Attached files
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S-1/A - AMENDMENT NO.2 TO FORM S-1 - ArborGen Inc. | b82774a2sv1za.htm |
EX-3.1 - EX-3.1 - ArborGen Inc. | b82774a2exv3w1.htm |
EX-10.5 - EX-10.5 - ArborGen Inc. | b82774a2exv10w5.htm |
EX-10.2 - EX-10.2 - ArborGen Inc. | b82774a2exv10w2.htm |
EX-10.3 - EX-10.3 - ArborGen Inc. | b82774a2exv10w3.htm |
EX-10.4 - EX-10.4 - ArborGen Inc. | b82774a2exv10w4.htm |
EX-10.6 - EX-10.6 - ArborGen Inc. | b82774a2exv10w6.htm |
EX-10.8 - EX-10.8 - ArborGen Inc. | b82774a2exv10w8.htm |
EX-23.4 - EX-23.4 - ArborGen Inc. | b82774a2exv23w4.htm |
EX-10.7 - EX-10.7 - ArborGen Inc. | b82774a2exv10w7.htm |
EX-23.1 - EX-23.1 - ArborGen Inc. | b82774a2exv23w1.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
ARBORGEN INC.
(the Corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders (any such meeting
being referred to in these By-laws as an Annual Meeting) shall be held at the hour, date and
place within or without the United States which is fixed by the Board of Directors, which time,
date and place may subsequently be changed at any time by vote of the Board of Directors. If no
Annual Meeting has been held for a period of thirteen (13) months after the Corporations last
Annual Meeting, a special meeting in lieu thereof may be held, and such special meeting shall have,
for the purposes of these By-laws or otherwise, all the force and effect of an Annual Meeting. Any
and all references hereafter in these By-laws to an Annual Meeting or Annual Meetings also shall be
deemed to refer to any special meeting(s) in lieu thereof.
SECTION 2. 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 brought before an Annual
Meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice provided for in these
By-laws, who is entitled to vote at the meeting, who is present (in person or by proxy) at the
meeting and who complies with the notice procedures set forth in these By-laws as to such
nomination or business. For the avoidance of doubt, the foregoing clause (ii) shall be the
exclusive means for a stockholder to bring nominations or business properly before an Annual
Meeting (other than matters properly brought under Rule 14a-8 (or any successor rule) under the
Securities Exchange Act of 1934, as amended (the Exchange Act)), and such stockholder must comply
with the notice and other procedures set forth in Article I, Section 2(a)(2) and (3) of these
By-laws to bring such nominations or business properly before an Annual Meeting. In addition to the
other requirements set forth in these By-laws, for any proposal of business to be considered at an
Annual Meeting, it must be a proper subject for action by stockholders of the Corporation under
Delaware law.
(2) For nominations or other business to be properly brought before an Annual Meeting by a
stockholder pursuant to clause (ii) of Article I, Section 2(a)(1) of these By-laws,
the stockholder must (i) have given Timely Notice (as defined below) thereof in writing to the
Secretary of the Corporation, (ii) have provided any updates or supplements to such notice at the
times and in the forms required by these By-laws and (iii) together with the beneficial owner(s),
if any, on whose behalf the nomination or business proposal is made, have acted in accordance with
the representations set forth in the Solicitation Statement (as defined below) required by these
By-laws. To be timely, a stockholders written notice shall be received by the Secretary at the
principal executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day prior to the one-year anniversary of the preceding years Annual Meeting nor
earlier than the close of business on the one hundred twentieth (120th) day prior to the one-year
anniversary of the preceding years Annual Meeting; provided, however, that in the event the Annual
Meeting is first convened more than thirty (30) days before or more than sixty (60) days after such
anniversary date, or if no Annual Meeting were held in the preceding year, notice by the
stockholder to be timely must be received by the Secretary of the Corporation not later than the
close of business on the later of the ninetieth (90th) day prior to the scheduled date of such
Annual Meeting or the tenth (10th) day following the day on which public announcement of the date
of such meeting is first made (such notice within such time periods shall be referred to as Timely
Notice). Notwithstanding anything to the contrary provided herein, for the first Annual Meeting
following the initial public offering of common stock of the Corporation, a stockholders notice
shall be timely if received by the Secretary at the principal executive offices of the Corporation
not later than the close of business on the later of the ninetieth (90th) day prior to the
scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public
announcement of the date of such Annual Meeting is first made or sent by the Corporation. Such
stockholders Timely Notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, all 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 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);
(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 reasons for conducting such business at the meeting, and any material
interest in such business of each Proposing Person (as defined below);
(C) (i) the name and address of the stockholder giving the notice, as they
appear on the Corporations books, and the names and addresses of the other
Proposing Persons (if any) and (ii) as to each Proposing Person, the following
information: (a) the class or series and number of all shares of capital stock of
the Corporation which are, directly or indirectly, owned beneficially or of record
by such Proposing Person or any of its affiliates or associates (as such terms are
defined in Rule 12b-2 promulgated under the Exchange Act), including any shares of
any class or series of capital stock of the Corporation as to which such Proposing
Person or any of its affiliates or associates has a right to acquire beneficial
ownership at any time in the future, (b) all Synthetic Equity Interests (as defined
below) in which such Proposing Person or any of its affiliates or
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associates, directly or indirectly, holds an interest including a description
of the material terms of each such Synthetic Equity Interest, including without
limitation, identification of the counterparty to each such Synthetic Equity
Interest and disclosure, for each such Synthetic Equity Interest, as to (x) whether
or not such Synthetic Equity Interest conveys any voting rights, directly or
indirectly, in such shares to such Proposing Person, (y) whether or not such
Synthetic Equity Interest is required to be, or is capable of being, settled through
delivery of such shares and (z) whether or not such Proposing Person and/or, to the
extent known, the counterparty to such Synthetic Equity Interest has entered into
other transactions that hedge or mitigate the economic effect of such Synthetic
Equity Interest, (c) any proxy (other than a revocable proxy given in response to a
public proxy solicitation made pursuant to, and in accordance with, the Exchange
Act), agreement, arrangement, understanding or relationship pursuant to which such
Proposing Person has or shares a right to, directly or indirectly, vote any shares
of any class or series of capital stock of the Corporation, (d) any rights to
dividends or other distributions on the shares of any class or series of capital
stock of the Corporation, directly or indirectly, owned beneficially by such
Proposing Person that are separated or separable from the underlying shares of the
Corporation, and (e) any performance-related fees (other than an asset-based fee)
that such Proposing Person, directly or indirectly, is entitled to based on any
increase or decrease in the value of shares of any class or series of capital stock
of the Corporation or any Synthetic Equity Interests (the disclosures to be made
pursuant to the foregoing clauses (a) through (e) are referred to, collectively, as
Material Ownership Interests) and (iii) a description of the material terms of all
agreements, arrangements or understandings (whether or not in writing) entered into
by any Proposing Person or any of its affiliates or associates with any other person
for the purpose of acquiring, holding, disposing or voting of any shares of any
class or series of capital stock of the Corporation;
(D) (i) a description of all agreements, arrangements or understandings by
and among any of the Proposing Persons, or by and among any Proposing Persons and
any other person (including with any proposed nominee(s)), pertaining to the
nomination(s) or other business proposed to be brought before the meeting of
stockholders (which description shall identify the name of each other person who is
party to such an agreement, arrangement or understanding), and (ii) identification
of the names and addresses of other stockholders (including beneficial owners) known
by any of the Proposing Persons to support such nominations or other business
proposal(s), and, to the extent known, the class and number of all shares of the
Corporations capital stock owned beneficially or of record by such other
stockholder(s) or other beneficial owner(s); and
(E) a statement whether or not the stockholder giving the notice and/or the
other Proposing Person(s), if any, will deliver a proxy statement and form of proxy
to holders of, in the case of a business proposal, at least the percentage of voting
power of all of the shares of capital stock of the Corporation required under
applicable law to approve the proposal or, in the case of a nomination or
nominations, at least the percentage of voting power of all of the shares of capital
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stock of the Corporation reasonably believed by such Proposing Person to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder (such statement, the Solicitation Statement).
For purposes of this Article I of these By-laws, the term Proposing Person shall mean
the following persons: (i) the stockholder of record providing the notice of nominations or
business proposed to be brought before a stockholders meeting, and (ii) the beneficial
owner(s), if different, on whose behalf the nominations or business proposed to be brought
before a stockholders meeting is made. For purposes of this Section 2 of Article I of
these By-laws, the term Synthetic Equity Interest shall mean any transaction, agreement or
arrangement (or series of transactions, agreements or arrangements), including, without
limitation, any derivative, swap, hedge, repurchase or so-called stock borrowing agreement
or arrangement, the purpose or effect of which is to, directly or indirectly: (a) give a
person or entity economic benefit and/or risk similar to ownership of shares of any class or
series of capital stock of the Corporation, in whole or in part, including due to the fact
that such transaction, agreement or arrangement provides, directly or indirectly, the
opportunity to profit or avoid a loss from any increase or decrease in the value of any
shares of any class or series of capital stock of the Corporation, (b) mitigate loss to,
reduce the economic risk of, or manage the risk of share price changes for any person or
entity with respect to any shares of any class or series of capital stock of the
Corporation, (c) otherwise provide in any manner the opportunity to profit or avoid a loss
from any decrease in the value of any shares of any class or series of capital stock of the
Corporation, or (d) increase or decrease the voting power of any person or entity with
respect to any shares of any class or series of capital stock of the Corporation.
(3) A stockholder providing Timely Notice of nominations or business proposed to be
brought before an Annual Meeting shall further update and supplement such notice, if
necessary, so that the information (including, without limitation, the Material Ownership
Interests information) provided or required to be provided in such notice pursuant to these
By-laws shall be true and correct as of the record date for the meeting and as of the date
that is ten (10) business days prior to such Annual Meeting, and such update and supplement
shall be received by the Secretary at the principal executive offices of the Corporation not
later than the close of business on the fifth (5th) business day after the record date for
the Annual Meeting in the case of the update and supplement required to be made as of the
record date, and not later than the close of business on the eighth (8th) business day prior
to the date of the Annual Meeting in the case of the update and supplement required to be
made as of ten (10) business days prior to such Annual Meeting.
(4) Notwithstanding anything in the second sentence of Article I, Section 2(a)(2)
of these By-laws to the contrary, in the event that the number of directors to be elected to
the Board of Directors of the Corporation is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the increased Board of
Directors made by the Corporation at least ten (10) days before the last day a stockholder
may deliver a notice of nomination in accordance with the second sentence of Article I,
Section 2(a)(2), a stockholders notice required by these By-laws
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shall also be considered Timely Notice, but only with respect to nominees for any new
positions created by such increase, if it shall be received by the Secretary 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) General.
(1) Only such persons who are nominated in accordance with the provisions of these
By-laws shall be eligible for election and to serve as directors and only such business
shall be conducted at an Annual Meeting as shall have been brought before the meeting in
accordance with the provisions of these By-laws. The Board of Directors or a designated
committee thereof shall have the power to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with the provisions of
these By-laws. If neither the Board of Directors nor such designated committee makes a
determination as to whether any stockholder proposal or nomination was made in accordance
with the provisions of these By-laws, the presiding officer of the Annual Meeting shall have
the power and duty to determine whether the stockholder proposal or nomination was made in
accordance with the provisions of these By-laws. If the Board of Directors or a designated
committee thereof or the presiding officer, as applicable, determines that any stockholder
proposal or nomination was not made in accordance with the provisions of these By-laws, such
proposal or nomination shall be disregarded and shall not be presented for action at the
Annual Meeting.
(2) Except as otherwise required by law, nothing in Article I, Section 2 of these
By-laws shall obligate the Corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the Corporation or the
Board of Directors information with respect to any nominee for director or any other matter
of business submitted by a stockholder.
(3) Notwithstanding the foregoing provisions of Article I, Section 2 of these
By-laws, if the proposing stockholder (or a qualified representative of the stockholder)
does not appear at the Annual Meeting to present a nomination or any business, such
nomination or business shall be disregarded, notwithstanding that proxies in respect of such
vote may have been received by the Corporation. For purposes of Article I, Section 2 of
these By-laws, to be considered a qualified representative of the proposing stockholder, a
person must be authorized by a written instrument 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 written instrument or
electronic transmission, or a reliable reproduction of the written instrument or electronic
transmission, to the presiding officer at the meeting of stockholders.
(4) For purposes of these By-laws, public announcement shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
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(5) Notwithstanding the foregoing provisions of these By-laws, 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 these By-laws. Nothing in
these By-laws shall be deemed to affect any rights of (i) stockholders to have proposals
included in the Corporations proxy statement pursuant to Rule 14a-8 (or any successor rule)
under the Exchange Act and, to the extent required by such rule, have such proposals
considered and voted on at an Annual Meeting or (ii) the holders of any series of
Undesignated Preferred Stock to elect directors under specified circumstances.
SECTION 3. Special Meetings. Except as otherwise required by statute and subject
to the rights, if any, of the holders of any series of Undesignated Preferred Stock, special
meetings of the stockholders of the Corporation may be called only by the Board of Directors acting
pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in
office. The Board of Directors may postpone or reschedule any previously scheduled special meeting
of stockholders. Only those matters set forth in the notice of the special meeting may be
considered or acted upon at a special meeting of stockholders of the Corporation. Nominations of
persons for election to the Board of Directors of the Corporation and stockholder proposals of
other business shall not be brought before a special meeting of stockholders to be considered by
the stockholders unless such special meeting is held in lieu of an annual meeting of stockholders
in accordance with Article I, Section 1 of these By-laws, in which case such special meeting in
lieu thereof shall be deemed an Annual Meeting for purposes of these By-laws and the provisions of
Article I, Section 2 of these By-laws shall govern such special meeting.
SECTION 4. Notice of Meetings; Adjournments.
(a) A notice of each Annual Meeting stating the hour, date and place, if any, of such
Annual Meeting and the means of remote communication, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting, shall be given not
less than ten (10) days nor more than sixty (60) days before the Annual Meeting, to each
stockholder entitled to vote thereat by delivering such notice to such stockholder or by mailing
it, postage prepaid, addressed to such stockholder at the address of such stockholder as it appears
on the Corporations stock transfer books. Without limiting the manner by which notice may
otherwise be given to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the Delaware General Corporation Law
(DGCL).
(b) Notice of all special meetings of stockholders shall be given in the same manner as
provided for Annual Meetings, except that the notice of all special meetings shall state the
purpose or purposes for which the meeting has been called.
(c) Notice of an Annual Meeting or special meeting of stockholders need not be given to a
stockholder if a waiver of notice is executed, or waiver of notice by electronic transmission is
provided, before or after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance is for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting was not lawfully called or convened.
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(d) The Board of Directors may postpone and reschedule any previously scheduled Annual
Meeting or special meeting of stockholders and any record date with respect thereto, regardless of
whether any notice or public disclosure with respect to any such meeting has been sent or made
pursuant to Article I, Section 2 of these By-laws or otherwise. In no event shall the public
announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of
stockholders commence a new time period for the giving of a stockholders notice under Article I of
these By-laws.
(e) When any meeting is convened, the presiding officer may adjourn the meeting if (i) no
quorum is present for the transaction of business, (ii) the Board of Directors determines that
adjournment is necessary or appropriate to enable the stockholders to consider fully information
which the Board of Directors determines has not been made sufficiently or timely available to
stockholders, or (iii) the Board of Directors determines that adjournment is otherwise in the best
interests of the Corporation. When any Annual Meeting or special meeting of stockholders is
adjourned to another hour, date or place, notice need not be given of the adjourned meeting other
than an announcement at the meeting at which the adjournment is taken of the hour, date and place,
if any, to which the meeting is adjourned and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such adjourned
meeting; provided, however, that if the adjournment is for more than thirty (30) days from the
meeting date, or if after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such adjourned
meeting shall be given to each stockholder of record entitled to vote thereat and each stockholder
who, by law or under the Certificate of Incorporation of the Corporation (as the same may hereafter
be amended and/or restated, the Certificate) or these By-laws, is entitled to such notice.
SECTION 5. Quorum. A majority of the shares entitled to vote, present in person
or represented by proxy, shall constitute a quorum at any meeting of stockholders. If less than a
quorum is present at a meeting, the holders of voting stock representing a majority of the voting
power present at the meeting or the presiding officer may adjourn the meeting from time to time,
and the meeting may be held as adjourned without further notice, except as provided in Article I,
Section 4 of these By-laws. At such adjourned meeting at which a quorum is present, any business
may be transacted which might have been transacted at the meeting as originally noticed. The
stockholders present at a duly constituted meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
SECTION 6. Voting and Proxies. Stockholders shall have one vote for each share of
stock entitled to vote owned by them of record according to the stock ledger of the Corporation as
of the record date, unless otherwise provided by law or by the Certificate. Stockholders may vote
either (i) in person, (ii) by written proxy or (iii) by a transmission permitted by Section 212(c)
of the DGCL. Any copy, facsimile telecommunication or other reliable reproduction of the writing
or transmission permitted by Section 212(c) of the DGCL may be substituted for or used in lieu of
the original writing or transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication or
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other reproduction shall be a complete reproduction of the entire original writing or
transmission. Proxies shall be filed in accordance with the procedures established for the meeting
of stockholders. Except as otherwise limited therein or as otherwise provided by law, proxies
authorizing a person to vote at a specific meeting shall entitle the persons authorized thereby to
vote at any adjournment of such meeting, but they shall not be valid after final adjournment of
such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid
if executed by or on behalf of any one of them unless at or prior to the exercise of the proxy the
Corporation receives a specific written notice to the contrary from any one of them.
SECTION 7. Action at Meeting. When a quorum is present at any meeting of
stockholders, any matter before any such meeting (other than an election of a director or
directors) shall be decided by a majority of the votes properly cast for and against such matter,
except where a larger vote is required by law, the Certificate or these By-laws. Any election of
directors by stockholders shall be determined by a plurality of the votes properly cast on the
election of directors.
SECTION 8. Stockholder Lists. The Secretary or an Assistant Secretary (or the
Corporations transfer agent or other person authorized by these By-laws or by law) shall prepare
and make, at least ten (10) days before every Annual Meeting or special 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 a period of at
least ten (10) days prior to the meeting in the manner provided by law. The list shall also be
open to the examination of any stockholder during the whole time of the meeting as provided by law.
SECTION 9. Presiding Officer. The Board of Directors shall designate a
representative to preside over all Annual Meetings or special meetings of stockholders, provide
that if the Board of Directors does not so designate such a presiding officer, then the Chairman of
the Board, if one is elected, shall preside over such meetings. If the Board of Directors does not
so designate such a presiding officer and there is no Chairman of the Board or the Chairman of the
Board is unable to so preside or is absent, then the Chief Executive Officer, if one is elected,
shall preside over such meetings, provided further that if there is no Chief Executive Officer or
the Chief Executive Officer is unable to so preside or is absent, then the President shall preside
over such meetings. The presiding officer at any Annual Meeting or special meeting of stockholders
shall have the power, among other things, to adjourn such meeting at any time and from time to
time, subject to Sections 4 and 5 of Article I of these By-laws. The order of business and all
other matters of procedure at any meeting of the stockholders shall be determined by the presiding
officer.
SECTION 10. Inspectors of Elections. The Corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written
report thereof. The Corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting
of stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting.
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Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each
inspector, before entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall perform such duties as are required by the DGCL,
including the counting of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of the inspectors.
The presiding officer may review all determinations made by the inspectors, and in so doing the
presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or
she shall not be bound by any determinations made by the inspectors. All determinations by the
inspectors and, if applicable, the presiding officer, shall be subject to further review by any
court of competent jurisdiction.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors except as otherwise provided by the Certificate
or required by law.
SECTION 2. Number and Terms. The number of directors of the Corporation shall be
fixed solely and exclusively by resolution duly adopted from time to time by the Board of
Directors. The directors shall hold office in the manner provided in the Certificate.
SECTION 3. Qualification. No director need be a stockholder of the Corporation.
SECTION 4. Vacancies. Vacancies in the Board of Directors shall be filled in the
manner provided in the Certificate.
SECTION 5. Removal. Directors may be removed from office only in the manner
provided in the Certificate.
SECTION 6. Resignation. A director may resign at any time by giving written
notice to the Chairman of the Board, if one is elected, the President or the Secretary. A
resignation shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 7. Regular Meetings. The regular annual meeting of the Board of Directors
shall be held, without notice other than this Section 7, on the same date and at the same place as
the Annual Meeting following the close of such meeting of stockholders. Other regular meetings of
the Board of Directors may be held at such hour, date and place as the Board of Directors may from
time to time determine.
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SECTION 8. Special Meetings. Special meetings of the Board of Directors may be
called, orally or in writing, by or at the request of a majority of the directors, the Chairman of
the Board, if one is elected, or the President. The person calling any such special meeting of the
Board of Directors may fix the hour, date and place thereof.
SECTION 9. Notice of Meetings. Notice of the hour, date and place of all special
meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant
Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairman
of the Board, if one is elected, or the President or such other officer designated by the Chairman
of the Board, if one is elected, or the President. Notice of any special meeting of the Board of
Directors shall be given to each director in person, by telephone, or by facsimile, electronic mail
or other form of electronic communication, sent to his or her business or home address, at least
seventy-two (72) hours in advance of the meeting, or by written notice via overnight FedEx
delivered at his or her business or home address at least seventy-two (72) hours in advance of the
meeting. Such notice shall be deemed to be delivered when hand-delivered to such address, read to
such director by telephone, confirmed by FedEx as successfully delivered, dispatched or transmitted
if sent by facsimile transmission or by electronic mail or other form of electronic communications.
A written waiver of notice signed before or after a meeting by a director and filed with the
records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of any business because such meeting is not lawfully called or convened.
SECTION 10. Quorum. At any meeting of the Board of Directors, a majority of the
total number of directors shall constitute a quorum for the transaction of business, but if less
than a quorum is present at a meeting, a majority of the directors present may adjourn the meeting
from time to time, and the meeting may be held as adjourned without further notice. Any business
which might have been transacted at the meeting as originally noticed may be transacted at such
adjourned meeting at which a quorum is present. For purposes of this section, the total number of
directors includes any unfilled vacancies on the Board of Directors.
SECTION 11. Action at Meeting. At any meeting of the Board of Directors at which
a quorum is present, the vote of a majority of the directors present shall constitute action by the
Board of Directors, unless otherwise required by law, by the Certificate or by these By-laws.
SECTION 12. Action by 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 members of the Board of
Directors consent thereto in writing or by electronic transmission and the writing or writings or
electronic transmission or transmissions are filed with the records of the meetings of the Board of
Directors. Such filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form. Such consent shall
be treated as a resolution of the Board of Directors for all purposes.
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SECTION 13. Manner of Participation. Directors may participate in meetings of the
Board of Directors by means of conference telephone or other communications equipment by means of
which all directors participating in the meeting can hear each other, and participation in a
meeting in accordance herewith shall constitute presence in person at such meeting for purposes of
these By-laws.
SECTION 14. Presiding Director. The Board of Directors shall designate a
representative to preside over all meetings of the Board of Directors, provided that if the Board
of Directors does not so designate such a presiding director or such designated presiding director
is unable to so preside or is absent, then the Chairman of the Board, if one is elected, shall
preside over all meetings of the Board of Directors. If both the designated presiding director, if
one is so designated, and the Chairman of the Board, if one is elected, are unable to preside or
are absent, the Board of Directors shall designate an alternate representative to preside over a
meeting of the Board of Directors.
SECTION 15. Committees. The Board of Directors, by vote of a majority of the
directors then in office, may elect one or more committees, including, without limitation, a
Compensation Committee, a Nominating and Corporate Governance Committee and an Audit Committee, and
may delegate thereto some or all of its powers except those which by law, by the Certificate or by
these By-laws may not be delegated. Except as the Board of Directors may otherwise determine, any
such committee may make rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as possible in the same
manner as is provided by these By-laws for the Board of Directors. All members of such committees
shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may
abolish any such committee at any time. Any committee to which the Board of Directors delegates
any of its powers or duties shall keep records of its meetings and shall report its action to the
Board of Directors.
SECTION 16. Compensation of Directors. Directors shall receive such compensation
for their services as shall be determined by a majority of the Board of Directors, or a designated
committee thereof, provided that directors who are serving the Corporation as employees and who
receive compensation for their services as such, shall not receive any salary or other compensation
for their services as directors of the Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist of a
President, a Treasurer, a Secretary and such other officers, including, without limitation, a
Chairman of the Board of Directors, a Chief Executive Officer and one or more Vice Presidents
(including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents,
Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine.
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SECTION 2. Election. At the regular annual meeting of the Board of Directors
following the Annual Meeting, the Board of Directors shall elect the President, the Treasurer and
the Secretary. Other officers may be elected by the Board of Directors at such regular annual
meeting of the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a director. Any
person may occupy more than one office of the Corporation at any time.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by these
By-laws, each of the officers of the Corporation shall hold office until the regular annual meeting
of the Board of Directors following the next Annual Meeting and until his or her successor is
elected and qualified or until his or her earlier resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her written
resignation to the Corporation addressed to the President or the Secretary, and such resignation
shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 6. Removal. Except as otherwise provided by law, the Board of Directors
may remove any officer with or without cause by the affirmative vote of a majority of the directors
then in office.
SECTION 7. Absence or Disability. In the event of the absence or disability of
any officer, the Board of Directors may designate another officer to act temporarily in place of
such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
SECTION 9. President. The President shall, subject to the direction of the Board
of Directors, have such powers and shall perform such duties as the Board of Directors may from
time to time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is elected,
shall have such powers and shall perform such duties as the Board of Directors may from time to
time designate.
SECTION 11. Chief Executive Officer. The Chief Executive Officer, if one is
elected, shall have such powers and shall perform such duties as the Board of Directors may from
time to time designate.
SECTION 12. Vice Presidents and Assistant Vice Presidents. Any Vice President
(including any Executive Vice President or Senior Vice President) and any Assistant Vice
12
President shall have such powers and shall perform such duties as the Board of Directors or
the Chief Executive Officer may from time to time designate.
SECTION 13. Treasurer and Assistant Treasurers. The Treasurer shall, subject to
the direction of the Board of Directors and except as the Board of Directors or the Chief Executive
Officer may otherwise provide, have general charge of the financial affairs of the Corporation and
shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such other duties and
powers as may be designated from time to time by the Board of Directors or the Chief Executive
Officer. Any Assistant Treasurer shall have such powers and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time designate.
SECTION 14. Secretary and Assistant Secretaries. The Secretary shall record all
the proceedings of the meetings of the stockholders and the Board of Directors (including
committees of the Board of Directors) in books kept for that purpose. In his or her absence from
any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof.
The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer
or other agent of the Corporation). The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary shall have authority to affix it to any
instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or
that of an Assistant Secretary. The Secretary shall have such other duties and powers as may be
designated from time to time by the Board of Directors or the Chief Executive Officer. In the
absence of the Secretary, any Assistant Secretary may perform his or her duties and
responsibilities. Any Assistant Secretary shall have such powers and perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 15. Other Powers and Duties. Subject to these By-laws and to such
limitations as the Board of Directors may from time to time prescribe, the officers of the
Corporation shall each have such powers and duties as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be conferred by the Board of
Directors or the Chief Executive Officer.
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from time to time be
prescribed by the Board of Directors. Such certificate shall be signed by the Chairman of the
Board, the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary. The Corporation seal and the signatures by the Corporations
officers, the transfer agent or the registrar may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed on such 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 or she were such officer,
transfer agent or
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registrar at the time of its issue. Every certificate for shares of stock which are subject
to any restriction on transfer and every certificate issued when the Corporation is authorized to
issue more than one class or series of stock shall contain such legend with respect thereto as is
required by law. Notwithstanding anything to the contrary provided in these Bylaws, 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 (except that the foregoing shall
not apply to shares represented by a certificate until such certificate is surrendered to the
Corporation), and by the approval and adoption of these Bylaws the Board of Directors has
determined that all classes or series of the Corporations stock may be uncertificated, whether
upon original issuance, re-issuance, or subsequent transfer.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of capital stock of the Corporation that are
represented by a certificate may be transferred on the books of the Corporation by the surrender to
the Corporation or its transfer agent of the certificate theretofore properly endorsed or
accompanied by a written assignment or power of attorney properly executed, with transfer stamps
(if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or
its transfer agent may reasonably require. Shares of capital stock of the Corporation that are not
represented by a certificate may be transferred on the books of the Corporation by submitting to
the Corporation or its transfer agent such evidence of transfer and following such other procedures
as the Corporation or its transfer agent may require.
SECTION 3. Record Holders. Except as may otherwise be required by law, by the
Certificate or by these By-laws, the Corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes, including the payment of
dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books of the Corporation
in accordance with the requirements of these By-laws.
SECTION 4. Record Date. 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 or 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 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: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders, shall, unless otherwise required by
law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting and
(b) in the case of any other action, shall not be more than sixty (60) days prior to such other
action. If no record date is fixed: (i) 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; and (ii) the record date for
determining stockholders for any other purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
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SECTION 5. Replacement of Certificates. In case of the alleged loss, destruction
or mutilation of a certificate of stock of the Corporation, a duplicate certificate may be issued
in place thereof, upon such terms as the Board of Directors may prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article:
(a) Corporate Status describes the status of a person who is serving or has served (i)
as a Director of the Corporation, (ii) as an Officer of the Corporation, (iii) as a Non-Officer
Employee of the Corporation, or (iv) as a director, partner, trustee, officer, employee or agent of
any other corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan, foundation, association, organization or other legal entity which such person is or
was serving at the request of the Corporation. For purposes of this Section 1(a), a Director,
Officer or Non-Officer Employee of the Corporation who is serving or has served as a director,
partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the
request of the Corporation. Notwithstanding the foregoing, Corporate Status shall not include
the status of a person who is serving or has served as a director, officer, employee or agent of a
constituent corporation absorbed in a merger or consolidation transaction with the Corporation with
respect to such persons activities prior to said transaction, unless specifically authorized by
the Board of Directors or the stockholders of the Corporation;
(b) Director means any person who serves or has served the Corporation as a director on
the Board of Directors of the Corporation;
(c) Disinterested Director means, with respect to each Proceeding in respect of which
indemnification is sought hereunder, a Director of the Corporation who is not and was not a party
to such Proceeding;
(d) Expenses means all attorneys fees, retainers, court costs, transcript costs, fees
of expert witnesses, private investigators and professional advisors (including, without
limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and
binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids
and devices, costs incurred in connection with document review, organization, imaging and
computerization, telephone charges, postage, delivery service fees, and all other disbursements,
costs or expenses of the type customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or
otherwise participating in, a Proceeding;
(e) Liabilities means judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement;
(f) Non-Officer Employee means any person who serves or has served as an employee or
agent of the Corporation, but who is not or was not a Director or Officer;
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(g) Officer means any person who serves or has served the Corporation as an officer of
the Corporation appointed by the Board of Directors of the Corporation;
(h) Proceeding means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other
proceeding, whether civil, criminal, administrative, arbitrative or investigative; and
(i) Subsidiary shall mean any corporation, partnership, limited liability company, joint
venture, trust or other entity of which the Corporation owns (either directly or through or
together with another Subsidiary of the Corporation) either (i) a general partner, managing member
or other similar interest or (ii) (A) fifty percent (50%) or more of the voting power of the voting
capital equity interests of such corporation, partnership, limited liability company, joint venture
or other entity, or (B) fifty percent (50%) or more of the outstanding voting capital stock or
other voting equity interests of such corporation, partnership, limited liability company, joint
venture or other entity.
SECTION 2. Indemnification of Directors and Officers.
(a) Subject to the operation of Section 4 of this Article V of these By-laws, each
Director and Officer shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter 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 such law permitted the Corporation to provide prior to such
amendment), and to the extent authorized in this Section 2.
(1) Actions, Suits and Proceedings Other than By or In the Right of the
Corporation. Each Director and Officer shall be indemnified and held harmless by the
Corporation against any and all Expenses and Liabilities that are incurred or paid by such
Director or Officer or on such Directors or Officers behalf in connection with any
Proceeding or any claim, issue or matter therein (other than an action by or in the right of
the Corporation), which such Director or Officer is, or is threatened to be made, a party to
or participant in by reason of such Directors or Officers Corporate Status, if such
Director or Officer acted in good faith and in a manner such Director or Officer reasonably
believed to be in or not opposed to the best interests of the Corporation and, with respect
to any criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
(2) Actions, Suits and Proceedings By or In the Right of the Corporation.
Each Director and Officer shall be indemnified and held harmless by the Corporation against
any and all Expenses that are incurred by such Director or Officer or on such Directors or
Officers behalf in connection with any Proceeding or any claim, issue or matter therein by
or in the right of the Corporation, which such Director or Officer is, or is threatened to
be made, a party to or participant in by reason of such Directors or Officers Corporate
Status, if such Director or Officer acted in good faith and in a manner such Director or
Officer reasonably believed to be in or not opposed to the best interests of the
Corporation; provided, however, that no indemnification shall be made under this Section
2(a)(2) in respect of any claim, issue or matter as to which such Director or
16
Officer shall have been finally adjudged by a court of competent jurisdiction to be
liable to the Corporation, unless, and only to the extent that, the Court of Chancery or
another court in which such Proceeding was brought shall determine upon application that,
despite adjudication of liability, but in view of all the circumstances of the case, such
Director or Officer is fairly and reasonably entitled to indemnification for such Expenses
that such court deems proper.
(3) Survival of Rights. The rights of indemnification provided by this
Section 2 shall continue as to a Director or Officer after he or she has ceased to be a
Director or Officer and shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives.
(4) Actions by Directors or Officers. Notwithstanding the foregoing, the
Corporation shall indemnify any Director or Officer seeking indemnification in connection
with a Proceeding initiated by such Director or Officer only if such Proceeding (including
any parts of such Proceeding not initiated by such Director or Officer) was authorized in
advance by the Board of Directors of the Corporation, unless such Proceeding was brought to
enforce such Officers or Directors rights to indemnification or, in the case of Directors,
advancement of Expenses under these By-laws in accordance with the provisions set forth
herein.
SECTION 3. Indemnification of Non-Officer Employees. Subject to the operation of
Section 4 of this Article V of these By-laws, each Non-Officer Employee may, in the discretion of
the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses
and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employees
behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or
matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or
participant in by reason of such Non-Officer Employees Corporate Status, if such Non-Officer
Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of
indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she
has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs,
personal representatives, executors and administrators. Notwithstanding the foregoing, the
Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a
Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance
by the Board of Directors of the Corporation.
SECTION 4. Determination. Unless ordered by a court, no indemnification shall be
provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee
unless a determination shall have been made that 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
and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or
her conduct was unlawful. Such determination shall be made by (a) a majority vote of the
17
Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a
committee comprised of Disinterested Directors, such committee having been designated by a majority
vote of the Disinterested Directors (even though less than a quorum), (c) if there are no such
Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent
legal counsel in a written opinion, or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition.
(a) The Corporation shall advance all Expenses incurred by or on behalf of any Director in
connection with any Proceeding in which such Director is involved by reason of such Directors
Corporate Status within thirty (30) days after the receipt by the Corporation of a written
statement from such Director requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by such Director and shall be preceded or accompanied by an
undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall
ultimately be determined that such Director is not entitled to be indemnified against such
Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or
on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding
initiated by such Director only if such Proceeding (including any parts of such Proceeding not
initiated by such Director) was (i) authorized by the Board of Directors of the Corporation, or
(ii) brought to enforce such Directors rights to indemnification or advancement of Expenses under
these By-laws.
(b) If a claim for advancement of Expenses hereunder by a Director is not paid in full by
the Corporation within thirty (30) days after receipt by the Corporation of documentation of
Expenses and the required undertaking, such Director may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and if successful in whole or in part,
such Director shall also be entitled to be paid the expenses of prosecuting such claim. The
failure of the Corporation (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the permissibility of such
advancement of Expenses under this Article V shall not be a defense to an action brought by a
Director for recovery of the unpaid amount of an advancement claim and shall not create a
presumption that such advancement is not permissible. The burden of proving that a Director is not
entitled to an advancement of expenses shall be on the Corporation.
(c) In any suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the Director has not met any applicable standard for indemnification set
forth in the DGCL.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to
Final Disposition.
(a) The Corporation may, at the discretion of the Board of Directors of the Corporation,
advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in
connection with any Proceeding in which such person is involved by reason
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of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the
Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such
advance or advances from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such
Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on
behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that
such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for
indemnification set forth in the DGCL.
SECTION 7. Contractual Nature of Rights.
(a) The provisions of this Article V shall be deemed to be a contract between the
Corporation and each Director and Officer entitled to the benefits hereof at any time while this
Article V is in effect, in consideration of such persons past or current and any future
performance of services for the Corporation. Neither amendment, repeal or modification of any
provision of this Article V nor the adoption of any provision of the Certificate of Incorporation
inconsistent with this Article V shall eliminate or reduce any right conferred by this Article V 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 or
adoption of an inconsistent provision (even in the case of a proceeding based on such a state of
facts that is commenced after such time), and all rights to indemnification and advancement of
Expenses granted herein or arising out of any act or omission shall vest at the time of the act or
omission in question, regardless of when or if any proceeding with respect to such act or omission
is commenced. The rights to indemnification and to advancement of expenses provided by, or granted
pursuant to, this Article V shall continue notwithstanding that the person has ceased to be a
director or officer of the Corporation and shall inure to the benefit of the estate, heirs,
executors, administrators, legatees and distributes of such person.
(b) If a claim for indemnification hereunder by a Director or Officer is not paid in full
by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for
indemnification, such Director or Officer may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such
Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The
failure of the Corporation (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the permissibility of such
indemnification under this Article V shall not be a defense to an action brought by a Director or
Officer for recovery of the unpaid amount of an indemnification claim and shall not create a
presumption that such indemnification is not permissible. The burden of proving that a Director or
Officer is not entitled to indemnification shall be on the Corporation.
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(c) In any suit brought by a Director or Officer to enforce a right to indemnification
hereunder, it shall be a defense that such Director or Officer has not met any applicable standard
for indemnification set forth in the DGCL.
SECTION 8. Non-Exclusivity of Rights. The rights to indemnification and to
advancement of Expenses set forth in this Article V shall not be exclusive of any other right which
any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute,
provision of the Certificate or these By-laws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
SECTION 9. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer or Non-Officer Employee against any liability of any
character asserted against or incurred by the Corporation or any such Director, Officer or
Non-Officer Employee, or arising out of any such persons Corporate Status, whether or not the
Corporation would have the power to indemnify such person against such liability under the DGCL or
the provisions of this Article V.
SECTION 10. Other Indemnification. The Corporations obligation, if any, to
indemnify or provide advancement of Expenses to any person under this Article V as a result of such
person serving, at the request of the Corporation, as a director, partner, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise shall be reduced by any amount such person may collect as indemnification or
advancement of Expenses from such other corporation, partnership, joint venture, trust, employee
benefit plan or enterprise (the Primary Indemnitor). Any indemnification or advancement of
Expenses under this Article V owed by the Corporation as a result of a person serving, at the
request of the Corporation, as a director, partner, trustee, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall
only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses
available from the applicable Primary Indemnitor(s) and any applicable insurance policies.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors.
SECTION 2. Seal. The Board of Directors shall have power to adopt and alter the
seal of the Corporation.
SECTION 3. Execution of Instruments. All deeds, leases, transfers, contracts,
bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of
its business without director action may be executed on behalf of the Corporation by the Chairman
20
of the Board, if one is elected, the President or the Treasurer or any other officer, employee
or agent of the Corporation as the Board of Directors or the executive committee of the Board may
authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors otherwise
provides, the Chairman of the Board, if one is elected, the President or the Treasurer may waive
notice of and act on behalf of the Corporation, or appoint another person or persons to act as
proxy or attorney in fact for the Corporation with or without discretionary power and/or power of
substitution, at any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by the Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a resident agent
upon whom legal process may be served in any action or proceeding against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the Certificate,
By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors
and the stock transfer books, which shall contain the names of all stockholders, their record
addresses and the amount of stock held by each, may be kept outside the State of Delaware and shall
be kept at the principal office of the Corporation, at an office of its counsel, at an office of
its transfer agent or at such other place or places as may be designated from time to time by the
Board of Directors.
SECTION 7. Certificate. All references in these By-laws to the Certificate shall
be deemed to refer to the Amended and Restated Certificate of Incorporation of the Corporation, as
amended and/or restated and in effect from time to time.
SECTION 8. Amendment of By-laws.
(a) Amendment by Directors. Except as provided otherwise by law, these By-laws
may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the
directors then in office.
(b) Amendment by Stockholders. These By-laws may be amended or repealed at any
Annual Meeting, or special meeting of stockholders called for such purpose in accordance with these
By-Laws, by the affirmative vote of at least seventy-five percent (75%) of the outstanding shares
entitled to vote on such amendment or repeal, voting together as a single class; provided, however,
that if the Board of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of
the majority of the outstanding shares entitled to vote on such amendment or repeal, voting
together as a single class. Notwithstanding the foregoing, stockholder approval shall not be
required unless mandated by the Certificate, these By-laws, or other applicable law.
SECTION 9. Notices. If mailed, notice to stockholders shall be deemed given when
deposited in the mail, postage prepaid, directed to the stockholder at such stockholders address
as it appears on the records of the Corporation. Without limiting the manner by which notice
21
otherwise may be given to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the DGCL.
SECTION 10. Waivers. A written waiver of any notice, signed by a stockholder or
director, or waiver by electronic transmission by such person, whether given before or after the
time of the event for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such person. Neither the business to be transacted at, nor the purpose of,
any meeting need be specified in such a waiver.
Adopted ___________, ____ and effective as of ___________, ___.
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