Attached files
file | filename |
---|---|
EX-21 - EX-21 - BEAZER HOMES USA INC | g25089exv21.htm |
EX-4.23 - EX-4.23 - BEAZER HOMES USA INC | g25089exv4w23.htm |
EX-10.19 - EX-10.19 - BEAZER HOMES USA INC | g25089exv10w19.htm |
EX-32.2 - EX-32.2 - BEAZER HOMES USA INC | g25089exv32w2.htm |
EX-31.1 - EX-31.1 - BEAZER HOMES USA INC | g25089exv31w1.htm |
EX-32.1 - EX-32.1 - BEAZER HOMES USA INC | g25089exv32w1.htm |
EX-31.2 - EX-31.2 - BEAZER HOMES USA INC | g25089exv31w2.htm |
10-K - FORM 10-K - BEAZER HOMES USA INC | g25089e10vk.htm |
EX-23 - EX-23 - BEAZER HOMES USA INC | g25089exv23.htm |
Exhibit 3.3
FOURTH AMENDED AND RESTATED BY-LAWS
OF
BEAZER HOMES USA, INC.
(a Delaware corporation)
Approved November 4, 2010
OF
BEAZER HOMES USA, INC.
(a Delaware corporation)
Approved November 4, 2010
ARTICLE I
STOCKHOLDERS
STOCKHOLDERS
SECTION 1. Annual Meetings.
(a) All meetings of the Stockholders for the election of directors shall be held in the
County of New Castle, State of Delaware, at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and stated in the notice of the meeting.
Meetings of Stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
(b) Annual meetings of Stockholders shall be held on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice of the meeting, at
which they shall elect a Board of Directors in accordance with Article I, Section 5 of these
By-Laws, and transact such other business as may properly be brought before the meeting.
(c) Written notice of the annual meeting stating the place, date, and hour of the meeting
shall be given to each Stockholder entitled to vote at such meeting not less than ten days nor
more than sixty days prior to the date of the meeting.
(d) The officer who has charge of the stock ledger of the Corporation shall prepare and make,
at least ten days before every meeting of Stockholders, a complete list of the Stockholders
entitled to vote at the meeting, 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, during
ordinary business hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any Stockholder who is present. The stock ledger shall be the only evidence as
to the Stockholders entitled to examine the stock ledger, the list required by this section or the
books of the Corporation, or to vote in person or by proxy at any meeting of Stockholders.
SECTION 2. Special Meetings.
(a) Special meetings of the Stockholders, unless otherwise prescribed by statute, may be
called by the Chairman of the Board, the President or by resolution of the Board of Directors.
Notice of each special meeting shall be given in accordance with Subsection (b) of Section 2 of
this Article I. Unless otherwise required by law, business transacted at any special meeting of
Stockholders shall be limited to the purpose stated in the notice.
(b) Written notice of a special meeting stating the place, date, and hour of the meeting and,
in general terms, the purpose or purposes for which the meeting is called, shall be given not less
than ten days nor more than sixty days prior to the date of the meeting, to each Stockholder
entitled to vote at such meeting. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive offices of the Corporation.
SECTION 3. Quorums. The holders of a majority 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 by
statute or by the Certificate of Incorporation. Where a separate vote by class or classes is
required, a majority of the outstanding shares of such class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to vote on the matter. If, however, any
such quorum shall not be present or represented at any meeting of the Stockholders, the
Stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the 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
meeting as originally notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Stockholder of record entitled to vote at the meeting. When a
quorum is once present it is not broken by the subsequent withdrawal of any Stockholder.
SECTION 4. Organization. Meetings of Stockholders shall be presided over by the Chairman, if
any, or if none or in the Chairmans absence the President, if any, or if none or in the
Presidents absence, by a Chairman to be chosen by the Stockholders entitled to vote who are
present in person or by proxy at the meeting. The Secretary of the Corporation, or in the
Secretarys absence an Assistant Secretary, shall act as Secretary of every meeting, but if
neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting
shall appoint any person present to act as Secretary of the meeting.
SECTION 5. Voting; Proxies; Required Vote.
(a) At each meeting of Stockholders, every Stockholder shall be entitled to vote in person or
by proxy appointed by an instrument in writing, subscribed by such Stockholder or by such
Stockholders duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period), and, unless the
Certificate of Incorporation provides otherwise, shall have one vote for each share of stock
entitled to vote registered in the name of such Stockholder on the books of the Corporation on the
applicable record date fixed pursuant to these By-Laws. At all elections of directors the voting
may but need not be by ballot and, when a quorum is present, each director shall be elected if the
votes cast for such director exceed the votes cast against such director; provided, however, that
directors shall be elected by the affirmative vote of holders of a plurality of the stock present
in person or represented by proxy and entitled to vote on such election in connection with any
Contested Election, as defined herein. For purposes of this Section 5, a Contested Election is
any election of directors in connection with which (a)(i) the Secretary of the Corporation
receives notice, in compliance with the advance notice requirements for Stockholder nominees for
director set forth in Article II, Section 14 of these By-Laws, that a Stockholder has nominated
one or more persons to compete with the persons nominated by the Board of Directors for election
to the Board of Directors and (ii) such nomination has not been withdrawn by such Stockholder on
or prior to the fifth day preceding the date the Corporation first mails its notice of meeting for
such meeting to the Stockholders or (b) one or more directors has been presented for election by a
Stockholder or Stockholders pursuant to a solicitation of written consents pursuant to Section
5(b) of this Article I. If directors are to be elected by a plurality of the votes cast,
Stockholders shall not be permitted to vote
2
against a nominee. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by proxy shall decide
any question brought before such meeting, unless the question is one on which by express provision
of applicable law (including the General Corporation Law of the State of Delaware), the
Certificate of Incorporation or these By-laws, a different vote is required in which case such
express provision shall govern and control the decision of such question.
(b) Any action required or permitted to be taken at any meeting of Stockholders may, except
as otherwise required by law or the Certificate of Incorporation, be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and the writing or writings are filed with the permanent records
of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those Stockholders who have not consented in writing.
(c) Where a separate vote by a class or classes is required, the affirmative vote of the
majority of shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class, unless otherwise provided by the General Corporation Law
of the State of Delaware or in the Corporations Certificate of Incorporation.
(d) Any vote of Stockholders required by Section 14A of the Securities Exchange Act of 1934
with respect to providing alternatives in establishing the frequency of Stockholder vote on
non-binding resolutions regarding the Corporations executive compensation program shall be
decided by a plurality vote.
SECTION 6. Inspector of Election. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or any adjournment
thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting
may, but need not, appoint one or more inspectors. In case any person who may be appointed as an
inspector fails to appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors, if any, shall determine the number of shares
of stock outstanding and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, and the validity and effect of proxies, and shall receive votes,
ballots or consents, hear and determine all challenges and questions arising in connection with
the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do
such acts as are proper to conduct the election or vote with fairness to all Stockholders. On
request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a
report in writing of any challenge, question or matter determined by such inspector or inspectors
and execute a certificate of any fact found by such inspector or inspectors.
SECTION 7. Notice of Stockholder Business.
(a) At an annual meeting of the Stockholders, only such business shall be conducted as shall
have been brought before the meeting (i) pursuant to the Corporations notice of meeting; (ii) by
or at the direction of the Board of Directors; or (iii) by any Stockholder of the Corporation who
is a Stockholder of record at the time of giving of the notice provided for in this Section 7, who
shall be entitled to vote at such meeting and who complies with the notice procedures set forth in
this Section 7.
3
(b) For business to be properly brought before an annual meeting by a Stockholder pursuant to
clause (a) (iii) of this Section 7, the Stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a Stockholders notice must be
delivered to or mailed and received at the principal executive offices of the Corporation not less
than 120 days nor more than 150 days prior to the first anniversary of the date of the Companys
notice of annual meeting for the preceding years annual meeting; provided, however, that in the
event that the date of the meeting is changed by more than 30 days from the anniversary date of
the preceding years annual meeting, notice by the Stockholder to be timely must be received no
later than the close of business on the 10th day following the earlier of the day on which notice
of the date of the meeting was mailed or public disclosure was made.
(c) A Stockholders notice to the Secretary shall set forth as to each matter the Stockholder
proposes to bring before the meeting the following information and documents, as applicable, (i) a
brief description of the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting; (ii) the name and address, as they appear on the
Corporations books, of the Stockholder proposing such business, and the name and address of the
Beneficial Owner (as defined in Section 7(e)), if any, on whose behalf the proposal is made; (iii)
the class and number of shares of the Corporation which are Beneficially Owned and/or owned of
record by such Stockholder of record and/or by the Beneficial Owner, if any, on whose behalf the
proposal is made; (iv) any material interest of such Stockholder of record and the Beneficial
Owner, if any, on whose behalf such Stockholder is acting in the action being taken (Other
Interests); (v) the name of each individual, firm, corporation, limited liability company,
partnership, trust or other entity (including any successor thereto, a Person) with whom any
such Stockholder, Beneficial Owner, related Stockholder Nominee (as defined in Article II, Section
14(c)), if any, their respective affiliates and associates (each as defined under Regulation 12B
under the Securities Exchange Act of 1934, as amended (the Exchange Act)) (Affiliates and
Associates, respectively), or any successor provision thereto) (each of the foregoing, a
Stockholder Group Member) and each other Person with whom any Stockholder Group Member is acting
in concert with respect to the Corporation (each Stockholder Group Member and each other Person
described in this clause (v), with respect to any Stockholder and including such Stockholder, a
Covered Person) has any agreement, arrangement or understanding (whether written or oral) for
the purpose of acquiring, holding, voting (except pursuant to a revocable proxy given to such
Person in response to a public proxy solicitation made generally by such Person to all holders of
stock of any class or series entitled to vote generally in the election of directors (Voting
Stock)) or disposing of any Voting Stock or to cooperate in obtaining, changing or influencing
the control of the Corporation (except independent financial, legal and other advisors acting in
the ordinary course of their respective businesses), and a description of each such agreement,
arrangement or understanding (whether written or oral); (vi) a list of (A) the class or series and
number of shares of Voting Stock that are Beneficially Owned or owned of record by each Covered
Person, together with documentary evidence of such record or Beneficial Ownership, and (B) each
debt security or other debt obligation of the Corporation or any of its subsidiaries (Debt
Obligations) that is Beneficially Owned or owned of record by each Covered Person, together with
documentary evidence of such record or Beneficial Ownership; (vii) a list of (A) all of the
derivative securities (as defined under Rule 16a-1 under the Exchange Act) and other derivatives
or similar agreements or arrangements with an exercise or conversion privilege or a periodic or
settlement payment or payments or mechanism at a price or in an amount or amounts related to any
security of the Corporation or to any Debt Obligation or with a value derived or calculated in
whole or in part from the value of any security of the Corporation or any Debt Obligation, in each
case, directly or indirectly owned of record or Beneficially Owned by any Covered Person and (B)
each other direct or indirect opportunity of any Covered Person to profit or share in any profit
derived
from any increase or decrease in the value of any security of the Corporation or any Debt
Obligation, in each case, regardless of whether (1) such interest conveys any voting rights in
such security or Debt Obligation to such Covered Person, (2) such interest is required to be, or
is capable of being, settled through delivery of such
4
security or Debt Obligation or (3) such Covered Person may have entered into other
transactions that hedge the economic effect of such interest (any interest described in subclause
(A) or (B) of this clause (vii) being a Derivative Interest); (viii) a description of each
agreement, arrangement or understanding (whether written or oral) with the effect or intent of
increasing or decreasing the voting power of, or that contemplates any Person voting together
with, any Covered Person with respect to any matter subject to a vote of Stockholders (Voting
Arrangements); (ix) a description of all economic terms of all such Derivative Interests, Voting
Arrangements and Other Interests and copies of all agreements and other documents (including but
not limited to master agreements, confirmations and all ancillary documents and the names and
details of the counterparties to, and brokers involved in, all such transactions) relating to each
such Derivative Interest, Voting Arrangement and Other Interest; and (x) a list of all
transactions by each Covered Person involving any Voting Stock, Debt Obligations or any Derivative
Interests, Voting Arrangements or Other Interests within 3 months prior to the date of such
notice. A notice delivered by or on behalf of any Stockholder under this Section 7(c) shall be
deemed to be not in compliance with this Section 7 and not effective if (x) such notice does not
include all of the information and documents required under this Section 7(c) or (y) after
delivery of such notice, any information or document required to be included in such notice
changes or is amended, modified or supplemented, as applicable, prior to the date of the relevant
meeting and such information and/or document is not delivered to the Corporation by way of a
further written notice as promptly as practicable following the event causing such change in
information or amendment, modification or supplement, as applicable, and in any case where such
event occurs within 45 days of the date of the relevant meeting, within five business days after
such event; provided, however, that the Board of Directors shall have the authority to waive any
such non-compliance if the Board of Directors determines that such action is appropriate in the
exercise of its fiduciary duties. The foregoing notice requirements of this Section 7(c) shall be
deemed satisfied by a Stockholder if the Stockholder has notified the Corporation of such
Stockholders intention to present a 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.
(d) Notwithstanding anything in these By-laws to the contrary, no business shall be conducted
at an annual meeting except in accordance with the procedures and other requirements set forth in
this Section 7. The Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the meeting and in accordance with the
procedures and requirements prescribed by these By-laws, and if he should so determine, he shall
so declare to the meeting and such business shall not be transacted. Notwithstanding the foregoing
provisions of this Section 7, 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 Section 7. Notwithstanding the foregoing provisions of this Section 7, unless otherwise
required by applicable law, if the Stockholder (or a Qualified Representative of the Stockholder)
does not appear at the annual or special meeting of Stockholders to present a proposed business
previously put forward by or on behalf of such Stockholder or, immediately prior to the
commencement of such meeting, such Stockholder does not provide a written certification to the
Corporation on and as of the date of the applicable meeting that such Stockholder and each Covered
Person, if any, is then in compliance with Section 7, then 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 these By-Laws, a Qualified Representative of a Stockholder shall
mean a Person that is a duly authorized officer, manager or partner of such Stockholder or a
Person authorized by a writing executed by such Stockholder and each Covered Person, if any, or by
an electronic transmission delivered by such Stockholder and each Covered Person, if any, to act
for such Stockholder and each Covered Person, if any, as proxy at the meeting of Stockholders and
to provide such certification on behalf of the Stockholder and each Person required pursuant to
this Section 7(d), which Person produces such writing or electronic transmission, or a reliable
reproduction of the writing or electronic transmission, at the meeting of Stockholders.
5
(e) A Person shall be deemed the Beneficial Owner of, shall be deemed to Beneficially Own
and shall be deemed to have Beneficial Ownership of, any Voting Stock or Debt Obligation (i)
that such Person or any of such Persons Affiliates or Associates is deemed to beneficially own
within the meaning of Section 13(d) of, and Regulation 13D under, the Exchange Act or any
successor provision thereto (with each reference to security in Rule 13d-3 under the Exchange
Act being deemed to include Debt Obligations), or (ii) that is the subject of, or the reference
security for or that underlies any Derivative Interest of such Person or any of such Persons
Affiliates or Associates, with the number of shares of Voting Stock (or amount of Debt
Obligations) deemed Beneficially Owned being the notional or other number of shares of Voting
Stock (or amount of Debt Obligations) specified in the documentation evidencing the Derivative
Interest as being subject to be acquired upon the exercise or settlement of the Derivative
Interest or as the basis upon which the value or settlement amount of such Derivative Interest is
to be calculated in whole or in part or, if no such number of shares of Voting Stock (or amount of
Debt Obligations) is specified in such documentation, as determined by the Board of Directors in
good faith to be the number of shares of Voting Stock (or amount of Debt Obligations) to which the
Derivative Interest relates. When two or more Persons act as a partnership, limited partnership,
syndicate, or other group, or otherwise act in concert, in each case, for the purpose of
acquiring, holding, or disposing of securities of the Corporation (or Debt Obligations) or for the
purpose of proposing one or more Stockholder Nominees, putting forward any other proposal for
consideration or voting together on any matter presented at a Stockholders meeting, such syndicate
or group shall be deemed a Person for the purpose of this Section 7(e). In addition, any Person
who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any contract, arrangement, or device with the purpose or effect of divesting such
Person of Beneficial Ownership of any Voting Stock or any Debt Obligation or preventing the
vesting of such Beneficial Ownership as part of a plan or scheme to evade the notice procedures
and requirements of these By-Laws shall be deemed for the purposes of these By-Laws to be the
Beneficial Owner of such Voting Stock or Debt Obligation
SECTION 8. Stockholder Request For Action By Written Consent. Any Stockholder of record
seeking to have the Stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record date in accordance
with Section 3(b) of Article VI hereof. The Board of Directors shall promptly, but in all events
within ten days after the date on which such a request is received, adopt a resolution fixing the
record date (unless a record date has previously been fixed by the Board of Directors pursuant to
Section 3(b) of Article VI hereof). If no record date has been fixed by the Board of Directors
within such ten-day period, the record date shall be determined in accordance with the provisions
of Section 3(b) of Article VI hereof.
ARTICLE II
BOARD OF DIRECTORS
BOARD OF DIRECTORS
SECTION 1. General Powers. The business, property and affairs of the Corporation shall be
managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration.
(a) Each director shall be at least 18 years of age. A director need not be a Stockholder, a
citizen of the United States, or a resident of the State of Delaware. The number of directors
constituting the entire Board shall be one or such other number as may be fixed from time to time
by the Board of Directors. One of the directors may be selected by the Board of Directors to be
its Chairman, who shall preside at meetings of the Stockholders and the Board of Directors and
shall have such other powers and duties, if any, as may from time to time be assigned by the Board
of Directors. In the absence of formal selection, the President of the Corporation shall serve as
Chairman. The use of the phrase entire Board
6
herein refers to the total number of directors which the Corporation would have if there were
no vacancies.
(b) Directors who are elected at an annual meeting of Stockholders, and directors who are
elected in the interim to fill vacancies and newly created directorships, shall hold office until
the next annual meeting of Stockholders and until their successors are elected and qualified or
until their earlier resignation or removal.
(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary for serving as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing Committees may be allowed like compensation for attending Committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a majority of
the entire Board of Directors shall constitute a quorum. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting from time to time to another time and
place without notice. The vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of Directors may be held at any place
within or without the State of Delaware, as may from time to time be fixed by resolution of the
Board of Directors, or as may be specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of Stockholders, the newly elected
Board of Directors shall meet for the purpose of the election of officers and the transaction of
such other business as may properly come before the meeting. Such meeting may be held without
notice immediately after the annual meeting of Stockholders at the same place at which such
Stockholders meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of Directors shall be held at such
times and places as the Board of Directors shall from time to time by resolution determine.
SECTION 7. Special Meetings. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board, President, or by a majority of the directors then in
office.
SECTION 8. Notice of Meetings. A notice of the place, date and time and the purpose or
purposes of each meeting of the Board of Directors shall be given to each director by mailing the
same at least two days before the meeting, or by telephoning or faxing the same or by delivering
the same personally not later than the day before the day of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors, the Chairman or in the
Chairmans absence or inability to act, the President, or in the Presidents absence, a Chairman
chosen by the directors, shall preside. The Secretary of the Corporation or an Assistant Secretary
of the Corporation as determined by the Secretary of the Corporation shall act as secretary at all
meetings of the Board of Directors when present, and, in the Secretarys or Assistant Secretarys
absence, the presiding officer may appoint any person to act as Secretary.
SECTION 10. Resignation. Any director may resign at any time upon written notice to the
Corporation and such resignation shall take effect upon receipt thereof by the President or
Secretary, unless otherwise specified in the resignation. Any or all of the directors may be
removed, with or
7
without cause, by the holders of a majority of the shares of stock outstanding and entitled
to vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-Laws, vacancies on the Board of
Directors, whether caused by resignation, death, disqualification, removal, an increase in the
authorized number of directors or otherwise, may be filled by the affirmative vote of a majority
of the remaining directors, although less than a quorum, or by a sole remaining director, or at a
special meeting of the Stockholders, by vote of the Stockholders required for the election of
directors generally.
SECTION 12. Action by Written Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if all the directors consent
thereto in writing, and the writing or writings are filed with the minutes of proceedings of the
Board of Directors.
SECTION 13. Electronic Communication. Any member or members of the Board of Directors may
participate in a meeting of the Board by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear and speak to each
other.
SECTION 14. Nomination of Directors.
(a) Only persons who are nominated in accordance with the procedures and other requirements
set forth in these By-laws shall be eligible to serve as directors. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a meeting of Stockholders (i)
by or at the direction of the Board of Directors or (ii) by any Stockholder of the Corporation who
is a Stockholder of record at the time of giving of notice provided for in Section 14(c) below,
who shall be entitled to vote for the election of directors at the meeting and who complies with
the notice procedures set forth in this Section 14.
(b) Nominations by Stockholders shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a Stockholders notice shall be delivered to or mailed
and received at the principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than 120 days nor more than 150 days prior to the first anniversary of the date
of the Companys notice of annual meeting for the preceding years annual meeting; provided
however, that in the event that the date of the annual meeting is changed by more than 30 days
from the anniversary date of the preceding years annual meeting, notice by the Stockholder to be
timely must be so received not later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was mailed or public disclosure was
made and (ii) in the case of a special meeting at which directors are to be elected, not later
than the close of business on the 10th day following the earlier of the day on which notice of the
date of the meeting was mailed or public disclosure was made.
(c) Such Stockholders notice shall set forth and include the following information and/or
documents, as applicable, (i) as to each person whom the Stockholder proposes to nominate for
election or reelection as a director (a Stockholder Nominee) (x) 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 Regulation 14A under the Exchange
Act (including such persons written consent to being named in the proxy statement as a nominee
and to serving as a director if elected) and (y) a statement whether such person, if elected,
intends to tender, promptly following such persons election or re-election, an irrevocable
resignation effective only upon (A) such persons failure to receive the required vote for
re-election at the next meeting at which such person would face re-election and (B) acceptance of
such resignation by the Board of Directors; (ii) as to the Stockholder giving the notice (x) the
name and address, as they appear on the Corporations books, of such Stockholder, (y) the class
and number of shares of the Corporation which are Beneficially Owned by such Stockholder and also
8
which are owned of record by such Stockholder; (iii) as to the Beneficial Owner, if any, on whose
behalf the nomination is made, (x) the name and address of such person, and (y) the class and
number of shares of the Corporation which are Beneficially Owned by such person; (iv) the name of
each Covered Person, and a description of each agreement, arrangement or understanding (whether
written or oral) of any Covered Person for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy given to such Person in response to a public proxy solicitation made
generally by such Person to all holders of Voting Stock) or disposing of any Voting Stock or to
cooperate in obtaining, changing or influencing the control of the Corporation (except independent
financial, legal and other advisors acting in the ordinary course of their respective businesses);
(v) a list of (A) the class or series and number of shares of Voting Stock that are Beneficially
Owned or owned of record by each Covered Person, together with documentary evidence of such record
or Beneficial Ownership, and (B) each Debt Obligation that is Beneficially Owned or owned of
record by each Covered Person, together with documentary evidence of such record or Beneficial
Ownership; (vi) a list of all Derivative Interests of any Covered Person; (vii) a description of
all Voting Arrangements of any Covered Person; (viii) all Other Interests; (ix) a description of
all economic terms of all such Derivative Interests, Voting Arrangements and Other Interests and
copies of all agreements and other documents (including but not limited to master agreements,
confirmations and all ancillary documents and the names and details of the counterparties to, and
brokers involved in, all such transactions) relating to each such Derivative Interest, Voting
Arrangement and Other Interest; and (x) a list of all transactions by each Covered Person
involving any Voting Stock, any Debt Obligations or any Derivative Interests, Voting Arrangements
or Other Interests within 3 months prior to the date of such notice. A notice delivered by or on
behalf of any Stockholder under this Section 14(c) shall be deemed to be not in compliance with
this Section 14 and not effective if (x) such notice does not include all of the information and
documents required under this Section 14(c) or (y) after delivery of such notice, any information
or document required to be included in such notice changes or is amended, modified or
supplemented, as applicable, prior to the date of the relevant meeting and such information and/or
document is not delivered to the Corporation by way of a further written notice as promptly as
practicable following the event causing such change in information or amendment, modification or
supplement, as applicable, and in any case where such event occurs within 45 days of the date of
the relevant meeting, within five business days after such event; provided, however, that the
Board of Directors shall have the authority to waive any such non-compliance if the Board
determines that such action is appropriate in the exercise of its fiduciary duties. At the request
of the Board of Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information required to be set
forth in a Stockholders notice of nomination which pertains to the nominee.
(d) No person shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures and other requirements set forth in this Section 14. The Chairman
of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination
was not made in accordance with the procedures and requirements prescribed by these By-laws, and
if he should so determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section 14, 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 Section 14. Notwithstanding the
foregoing provisions of this Section 14, unless otherwise required by applicable law, if the
Stockholder (or a Qualified Representative of the Stockholder) does not appear at the annual or
special meeting of Stockholders to present a nomination previously put forward by or on behalf of
such Stockholder or, immediately prior to the commencement of such meeting, such Stockholder does
not provide a written certification to the Corporation on and as of the date of the applicable
meeting that such Stockholder and each Covered Person, if any, is then in compliance with Section
14, then such nomination shall be disregarded, notwithstanding that proxies in respect of such
vote may have been received by the Corporation.
9
ARTICLE III
COMMITTEES
COMMITTEES
SECTION 1. Appointment. The Board of Directors may, by resolution passed by a majority of the
whole board, designate one or more Committees, each Committee to consist of two 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 the Committee. Any such Committee, to the extent provided in the resolution, 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. Such Committee or Committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 2. Procedures; Quorum and Manner of Acting. Each Committee shall fix its own rules of
procedure, and shall meet where and as provided by such rules or by resolution of the Board of
Directors. Except as otherwise provided by law, the presence of a majority of the then appointed
members of a Committee shall constitute a quorum for the transaction of business by that
Committee, and in every case where a quorum is present the affirmative vote of a majority of the
members of the Committee present shall be the act of the Committee. Each Committee shall keep
minutes of its proceedings, and actions taken by a Committee shall be reported to the Board of
Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be taken at any
meeting of any Committee of the Board of Directors may be taken without a meeting if all the
members of the Committee consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Committee.
SECTION 4. Electronic Communication. Any member or members of a Committee of the Board of
Directors may participate in a meeting of a Committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear and
speak to each other.
SECTION 5. Termination. In the event any person shall cease to be a director of the
Corporation, such person shall simultaneously therewith cease to be a member of any Committee
appointed by the Board of Directors.
ARTICLE IV
OFFICERS
OFFICERS
SECTION 1. Election and Qualifications. The Board of Directors at its first meeting held
after each annual meeting of Stockholders shall elect the officers of the Corporation, which shall
include a President and a Secretary, and may include, by election or appointment, one or more
Vice-Presidents (any one or more of whom may be given an additional designation of rank or
function), a Treasurer and such Assistant Secretaries, such Assistant Treasurers, and such other
officers as the Board of Directors may from time to time deem proper. Each officer shall have such
powers and duties as may be prescribed by these By-Laws and as may be assigned by the Board of
Directors or the President. Any two or more offices may be held by the same person.
SECTION 2. Term of Office and Remuneration. The term of office of all officers shall be one
year and until their respective successors have been elected and qualified, but any officer may be
removed from office, either with or without cause, at any time by the Board of Directors. Any
vacancy in any office arising from any cause may be filled for the unexpired portion of the term
by the Board of
10
Directors. The remuneration of all officers of the Corporation may be fixed by the Board of
Directors or in such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time upon written notice to
the Corporation and such resignation shall take effect upon receipt thereof by the President or
Secretary, unless otherwise specified in the resignation. Any officer shall be subject to removal,
with or without cause, at any time by the Board of Directors.
SECTION 4. Powers and Duties of Officers.
(a) The President shall be the chief executive officer of the Corporation and, in the absence
of the Chairman or if there is no Chairman, shall preside at all meetings of the Stockholders and
of the Board of Directors. The President shall have general management of and supervisory
authority over the property, business and affairs of the Corporation and its other officers. The
President may execute and deliver in the name of the Corporation powers of attorney, contracts,
bonds and other obligations and instruments, and shall have such other authority and perform such
other duties as from time to time may be assigned by the Board of Directors. The President shall
see that all orders and resolutions of the Board of Directors are carried into effect and shall
perform such additional duties that usually pertain to this office.
(b) A Vice President may execute and deliver in the name of the Corporation powers of
attorney, contracts, bonds and other obligations and instruments pertaining to the regular course
of such Vice Presidents duties, and shall have such other authority and perform such other duties
as from time to time may be assigned by the Board of Directors or the President.
(c) The Treasurer shall in general have all duties and authority incident to the position of
Treasurer and such other duties and authority as may be assigned by the Board of Directors or the
President. The Treasurer shall keep full and accurate accounts of receipts and disbursement in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by or at the
direction of the Board of Directors. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors or the President, and shall render, upon request, an
account of all such transactions.
(d) The Secretary shall in general have all the duties and authority incident to the position
of Secretary and such other duties and authority as may be assigned by the Board of Directors or
the President. The Secretary shall attend all meetings of the Board of Directors and all meetings
of Stockholders and record all the proceedings thereat in a book or books to be kept for that
purpose. The Secretary shall give, or cause to be given, notice of all meetings of the
Stockholders and special meetings of the Board of Directors. The Secretary shall have custody of
the seal of the Corporation and any officer of the Corporation shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by the signature of
the Secretary or any other officer. The Secretary shall be permitted to delegate these duties to
an Assistant Secretary as the Secretary deems appropriate from time to time.
(e) Any assistant officer shall have such duties and authority as the officer such assistant
officer assists and, in addition, such other duties and authority as the Board of Directors or
President shall from time to time assign.
11
ARTICLE V
CONTRACTS, ETC.
CONTRACTS, ETC.
SECTION 1. Contracts. The Board of Directors may authorize any person or persons, in the name
and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority may be general or
confined to specific instances.
SECTION 2. Proxies; Powers of Attorney; Other Instruments.
(a) The Chairman, the President, any Vice President, the Treasurer or any other person
designated by any of them shall have the power and authority to execute and deliver proxies,
powers of attorney and other instruments on behalf of the Corporation in connection with the
execution of contracts, the purchase of real or personal property, the rights and powers incident
to the ownership of stock by the Corporation and such other situations as the Chairman, the
President, such Vice President or the Treasurer shall approve, such approval to be conclusively
evidenced by the execution of such proxy, power of attorney or other instrument on behalf of the
Corporation.
(b) The Chairman, the President, any Vice President, the Treasurer or any other person
authorized by proxy or power of attorney executed and delivered by any of them on behalf of the
Corporation may attend and vote at any meeting of stockholders of any company in which the
Corporation may hold stock, and may exercise on behalf of the Corporation any and all of the
rights and powers incident to the ownership of such stock at any such meeting, or otherwise as
specified in the proxy or power of attorney so authorizing any such person. The Board of
Directors, from time to time, may confer like powers upon any other person.
ARTICLE VI
BOOKS AND RECORDS
BOOKS AND RECORDS
SECTION 1. Location. The books and records of the Corporation may be kept at such place or
places within or outside the State of Delaware as the Board of Directors or the respective
officers in charge thereof may from time to time determine. The record books containing the names
and addresses of all Stockholders, the number and class of shares of stock held by each and the
dates when they respectively became the owners of record thereof shall be kept by the Secretary as
prescribed in the By-Laws or by such officer or agent as shall be designated by the Board of
Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other corporate notices may
be delivered personally or mailed to each Stockholder at the Stockholders address as it appears
on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the Stockholders entitled to notice of or to
vote at any meeting of Stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which record date shall not be more than
sixty days nor less than ten days before the date of such meeting. If no record date is fixed by
the Board of Directors, the record date for determining Stockholders entitled to notice of or to
vote at a meeting of Stockholders shall be 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
12
adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the Stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which date shall not be more than ten days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. If no record date has
been fixed by the Board of Directors, the record date for determining Stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of Stockholders are
recorded. Delivery made to the Corporations registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the record date for
determining Stockholders entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
(c) 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 the Stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action not contemplated by paragraph (a) or (b) of this Section 3, the Board
of Directors may fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted and which record date shall be not more than sixty
days prior to such action. If no record date is fixed, the record date for determining
Stockholders for any such purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
ARTICLE VII
CERTIFICATES REPRESENTING STOCK
CERTIFICATES REPRESENTING STOCK
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors of the Corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution
by the Board of Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the
name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, or the
President or Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary of the Corporation, representing the number of shares registered in
certificate form. Any and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of issue, shall be entered
on the books of the Corporation. The Board of Directors shall have power and authority to make all
such rules and regulations as it may deem expedient concerning the issue, transfer and
registration of certificates representing shares of the Corporation.
13
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, shares of capital stock shall be transferable
on the books of the Corporation only by the holder of record thereof in person, or by duly
authorized attorney, upon surrender and cancellation of certificates for a like number of shares,
properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be required to, issue
certificates for fractions of a share where necessary to effect authorized transactions, or the
Corporation may pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or it may issue scrip in registered or bearer
form over the manual or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to
any rights of a Stockholder except as therein provided.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a new
certificate of stock in place of any certificate, theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VIII
DIVIDENDS
DIVIDENDS
Subject to the provisions of applicable law and the Certificate of Incorporation, the Board of
Directors shall have full power to determine whether any, and, if any, what part of any, funds
legally available for the payment of dividends shall be declared as dividends and paid to
Stockholders; the division of the whole or any part of such funds of the Corporation shall rest
wholly within the lawful discretion of the Board of Directors, and it shall not be required at any
time, against such discretion, to divide or pay any part of such funds among or to the Stockholders
as dividends or otherwise; and before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such
reserve. Stockholders shall receive dividends pro rata in proportion to the number of shares of
Common Stock respectively held by them. A holder of Common Stock shall be deemed to share pro rata
in all dividends declared by the Board of Directors within the meaning of the preceding sentence if
such Stockholder receives assets (whether consisting of cash, securities, real property, equipment,
inventory or other assets) the fair market value of which is in the same proportion to the fair
market value of the total assets of the Corporation distributed as a dividend as the number of
shares of Common Stock held by such holder of Common Stock is to the total number of issued and
outstanding shares of Common Stock of the Corporation. A Stockholder shall not have the right to
receive a pro rata share of each or any such asset distributed as a dividend, however, the
Corporation shall not be prohibited hereby from making a pro rata distribution of each or any such
asset available for distribution as a dividend. The fair market value of any and all assets of the
Corporation distributed as a dividend shall be determined in the sole discretion of the
Corporations Board of Directors.
ARTICLE IX
RATIFICATION
RATIFICATION
Any transaction, questioned in any lawsuit on the ground of lack of authority, defective or
irregular execution, adverse interest of any director, officer or Stockholder, non disclosure,
14
miscomputation, or the application of improper principles or practices of accounting, may be
ratified before or after judgment, by the Board of Directors or by the Stockholders, as
appropriate, and if so ratified shall have the same force and effect as if the questioned
transaction had been originally duly authorized. Such ratification shall be binding upon the
Corporation and its Stockholders and shall constitute a bar to any claim or execution of any
judgment in respect of such questioned transaction.
ARTICLE X
CORPORATE SEAL
CORPORATE SEAL
The corporate seal shall contain the words Corporate Seal and such additional information as
the officer inscribing such seal shall determine in such officers sole discretion. The corporate
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise displayed or it may be manually inscribed.
ARTICLE XI
FISCAL YEAR
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the
Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the
Corporation shall end on September 30.
ARTICLE XII
WAIVER OF NOTICE
WAIVER OF NOTICE
Whenever notice is required to be given by these By-Laws or by the Certificate of
Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
AMENDMENTS
AMENDMENTS
The Board of Directors shall have power to adopt, amend or repeal By-Laws. By-Laws adopted by
the Board of Directors may be repealed or changed, and new By-Laws made, by the Stockholders, and
the Stockholders may prescribe that any By-Law made by them shall not be altered, amended or
repealed by the Board of Directors.
ARTICLE XIV
INDEMNIFICATION
INDEMNIFICATION
SECTION 1. Power to Indemnify in Action, Suits or Proceedings. The Corporation shall
indemnify and hold harmless to the fullest extent authorized by Delaware law, as the same exists
or may hereinafter be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), or by other applicable law as then
in effect, any person who was or is a party to or is threatened to be made a party to or is
involved in (including, without limitation, as a witness) any proceeding, by reason of the fact
that he or she, or a person for whom he or she is the legal representative, is an Eligible Person
(hereinafter, an Indemnitee), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee, agent or manager or in any other capacity
while serving as a director, officer, employee, agent or manager, against all expense, liability
and loss (including attorneys and other professionals fees, judgments, fines, ERISA taxes or
penalties
15
and amounts to be paid in settlement) actually and reasonably incurred or suffered by such
person in connection therewith.
SECTION 2. Expenses Payable In Advance. To the fullest extent authorized by Delaware law, the
Corporation shall, from time to time, advance (or if previously paid by the Class 1 Indemnitee,
reimburse) to any Class 1 Indemnitee funds sufficient for the payment of all expenses (including
attorneys and other professionals fees and disbursements and court costs) actually and
reasonably incurred by such Class 1 Indemnitee in connection with the investigation of, response
to, defense (including any appeal) of or settlement of any proceeding, in the case of each such
proceeding upon receipt of an undertaking by or on behalf of such Class 1 Indemnitee to repay such
amount if it shall ultimately be determined that such Class 1 Indemnitee is not entitled to be
indemnified by the Corporation against such expenses. No collateral securing or other assurance of
performance of such undertaking shall be required of such Class 1 Indemnitee by the Corporation.
SECTION 3. Indemnification and Advancement of Expenses to Certain Other Persons. The
Corporation may, by action of its Board of Directors, from time to time grant rights to
advancement of expenses to any Indemnitee who is not a Class 1 Indemnitee and rights to
indemnification and advancement of expenses to any agents of the Corporation with the same scope
and effect as the provisions of this Article with respect to the indemnification of and
advancement of expenses to Class 1 Indemnitees. By resolution adopted by affirmative vote of a
majority of the Board of Directors, the Board of Directors may delegate to the appropriate
officers of the Corporation the decision to grant from time to time rights to advancement of
expenses to any Indemnitee who is not a Class 1 Indemnitee and rights to indemnification and
advancement of expenses to any agents of the Corporation pursuant to this Section 3.
SECTION 4. Exclusion of Claims Against the Corporation. No Indemnitee shall be entitled to
any advance or reimbursement by the Corporation of expenses, or to indemnification from or to be
held harmless by the Corporation against expenses, incurred by him or her in asserting any claim
or commencing or prosecuting any suit, action or proceeding (or part thereof) against the
Corporation (except as provided in Section 5 of this Article) or any subsidiary of the Corporation
or any current or former director, officer, employee or agent of the Corporation or of any
subsidiary of the Corporation, but such advancement (or reimbursement) and indemnification and
hold harmless rights may be provided by the Corporation in any specific instance as permitted by
Sections 7 or 9 of this Article, or in any specific instance in which the Board of Directors shall
first authorize the commencement or prosecution of such a suit, action or proceeding (or part
thereof) or the assertion of such a claim.
SECTION 5. Indemnification By A Court. Notwithstanding Section 4 of this Article, if a claim
under Section 1 of this Article XIV is not paid in full by the Corporation within forty (40) days
after a written claim has been received by the Corporation or if a claim under Section 2 of this
Article XIV is not paid in full by the Corporation within ten (10) days after a written claim has
been received by the Corporation, an Indemnitee or Class 1 Indemnitee (as appropriate) may at any
time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and,
to the extent successful in whole or in part, the Indemnitee or Class 1 Indemnitee (as
appropriate) shall be entitled to be paid also the expense of prosecuting such suit. The
Indemnitee or Class 1 Indemnitee (as appropriate) shall be presumed to be entitled to
indemnification and advancement of expenses under this Article XIV upon submission of a written
claim (and, in an action brought to enforce a claim for an advancement of expenses where the
required undertaking, if any is required, has been tendered to the Corporation), and thereafter
the Corporation shall have the burden of proof to overcome the presumption that the Indemnitee or
Class 1 Indemnitee (as appropriate) is not so entitled. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the Indemnitee is
16
proper in the circumstances nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) that the Indemnitee is not
entitled to indemnification shall be a defense to the suit or create a presumption that the
Indemnitee is not so entitled. The rights to indemnification and advancement (or reimbursement) of
expenses provided by, or granted pursuant to, this Article shall be enforceable by any person
entitled to such indemnification or advancement (or reimbursement) of expenses in any court of
competent jurisdiction. Notice of any application to a court by an Indemnitee pursuant to this
Section 5 shall be given to the Corporation promptly upon the filing of such application;
provided, however, that such notice shall not be a requirement for an award of or
a determination of entitlement to indemnification or advancement (or reimbursement) of expenses.
SECTION 6. Certain Definitions. For purposes of this Article XIV, a proceeding means any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative. For purposes of this Article XIV, an Eligible Person is any
person who is or was a director, officer, or employee of the Corporation or, while a director,
officer, or employee of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee, agent or manager of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise or nonprofit entity, including service
with respect to an employee benefit plan. For purposes of this Article XIV, a Class 1 Indemnitee
is any Indemnitee who serves or served as a director or executive officer of the Corporation (such
executive officers to be designated from time to time by the Board of Directors, subject to the
limitations in Sections 7 and 8 of this Article XIV) on or after June 30, 2008.
SECTION 7. Non-Exclusivity and Survival of Indemnification. The rights to indemnification and
to the advancement of expenses provided by or granted pursuant to this Article XIV shall be deemed
independent of, and shall not be deemed exclusive of or a limitation on, any other rights to which
any person seeking indemnification or advancement of expenses may be entitled or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law, agreement, vote of
Stockholders or of disinterested directors or otherwise, both as to such persons official
capacity and as to action in another capacity while holding such office, it being the intent of
the Corporation that indemnification of Indemnitees and advancement of expenses to Class 1
Indemnitees shall be made to the fullest extent permitted by law, including as a result of any
amendment of the General Corporation Law of the State of Delaware expanding the right of
corporations to indemnify and advance expenses. The Corporations obligation, if any, to
indemnify, to hold harmless, or to advance or reimburse expenses to any Indemnitee who was or is
serving at its request as a director, officer, employee, agent or manager of another corporation,
partnership, limited liability company, joint venture, trust or other enterprise or nonprofit
entity shall be reduced by any amount such Indemnitee may collect as indemnification, holding
harmless, or advancement or reimbursement of expenses from such other corporation, partnership,
limited liability company, joint venture, trust or other enterprise or nonprofit entity. The
rights to indemnification and advancement (or reimbursement) of expenses provided by, or granted
pursuant to, this Article XIV shall continue as to a person who has ceased to be a director or
officer of the Corporation (or in the case of any other person entitled to indemnity hereunder,
has ceased to serve the Corporation) and shall inure to the benefit of the estate, heirs,
legatees, distributes, executors, administrators and other comparable legal
representatives of such person.
SECTION 8. Contractual Rights. The provisions of this Article XIV shall constitute a contract
between the Corporation, on the one hand, and, on the other hand, each individual who serves or
has served as a director, officer or employee of the Corporation (whether before or after the
adoption of this Section 8), in consideration of such persons performance of services for the
Corporation, and also between the Corporation and any other person entitled to indemnity
hereunder, and pursuant to this Article XIV the Corporation intends to be legally bound to each
such current or former director, officer,
17
or employee of the Corporation or other person. With respect to current directors, officers
or employees of the Corporation, the rights conferred under this Article XIV are present
contractual rights and such rights are fully vested, and shall be deemed to have vested fully,
immediately upon adoption of this By-law. With respect to any directors, officers or employees of
the Corporation who commence service following adoption of this By-law, the rights conferred under
this provision shall be present contractual rights and such rights shall fully vest, and be deemed
to have vested fully, immediately upon such director, officer or employee commencing service as a
director, officer or employee of the Corporation. Neither amendment nor repeal of any provision of
this Article XIV nor the adoption of any provision of the Certificate of Incorporation or By-Laws
of the Corporation inconsistent with this Article XIV nor a decision by the Board of Directors
that an individual designated an executive officer pursuant to Section 6 of this Article XIV shall
no longer be designated an executive officer shall, in any such case, eliminate or reduce the
effect of this Article XIV in respect of any act or omission occurring, or any cause of action or
claim that accrues or arises or any state of facts existing, at the time of or before such
amendment, repeal, modification, adoption of an inconsistent provision or decision of the Board of
Directors (even in the case of a proceeding based on such a state of facts that is commenced after
such time).
SECTION 9. Insurance. The Corporation may, but shall not be required to, purchase and
maintain insurance, at its expense, on behalf of itself and any person who is or was a director,
officer, employee, agent or manager of the Corporation or another corporation, partnership,
limited liability company, joint venture, trust or other enterprise or nonprofit entity, including
service with respect to an employee benefit plan, against any expense, liability or loss, whether
or not the Corporation would have the power or the obligation to indemnify such person against
such expense, liability or loss under Delaware law. Nothing contained in this Article XIV shall
prevent the Corporation from entering into with any person who is or was a director, officer,
employee or agent of the Corporation or who is or was serving any corporation, partnership,
limited liability company, joint venture, trust or other enterprise or nonprofit entity in which
the Corporation has any direct or indirect interest as a director, officer, partner, member,
trustee, employee, agent or manager or in any like capacity any agreement that provides
independent indemnification, hold harmless and/or exoneration rights to such person or further
regulates the terms on which indemnification, hold harmless and/or exoneration rights are to be
provided to such person or provides independent assurance of the Corporations obligation to
indemnify, hold harmless and/or exonerate such person, whether or not such indemnification, hold
harmless and/or exoneration rights are on the same or different terms than provided for by this
Article XIV or is in respect of such person acting in any other capacity, and nothing contained
herein shall be exclusive of, or a limitation on, any right to indemnification, to be held
harmless, to exoneration or to advancement or reimbursement of expenses to which any person is
otherwise entitled. The Corporation may create a trust fund, grant a security interest or use
other means (including, without limitation, a letter of credit) to ensure the payment of such
amounts as may be necessary to effect indemnification and the advancement of expenses as provided
in this Article XIV.
18