Attached files
file | filename |
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EX-10.5 - EXHIBIT 10.5 - WESTERN LIBERTY BANCORP | c07624exv10w5.htm |
EX-10.1 - EXHIBIT 10.1 - WESTERN LIBERTY BANCORP | c07624exv10w1.htm |
EX-10.6 - EXHIBIT 10.6 - WESTERN LIBERTY BANCORP | c07624exv10w6.htm |
EX-10.2 - EXHIBIT 10.2 - WESTERN LIBERTY BANCORP | c07624exv10w2.htm |
EX-10.4 - EXHIBIT 10.4 - WESTERN LIBERTY BANCORP | c07624exv10w4.htm |
EX-10.7 - EXHIBIT 10.7 - WESTERN LIBERTY BANCORP | c07624exv10w7.htm |
EX-10.3 - EXHIBIT 10.3 - WESTERN LIBERTY BANCORP | c07624exv10w3.htm |
8-K - FORM 8-K - WESTERN LIBERTY BANCORP | c07624e8vk.htm |
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
BYLAWS
OF
WESTERN LIBERTY BANCORP
(a Delaware corporation)
(a Delaware corporation)
October 28, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I OFFICES |
- 1 - | |||
1.1 Registered Office |
- 1 - | |||
1.2 Other Offices |
- 1 - | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
- 1 - | |||
2.1 Annual Meetings |
- 1 - | |||
2.2 Special Meetings |
- 1 - | |||
2.3 Notices |
- 1 - | |||
2.4 Record Date |
- 2 - | |||
2.5 Stock Ledger |
- 3 - | |||
2.6 Quorum and Adjournments |
- 3 - | |||
2.7 Organization |
- 4 - | |||
2.8 Vote |
- 4 - | |||
2.9 Proxies |
- 4 - | |||
2.10 Action Without Meeting |
- 4 - | |||
2.11 Inspectors of Election |
- 5 - | |||
2.12 Notice of Stockholder Business and Nominations |
- 5 - | |||
ARTICLE III DIRECTORS |
- 9 - | |||
3.1 Election |
- 9 - | |||
3.2 Chairman of the Board |
- 9 - | |||
3.3 Powers |
- 9 - | |||
3.4 First Meeting |
- 9 - | |||
3.5 Regular Meetings |
- 9 - | |||
3.6 Special Meetings |
- 10 - | |||
3.7 Quorum |
- 10 - | |||
3.8 Organization |
- 10 - | |||
3.9 Meeting by Conference Telephone |
- 10 - | |||
3.10 Action Without Meeting |
- 10 - | |||
3.11 Compensation |
- 10 - | |||
ARTICLE IV COMMITTEES |
- 11 - | |||
4.1 Designation |
- 11 - | |||
4.2 Members |
- 11 - | |||
4.3 Powers |
- 11 - | |||
4.4 Rules |
- 11 - | |||
4.5 Minutes |
- 11 - | |||
4.6 Action Without Meeting |
- 11 - | |||
4.7 Compensation |
- 11 - |
Page | ||||
ARTICLE V NOTICES |
- 11 - | |||
5.1 Method |
- 11 - | |||
5.2 Waiver |
- 11 - | |||
ARTICLE VI OFFICERS |
- 12 - | |||
6.1 Election |
- 12 - | |||
6.2 President |
- 12 - | |||
6.3 Vice Presidents |
- 12 - | |||
6.4 Treasurer |
- 13 - | |||
6.5 Assistant Treasurers |
- 13 - | |||
6.6 Secretary |
- 13 - | |||
6.7 Assistant Secretaries |
- 13 - | |||
6.8 Compensation |
- 13 - | |||
ARTICLE VII CERTIFICATES OF STOCK |
- 14 - | |||
7.1 Certificates |
- 14 - | |||
7.2 Facsimile Signatures |
- 14 - | |||
7.3 Lost Certificates |
- 14 - | |||
7.4 Transfers of Stock |
- 14 - | |||
7.5 Registered Stockholders |
- 15 - | |||
ARTICLE VIII INDEMNIFICATION |
- 15 - | |||
8.1 Right to Indemnification |
- 15 - | |||
8.2 Determination by the Corporation |
- 16 - | |||
8.3 Determination by a Court |
- 16 - | |||
8.4 Payment in Advance |
- 17 - | |||
8.5 Conditions Precedent |
- 17 - | |||
8.6 Timely Payment |
- 17 - | |||
8.7 Assumption of Defense |
- 18 - | |||
8.8 Partial Indemnification |
- 18 - | |||
8.9 Subrogation |
- 18 - | |||
8.10 Continuing Contract Right |
- 18 - | |||
8.11 Non-exclusivity |
- 19 - | |||
8.12 Insurance |
- 19 - | |||
8.13 Certain Definitions |
- 19 - | |||
8.14 Survival |
- 19 - | |||
8.15 Limitations |
- 20 - | |||
8.16 Notices |
- 20 - | |||
8.17 Employees and Agents |
- 20 - | |||
8.18 Severability |
- 20 - |
ii
Page | ||||
ARTICLE IX MISCELLANEOUS |
- 21 - | |||
9.1 Dividends |
- 21 - | |||
9.2 Reserves |
- 21 - | |||
9.3 Books and Records |
- 21 - | |||
9.4 Fiscal Year |
- 21 - | |||
9.5 Seal |
- 21 - | |||
9.6 Amendments |
- 21 - |
iii
AMENDED AND RESTATED
BYLAWS
OF
WESTERN LIBERTY BANCORP
BYLAWS
OF
WESTERN LIBERTY BANCORP
These AMENDED AND RESTATED BYLAWS (these Bylaws) of Western Liberty Bancorp (f/k/a Global
Consumer Acquisition Corp.), a Delaware corporation (the Corporation), have been adopted by the
Corporation effective as of the date set forth on the cover page hereof and are subject to the
applicable provisions of the certificate of incorporation of the Corporation, as in effect from
time to time (the Certificate of Incorporation), and the General Corporation Law of the State of
Delaware (the DGCL).
ARTICLE I
OFFICES
OFFICES
1.1 Registered Office. The registered office of the Corporation in the State of
Delaware shall be as set forth in the Certificate of Incorporation.
1.2 Other Offices. The Corporation may maintain offices other than its registered
office at such places, within or without the State of Delaware, as the board of directors of the
Corporation (the Board of Directors) may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
MEETINGS OF STOCKHOLDERS
2.1 Annual Meetings. An annual meeting of the stockholders of the Corporation (the
Stockholders) shall be held (a) on the second Tuesday in the month of February at 9:00 a.m. at
the principal place of business of the Corporation or (b) on such other date and at such other time
and place, if any, within or without the State of Delaware, as shall be determined by the Board of
Directors and stated in the notice of such meeting. At each annual meeting of the Stockholders,
the Stockholders shall elect the Board of Directors and transact such other business as may
properly be brought before such meeting.
2.2 Special Meetings. Special meetings of the Stockholders, for any purpose or
purposes, (a) may be called by the Chief Executive Officer and (b) shall be called by the Secretary
upon the receipt of a written request stating the purpose or purposes of such meeting from (i) a
majority of the Board of Directors or (ii) the Stockholders that own a majority of the shares of
the stock of the Corporation issued and outstanding and entitled to vote thereon. Business
transacted at any special meeting of the Stockholders shall be limited to the purpose or purposes
stated in the notice of such meeting. Any special meeting of the Stockholders may be held on such
date and at such time and place, if any, within or without the State of Delaware, as shall be
determined by the Board of Directors stated in the notice of such meeting.
2.3 Notices. Whenever stockholders are required or permitted to take any action at a
meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour
of the 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 for which the meeting is called.
Unless otherwise provided by law, the Certificate of Incorporation or these bylaws, the notice of
any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at the meeting as of the record date for
determining the stockholders entitled to notice of the meeting. If such notice is mailed, then
such notice shall be deemed to be given to any Stockholder when deposited in the mail, postage
prepaid, directed to such Stockholder at such Stockholders address as it appears on the records of
the Corporation.
2.4 Record Date. (a) In order that the Corporation may determine the Stockholders
entitled to notice of any meeting of the Stockholders or any adjournment thereof, the Board of
Directors may fix, in advance, a record date, which shall, unless required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors
so fixes a date, such date shall also be the record date for determining the Stockholders entitled
to vote at such meeting unless the Board of Directors determines, at the time it fixes such record
date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed, then (a) the record date for determining the
Stockholders entitled to notice of and to vote at any meeting of the Stockholders shall be (i) at
the close of business on the day next preceding the day on which notice is given or (ii) 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 the Stockholders of record entitled to notice of, or to vote at, any meeting of
the Stockholders shall apply to any adjournment of such meeting; provided, however, that the Board
of Directors may fix a new record date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for Stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determination of
Stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the Stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such other action. If no such record date is fixed, the record date for
determining Stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
(c) Unless otherwise restricted by the Certificate of Incorporation, in order that the
Corporation may determine the stockholders entitled to express consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no record date for
determining stockholders entitled to express consent to corporate action in writing without a
meeting is fixed by the Board of Directors, (i) when no prior action of the Board of Directors is
required by law, the record date for such purpose 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 in accordance with applicable law, and (ii) if prior action by the
Board of Directors is required by law, the record date for such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking such prior action.
- 2 -
2.5 Stock Ledger. The Secretary shall prepare and make, at least ten (10) days before
every meeting of the Stockholders, a complete list of the Stockholders entitled to vote at such
meeting (provided, however, if the record date for determining the Stockholders entitled to vote is
less than ten (10) 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), arranged in alphabetical order,
showing the address of each Stockholder and the number of shares registered in the name of each
Stockholder. Such list shall be open to the examination of any Stockholder for any purpose germane
to the relevant meeting at least ten (10) days prior to such 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 meeting or (ii) during ordinary business hours at the principal place of
business of the Corporation. If the meeting is to be held at a place, then such list shall also be
produced and kept at the time and place of the relevant 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.
2.6 Quorum and Adjournments. The holders of a majority of the shares of the stock of
the Corporation issued and outstanding and entitled to vote at any meeting of the Stockholders,
present in person or represented by proxy, shall constitute a quorum at such meeting for the
transaction of business, except as otherwise provided by the Certificate of Incorporation or the
DGCL. If, however, such quorum shall not be present or represented at any meeting of the
Stockholders, then the Stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power by majority vote to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. Shares of
the stock of the Corporation belonging to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall not be entitled to vote or be counted for the
purposes of determining a quorum; provided, however, that the foregoing shall not limit the right
of the Corporation or any subsidiary of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity. At any adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been transacted at the
meeting as originally notified. If any 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 such
meeting. If after the adjournment a new record date for determination of Stockholders entitled to
vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for
determining Stockholders entitled to notice of such adjourned meeting the same or an earlier date
as that fixed for determination of Stockholders entitled to vote at the adjourned meeting, and
shall give notice of the adjourned meeting to each Stockholder of record as of the record date so
fixed for notice of such adjourned meeting.
- 3 -
2.7 Organization. Each meeting of the Stockholders shall be presided over by (a) the
Chairman of the Board, if any, (b) the President, in the absence of the Chairman of the Board,
(c) a chairman designated by the Board of Directors, in the absence of the Chairman of the Board
and the President, or (d) a chairman chosen at such meeting, in the absence of the Chairman of the
Board, the President and such designation. The Secretary, or any Assistant Secretary, in the
absence of the Secretary, shall act as the secretary of each meeting of the Stockholders; provided,
however, that if the Secretary and all Assistant Secretaries are absent, then the chairman of such
meeting may appoint any person to act as the secretary of such meeting.
2.8 Vote. Each Stockholder entitled to vote at any meeting of the Stockholders shall
be entitled to one vote for each share of stock held by such Stockholder which has voting power
upon the matter in question. Voting at meetings of the Stockholders need not be by written ballot
and need not be conducted by inspectors unless the holders of a majority of the shares of all
classes of stock of the Corporation issued and outstanding and entitled to vote thereon present in
person or by proxy at such meeting shall so determine. At all meetings of the Stockholders for the
election of directors a plurality of the votes cast shall be sufficient to elect any director. All
other elections and questions shall, unless otherwise provided by the Certificate of Incorporation,
the DGCL or these Bylaws, or the rules or regulations of any stock exchange, be decided by the vote
of the holders of majority of the shares of stock of the Corporation issued and outstanding and
entitled to vote thereon, present in person or represented by proxy, at the meeting.
2.9 Proxies. Each Stockholder entitled to vote at any meeting of the Stockholders may
authorize another person or persons to act for such Stockholder by proxy, but no such proxy shall
be voted or acted upon after three years from its date, unless such proxy provides for a longer
period of effectiveness. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. Any Stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing with the Secretary an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date.
2.10 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any meeting of the Stockholders may
be taken without a meeting, without prior notice and without a vote, if a written consent thereto
is signed by the holders of the shares of the stock of the Corporation having not less than the
minimum number of votes that would be necessary to authorize or take such action at a meeting at
which all shares of the stock of the Corporation issued and outstanding and entitled to vote
thereon were present and voted. Prompt notice of the taking of any action without a meeting by
less than unanimous written consent shall be given to those Stockholders who have not consented to
such action in writing.
- 4 -
2.11 Inspectors of Election. The Corporation may, and shall if required by law, in
advance of any meeting of Stockholders, appoint one or more inspectors of election, who may be
employees of the Corporation, to act at the meeting or any adjournment thereof and to make a
written report thereof. The Corporation may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of Stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her ability. The inspector
or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock
of the Corporation outstanding and the voting power of each such share, (ii) determine the shares
of capital stock of the Corporation represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital stock of the Corporation represented
at the meeting and such inspectors count of all votes and ballots. Such certification and report
shall specify such other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of Stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable law. No person who is a
candidate for an office at an election may serve as an inspector at such election.
2.12 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for election to the
Board of Directors of the Corporation 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), (b) by or at the direction of the
Board of Directors or any committee thereof or (c) by any Stockholder of the Corporation who was a
Stockholder of record of the Corporation at the time the notice provided for in this Section 2.12
is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 2.12.
(2) For any nominations or other business to be properly brought before an annual meeting by a
Stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.12, the Stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation and any such
proposed business (other than the nominations of persons for election to the Board of Directors)
must constitute 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 later than
the close of business on the ninetieth (90th) day, nor earlier than the close of
business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding
years annual meeting (provided, however, that in the event that the date of the annual meeting is
more than thirty (30) days before or more than seventy (70) days after such anniversary date,
notice by the Stockholder must be so delivered not earlier than the close of business on the one
hundred twentieth (120th) day prior to such annual meeting and not later than the close of business
on the later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such meeting is
first made by the Corporation). In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time period) for the
giving of a Stockholders notice as described above. Such Stockholders notice shall set forth:
(a) as to each person whom the Stockholder proposes to nominate for election as a director (i) all
- 5 -
information relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as
amended (the Exchange Act) and the rules and regulations promulgated thereunder, and (ii) 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 the Bylaws of the Corporation, 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; and (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 capital stock of the Corporation which are
owned beneficially and of record by such Stockholder and such beneficial owner, (iii) a description
of any agreement, arrangement or understanding with respect to the nomination or proposal between
or among such Stockholder and/or such beneficial owner, any of their respective affiliates or
associates, and any others acting in concert with any of the foregoing, including, in the case of a
nomination, the nominee, (iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options, warrants, convertible
securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned
shares) that has been entered into as of the date of the Stockholders notice by, or on behalf of,
such Stockholder and such beneficial owners, whether or not such instrument or right shall be
subject to settlement in underlying shares of capital stock of the Corporation, the effect or
intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of, such Stockholder or such beneficial owner, with respect
to securities of the Corporation, (v) a representation that the Stockholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to propose such business or nomination, (vi) 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 or votes from Stockholders in support of such
proposal or nomination, and (vii) 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. The foregoing notice
requirements of this paragraph (A) of this Section 2.12 shall be deemed satisfied by a Stockholder
with respect to a business proposal (other than a nomination) if the Stockholder has notified the
Corporation of his, her or its intention to present the proposal at an annual meeting in compliance
with applicable rules and regulations promulgated under the Exchange Act and such Stockholders
proposal has been included in a proxy statement that has been prepared by the Corporation to
solicit proxies for such annual meeting. The Corporation
may require any proposed nominee to furnish such other information as the Corporation may
reasonably require to determine the eligibility of such proposed nominee to serve as a director of
the Corporation.
- 6 -
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.12
to the contrary, in the event that the number of directors to be elected to the Board of Directors
of the Corporation at the annual meeting is increased effective after the time period for which
nominations would otherwise be due under paragraph (A)(2) of this Section 2.12 and there is no
public announcement by the Corporation naming the nominees for the additional directorships at
least one hundred (100) days prior to the first anniversary of the preceding years annual meeting,
a Stockholders notice required by this Section 2.12 shall also be considered timely, but only with
respect to nominees for the additional directorships, 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 (10th) day following the day on which such public announcement is first made by
the Corporation.
(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. Nominations of persons for election to the Board of Directors may
be made at a special meeting of Stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) by or at the direction of the Board of Directors or any
committee thereof (or Stockholders pursuant to Section 2.2 hereof) or (2) provided that the Board
of Directors (or Stockholders pursuant to Section 2.2 hereof) has determined that directors shall
be elected at such meeting, by any Stockholder of the Corporation who is a Stockholder of record at
the time the notice provided for in this Section 2.12 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and who complies with
the notice procedures set forth in this Section 2.12. In the event the Corporation calls a special
meeting of Stockholders for the purpose of electing one or more directors to the Board of
Directors, any such Stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as specified in the
Corporations notice of meeting, if the Stockholders notice required by paragraph (A)(2) of this
Section 2.12 shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the one hundred twentieth (120th)
day prior to such special meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such meeting. In no event
shall the public announcement of an adjournment or postponement of a special meeting commence a new
time period (or extend any time period) for the giving of a Stockholders notice as described
above.
- 7 -
(C) General. (1) Except as otherwise expressly provided in any applicable rule or
regulation promulgated under the Exchange Act, only such persons who are nominated in accordance
with the procedures set forth in this Section 2.12 shall be eligible to be elected at an annual or
special meeting of Stockholders of the Corporation to serve as directors and only such
business shall be conducted at a meeting of Stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 2.12. Except as otherwise
provided by law, the chairman of the meeting shall have the power and duty (a) to determine whether
a nomination or any business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this Section 2.12 (including whether
the Stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the case may be,
proxies or votes in support of such Stockholders nominee or proposal in compliance with such
Stockholders representation as required by clause (A)(2)(c)(vi) of this Section 2.12) and (b) if
any proposed nomination or business was not made or proposed in compliance with this Section 2.12,
to declare that such nomination shall be disregarded or that such proposed business shall not be
transacted. Notwithstanding the foregoing provisions of this Section 2.12, unless otherwise
required by law, 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 proposed business, such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been received by the
Corporation. For purposes of this Section 2.12, 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 Section 2.12, public announcement shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press or other national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3) Notwithstanding the foregoing provisions of this Section 2.12, a Stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder with respect to the matters set forth in this Section 2.12; provided
however, that any references in these Bylaws 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 proposals as to any other business to be considered pursuant to this Section 2.12
(including paragraphs (A)(1)(c) and (B) hereof), and compliance with paragraphs (A)(1)(c) and (B)
of this Section 2.12 shall be the exclusive means for a Stockholder to make nominations or submit
other business (other than, as provided in the penultimate sentence of paragraph (A)(2) hereof,
business brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as such
Rules may be amended from time to time). Nothing in this Section 2.12 shall be deemed to affect
any rights (a) of Stockholders to request inclusion of proposals or nominations in the
Corporations proxy statement pursuant to applicable rules and regulations
promulgated under the Exchange Act or (b) of the holders of any series of Preferred Stock to
elect directors pursuant to any applicable provisions of the certificate of incorporation.
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ARTICLE III
DIRECTORS
DIRECTORS
3.1 Election. (a) The number of directors comprising the Board of Directors shall be
fixed at nine (9).
(b) The directors shall be elected at the annual meeting of the Stockholders, except as
provided in Section 3.1(c), and each director elected by such Stockholders shall hold office, at
the discretion of the Stockholders, until the earlier of (i) such directors resignation, removal
or death or (ii) the due election and qualification of such directors successor. Directors need
not be Stockholders. Any director or the entire Board of Directors may be removed, with or without
cause, at any time by the holders of a majority of the shares of the stock of the Corporation
issued and outstanding and entitled to vote thereon.
(c) Vacancies and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office (even though the
number of such directors may be less than a quorum), by the sole remaining director, or by the
Stockholders at any meeting. Each director so elected shall hold office, at the discretion of the
Stockholders, until the earlier of (i) such directors resignation, removal or death or (ii) the
due election and qualification of such directors successor. If, at any time, there are no
directors in office, then an election of directors may be held in the manner provided by the DGCL.
3.2 Chairman of the Board. There may be a chairman of the Board of Directors (the
Chairman of the Board) elected by the Board of Directors from their members at any meeting of the
Board of Directors. The Chairman of the Board shall preside at all meetings of the Board of
Directors and perform such other duties as may be directed by the Board of Directors.
3.3 Powers. The business of the Corporation shall be managed by or under the
direction of the Board of Directors. The Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not required by the Certificate of
Incorporation, the DGCL or these Bylaws to be exercised or done by the Stockholders.
3.4 First Meeting. The first meeting of each newly elected Board of Directors shall
be held promptly after and at the same place as the annual meeting of the Stockholders, and any
such meeting may be held without notice to any director. At the first meeting of each newly
elected Board of Directors, the Board of Directors shall elect the officers of the Corporation and
transact such other business as may properly be brought before such meeting.
3.5 Regular Meetings. Regular meetings of the Board of Directors may be held, without
notice, on such date and at such time and place, within or without the State of Delaware, as shall
be determined by the Board of Directors.
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3.6 Special Meetings. Special meetings of the Board of Directors (a) may be called
by the President on not less than two, or, in the case of notice given by mail, not less than
three, days notice to each director and (b) shall be called by the Secretary on like notice on the
written request of two directors, unless the Board of Directors consists of only one director, in
which case special meetings shall be called by the Secretary on like notice on the written request
of the sole director. Any special meeting of the Board of Directors may be held on such date and
at such time and place, within or without the State of Delaware, as shall be stated in the notice
of such meeting or in a duly executed waiver of notice thereof.
3.7 Quorum. At all meetings of the Board of Directors, a majority of the directors
shall constitute a quorum for the transaction of business, and 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 of
Directors, except as may be otherwise specifically provided by the Certificate of Incorporation or
the DGCL. If a quorum shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
3.8 Organization. Each meeting of the Board of Directors shall be presided over by
(a) the Chairman of the Board, if any, (b) the President, in the absence of the Chairman of the
Board, or (c) a chairman chosen at such meeting, in the absence of the Chairman of the Board and
the President. The Secretary, or any Assistant Secretary, in the absence of the Secretary, shall
act as the secretary of each meeting of the Board of Directors; provided, however, if the Secretary
and all Assistant Secretaries are absent, then the chairman of such meeting may appoint any person
to act as the secretary of such meeting.
3.9 Meeting by Conference Telephone. Unless otherwise restricted by the Certificate
of Incorporation, directors may participate in any meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all persons
participating in such meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
3.10 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if all members of the Board of Directors consent
thereto in writing or by electronic transmission and the writing or writings or electronic
transmissions are filed with the minutes of proceedings of the board in accordance with applicable
law.
3.11 Compensation. The Board of Directors may fix the compensation, including fees
and reimbursement of expenses, paid to directors for attendance at regular or special meetings of
the Board of Directors.
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ARTICLE IV
COMMITTEES
COMMITTEES
4.1 Designation. The Board of Directors may designate one or more committees of the
Board of Directors (a Committee). Each Committee shall have such name as may be determined from
time to time by the Board of Directors.
4.2 Members. Each Committee shall consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as alternate members of
any Committee, who may replace any absent or disqualified member at any meeting of such Committee.
In the absence or disqualification of any member of any Committee, the member or members of such
Committee present at any meeting and not disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at
such meeting in place of any such absent or disqualified member.
4.3 Powers. To the extent provided in the relevant resolution, any Committee shall
have and may exercise the powers of the Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it; provided, however, that (a) no Committee shall have power or authority
in reference of (i) 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 the Stockholders for approval or (ii) adopting, amending or repealing any bylaw of the
Corporation.
4.4 Rules. Unless the Board of Directors otherwise provides, each Committee may
adopt, amend or repeal rules for the conduct of its business. In the absence of such rules, each
Committee shall conduct its business in the same manner as the Board of Directors conducts its
business pursuant to Article III of these Bylaws.
4.5 Minutes. Each Committee shall keep regular minutes of its meetings and report
such minutes to the Board of Directors when required.
4.6 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of any
Committee may be taken without a meeting if a written consent thereto is signed by all of the
members of such Committee, and such written consent is filed with the minutes of the proceeding of
such Committee.
4.7 Compensation. The Board of Directors may fix the compensation, including fees and
reimbursement of expenses, paid to directors for attendance at meetings of any Committee.
ARTICLE V
NOTICES
NOTICES
5.1 Method. Notices to directors and Stockholders shall be in writing and delivered
personally or mailed to the directors or Stockholders at their respective addresses as they appear
on the records of the Corporation. Notice to directors may also be given by telephone, facsimile
or other means of electronic transmission.
5.2 Waiver. Any waiver of notice, given by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice. Attendance of any
person at any meeting shall constitute a waiver of notice of such meeting, except when such person
attends any meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because such meeting has not been lawfully called or convened. Neither
the business to be transacted at, nor the purpose of any regular or special
meeting of the Stockholders, directors or members of any Committee need be specified in any
written waiver of notice.
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ARTICLE VI
OFFICERS
OFFICERS
6.1 Election. (a) The officers of the Corporation shall be elected by the Board of
Directors, may include a president (the President), a treasurer (the Treasurer) and a secretary
(the Secretary) and may include one or more vice presidents (the Vice Presidents), assistant
treasurers (the Assistant Treasurers) or assistant secretaries (the Assistant Secretaries).
Two or more offices may be held by the same person. The Board of Directors may elect such other
officers of the Corporation as the Board of Directors may deem necessary, desirable or appropriate,
and each of such officers shall hold office for such term and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors.
(b) Each officer of the Corporation shall hold office, at the discretion of the Board of
Directors, until the earlier of (i) such officers resignation, removal or death or (ii) the due
election and qualification of such officers successor. Any officer may be removed, with or
without cause, at any time by a majority of the Board of Directors; provided, however, that no such
removal shall prejudice the contractual rights of such officer, if any, with the Corporation.
(c) Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors or by appointment of the President.
6.2 President. (a) The President shall be the chief executive officer of the
Corporation and may be designated by the Board of Directors as the Chief Executive Officer of the
Corporation. The President shall, under the direction of the Board of Directors, be responsible
for the management of the business of the Corporation. The President shall, in the absence of the
Chairman of the Board, if any, preside at all meetings of the Stockholders and the Board of
Directors, and have the powers and duties assigned to the President in the DGCL and these Bylaws
and such other powers and duties as may be assigned to the President from time to time by the Board
of Directors.
(b) The President may, on behalf of the Corporation, execute and deliver such agreements,
instruments and documents, and take such other actions, as the President may deem necessary,
desirable or appropriate to effect any transaction authorized by the Board of Directors.
6.3 Vice Presidents. (a) Each Vice President shall, in the absence of the President
and in the order of seniority determined by the Board of Directors, have the powers and duties of
the President. Any Vice President shall have such powers and duties as may be assigned to such
Vice President from time to time by the Board of Directors or the President.
(b) If any Vice President is designated by the Board of Directors as the Chief Operating
Officer of the Corporation, then such Vice President shall be deemed to be the most senior Vice
President of the Corporation. If any Vice President is designated by the Board of Directors as the
Chief Financial Officer of the Corporation, then such Vice President shall, in
the absence of the Chief Operating Officer of the Corporation, if any, be deemed to be the
most senior Vice President of the Corporation.
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6.4 Treasurer. The Treasurer shall, in the absence of any Vice President designated
as the Chief Financial Officer of the Corporation, be the chief financial officer of the
Corporation. The Treasurer shall (a) maintain custody of the funds and securities of the
Corporation, (b) keep full and accurate accounts of receipts and disbursements in the records of
the Corporation and (c) deposit all funds and other valuable effects of the Corporation in the name
and for the benefit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall have the powers and duties assigned to the Treasurer in the DGCL
and these Bylaws and such other powers and duties as may be assigned to the Treasurer from time to
time by the Board of Directors, the President or any Vice President.
6.5 Assistant Treasurers. Each Assistant Treasurer shall, in the absence of the
Treasurer and in the order of seniority determined by the Board of Directors, have the powers and
duties of the Treasurer. Any Assistant Treasurer shall have such powers and duties as may be
assigned to such Assistant Treasurer from time to time by the Board of Directors, the President,
any Vice President or the Treasurer.
6.6 Secretary. The Secretary shall keep the seal of the Corporation in safe custody
and, when authorized by the Board of Directors, affix such seal to any agreement, instrument or
document that requires it. The Secretary shall have the powers and duties assigned to the
Secretary in the DGCL and these Bylaws and such other powers and duties as may be assigned to the
Secretary from time to time by the Board of Directors, the President or any Vice President.
(b) The Secretary may, on behalf of the Corporation, execute and deliver such certificates as
the Secretary may deem necessary, desirable or appropriate to certify any record of the Corporation
in connection with any transaction authorized by the Board of Directors.
6.7 Assistant Secretaries. Each Assistant Secretary shall, in the absence of the
Secretary and in the order of seniority determined by the Board of Directors, have the powers and
duties of the Secretary. Any Assistant Secretary shall have such powers and duties as may be
assigned to such Assistant Secretary from time to time by the Board of Directors, the President,
any Vice President or the Secretary.
6.8 Compensation. The Board of Directors may fix the compensation paid to each
officer of the Corporation or delegate the power to fix such compensation to the President.
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ARTICLE VII
CERTIFICATES OF STOCK
CERTIFICATES OF STOCK
7.1 Certificates. The certificates of stock of the Corporation shall be in such form
as is approved by the Board and shall be numbered consecutively and entered in the books of the
Corporation in the order issued. The Board of Directors may by resolution provide that some or all
of any or all classes or series of its capital stock shall be uncertificated shares. Any such
resolution shall not apply to shares already represented by certificates until such certificate is
surrendered to the Corporation. Every holder of stock represented by certificates shall be
entitled to have a certificate, signed by or in the name of the President or any Vice
President, and by the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant
Secretary, representing the number of shares registered in certificate form (a Certificate). If
the Corporation is authorized to issue more than one class of stock, or more than one series of any
class, the 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 or rights shall be set forth in full or summarized on the face or back of each
Certificate that the Corporation shall issue to represent such class of stock (or, in the case of
uncertificated shares, notice thereof shall be provided in accordance with applicable law);
provided, however, that except as otherwise provided in Section 202 of the DGCL, in lieu of the
foregoing requirements, there may be set forth on the face or back of such Certificate a statement
that the Corporation will furnish without charge to each Stockholder who so requests the
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 or rights (or, in the case of uncertificated shares, notice thereof shall be provided
in accordance with applicable law).
7.2 Facsimile Signatures. If any Certificate is signed by any transfer agent or any
assistant transfer agent or by any transfer clerk acting on behalf of the Corporation and any
registrar, then the signature on such Certificate of the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or Assistant Secretary may be a facsimile
signature. If any officer of the Corporation who has signed, or whose facsimile signature has been
used on, any Certificate shall cease to be an officer of the Corporation before such Certificate
has been delivered by the Corporation, then such Certificate may nevertheless be adopted by the
Corporation and be issued and delivered as though the person who signed such Certificate or whose
facsimile signature has been used thereon had not ceased to be an officer of the Corporation.
7.3 Lost Certificates. The Board of Directors may direct that a new Certificate or
uncertificated shares be issued in place of any Certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit of such fact by the
person claiming the Certificate to be lost, stolen or destroyed. When authorizing the issue of
such a new Certificate or uncertificated shares, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the holder of such lost, stolen or
destroyed Certificate, or such holders legal representative, to advertise such fact in such manner
as the Board of Directors may require or to give the Corporation a bond in such sum as the Board of
Directors may direct as indemnity against any claim that may be made against the Corporation with
respect to such lost, stolen or destroyed Certificate or the issuance of such new Certificate or
uncertificated shares.
7.4 Transfers of Stock. Upon surrender to the Corporation or the transfer agent of
the Corporation of any Certificate duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new Certificate to the person
entitled thereto, cancel the old Certificate and record the transaction upon the records of the
Corporation. Transfers of uncertificated shares shall be made in compliance with applicable laws
or regulations.
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7.5 Registered Stockholders. Except as otherwise provided by law, the stock ledger
shall be the only evidence as to the identity of the Stockholders entitled to examine the stock
ledger, the list of the Stockholders or the books of the Corporation, or to vote in person or by
proxy at any meeting of the Stockholders.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
8.1 Right to Indemnification. (a) Subject to Section 8.2 and Section 8.5, the
Corporation, to the fullest extent permitted by law, shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation), by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was a director or officer of the Corporation serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person (i) acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation and (ii) with respect to any criminal action or
proceeding, had no reasonable cause to believe such persons conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption that any person
(i) did not act in good faith or in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation or (ii) with respect to any criminal action or
proceeding had reasonable cause to believe that such persons conduct was unlawful.
(b) Subject to Section 8.2 and Section 8.5, the Corporation, to the fullest extent permitted
by law, shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses (including attorneys
fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation; provided, however, that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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8.2 Determination by the Corporation. (a) Any indemnification under this Article VIII
(unless ordered by any court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the relevant director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set forth in Section
8.1. Such determination shall be made, with respect to any person who is a director or officer at
the time of such determination, (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (ii) by a Committee of such directors
designated by a majority vote of such directors, even though less than a quorum, (iii) if there are
no such directors, or if such directors so direct, by independent legal counsel in a written
opinion or (iv) by the Stockholders. Such determination shall be made, with respect to former
directors and officers, by any person or persons having the authority to act on the matter on
behalf of the Corporation. To the extent, however, that a present or former director or officer of
the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in the specific case.
(b) For purposes of any determination under Section 8.2(a), a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe such persons conduct was unlawful, if such persons action is
based on (i) the records or books of account of the Corporation or another enterprise,
(ii) information supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, (iii) the advice of legal counsel for the Corporation or another
enterprise or (iv) information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant, an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise. The term another enterprise as
used in this Section 8.2(b) shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or agent. The provisions of this
Section 8.2(b) shall not be deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standard of conduct set forth in Section
8.1.
8.3 Determination by a Court. If the Corporation has made a determination under
Section 8.2 that the indemnification of any director or officer is not proper in the circumstances
because such person has not met the applicable standard of conduct set forth in Section 8.1, then
notwithstanding such contrary determination, such person may apply to the Court of Chancery in the
State of Delaware or any other court of competent jurisdiction for indemnification to the extent
otherwise permissible under Section 8.1. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standards of conduct set forth in Section
8.1. The Corporations contrary determination in the specific case under Section 8.2 shall not be
a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 8.3 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled, to the fullest extent permitted by law, to
be paid the expense of prosecuting such application.
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8.4 Payment in Advance. Expenses incurred by a director or officer in defending any
civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director of officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
8.5 Conditions Precedent. Each person entitled to indemnification under this
Article VIII shall, as a condition precedent to his right to indemnification hereunder with respect
to any claim made against such person, give the Corporation notice in writing of such claim as soon
as practicable after such person has received notice of the claim. Each such person shall direct
each such notice to the Secretary of the Corporation at the principal place of business of the
Corporation (or such other address as the Corporation shall designate in writing to such person).
In addition, each such person shall give the Corporation any information and cooperation that the
Corporation may reasonably request with respect to such claim.
(b) Each person entitled to indemnification under this Article VIII shall, as a condition
precedent to his right to indemnification hereunder with respect to any expense incurred by such
person, obtain from the Corporation the prior written consent of the Corporation to incur such
expense (which consent shall not be unreasonably withheld or delayed). Each such person shall seek
such consent from the Secretary of the Corporation at the principal place of business of the
Corporation (or such other address as the Corporation shall designate in writing to such person).
In addition, each such person shall give the Corporation any information that the Corporation may
reasonably request with respect to such expense.
8.6 Timely Payment. (a) The Corporation shall indemnify each person entitled to
indemnification under this Article VIII no later than sixty (60) days after the delivery by such
person to the Corporation of a written request for payment thereof. The Corporation shall pay to
any such person any advances to be made thereunder within twenty (20) days following the delivery
of a written request by such person to the Corporation for payment thereof.
(b) If the Corporation has made a determination under Section 8.2 that the indemnification of
any director or officer is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 8.1 but fails to pay such person with respect to any
written request made within the applicable period set forth in Section 8.6(a), or if the
Corporation fails to make any determination with respect to a specific case within such period,
then such person may at any time thereafter bring suit against the Corporation in the Court of
Chancery in the State of Delaware or any other court of competent jurisdiction to recover the
unpaid amount of the request. It shall be a defense to any such action (other than a suit brought
to enforce a request for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that such person has not met the applicable
standard of conduct set forth in Section 8.1, but the burden of proving such defense shall be on
the Corporation, and such person shall be entitled to receive advance payment of expenses pursuant
to Section 8.4 unless and until such defense has been finally adjudicated by court order or
judgment for which no further right of appeal exists. Notice of any such suit pursuant to this
Section 8.6(b) shall be given to the Corporation promptly upon the filing of such suit. If
successful, in whole or in part, the person seeking indemnification shall also be entitled to be
paid the expense of prosecuting such suit.
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8.7 Assumption of Defense. If the Corporation is obligated to indemnify any director
or officer under this Article VIII with respect to any action, suit or proceeding against such
person, the Corporation shall be entitled to assume the defense of such action, suit or proceeding
with counsel approved by such person (which approval shall not be unreasonably withheld), upon the
delivery to such person of written notice to such effect. After the delivery of such a notice,
approval of such counsel by such person and the retention of such counsel by the Corporation, the
Corporation will not be liable to such person under this Article VIII for any fees of counsel
subsequently incurred by such person with respect to the action, suit or proceeding, unless
(a) such person and the Corporation have reasonably concluded that such counsel has a conflict of
interest between the Corporation and such person in the conduct of such defense, (b) the
Corporation ceases or terminates the retention of such counsel with respect to the defense of such
action, suit or proceeding, or (c) the retention of counsel by such person is authorized by the
Corporation. In any of such events, the fees and expenses of such persons counsel shall be at the
expense of the Corporation. At all times, any such person shall have the right to retain other
counsel in any such action, suit or proceeding at such persons expense.
8.8 Partial Indemnification. If any director or officer is entitled to
indemnification by the Corporation under this Article VIII for any portion (but not the total
amount) of any expenses (including attorneys fees), judgments, fines or amounts actually and
reasonably incurred by such person in connection with any action, suit or proceeding, the
Corporation shall nevertheless indemnify such person for such portion.
8.9 Subrogation. If the Corporation makes any payment under this Article VIII, the
Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of
the director or officer to whom such payment is made, and such person shall do all things that may
be necessary to secure such rights, including without limitation the execution of such documents
necessary to enable the Corporation effectively to bring suit to enforce such rights.
8.10 Continuing Contract Right. The right to indemnification conferred in this
Article VIII shall be a contract right. No amendment to or repeal of this Article VIII shall apply
to, or have any effect on, any right to indemnification provided hereunder with respect to any act
or omission occurring prior to such amendment or repeal.
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8.11 Non-exclusivity. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under the Certificate of
Incorporation, any Bylaw, agreement, vote of the Stockholders or disinterested
directors or otherwise, both as to action in such persons official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Section 8.1 shall be made to the fullest extent
permitted by law. To the extent that Section 145 of the DGCL or any successor thereto may be
amended or supplemented from time to time, this Article VIII shall be construed so as to permit
indemnification and advancement of expenses to the persons entitled thereto under this Article VIII
to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of or advancement of expenses to any person who is not specified in
Section 8.1 but whom the Corporation has the power or obligation to indemnify or advance expenses
to under the provisions of the DGCL or otherwise.
8.12 Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such persons status as such, whether or not the Corporation would
have the power or the obligation to indemnify such person against such liability under the
provisions of this Article VIII.
8.13 Certain Definitions. For purposes of this Article VIII, references to the
Corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such constituent corporation,
or is or was a director or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article VIII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VIII, (a) references to fines shall
include any excise taxes assessed on a person with respect to an employee benefit plan,
(b) 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 or officer with respect to an employee benefit plan, its participants or
beneficiaries, and (c) a person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner not opposed to the best interests of the Corporation as
referred to in this Article VIII.
8.14 Survival. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such a person.
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8.15 Limitations. Notwithstanding anything contained in this Article VIII to the
contrary, the Corporation shall not be obligated as follows:
(a) To indemnify any director or officer in connection with any action, suit or
proceeding (or part thereof) initiated by any person unless such action, suit or proceeding
(or part thereof) was authorized or consented to by the Board of Directors (except for suits
to enforce rights to indemnification brought in accordance with Section 8.3 or 8.6, as
applicable);
(b) To indemnify any person with respect to any action, suit or proceeding initiated by
such person to enforce rights to indemnification under this Article VIII if a court of
competent jurisdiction has determined that such action, suit or proceeding was not made in
good faith or was frivolous;
(c) To indemnify any person with respect to (i) circumstances in which indemnification
is expressly prohibited pursuant to Delaware law other applicable law or (ii) any act or
omission from which a director may not be relieved of liability pursuant to Delaware law;
(d) To indemnify any person with respect to any expense that has been paid directly to
such person by an insurance carrier under a policy of directors and officers liability
insurance maintained by the Corporation; or
(e) To indemnify any person with respect to any expense (or the payment of profits)
arising from the purchase and sale by such person of any security in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
8.16 Notices. All consents, notices, requests, demands and other communications
permitted or required under this Article VIII shall be in writing and shall be deemed duly given
(a) if delivered by hand and receipted for by the addressee, on the date of such receipt, or (b) if
mailed by domestic certified or registered mail with postage prepaid, on the third business day
after the date postmarked.
8.17 Employees and Agents. The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred in this Article VIII
to directors and officers of the Corporation.
8.18 Severability. If any word, clause or provision of this Article VIII or any
award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall
not otherwise be affected thereby but shall remain in full force and effect.
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ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
9.1 Dividends. Subject to the provisions of the Certificate of Incorporation and the
DGCL, (a) the Board of Directors may declare dividends upon the stock of the Corporation at any
regular or special meeting of the Board of Directors, and (b) dividends may be paid in cash,
property or shares of the stock of the Corporation.
9.2 Reserves. The Board of Directors may set aside out of any funds of the
Corporation legally available therefor such reserves as the Board of Directors, in its discretion,
may consider necessary, desirable or appropriate (a) to meet contingencies, (b) for equalizing
dividends, (c) for repairing or maintaining any property of the Corporation or (d) for such other
purposes as the Board of Directors may deem necessary, advisable or appropriate. The Board of
Directors may modify or abolish any such reserves in the manner in which such reserves were
created.
9.3 Books and Records. The Corporation shall keep, at the principal place of business
of the Corporation or such other office of the Corporation as the Board of Directors may deem
necessary, desirable or appropriate, correct and complete books and records of account, minutes of
the proceedings of meetings of the Stockholders, the Board of Directors and each Committee, if any,
and the names and addresses of the Stockholders.
9.4 Fiscal Year. The fiscal year of the Corporation shall be the calendar year
unless otherwise fixed by the Board of Directors.
9.5 Seal. The seal of the Corporation shall be fixed by the Board of Directors. Such
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
9.6 Amendments. The Board of Directors may amend or repeal any of these Bylaws at
any regular or special meeting of the Board of Directors. The Stockholders may amend or repeal any
of these Bylaws at any annual or special meeting of the Stockholders.
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