic transmission),
and the writing or writings (including any electronic transmissions) are filed with the minutes of
proceedings of the Board.
Section 8. The members of the Board or any committee thereof may participate in a meeting of
such Board or committee, as the case may be, by means of conference telephone
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or other communications equipment by means of which all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this subsection shall constitute
presence in person at such a meeting.
Section 9. The Board may establish policies for the compensation of directors and for the
reimbursement of the expenses of directors, in each case, in connection with services provided by
directors to the Corporation.
ARTICLE III.
OFFICERS
Section 1. The Board, at its next meeting following each annual meeting of the stockholders,
shall elect officers of the Corporation, including a Chief Executive Officer and a Secretary. The
Board may also from time to time elect such other officers (including, without limitation, a Chief
Financial Officer, a Chief Operating Officer, a General Counsel, one or more Vice Presidents, a
Treasurer, one or more Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers) as it may deem proper or may delegate to any elected officer of the
Corporation the power to appoint and remove any such other officers and to prescribe their
respective terms of office, authorities and duties. Any Vice President may be designated
Executive, Senior or Corporate, or may be given such other designation or combination of
designations as the Board or the Chief Executive Officer may determine. Any two or more offices
may be held by the same person. The Board may also elect or appoint a Chairman of the Board, who
may or may not also be an officer of the Corporation. The Board may elect or appoint co-Chairmen
of the Board, co-Presidents or co-Chief Executive Officers and, in such case, references in these
By-Laws to the Chairman of the Board, the President or the Chief Executive Officer shall refer to
either such co-Chairman of the Board, co-President or co-Chief Executive Officer, as the case may
be.
Section 2. All officers of the Corporation elected by the Board shall hold office for such
terms as may be determined by the Board or, except with respect to his or her own office, the Chief
Executive Officer, or until their respective successors are chosen and qualified or until his or
her earlier resignation or removal. Any officer may be removed from office at any time either with
or without cause by affirmative vote of a majority of the members of the Board then in office, or,
in the case of appointed officers, by any elected officer upon whom such power of removal shall
have been conferred by the Board.
Section 3. Each of the officers of the Corporation elected by the Board or appointed by an
officer in accordance with these By-Laws shall have the powers and duties prescribed by law, by
these By-Laws or by the Board and, in the case of appointed officers, the powers and duties
prescribed by the appointing officer, and, unless otherwise prescribed by these By-Laws or by the
Board or such appointing officer, shall have such further powers and duties as ordinarily pertain
to that office.
Section 4. Unless otherwise provided in these By-Laws, in the absence or disability of any
officer of the Corporation, the Board or the Chief Executive Officer may, during such period,
delegate such officers powers and duties to any other officer or to any director and
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the person to whom such powers and duties are delegated shall, for the time being, hold such
office.
ARTICLE IV.
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 1. To the fullest extent permitted by the DGCL as it presently exists or may
hereafter be amended, the Corporation shall indemnify any person (and such persons heirs,
executors or administrators) who was or is made or is threatened to be made a party to or is
otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in
the right of the Corporation or otherwise), whether civil, criminal, administrative or
investigative, and whether formal or informal, including any appeals therefrom, by reason of the
fact that such person, or a person for whom such person was the legal representative, is or was a
director or officer of the Corporation or, while a director or officer of the Corporation, is or
was serving at the request of the Corporation as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, limited liability company,
nonprofit entity or other enterprise, for and against all loss and liability suffered and expenses
(including attorneys fees), judgments, fines and amounts paid in settlement reasonably incurred by
such person or such heirs, executors or administrators in connection with such action, suit or
proceeding, including appeals. Notwithstanding the preceding sentence, except as otherwise
provided in Article IV, Section 3 of these By-Laws, the Corporation shall be required to indemnify
a person described in such sentence in connection with any action, suit or proceeding (or part
thereof) commenced by such person only if the commencement of such action, suit or proceeding (or
part thereof) by such person was authorized by the Board.
Section 2. To the fullest extent permitted by the DGCL, the Corporation shall promptly pay
expenses (including attorneys fees) incurred by any person described in Article IV, Section 1 of
these By-Laws in appearing at, participating in or defending any action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding, including appeals, upon
presentation of an undertaking on behalf of such person to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified under this Article IV or
otherwise. Notwithstanding the preceding sentence, except as otherwise provided in Article IV,
Section 3 of these By-Laws, the Corporation shall be required to pay expenses of a person described
in such sentence in connection with any action, suit or proceeding (or part thereof) commenced by
such person only if the commencement of such action, suit or proceeding (or part thereof) by such
person was authorized by the Board.
Section 3. If a claim for indemnification (following the final disposition of such action,
suit or proceeding) or advancement of expenses under this Article IV is not paid in full within
thirty (30) days after a written claim therefor by any person described in Article IV, Section 1 of
these By-Laws has been received by the Corporation, such person 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. In any such action the Corporation shall have the burden of
proving that such person is not entitled to the requested indemnification or advancement of
expenses under applicable law.
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Section 4. To the fullest extent permitted by the DGCL, the Corporation may purchase and
maintain insurance on behalf of any person described in Article IV, Section 1 of these By-Laws
against any liability asserted against such person, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of this Article IV or
otherwise.
Section 5. The rights of indemnification provided in this Article IV shall neither be
exclusive of, nor be deemed in limitation of, any rights to which any person may otherwise be or
become entitled or permitted by contract, the certificate of incorporation of the Corporation,
these By-Laws, vote of stockholders or directors or otherwise, or as a matter of law, both as to
actions in such persons official capacity and actions in any other capacity. This Article IV
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, and purchase and maintain insurance on behalf of, persons
other than persons described in Article IV, Section 1 of these By-Laws.
Section 6. The provisions of this Article IV shall be applicable to all actions, claims,
suits or proceedings made or commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after its adoption. The provisions of this Article IV shall
be deemed to be a contract between the Corporation and each director or officer (or legal
representative thereof) who serves in such capacity at any time while this Article IV and the
relevant provisions of the DGCL and other applicable law, if any, are in effect, and any
alteration, amendment or repeal of this Article IV shall not affect any rights or obligations then
existing with respect to any state of facts or any action, suit or proceeding then or theretofore
existing, or any action, suit or proceeding thereafter brought or threatened based in whole or in
part on any such state of facts.
Section 7. If any provision of this Article IV shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the validity of the remaining
provisions hereof, and this Article IV shall be construed as if such invalid or unenforceable
provisions had been omitted therefrom.
Section 8. For purposes of this Article IV, references to other enterprises shall include
employee benefit plans; references to fines shall include any excise taxes assessed on a person
with respect to an employee benefit plan; references to serving at the request of the Corporation
shall include any service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries.
ARTICLE V.
CORPORATE BOOKS
The books of the Corporation may be kept inside or outside of the State of Delaware at such
place or places as the Board may from time to time determine.
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ARTICLE VI.
CHECKS, NOTES, PROXIES, ETC.
All checks and drafts on the Corporations bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers or agent or agents as shall be authorized from time to
time by the Board or such officer or officers who may be delegated such authority. Proxies to vote
and consents with respect to securities of other corporations owned by or standing in the name of
the Corporation may be executed and delivered from time to time on behalf of the Corporation by the
Chairman of the Board, the Chief Executive Officer, or by such officers as the Chairman of the
Board, the Chief Executive Officer or the Board may from time to time determine.
ARTICLE VII.
FISCAL YEAR
The fiscal year of the Corporation shall be, unless otherwise determined by resolution of the
Board, the calendar year ending on December 31.
ARTICLE VIII.
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the Corporation. In lieu of the
corporate seal, when so authorized by the Board or a duly empowered committee thereof, a facsimile
thereof may be impressed or affixed or reproduced.
ARTICLE IX.
GENERAL PROVISIONS
Section 1. Whenever notice is required to be given by law or under any provision of the
certificate of incorporation of the Corporation or these By-Laws, notice of any meeting need not be
given to any person who shall attend 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), or who shall waive notice thereof, before
or after such meeting, in writing (including by electronic transmission).
Section 2. Section headings in these By-Laws are for convenience of reference only and shall
not be given any substantive effect in limiting or otherwise construing any provision herein.
Section 3. In the event that any provision of these By-Laws is or becomes inconsistent with
any provision of the certificate of incorporation of the Corporation or the
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DGCL, the provision of these Bylaws shall not be given any effect to the extent of such
inconsistency but shall otherwise be given full force and effect.
ARTICLE X.
AMENDMENTS
These By-Laws may be made, amended, altered, changed, added to or repealed as set forth in the
certificate of incorporation of the Corporation.
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