Attached files
file | filename |
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10-Q - FORM 10-Q - Booz Allen Hamilton Holding Corp | w81463e10vq.htm |
EX-4.4 - EX-4.4 - Booz Allen Hamilton Holding Corp | w81463exv4w4.htm |
EX-3.1 - EX-3.1 - Booz Allen Hamilton Holding Corp | w81463exv3w1.htm |
EX-4.3 - EX-4.3 - Booz Allen Hamilton Holding Corp | w81463exv4w3.htm |
EX-32.2 - EX-32.2 - Booz Allen Hamilton Holding Corp | w81463exv32w2.htm |
EX-32.1 - EXHIBIT 32.1 - Booz Allen Hamilton Holding Corp | w81463exv32w1.htm |
EX-31.1 - EX-31.1 - Booz Allen Hamilton Holding Corp | w81463exv31w1.htm |
EX-31.2 - EX-31.2 - Booz Allen Hamilton Holding Corp | w81463exv31w2.htm |
Exhibit 3.2
BOOZ ALLEN HAMILTON HOLDING CORPORATION
SECOND AMENDED AND RESTATED BYLAWS
As Adopted on September 21, 2010
BOOZ ALLEN HAMILTON HOLDING CORPORATION
SECOND AMENDED AND RESTATED BYLAWS
Table of Contents
Table of Contents
Page | ||||
ARTICLE I MEETINGS OF STOCKHOLDERS |
1 | |||
Section 1.01 Annual Meetings |
1 | |||
Section 1.02 Special Meetings |
1 | |||
Section 1.03 Participation in Meetings by Remote Communication |
1 | |||
Section 1.04 Notice of Meetings; Waiver of Notice |
1 | |||
Section 1.05 Proxies |
2 | |||
Section 1.06 Voting Lists |
3 | |||
Section 1.07 Quorum |
3 | |||
Section 1.08 Voting |
3 | |||
Section 1.09 Adjournment |
3 | |||
Section 1.10 Organization; Procedure; Inspection of Elections |
4 | |||
Section 1.11 Stockholder Action by Written Consent |
5 | |||
Section 1.12 Notice of Stockholder Proposals and Nominations |
5 | |||
ARTICLE II BOARD OF DIRECTORS |
10 | |||
Section 2.01 General Powers |
10 | |||
Section 2.02 Number and Term of Office |
10 | |||
Section 2.03 Regular Meetings |
10 | |||
Section 2.04 Special Meetings |
11 | |||
Section 2.05 Notice of Meetings; Waiver of Notice |
11 | |||
Section 2.06 Quorum; Voting |
11 | |||
Section 2.07 Action by Telephonic Communications |
11 | |||
Section 2.08 Adjournment |
11 | |||
Section 2.09 Action Without a Meeting |
12 | |||
Section 2.10 Regulations |
12 | |||
Section 2.11 Resignations of Directors |
12 | |||
Section 2.12 Removal of Directors |
12 | |||
Section 2.13 Vacancies and Newly Created Directorships |
12 | |||
Section 2.14 Director Fees and Expenses |
13 | |||
Section 2.15 Reliance on Accounts and Reports, etc. |
13 | |||
ARTICLE III COMMITTEES |
13 | |||
Section 3.01 Designation of Committees |
13 | |||
Section 3.02 Members and Alternate Members |
13 | |||
Section 3.03 Committee Procedures |
14 | |||
Section 3.04 Meetings and Actions of Committees |
14 | |||
Section 3.05 Resignations and Removals |
14 |
i
Table of Contents
(continued)
(continued)
Page | ||||
Section 3.06 Vacancies |
15 | |||
ARTICLE IV OFFICERS |
15 | |||
Section 4.01 Officers |
15 | |||
Section 4.02 Election |
15 | |||
Section 4.03 Compensation |
15 | |||
Section 4.04 Removal and Resignation; Vacancies |
15 | |||
Section 4.05 Authority and Duties of Officers |
16 | |||
Section 4.06 President |
16 | |||
Section 4.07 Vice Presidents |
16 | |||
Section 4.08 Secretary |
16 | |||
Section 4.09 Treasurer |
17 | |||
Section 4.10 Security |
18 | |||
ARTICLE V CAPITAL STOCK |
18 | |||
Section 5.01 Certificates of Stock |
18 | |||
Section 5.02 Facsimile Signatures |
18 | |||
Section 5.03 Lost, Stolen or Destroyed Certificates |
18 | |||
Section 5.04 Transfer of Stock |
19 | |||
Section 5.05 Registered Stockholders |
19 | |||
Section 5.06 Transfer Agent and Registrar |
19 | |||
ARTICLE VI INDEMNIFICATION |
20 | |||
Section 6.01 Indemnification |
20 | |||
Section 6.02 Advance of Expenses |
20 | |||
Section 6.03 Procedure for Indemnification |
21 | |||
Section 6.04 Burden of Proof |
21 | |||
Section 6.05 Contract Right; Non-Exclusivity; Survival |
21 | |||
Section 6.06 Insurance |
22 | |||
Section 6.07 Employees and Agents |
22 | |||
Section 6.08 Interpretation; Severability |
22 | |||
ARTICLE VII OFFICES |
23 | |||
Section 7.01 Registered Office |
23 | |||
Section 7.02 Other Offices |
23 | |||
ARTICLE VIII GENERAL PROVISIONS |
23 | |||
Section 8.01 Dividends |
23 | |||
Section 8.02 Reserves |
23 | |||
Section 8.03 Execution of Instruments |
23 |
ii
Table of Contents
(continued)
(continued)
Page | ||||
Section 8.04 Voting as Stockholder |
24 | |||
Section 8.05 Fiscal Year |
24 | |||
Section 8.06 Seal |
24 | |||
Section 8.07 Books and Records; Inspection |
24 | |||
Section 8.08 Electronic Transmission |
24 | |||
ARTICLE IX AMENDMENT OF BYLAWS |
24 | |||
Section 9.01 Amendment |
24 |
iii
BOOZ ALLEN HAMILTON HOLDING CORPORATION
SECOND AMENDED AND RESTATED BYLAWS
As adopted on September 21, 2010
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.01 Annual Meetings. The annual meeting of the stockholders of the Booz
Allen Hamilton Holding Corporation (the Corporation) for the election of directors (each,
a Director) and for the transaction of such other business as properly may come before
such meeting shall be held each year either within or without the State of Delaware at such place,
if any, and on such date and at such time, as may be fixed from time to time by resolution of the
Corporations board of Directors (the Board) and set forth in the notice or waiver of
notice of the meeting, unless, subject to Section 1.11 of these bylaws and the certificate of
incorporation of the Corporation, the stockholders have acted by written consent to elect Directors
as permitted by the General Corporation Law of the State of Delaware, as amended from time to time
(the DGCL).
Section 1.02 Special Meetings. A special meeting of the stockholders for any purpose
may be called at any time only by or at the direction of the Board pursuant to a resolution of the
Board adopted by a majority of the total number of Directors then in office. Any special meeting
of the stockholders shall be held at such place, if any, within or without the State of Delaware,
and on such date and at such time, as shall be specified in such resolution. The stockholders of
the Corporation do not have the power to call a special meeting.
Section 1.03 Participation in Meetings by Remote Communication. The Board, acting in
its sole discretion, may establish guidelines and procedures in accordance with applicable
provisions of the DGCL and any other applicable law for the participation by stockholders and
proxyholders in a meeting of stockholders by means of remote communications, and may determine that
any meeting of stockholders will not be held at any place but will be held solely by means of
remote communication. Stockholders and proxyholders complying with such procedures and guidelines
and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and
entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated
place or solely by means of remote communication.
Section 1.04 Notice of Meetings; Waiver of Notice.
(a) The Secretary or any Assistant Secretary shall cause notice of each meeting of
stockholders to be given in writing in a manner permitted by the DGCL not less than 10 days nor
more than 60 days prior to the meeting to each stockholder of record entitled to vote at such
meeting, subject to such exclusions as are then permitted by the DGCL. The notice shall specify
(i) the place, if any, date and time of such meeting, (ii) the means of remote communications, if
any, by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting, (iii) in the
case of a special meeting, the purpose or purposes for which such meeting is called and (iv) such
other information as may be required by law or as may be deemed appropriate by the Board, the
President or the Secretary of the Corporation. If the stockholder list referred to in Section 1.06
of these bylaws is made accessible on an electronic network, the notice of meeting must indicate
how the stockholder list can be accessed. If the meeting of stockholders is to be held solely by
means of electronic communications, the notice of meeting must provide the information required to
access such stockholder list during the meeting.
(b) A written waiver of notice of meeting signed by a stockholder or a waiver by electronic
transmission by a stockholder, whether given before or after the meeting time stated in such
notice, is deemed equivalent to notice. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders need be specified in a waiver of notice.
Attendance of a stockholder at a meeting is a waiver of notice of such meeting, except when the
stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting
to the transaction of any business at the meeting on the ground that the meeting is not lawfully
called or convened.
Section 1.05 Proxies.
(a) Each stockholder entitled to vote at a meeting of stockholders or to express consent to
or dissent from corporate action in writing without a meeting may authorize another person or
persons to act for such stockholder by proxy.
(b) A stockholder may authorize a valid proxy by executing a written instrument signed by
such stockholder, or by causing his or her signature to be affixed to such writing by any
reasonable means, including but not limited to by facsimile signature, or by transmitting or
authorizing an electronic transmission (as defined in Section 8.08 of these bylaws) setting forth
an authorization to act as proxy to the person designated as the holder of the proxy, a proxy
solicitation firm or a like authorized agent. Proxies by electronic transmission must either set
forth, or be submitted with, information from which it can be determined that the electronic
transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of a writing or transmission created pursuant to this section may be
substituted or used in lieu of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used if such copy, facsimile telecommunication
or other reproduction is a complete reproduction of the entire original writing or transmission.
(c) No proxy may be voted or acted upon after the expiration of three years from the date of
such proxy, unless such proxy provides for a longer period. Every proxy is revocable at the
pleasure of the stockholder executing it unless the proxy states that it is irrevocable and
applicable law makes it irrevocable. A stockholder may revoke any proxy that is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing revoking the proxy
or by filing another duly executed proxy bearing a later date with the Secretary.
2
Section 1.06 Voting Lists. The officer of the Corporation who has charge of the stock
ledger of the Corporation shall prepare, at least 10 days before every meeting of the stockholders
(and before any adjournment thereof for which a new record date has been set), a complete list of
the stockholders of record 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. This list, which may be in any format including electronic format, shall be open to
the examination of any stockholder prior to and during the meeting for any purpose germane to the
meeting in the manner required by the DGCL and other applicable law. The stock ledger shall be the
only evidence as to who are the stockholders entitled by this section to examine the list required
by this section or to vote in person or by proxy at any meeting of stockholders.
Section 1.07 Quorum. Except as otherwise provided in the certificate of incorporation
or by law, the presence in person or by proxy of the holders of record of a majority of the shares
entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of
business at such meeting, provided, however, that where a separate vote by a class
or series is required, the holders of a majority in voting power of all issued and outstanding
stock of such class or series entitled to vote on such matter, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to such matter. In the
absence of a quorum, the stockholders so present may, by a majority in voting power thereof,
adjourn the meeting from time to time in the manner provided in Section 1.09 of these bylaws until
a quorum shall attend.
Section 1.08 Voting. Except as otherwise provided in the certificate of incorporation
or by law, every holder of record of shares entitled to vote at a meeting of stockholders is
entitled to one vote for each share outstanding in his or her name on the books of the Corporation
(x) at the close of business on the record date for such meeting, or (y) if no record date has been
fixed, at the close of business on the day next preceding the day on which notice of the meeting 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. Except as otherwise required by law, the certificate of incorporation, these
bylaws, the rules and regulations of any stock exchange applicable to the Corporation or pursuant
to any other rule or regulation applicable to the Corporation or its stockholders, the vote of a
majority of the shares entitled to vote at a meeting of stockholders on the subject matter in
question represented in person or by proxy at any meeting at which a quorum is present shall be
sufficient for the transaction of any business at such meeting. The stockholders do not have the
right to cumulate their votes for the election of Directors.
Section 1.09 Adjournment. Any meeting of stockholders may be adjourned from time to
time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present
in person or represented by proxy at the meeting, to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the place, if any, and date and time
thereof (and the means of remote communication, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such meeting) are announced at the meeting at which
the adjournment is taken unless the adjournment is for more than 30 days or a new record date is
fixed for the adjourned meeting after the adjournment, in which case notice of the adjourned
meeting
3
in accordance with Section 1.04 of these bylaws shall be given to each stockholder of record
entitled to vote at the meeting. At the adjourned meeting, the Corporation may transact any
business that might have been transacted at the original meeting.
Section 1.10 Organization; Procedure; Inspection of Elections.
(a) At every meeting of stockholders the presiding officer shall be the Chairman of the
Board, or in the event of his or her absence or disability, a presiding officer chosen by
resolution of the Board. The Secretary, or in the event of his or her absence or disability, the
Assistant Secretary, if any, or if there be no Assistant Secretary, in the absence of the
Secretary, an appointee of the presiding officer, shall act as secretary of the meeting. The Board
may make such rules or regulations for the conduct of meetings of stockholders as it shall deem
necessary, appropriate or convenient. Subject to any such rules and regulations, the presiding
officer of any meeting shall have the right and authority to prescribe rules, regulations and
procedures for such meeting and to take all such actions as in the judgment of the presiding
officer are appropriate for the proper conduct of such meetings. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the presiding officer of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies
or such other persons as the presiding person of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments by participants. The
presiding officer at any meeting of stockholders, in addition to making any other determinations
that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and
declare to the meeting that a matter or business was not properly brought before the meeting and if
such presiding person should so determine, such presiding person shall so declare to the meeting
and any such matter of business not properly brought before the meeting shall not be transacted or
considered. Unless and to the extent determined by the Board or the person presiding over the
meeting, meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
(b) Preceding any meeting of the stockholders, the Board may, and when required by law shall,
appoint one or more persons to act as inspectors of elections, and may designate one or more
alternate inspectors. If no inspector or alternate so appointed by the Board is able to act, or if
no inspector or alternate has been appointed and the appointment of an inspector is required by
law, the person presiding at the meeting shall appoint one or more inspectors to act at the
meeting. No Director or nominee for the office of Director shall be appointed as an inspector of
elections. Each inspector, before entering upon the discharge of the duties of an inspector, 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 discharge their duties in
accordance with the requirements of applicable law.
4
Section 1.11 Stockholder Action by Written Consent.
(a) Until the Effective Date (as such term is defined in the certificate of incorporation)
and except as otherwise provided in the certificate of incorporation, any action required or
permitted to be taken at an annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote of stockholders, if a consent or consents in
writing, setting forth the action so taken, are: (i) signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were present and voted (but
not less than the minimum number of votes otherwise prescribed by law) and (ii) 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 within 60 days of the earliest dated consent
so delivered to the Corporation.
(b) From and after the Effective Date and except as otherwise provided in the certificate of
incorporation, any action required or permitted to be taken at any annual or special meeting of
stockholders of the Corporation may be taken only upon the vote of the stockholders at an annual or
special meeting duly called and may not be taken by written consent of the stockholders.
(c) If a stockholder action by written consent is permitted under these bylaws and the
certificate of incorporation, and the Board has not fixed a record date for the purpose of
determining the stockholders entitled to participate in such consent to be given, then:
(i) if the DGCL does not require action by the Board prior to the proposed stockholder
action, the record date 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 at any of the locations
referred to in Section 1.11(a)(ii) of these bylaws; and (ii) if the DGCL requires action by
the Board prior to the proposed stockholder action, the record date shall be at the close of
business on the day on which the Board adopts the resolution taking such prior action. Every
written consent to action without a meeting shall bear the date of signature of each stockholder
who signs the consent, and shall be valid if timely delivered to the Corporation at any of the
locations referred to in Section 1.11(a)(ii) of these bylaws.
(d) The Secretary shall give prompt notice of the taking of an action without a meeting by
less than unanimous written consent to those stockholders who have not consented in writing and
who, if the action had been taken at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that written consents signed by a sufficient
number of stockholders to take the action were delivered to the Corporation in accordance with the
DGCL.
Section 1.12 Notice of Stockholder Proposals and Nominations.
(a) Annual Meetings.
5
(i) Nominations of persons for election to the Board and proposals of business to be
considered by the stockholders at an annual meeting of stockholders may be made only (x) as
specified in the Corporations notice of meeting (or any notice supplemental thereto), (y) by or at
the direction of the Board, or a committee appointed by the Board for such purpose, or (z) subject
to the provisions of the Amended and Restated Stockholders Agreement among the Corporation and
certain of its stockholders, dated as of November 8, 2010 (as amended from time to time, the
Stockholders Agreement), by any stockholder of the Corporation who or which (1) is
entitled to vote at the meeting, (2) complies in a timely manner with all notice procedures set
forth in this Section 1.12, and (3) is a stockholder of record when the required notice is
delivered and at the date of the meeting. A stockholder proposal must constitute a proper matter
for corporate action under the DGCL.
(ii) Notice in writing of a stockholder nomination or stockholder proposal must be delivered
to the attention of the Secretary at the principal place of business of the Corporation not fewer
than 90 days nor more than 120 days prior to the first anniversary of the preceding years annual
meeting (which anniversary date, in the case of the first annual meeting of stockholders following
the closing of the Corporations initial underwritten public offering of common stock, shall be
deemed to be August 15, 2011) provided that if the date of the annual meeting is advanced
by more than 30 days or delayed by more than 70 days from such anniversary date of the preceding
years annual meeting, notice by the stockholder to be timely must be so delivered not earlier than
120 days prior to such annual meeting and not later than the close of business on the later of the
90th day prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. If the number of Directors to be elected
to the Board at an annual meeting is increased, and if the Corporation does not make a public
announcement naming all of the nominees for Director or specifying the size of the increased Board
at least 100 days prior to the first anniversary of the preceding years annual meeting, then any
stockholder nomination in respect of the increased number of positions shall be considered timely
if delivered not later than the close of business on the 10th day following the day on which a
public announcement naming all nominees or specifying the size of the increased Board is first made
by the Corporation.
(iii) Notice of a stockholder nomination shall include, as to each person whom the
stockholder proposes to nominate for election or re-election as a Director, all information
relating to such person required to be disclosed in solicitations of proxies for election of
Directors or is otherwise required, in each case pursuant to and in accordance with Section 14(a)
of the Securities Exchange Act of 1934, as amended (the Exchange Act) and the rules and
regulations promulgated thereunder, including such persons written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected. Notice of a stockholder
proposal shall include a brief description of the business desired to be brought before the
meeting, the text of the proposal (including the text of any resolutions proposed for consideration
and if such business includes proposed amendments to the certificate of incorporation and/or bylaws
of the Corporation, the text of the proposed amendments), the reasons for conducting such
6
business at the meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made.
(iv) Notice of a stockholder nomination or proposal shall also set forth, as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made:
(1) the name and address of such stockholder, as they appear on the Corporations books and
records, and of such beneficial owner;
(2) the class or series and number of shares of capital stock of the Corporation which are
owned beneficially and of record by such stockholder and such beneficial owner;
(3) a description of any agreement, arrangement or understanding between or among such
stockholder and any such beneficial owner, any of their respective affiliates or associates, and
any other person or persons (including their names) in connection with the proposal of such
nomination or other business;
(4) a description of any agreement, arrangement or understanding (including, regardless of
the form of settlement, any derivative, long or short positions, profit interests, forwards,
futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights,
hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of,
or any other agreement, arrangement or understanding that has been made, the effect or intent of
which is to create or mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of, such stockholder or any such beneficial owner or any such
nominee with respect to the Corporations securities (a Derivative Instrument);
(5) to the extent not disclosed pursuant to clause (4) above, the principal amount of any
indebtedness of the Corporation or any of its subsidiaries beneficially owned by such stockholder
or by any such beneficial owner, together with the title of the instrument under which such
indebtedness was issued and a description of any Derivative Instrument entered into by or on behalf
of such stockholder or such beneficial owner relating to the value or payment of any indebtedness
of the Corporation or any such subsidiary;
(6) a representation that the stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to
propose such business or nomination; and
(7) a representation as to whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the Corporations outstanding capital stock required to elect
the nominee or to approve or adopt the proposal or and/or (y) otherwise to solicit proxies from
stockholders in support of such nomination or proposal.
7
If requested by the Corporation, the information required under clauses (iv)(2), (3), (4) and (5)
of the preceding sentence of this Section 1.12(a) shall be supplemented by such stockholder and any
such beneficial owner not later than 10 days after the record date for notice of the meeting to
disclose such information as of such record date. The foregoing notice requirements of
this Section 1.12(a) shall be deemed satisfied by a stockholder with respect to business or a
nomination if the stockholder has notified the Corporation of his or her intention to present a
proposal or make a nomination at an annual meeting in compliance with the applicable rules and
regulations promulgated under the Exchange Act and such stockholders proposal or nomination has
been included in a proxy statement that has been prepared by the Corporation to solicit proxies for
such annual meeting.
(b) Special Meetings.
(i) Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting pursuant to Section
1.04 of these bylaws. Nominations of persons for election to the Board at a special meeting of
stockholders may be made only (x) as specified in the Corporations notice of meeting (or any
supplement thereto), (y) by or at the direction of the Board, or a committee appointed by the Board
for such purpose, if the Corporations notice of meeting indicated that the purposes of meeting
included the election of Directors and specified the number of Directors to be elected, or (z)
subject to the provisions of these bylaws, by any stockholder of the Corporation. Subject to the
provisions of the Stockholders Agreement, a stockholder may nominate persons for election to the
board (a stockholder nomination) at a special meeting only if the stockholder (1) is
entitled to vote at the meeting, (2) complies in a timely manner with the notice procedures set
forth in paragraph (ii) of this Section 1.12(b), and (3) is a stockholder of record when the
required notice is delivered and at the date of the meeting.
(ii) Notice in writing of a stockholder nomination must be delivered to the attention of the
Secretary at the principal place of business of the Corporation not more than 120 days prior to the
date of the meeting and not later than the close of business on the later of the 90th
day prior to the meeting or the 10th day following the last to occur of the public announcement by
the Corporation of the date of such meeting and the public announcement by the Corporation of the
nominees proposed by the Board to be elected at such meeting, and must comply with the provisions
of Sections 1.12(a)(iii) and (iv) of these bylaws. The foregoing notice requirements of this
Section 1.12(b) shall be deemed satisfied by a stockholder with respect to a nomination if the
stockholder has notified the Corporation of his or her intention to present a nomination at such
special meeting in compliance with the applicable rules and regulations promulgated under the
Exchange Act and such stockholders nomination has been included in a proxy statement that has been
prepared by the Corporation to solicit proxies for such special meeting.
(c) General.
(i) Except as otherwise expressly provided in any applicable rule or regulation promulgated
under the Exchange Act, only such persons who are nominated in
8
accordance with the procedures set forth in this Section 1.12 shall be eligible to be elected
at an annual or special meeting of stockholders of the Corporation to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 1.12. Except as otherwise
provided by law, the certificate of incorporation or these bylaws, the presiding officer of a
meeting of stockholders shall have the power and duty (x) to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with the procedures set
forth in this Section 1.12, and (y) if any proposed nomination or business is not in compliance
with this Section 1.12, to declare that such defective nomination shall be disregarded or that such
proposed business shall not be transacted.
(ii) The Corporation may require any proposed stockholder nominee for Director to furnish
such other information as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a Director of the Corporation. If the stockholder (or a qualified
representative of the stockholder) making a nomination or proposal under this Section 1.12 does not
appear at a meeting of stockholders to present such nomination or proposal, the nomination shall be
disregarded and/or the proposed business shall not be transacted, as the case may be,
notwithstanding that proxies in favor thereof may have been received by the Corporation. For
purposes of this Section 1.12, to be considered a qualified representative of the stockholder, a
person must be a duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic transmission delivered by
such stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of the
writing or electronic transmission, at the meeting of stockholders.
(iii) For purposes of this Section 1.12, 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.
(iv) Notwithstanding the foregoing provisions of this Section 1.12, 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 1.12; provided however, that any
references in these bylaws to the Exchange Act or the rules and regulations promulgated thereunder
are not intended to and shall not limit any requirements applicable to nominations or proposals as
to any other business to be considered pursuant to this Section 1.12 and compliance with paragraphs
(a) and (b) of this Section 1.12 shall be the exclusive means for a stockholder to make nominations
or submit other business (other than, as provided in the last sentences of paragraphs (a) and (b)
hereof, business or nominations brought properly under and in compliance with Rule 14a-8 or Rule
14a-11 of the Exchange Act, as such Rules may be amended from time to time). Nothing in this
Section 1.12 shall be deemed to affect any rights of (x) stockholders to request inclusion of
proposals in the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act or (y)
the holders of any series of
9
preferred stock to elect Directors pursuant to any applicable provisions of the certificate of
incorporation or of the relevant preferred stock certificate or designation.
(v) The announcement of an adjournment or postponement of an annual or special meeting does
not commence a new time period (and does not extend any time period) for the giving of notice of a
stockholder nomination or a stockholder proposal.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01 General Powers. Except as may otherwise be provided by law or by the
certificate of incorporation, the affairs and business of the Corporation shall be managed by or
under the direction of the Board and the Board may exercise all the powers and authority of the
Corporation. The Directors shall act only as a Board, and the individual Directors shall have no
power as such.
Section 2.02 Number and Term of Office. The number of Directors, subject to any
rights of the holders of shares of any class or series of preferred stock, shall initially be
seven, classified (including Directors in office as of the date hereof) with respect to the time
for which they severally hold office into three classes, as nearly equal in number as possible,
which number may be modified (but not reduced to less than three) from time to time exclusively by
resolution of the Board, subject to the terms of the Stockholders Agreement and any rights of the
holders of shares of any class or series of preferred stock, if in effect. One classs initial
term will expire at the first annual meeting of the stockholders following the date hereof, another
classs initial term will expire at the second annual meeting of the stockholders following the
date hereof and another classs initial term will expire at the third annual meeting of
stockholders following the date hereof, with Directors of each class to hold office until their
successors are duly elected and qualified, provided that the term of each Director shall
continue until the election and qualification of a successor and be subject to such Directors
earlier death, resignation or removal. At each annual meeting of stockholders of the Corporation
beginning with the first annual meeting of stockholders following the date hereof, subject to any
rights of the holders of shares of any class or series of preferred stock, the successors of the
Directors whose term expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of their election. In
the case of any increase or decrease, from time to time, in the number of Directors of the
Corporation, the number of Directors in each class shall be apportioned as nearly equal as
possible. No decrease in the number of Directors shall shorten the term of any incumbent Director.
At each meeting of the stockholders for the election of Directors, provided a quorum is present,
the Directors shall be elected by a plurality of the votes validly cast in such election.
Section 2.03 Regular Meetings. Regular meetings of the Board shall be held on such
dates, and at such times and places as are determined from time to time by resolution of the Board.
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Section 2.04 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or, in the event of his or her absence or disability, by any Vice
President, or by a majority of the Directors then in office, at such place, date and time as may be
specified in the respective notices or waivers of notice of such meetings. Any business may be
conducted at a special meeting.
Section 2.05 Notice of Meetings; Waiver of Notice.
(a) Notices of special meetings shall be given to each Director, and notice of each
resolution or other action affecting the date, time or place of one or more regular meetings shall
be given to each Director not present at the meeting adopting such resolution or other action,
subject to Section 2.08 of these bylaws. Notices shall be given personally, or by telephone
confirmed by facsimile or email dispatched promptly thereafter, or by facsimile or email confirmed
by a writing delivered by a recognized overnight courier service, directed to each Director at the
address from time to time designated by such Director to the Secretary. Each such notice and
confirmation must be given (received in the case of personal service or delivery of written
confirmation) at least 24 hours prior to the time of a meeting.
(b) A written waiver of notice of meeting signed by a Director or a waiver by electronic
transmission by a Director, whether given before or after the meeting time stated in such notice,
is deemed equivalent to notice. Attendance of a Director at a meeting is a waiver of notice of
such meeting, except when the Director attends a meeting for the express purpose of objecting at
the beginning of the meeting to the transaction of any business at the meeting on the ground that
the meeting is not lawfully called or convened.
Section 2.06 Quorum; Voting. At all meetings of the Board, the presence of a majority
of the total authorized number of Directors shall constitute a quorum for the transaction of
business. Except as otherwise provided by law, the certificate of incorporation or these bylaws,
the vote of a majority of the Directors present at any meeting at which a quorum is present shall
be the act of the Board.
Section 2.07 Action by Telephonic Communications. Members of the Board 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 each other, and
participation in a meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 2.08 Adjournment. A majority of the Directors present may adjourn any meeting
of the Board to another date, time or place, whether or not a quorum is present. No notice need be
given of any adjourned meeting unless (a) the date, time and place of the adjourned meeting are not
announced at the time of adjournment, in which case notice conforming to the requirements of
Section 2.05 of these bylaws shall be given to each Director, or (b) the meeting is adjourned for
more than 24 hours, in which case the notice referred to in clause (a) shall be given to those
Directors not present at the announcement of the date, time and place of the adjourned meeting.
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Section 2.09 Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the Board may be taken without a meeting if all members of the Board consent
thereto in writing or by electronic transmission, and such writing or writings or electronic
transmissions are filed with the minutes of proceedings of the Board. 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.
Section 2.10 Regulations. To the extent consistent with applicable law, the
certificate of incorporation and these bylaws, the Board may adopt such rules and regulations for
the conduct of meetings of the Board and for the management of the affairs and business of the
Corporation as the Board may deem appropriate. The Board may elect from among its members a
chairperson and one or more vice-chairpersons to preside over meetings and to perform such other
duties as may be designated by the Board.
Section 2.11 Resignations of Directors. Any Director may resign at any time by
submitting an electronic transmission or by delivering a written notice of resignation, signed by
such Director, to the President or the Secretary. Such resignation shall take effect upon delivery
unless the resignation specifies a later effective date or an effective date determined upon the
happening of a specified event.
Section 2.12 Removal of Directors.
(a) Until the Effective Date, any Director may be removed at any time, either for or without
cause, upon the affirmative vote of the holders of a majority of the outstanding shares of stock of
the Corporation entitled to vote generally for the election of Directors, acting at a meeting of
the stockholders or by written consent (if permitted) in accordance with the DGCL, the certificate
of incorporation and these bylaws.
(b) From and after the Effective Date and subject to the rights of the holders of shares of
any class or series of preferred stock, if any, to elect additional Directors pursuant to the
certificate of incorporation (including any certificate of designation thereunder), any Director
may be removed only for cause, upon the affirmative vote of the holders of at least a majority of
the outstanding shares of stock of the Corporation entitled to vote generally for the election of
Directors, acting at a meeting of the stockholders or by written consent (if permitted) in
accordance with the DGCL, the certificate of incorporation and these bylaws.
Section 2.13 Vacancies and Newly Created Directorships. Subject to the rights of the
holders of shares of any class or series of preferred stock, if any, to elect additional Directors
pursuant to the certificate of incorporation (including any certificate of designation thereunder)
and the Stockholders Agreement (if in effect), any vacancy in the Board that results from the
death, disability, resignation, disqualification or removal of any Director or from any other cause
shall be filled solely by the affirmative vote of a majority of the total number of Directors then
in office, even if less than a quorum, or by a sole remaining Director. Any Director filling a
vacancy shall be of the same class as that of the Director whose death, resignation,
disqualification, removal or other event
12
caused the vacancy, and any Director filling a newly created directorship shall be of the
class specified by the Board at the time the newly created directorships were created. A Director
elected to fill a vacancy or newly created Directorship shall hold office until his or her
successor has been elected and qualified or until his or her earlier death, resignation or removal.
Section 2.14 Director Fees and Expenses. The amount, if any, which each Director
shall be entitled to receive as compensation for his or her services shall be fixed from time to
time by the Board. The Corporation will cause each non-employee Director serving on the Board to
be reimbursed for all reasonable out-of-pocket costs and expenses incurred by him or her in
connection with such service.
Section 2.15 Reliance on Accounts and Reports, etc. A Director, as such or as a
member of any committee designated by the Board, shall in the performance of his or her duties be
fully protected in relying in good faith upon the records of the Corporation and upon information,
opinions, reports or statements presented to the Corporation by any of the Corporations officers
or employees, or committees designated by the Board, or by any other person as to the matters the
member reasonably believes are within such other persons professional or expert competence and who
has been selected with reasonable care by or on behalf of the Corporation.
ARTICLE III
COMMITTEES
Section 3.01 Designation of Committees. The Board shall designate such committees as
may be required by applicable laws, regulations or stock exchange rules, and may designate such
additional committees as it deems necessary or appropriate. Each committee shall consist of such
number of Directors, with such qualifications, as may be required by applicable laws, regulations
or stock exchange rules, or as from time to time may be fixed by the Board and shall have and may
exercise all the powers and authority of the Board in the management of the business and affairs of
the Corporation to the extent delegated to such committee by resolution of the Board, which
delegation shall include all such powers and authority as may be required by applicable laws,
regulations or stock exchange rules. No committee shall have any power or authority as to (a)
approving or adopting, or recommending to the stockholders, any action or matter (other than the
election or removal of directors) expressly required by the DGCL to be submitted to stockholders
for approval, (b) adopting, amending or repealing any of these bylaws or (c) as may otherwise be
excluded by law or by the certificate of incorporation, and no committee may delegate any of its
power or authority to a subcommittee unless so authorized by the Board.
Section 3.02 Members and Alternate Members. The members of each committee and any
alternate members shall be selected by the Board. The Board may provide that the members and
alternate members serve at the pleasure of the Board. An alternate member may replace any absent
or disqualified member at any meeting of the committee. An alternate member shall be given all
notices of committee meetings, may attend any
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meeting of the committee, but may count towards a quorum and vote only if a member for whom
such person is an alternate is absent or disqualified. Each member (and each alternate member) of
any committee shall hold office only until the time he or she shall cease for any reason to be a
Director, or until his or her earlier death, resignation or removal.
Section 3.03 Committee Procedures. A quorum for each committee shall be a majority of
its members, unless the committee has only one or two members, in which case a quorum shall be one
member, or unless a greater quorum is established by the Board. The vote of a majority of the
committee members present at a meeting at which a quorum is present shall be the act of the
committee. Each committee shall keep regular minutes of its meetings and report to the Board when
required. The Board shall adopt a charter for each committee for which a charter is required by
applicable laws, regulations or stock exchange rules, may adopt a charter for any other committee,
and may adopt other rules and regulations for the government of any committee not inconsistent with
the provisions of these bylaws or any such charter, and each committee may adopt its own rules and
regulations of government, to the extent not inconsistent with these bylaws or any charter or other
rules and regulations adopted by the Board.
Section 3.04 Meetings and Actions of Committees. Except to the extent that the same
may be inconsistent with the terms of any committee charter required by applicable laws,
regulations or stock exchange rules, meetings and actions of each committee shall be governed by,
and held and taken in accordance with, the provisions of the following sections of these bylaws,
with such bylaws being deemed to refer to the committee and its members in lieu of the Board and
its members:
(a) Section 2.03 (to the extent relating to place and time of regular meetings);
(b) Section 2.04 (relating to special meetings);
(c) Section 2.05 (relating to notice and waiver of notice);
(d) Sections 2.07 and 2.9 (relating to telephonic communication and action without a
meeting); and
(e) Section 2.08 (relating to adjournment and notice of adjournment).
Special meetings of committees may also be called by resolution of the Board.
Section 3.05 Resignations and Removals. Any member (and any alternate member) of any
committee may resign from such position at any time by submitting an electronic transmission or by
delivering a written notice of resignation, signed by such member, to the President or the
Secretary. Such resignation shall take effect upon delivery unless the resignation specifies a
later effective date or an effective date determined upon the happening of a specified event. Any
member (and any alternate member) of any committee may be removed from such position by the Board
at any time, either for or without cause.
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Section 3.06 Vacancies. If a vacancy occurs in any committee for any reason, the
remaining members (and any alternate members) may continue to act if a quorum is present. A
committee vacancy may be filled only by the Board.
ARTICLE IV
OFFICERS
Section 4.01 Officers. The Board shall elect a President and a Secretary as officers
of the Corporation. The Board may also elect a Treasurer, one or more Vice Presidents (any
one or more of whom may be designated an Executive Vice President or Senior Vice
President), Assistant Secretaries and Assistant Treasurers, and such other officers and agents as
the Board may determine. In addition, the Board from time to time may delegate to any officer the
power to appoint subordinate officers or agents and to prescribe their respective rights, terms of
office, authorities and duties. Any action by an appointing officer may be superseded by action by
the Board. Any number of offices may be held by the same person, except that one person may not
hold both the office of President and the office of Secretary. No officer need be a Director of
the Corporation. For the avoidance of doubt, the term Vice President shall refer to an officer
elected by the Board as Vice President and shall not include any employees of the Corporation whose
employment title is Vice President unless such individual has been elected as a Vice President of
the Corporation in accordance with these bylaws.
Section 4.02 Election. Unless otherwise determined by the Board, the officers of the
Corporation need not be elected for a specified term but shall serve at the pleasure of the Board
or for such terms as may be agreed in the individual case by each officer and the Board. Officers
and agents appointed pursuant to delegated authority as provided in Section 4.01 (or, in the case
of agents, as provided in Section 4.06) shall hold their offices for such terms as may be
determined from time to time by the appointing officer. Each officer shall hold office until his
or her successor has been elected or appointed and qualified, or until his or her earlier death,
resignation or removal. A failure to elect officers shall not dissolve or otherwise affect the
Corporation.
Section 4.03 Compensation. The salaries and other compensation of all officers and
agents of the Corporation shall be fixed by the Board or in the manner established by the Board.
Section 4.04 Removal and Resignation; Vacancies. Any officer may be removed for or
without cause at any time by the Board. Any officer granted the power to appoint subordinate
officers and agents as provided in Section 4.01 may remove any subordinate officer or agent
appointed by such officer, at any time, for or without cause. Any officer or agent may resign at
any time by delivering notice of resignation, either in writing signed by such officer or by
electronic transmission, to the Board or the President. Unless otherwise specified therein, such
resignation shall take effect upon delivery. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, may be filled by the Board or by the
officer, if any, who appointed the person formerly holding such office.
15
Section 4.05 Authority and Duties of Officers. An officer of the Corporation shall
have such authority and shall exercise such powers and perform such duties (a) as may be required
by law, (b) to the extent not inconsistent with law, as are specified in these bylaws, (c) to the
extent not inconsistent with law or these bylaws, as may be specified by resolution of the Board,
and (d) to the extent not inconsistent with any of the foregoing, as may be specified by the
appointing officer with respect to a subordinate officer appointed pursuant to delegated authority
under Section 4.01.
Section 4.06 President. The President shall preside at all meetings of the
stockholders and Directors at which he or she is present, shall be the chief executive officer of
the Corporation, shall have general control and supervision of the policies and operations of the
Corporation and shall see that all orders and resolutions of the Board are carried into effect. He
or she shall manage and administer the Corporations business and affairs and shall also perform
all duties and exercise all powers usually pertaining to the office of a chief executive officer of
a corporation, including, without limitation under the DGCL. He or she shall have the authority to
sign, in the name and on behalf of the Corporation, checks, orders, contracts, leases, notes,
drafts and all other documents and instruments in connection with the business of the Corporation.
Except as otherwise determined by the Board, he or she shall have the authority to cause the
employment or appointment of such employees (other than the President) or agents of the Corporation
as the conduct of the business of the Corporation may require, to fix their compensation, and to
remove or suspend such employee or any agent employed or appointed by any officer or to suspend any
agent appointed by the Board. The President shall have the duties and powers of the Treasurer if
no Treasurer is elected and shall have such other duties and powers as the Board may from time to
time prescribe.
Section 4.07 Vice Presidents. Unless otherwise determined by the Board, if one or
more Vice Presidents have been elected, each Vice President shall perform such duties and exercise
such powers as may be assigned to him or her from time to time by the Board or the President. In
the event of absence or disability of the President, the duties of the President shall be
performed, and his or her powers may be exercised, by such Vice President as shall be designated by
the Board or, failing such designation, by the Vice President in order of seniority of election to
that office.
Section 4.08 Secretary. Unless otherwise determined by the Board, the Secretary shall
have the following powers and duties:
(a) The Secretary shall keep or cause to be kept a record of all the proceedings of the
meetings of the stockholders, the Board and any committees thereof in books provided for that
purpose.
(b) The Secretary shall cause all notices to be duly given in accordance with the provisions
of these bylaws and as required by law.
(c) Whenever any committee shall be appointed pursuant to a resolution of the Board, the
Secretary shall furnish a copy of such resolution to the members of such committee.
16
(d) The Secretary shall be the custodian of the records and of the seal of the Corporation
and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares
of the Corporation prior to the issuance thereof and to all documents and instruments that the
Board or any officer of the Corporation has determined should be executed under seal, may sign
(together with any other authorized officer) any such document or instrument, and when the seal is
so affixed he or she may attest the same.
(e) The Secretary shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the certificate of incorporation
or these bylaws.
(f) The Secretary shall have charge of the stock books and ledgers of the Corporation and
shall cause the stock and transfer books to be kept in such manner as to show at any time the
number of shares of stock of the Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record of such shares, the number of
shares held by each holder and the date as of which each such holder became a holder of record.
(g) The Secretary shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant
Secretary shall have signed) certificates representing shares of the Corporation the issuance of
which shall have been authorized by the Board.
(h) The Secretary shall perform, in general, all duties incident to the office of secretary
and such other duties as may be specified in these bylaws or as may be assigned to the Secretary
from time to time by the Board or the President.
Section 4.09 Treasurer. Unless otherwise determined by the Board, the Treasurer, if
there be one, shall be the chief financial officer of the Corporation and shall have the following
powers and duties:
(a) The Treasurer shall have charge and supervision over and be responsible for the moneys,
securities, receipts and disbursements of the Corporation, and shall keep or cause to be kept full
and accurate records thereof.
(b) The Treasurer shall cause the moneys and other valuable effects of the Corporation to be
deposited in the name and to the credit of the Corporation in such banks or trust companies or with
such bankers or other depositaries as shall be determined by the Board or the President, or by such
other officers of the Corporation as may be authorized by the Board or the President to make such
determinations.
(c) The Treasurer shall cause the moneys of the Corporation to be disbursed by checks or
drafts (signed by such officer or officers or such agent or agents of the Corporation, and in such
manner, as the Board or the President may determine from time to time) upon the authorized
depositaries of the Corporation and cause to be taken and preserved proper vouchers for all moneys
disbursed.
17
(d) The Treasurer shall render to the Board or the President, whenever requested, a statement
of the financial condition of the Corporation and of the transactions of the Corporation, and
render a full financial report at the annual meeting of the stockholders, if called upon to do so.
(e) The Treasurer shall be empowered from time to time to require from all officers or agents
of the Corporation reports or statements giving such information as he or she may desire with
respect to any and all financial transactions of the Corporation.
(f) The Treasurer may sign (unless an Assistant Treasurer or the Secretary or an Assistant
Secretary shall have signed) certificates representing shares of stock of the Corporation the
issuance of which shall have been authorized by the Board.
(g) The Treasurer shall perform, in general, all duties incident to the office of treasurer
and such other duties as may be specified in these bylaws or as may be assigned to the Treasurer
from time to time by the Board or the President.
Section 4.10 Security. The Board may require any officer, agent or employee of the
Corporation to provide security for the faithful performance of his or her duties, in such amount
and of such character as may be determined from time to time by the Board.
ARTICLE V
CAPITAL STOCK
Section 5.01 Certificates of Stock; Uncertificated Shares. The shares of the
Corporation shall be represented by certificates, except to the extent that the Board has provided
by resolution that some or all of any or all classes or series of the stock of the Corporation
shall be uncertificated shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation. Every holder of stock in the
Corporation represented by certificates shall be entitled to have, and the Board may in its sole
discretion permit a holder of uncertificated shares to receive upon request, a certificate signed
by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, representing the number of shares registered in certificate
form. Such certificate shall be in such form as the Board may determine, to the extent consistent
with applicable law, the certificate of incorporation and these bylaws.
Section 5.02 Facsimile Signatures. Any or all signatures on the certificates referred
to in Section 5.01 of these bylaws may be in facsimile form, to the extent permitted by law. If
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 or
she were such officer, transfer agent or registrar at the date of issue.
Section 5.03 Lost, Stolen or Destroyed Certificates. A new certificate may be issued
in place of any certificate theretofore issued by the Corporation alleged to have
18
been lost, stolen or destroyed only upon delivery to the Corporation of an affidavit of the
owner or owners (or their legal representatives) of such certificate, setting forth such
allegation, and a bond or other undertaking as may be satisfactory to a financial officer of the
Corporation designated by the Board 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.
Section 5.04 Transfer of Stock.
(a) Upon surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares, duly endorsed or accompanied by appropriate evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its books. Within a
reasonable time after the transfer of uncertificated stock, the Corporation shall send to the
registered owner thereof a written notice containing the information required to be set forth or
stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL. Subject to the
provisions of the certificate of incorporation and these bylaws, the Board may prescribe such
additional rules and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
(b) The Corporation may enter into additional agreements with shareholders to restrict the
transfer of stock of the Corporation in any manner not prohibited by the DGCL.
Section 5.05 Registered Stockholders. Prior to due surrender of a certificate for
registration of transfer, the Corporation may treat the registered owner as the person exclusively
entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to
exercise all the rights and powers of the owner of the shares represented by such certificate, and
the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such
shares on the part of any other person, whether or not the Corporation shall have notice of such
claim or interests. If a transfer of shares is made for collateral security, and not absolutely,
this fact shall be so expressed in the entry of the transfer if, when the certificates are
presented to the Corporation for transfer or uncertificated shares are requested to be transferred,
both the transferor and transferee request the Corporation to do so.
Section 5.06 Transfer Agent and Registrar. The Board may appoint one or more transfer
agents and one or more registrars, and may require all certificates representing shares to bear the
signature of any such transfer agents or registrars.
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ARTICLE VI
INDEMNIFICATION
Section 6.01 Indemnification.
(a) In General. The Corporation shall indemnify, to the full extent permitted by the
DGCL and other applicable law, any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (each, a proceeding) by reason of the fact that (x) such
person is or was serving or has agreed to serve as a Director or officer of the Corporation, or (y)
such person, while serving as a Director or officer of the Corporation, is or was serving or has
agreed to serve at the request of the Corporation as a Director, officer, employee, manager or
agent of another corporation, partnership, joint venture, trust or other enterprise or (z) such
person is or was serving or has agreed to serve at the request of the Corporation as a Director,
officer or manager of another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted by such person in such capacity,
and who satisfies the applicable standard of conduct set forth in the DGCL or other applicable law:
(1) in a proceeding other than a proceeding by or in the right of the Corporation, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person or on such persons behalf in connection with such proceeding
and any appeal therefrom, or
(2) in a proceeding by or in the right of the Corporation to procure a judgment in its favor,
against expenses (including attorneys fees) actually and reasonably incurred by such person or on
such persons behalf in connection with the defense or settlement of such proceeding and any appeal
therefrom.
(b) Indemnification in Respect of Successful Defense. To the extent that a present
or former Director or officer of the Corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in Section 6.01(a) or in defense of any claim, issue or
matter therein, such person shall be indemnified by the Corporation against expenses (including
attorneys fees) actually and reasonably incurred by such person in connection therewith.
(c) Indemnification in Respect of Proceedings Instituted by Indemnitee. Section
6.01(a) does not require the Corporation to indemnify a present or former Director or officer of
the Corporation in respect of a proceeding (or part thereof) instituted by such person on his or
her own behalf, unless such proceeding (or part thereof) has been authorized by the Board or the
indemnification requested is pursuant to the last sentence of Section 6.03 of these bylaws.
Section 6.02 Advance of Expenses. The Corporation shall advance all expenses
(including reasonable attorneys fees) incurred by a present or former Director or officer
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in defending any proceeding prior to the final disposition of such proceeding upon written
request of such person and delivery of an undertaking by such person to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
Corporation. The Corporation may authorize any counsel for the Corporation to represent (subject
to applicable conflict of interest considerations) such present or former Director or officer in
any proceeding, whether or not the Corporation is a party to such proceeding
Section 6.03 Procedure for Indemnification. Any indemnification under Section 6.01 of
these bylaws or any advance of expenses under Section 6.02 of these bylaws shall be made only
against a written request therefor (together with supporting documentation) submitted by or on
behalf of the person seeking indemnification or advance. Indemnification may be sought by a person
under Section 6.01 of these bylaws in respect of a proceeding only to the extent that both the
liabilities for which indemnification is sought and all portions of the proceeding relevant to the
determination of whether the person has satisfied any appropriate standard of conduct have become
final. A person seeking indemnification or advance of expenses may seek to enforce such persons
rights to indemnification or advance of expenses (as the case may be) in the Delaware Court of
Chancery to the extent all or any portion of a requested indemnification has not been granted
within 90 days of, or to the extent all or any portion of a requested advance of expenses has not
been granted within 20 days of, the submission of such request. All expenses (including reasonable
attorneys fees) incurred by such person in connection with successfully establishing such persons
right to indemnification or advancement of expenses under this Article, in whole or in part, shall
also be indemnified by the Corporation.
Section 6.04 Burden of Proof.
(a) In any proceeding brought to enforce the right of a person to receive indemnification to
which such person is entitled under Section 6.01 of these bylaws, the Corporation has the burden of
demonstrating that the standard of conduct applicable under the DGCL or other applicable law was
not met. A prior determination by the Corporation (including its Board or any committee thereof,
its independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct does not itself constitute evidence that the claimant has not met the
applicable standard of conduct.
(b) In any proceeding brought to enforce a claim for advances to which a person is entitled
under Section 6.02 of these bylaws, the person seeking an advance need only show that he or she has
satisfied the requirements expressly set forth in Section 6.02 of these bylaws.
Section 6.05 Contract Right; Non-Exclusivity; Survival.
(a) The rights to indemnification and advancement of expenses provided by this Article VI
shall be deemed to be separate contract rights between the Corporation and each Director and
officer who serves in any such capacity at any time while these
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provisions as well as the relevant provisions of the DGCL are in effect, and no repeal or
modification of any of these provisions or any relevant provisions of the DGCL shall adversely
affect any right or obligation of such Director or officer existing at the time of such repeal or
modification with respect to any state of facts then or previously existing or any proceeding
previously or thereafter brought or threatened based in whole or in part upon any such state of
facts. Such contract rights may not be modified retroactively as to any present or former
Director or officer without the consent of such Director or officer.
(b) The rights to indemnification and advancement of expenses provided by this Article VI
shall not be deemed exclusive of any other indemnification or advancement of expenses to which a
present or former Director or officer of the Corporation seeking indemnification or advancement of
expenses may be entitled by any agreement, vote of stockholders or disinterested Directors, or
otherwise.
(c) The rights to indemnification and advancement of expenses provided by this Article VI to
any present or former Director or officer of the Corporation shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 6.06 Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was or has agreed to become a Director or officer of the Corporation, or is
or was serving at the request of the Corporation as a Director or officer of another corporation,
partnership, joint venture, trust or other enterprise against any liability asserted against such
person and incurred by such person or on such persons behalf in any such capacity, or arising out
of such persons status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article.
Section 6.07 Employees and Agents. The Board, or any officer authorized by the Board
to make indemnification decisions, may cause the Corporation to indemnify any present or former
employee or agent of the Corporation in such manner and for such liabilities as the Board may
determine, up to the fullest extent permitted by the DGCL and other applicable law.
Section 6.08 Interpretation; Severability. Terms defined in Sections 145(h) or (i) of
the DGCL have the meanings set forth in such sections when used in this Article VI. If this
Article or any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director or officer of the
Corporation as to costs, charges and expenses (including attorneys fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
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ARTICLE VII
OFFICES
Section 7.01 Registered Office. The registered office of the Corporation in the State
of Delaware shall be located at the location provided in the Corporations certificate of
incorporation.
Section 7.02 Other Offices. The Corporation may maintain offices or places of
business at such other locations within or without the State of Delaware as the Board may from time
to time determine or as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01 Dividends.
(a) Subject to any applicable provisions of law and the certificate of incorporation,
dividends upon the shares of the Corporation may be declared by the Board at any regular or special
meeting of the Board, or by written consent in accordance with the DGCL and these bylaws, and any
such dividend may be paid in cash, property, or shares of the Corporations stock.
(b) A member of the Board, or a member of any committee designated by the Board shall be
fully protected in relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board, or by any other person as to matters the Director reasonably
believes are within such other persons professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence
and amount of surplus or other funds from which dividends might properly be declared and paid.
Section 8.02 Reserves. There may be set apart out of any funds of the Corporation
available for dividends such sum or sums as the Board from time to time may determine proper as a
reserve or reserves for meeting contingencies, equalizing dividends, repairing or maintaining any
property of the Corporation or for such other purpose or purposes as the Board may determine
conducive to the interest of the Corporation, and the Board may similarly modify or abolish any
such reserve.
Section 8.03 Execution of Instruments. Except as otherwise required by law or the
certificate of incorporation, the Board or any officer of the Corporation authorized by the Board
may authorize any other officer or agent of the Corporation to enter into any contract or execute
and deliver any instrument in the name and on behalf of the Corporation. Any such authorization
must be in writing or by electronic transmission and may be general or limited to specific
contracts or instruments.
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Section 8.04 Voting as Stockholder. Unless otherwise determined by resolution of the
Board, the President or any Vice President shall have full power and authority on behalf of the
Corporation to attend any meeting of stockholders of any corporation in which the Corporation may
hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all
other rights, powers and privileges incident to the ownership of such stock at any such meeting, or
through action without a meeting. The Board may by resolution from time to time confer such power
and authority (in general or confined to specific instances) upon any other person or persons.
Section 8.05 Fiscal Year. The fiscal year of the Corporation shall commence on the
first day of April of each year (except for the Corporations first fiscal year which shall
commence on the date of incorporation) and shall terminate in each case on March 31.
Section 8.06 Seal. The seal of the Corporation shall be circular in form and shall
contain the name of the Corporation, the year of its incorporation and the words Corporate Seal
and Delaware. The form of such seal shall be subject to alteration by the Board. The seal may
be used by causing it or a facsimile thereof to be impressed, affixed or reproduced, or may be used
in any other lawful manner.
Section 8.07 Books and Records; Inspection. Except to the extent otherwise required
by law, the books and records of the Corporation shall be kept at such place or places within or
without the State of Delaware as may be determined from time to time by the Board.
Section 8.08 Electronic Transmission. Electronic transmission, as used in
these bylaws, means any form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof,
and that may be directly reproduced in paper form by such a recipient through an automated process.
ARTICLE IX
AMENDMENT OF BYLAWS
Section 9.01 Amendment. Subject to the provisions of the certificate of
incorporation, these bylaws may be amended, altered or repealed (a) by resolution adopted by a
majority of the Board at any special or regular meeting of the Board if, in the case of such
special meeting only, notice of such amendment, alteration or repeal is contained in the notice or
waiver of notice of such meeting or (b) at any regular or special meeting of the stockholders upon
the affirmative vote of at least two-thirds of the shares of the Corporation entitled to vote
generally in the election of Directors if, in the case of such special meeting only, notice of such
amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting.
Notwithstanding the foregoing, (x) no amendment to the Stockholders Agreement (whether
or not such amendment modifies any provision of the Stockholders Agreement
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to which these bylaws are subject) shall be deemed an amendment of these bylaws for purposes of
this Section 9.01 and (y) no amendment, alteration or repeal of Article VI shall adversely
affect any right or protection existing under bylaws immediately prior to such amendment,
alteration or repeal, including any right or protection of a Director thereunder in respect of any
act or omission occurring prior to the time of such amendment.
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