Attached files
file | filename |
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10-K - FORM 10-K - MModal Inc. | w81804e10vk.htm |
EX-3.1 - EX-3.1 - MModal Inc. | w81804exv3w1.htm |
EX-31.1 - EX-31.1 - MModal Inc. | w81804exv31w1.htm |
EX-10.7 - EX-10.7 - MModal Inc. | w81804exv10w7.htm |
EX-32.1 - EX-32.1 - MModal Inc. | w81804exv32w1.htm |
EX-10.6 - EX-10.6 - MModal Inc. | w81804exv10w6.htm |
EX-31.2 - EX-31.2 - MModal Inc. | w81804exv31w2.htm |
EX-10.8 - EX-10.8 - MModal Inc. | w81804exv10w8.htm |
EX-10.44 - EX-10.44 - MModal Inc. | w81804exv10w44.htm |
Exhibit 3.2
BY-LAWS
OF
MEDQUIST HOLDINGS INC.
ARTICLE I
Offices
SECTION 1.01 Registered Office. MedQuist Holdings Inc. (the
Corporation) shall maintain its registered office in the State of Delaware at The
Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801 or
at such other location as determined by the Board of Directors in accordance with applicable laws.
The Corporation may also have offices in such other places in the United States or elsewhere as the
Board of Directors may, from time to time, determine or as the business of the Corporation may
require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01 Annual Meetings. An annual meeting of stockholders shall be held at
such place, either within or without the State of Delaware, and at such time and date as the Board
of Directors shall determine. The Board of Directors may, in its sole discretion, determine that
any such meeting shall not be held at any place, but will instead be held solely by means of remote
communication as described in Section 2.11 of these By-laws and in accordance with Section
211(a)(2) of the General Corporation Law of the State of Delaware (the DGCL). The Board
of Directors may postpone, delay, reschedule or cancel any annual meeting of stockholders
previously scheduled.
SECTION 2.02 Special Meetings. Subject to the Corporations Certificate of
Incorporation (as the same may be amended from time to time, the Certificate of
Incorporation), special meetings of the stockholders of the Corporation for any purpose or
purposes may be called at any time only by or at the direction of the Chairman of the Board of
Directors, the Board of Directors or a committee of the Board of Directors which has been duly
designated by the Board of Directors and whose powers and authority, as provided in a resolution of
the Board of Directors, include the power to call special meetings of stockholders. The Board of
Directors may postpone, delay, reschedule or cancel any special meeting of stockholders previously
scheduled.
SECTION 2.03 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of
other business to be considered by the stockholders may be made at an annual meeting of
stockholders only (a) as provided in any stockholders agreement entered into by the Corporation and
any stockholder or stockholders prior to the Effective Time (as defined in the Certificate of
Incorporation), as amended from time to time (each, a Stockholders Agreement), (b)
pursuant to the Corporations notice of meeting (or any supplement thereto) delivered pursuant to
Section 2.04 of these By-laws, (c) by or at the direction of the Chairman of the Board of Directors
or the Board of Directors or any committee thereof or (d) by any stockholder of the Corporation who
is entitled to vote at the meeting, who, subject to paragraph (C)(4) of this Section 2.03, complied
with the notice procedures set forth in paragraphs (A)(2) and (A)(3) of this Section 2.03 and who
was a stockholder of record at the time such notice is delivered to the Secretary of the
Corporation and on the record date.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (d) of paragraph (A)(1) of this Section 2.03, the stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation, and, in the case
of business other than nominations of persons for election to the Board of Directors, such other
business must constitute a proper matter for stockholder action. To be timely, a stockholders
notice shall be delivered to the Secretary of the Corporation at the principal executive offices of
the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days
prior to the first anniversary of the preceding years annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by more than thirty (30) days from the
anniversary date of the previous years meeting, notice by the stockholder to be timely must be so
delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not
later than the close of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public announcement of the date of such
meeting is first made. Public announcement of an adjournment or postponement of an annual meeting
shall not commence a new time period (or extend any time period) for the giving of a stockholders
notice. Notwithstanding anything in this Section 2.03(A)(2) to the contrary, if the number of
directors to be elected to the Board of Directors of the Corporation at an annual meeting is
increased and there is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased board of directors at least one hundred (100)
calendar days prior to the first anniversary of the prior years annual meeting of stockholders,
then a stockholders notice required by this Section shall be considered timely, but only with
respect to nominees for any new positions created by such increase, if it is received by the
Secretary of the Corporation not later than the close of business on the tenth (10th) calendar day
following the day on which such public announcement is first made by the Corporation.
(3) Stockholder notice as set forth in paragraph (A)(2) of this Section 2.03 shall set
forth (a) as to each person whom the stockholder proposes to nominate for election or re-election
as a director (x) the name, age, business address and residence address of the person, (y) the
principal occupation or employment of the person and (z) all information relating to such
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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 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 original signed written consent to
being named in the proxy statement as a nominee and to serving as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the text of the proposal or business
(including the text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend the By-laws of the Corporation, the text of the proposed
amendment), the reasons for conducting such business at the meeting and any material interest in
such business of such stockholder, the beneficial owner, if any, on whose behalf the proposal is
made, and any other persons that have otherwise formed a group with such stockholder or any such
beneficial owner with regard to the stock of the Corporation; (c) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made and any
other persons that have otherwise formed a group with such stockholder or any such beneficial owner
with regard to the stock of the Corporation (i) the name and address of such stockholder, as they
appear on the Corporations books and records, and of such beneficial owner and group member, (ii)
the class or series and number of shares of capital stock of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner and such group member,
(iii) 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 shall at such time continue to be the holder of record of
such shares, (iv) a representation whether the stockholder or the beneficial owner or group member,
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 approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies or
votes from stockholders in support of such proposal or nomination, and (v) any other information
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for, as applicable, the proposal and/or for the election of directors
in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the
rules and regulations promulgated thereunder; (d) a description of any agreement, arrangement or
understanding with respect to the nomination or proposal and/or the voting of shares of any class
or series of stock of the Corporation between or among the stockholder giving the notice, the
beneficial owner, if any, on whose behalf the nomination or proposal is made and any other persons
that have otherwise formed a group with such stockholder or any such beneficial owner with regard
to the stock of the Corporation, any of their respective affiliates or associates and/or any others
acting in concert with any of the foregoing (collectively, proponent persons); and (e) a
description of any agreement, arrangement or understanding (including without limitation any
contract to purchase or sell, acquisition or grant of any option, right or warrant to purchase or
sell, swap or other instrument) to which any proponent person is a party, the intent or effect of
which may be (i) to transfer to or from any proponent person, in whole or in part, any of the
economic consequences of ownership of any security of the Corporation, (ii) to increase or decrease
the voting power of any proponent person with respect to shares of any class or series of stock of
the Corporation and/or (iii) to provide any proponent person, directly or indirectly, with the
opportunity to profit or share in any profit derived from, or to otherwise benefit economically
from, or increase or
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decrease its exposure to, any increase or decrease in the value of any security of the
Corporation. A stockholder providing notice of a proposed nomination for election to the Board of
Directors or other business proposed to be brought before a meeting (whether given pursuant to this
paragraph (A)(3) or paragraph (B) of this Section 2.03 of the By-laws) shall update and supplement
such notice from time to time to the extent necessary so that the information provided or required
to be provided in such notice shall be true and correct as of the record date for the meeting and
as of the date that is fifteen (15) days prior to the meeting or any adjournment or postponement
thereof; such update and supplement shall be delivered in writing to the Secretary of the
Corporation at the principal executive offices of the Corporation not later than five (5) days
after the record date for the meeting (in the case of any update and supplement required to be made
as of the record date), and not later than ten (10) days prior to the date for the meeting or any
adjournment or postponement thereof (in the case of any update and supplement required to be made
as of fifteen (15) days prior to the meeting or any adjournment or postponement thereof). The
Corporation may require any proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as a director of the
Corporation.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) as provided in any Stockholders Agreement, (2) by or at the
direction of the Board of Directors or any committee thereof or (3) provided that the Board of
Directors has determined that directors shall be elected at such meeting, by any stockholder of the
Corporation who is entitled to vote at the meeting, who (subject to paragraph (C)(4) of this
Section 2.03) complies with the notice procedures set forth in this Section 2.03 and who is a
stockholder of record at the time such notice is delivered to the Secretary of the Corporation and
on the record date. In the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any stockholder entitled to
vote in such election of directors who (subject to paragraph (C)(4) of this Section 2.03) complies
with the notice procedures set forth in this Section 2.03 and who is a stockholder of record at the
time such notice is delivered to the Secretary of the Corporation and on the record date, may
nominate a person or persons (as the case may be) for election to such position(s) as specified in
the Corporations notice of meeting if the stockholders notice as required by paragraph (A)(2) of
this Section 2.03 shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the one hundred twentieth (120th)
day prior to such special meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall
the public announcement of an adjournment or postponement of a special meeting commence a new time
period (or extend any time period) for the giving of a stockholders notice as described above.
(C) General. (1) Except as provided in paragraph (C)(4) of this Section 2.03,
only such persons who are nominated in accordance with the procedures set forth in this Section
2.03 or any Stockholders Agreement shall be eligible for election to serve as directors and only
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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. Except as
otherwise provided by law, the Certificate of Incorporation or these By-laws, the chairman of the
meeting shall have the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in these By-laws and, if any proposed nomination or business is not in
compliance with these By-laws, to declare that such defective proposal or nomination shall be
disregarded. The chairman of the meeting of stockholders shall, if the facts warrant, determine
and declare to the meeting that any purported nomination or business was not properly brought
before the meeting in accordance with the provisions of these By-laws, and if he or she should so
determine, the chairman shall so declare to the meeting, and any such purported nomination or
business not properly brought before the meeting shall not be transacted. Notwithstanding the
foregoing provisions of this Section 2.03, unless otherwise required by law, if the stockholder (or
a qualified representative of the stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or business, such potential nomination
shall be disregarded and such proposed business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the Corporation. For purposes of this
Section 2.03, 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 in such capacity at the meeting of stockholders and such person must produce such
writing or electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(2) Whenever used in these By-laws, public announcement shall mean disclosure (a) in a
press release released by the Corporation, provided such press release is released by the
Corporation following its customary procedures, is reported by the Dow Jones News Service,
Associated Press or comparable national news service, or is generally available on internet news
sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3) In addition to the foregoing provisions of this Section 2.03, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder with respect to the matters set forth in this Section 2.03; provided,
however, that, to the fullest extent permitted by law, any references in these By-laws to the
Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not
limit any requirements applicable to nominations or proposals as to any other business to be
considered pursuant to these By-laws (including paragraphs (A)(1)(d) and (B) of this Section 2.03),
and compliance with paragraphs (A)(1)(d) and (B) of this Section 2.03 shall be the exclusive means
for a stockholder to make nominations or submit other business (other than, as provided in the last
sentence of this paragraph (C)(3), matters properly brought under and in compliance with Rule 14a-8
of the Exchange Act as amended from time to time). Nothing in these By-laws shall be deemed to
affect any rights (a) of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act, or (b) of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or upon liquidation to
elect directors under specified circumstances.
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(4) Notwithstanding anything to the contrary contained in this Section 2.03, for as long
as any Stockholders Agreement remains in effect that expressly provides the stockholder(s) party
thereto with rights relating to representation on the Board of Directors, no stockholder then
subject to such Stockholders Agreement shall be subject to the notice procedures set forth in
paragraphs (A)(2), (A)(3) or (B) of this Section 2.03 to nominate any person for election to the
Board of Directors or to propose any business to be considered by the stockholders at an annual or
special meeting of stockholders.
SECTION 2.04 Notice of Meetings. Whenever stockholders are required or permitted
to take any action at a meeting, a timely notice in writing or by electronic transmission, in the
manner provided in Section 232 of the DGCL, of the meeting, which shall state the place, if any,
date and time of the meeting, the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting, the record date for
determining the stockholders entitled to vote at the meeting, if such date is different from the
record date for determining stockholders entitled to notice of the meeting, and, in the case of a
special meeting, the purposes for which the meeting is called, shall be mailed to or transmitted
electronically by the Secretary of the Corporation to each stockholder of record entitled to vote
thereat as of the record date for determining the stockholders entitled to notice of the meeting.
Unless otherwise provided by law, the Certificate of Incorporation or these By-laws, the notice of
any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
SECTION 2.05 Quorum. Unless otherwise required by law or the Certificate of
Incorporation, the holders of a majority of the voting power of the issued and outstanding shares
of stock of the Corporation entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of stockholders. When a
quorum is once present to organize a meeting, the quorum is not broken by the subsequent withdrawal
of any stockholders. When a specified item of business requires a vote by a class or series of
stock of the Corporation (if the Corporation shall then have outstanding shares of more than one
class or series of stock of the Corporation) voting as a class or series, the holders of a majority
of the voting power of the shares of such class or series shall constitute a quorum (as to such
class or series) for the transaction of such item of business.
SECTION 2.06 Voting. At all meetings of the stockholders, each stockholder shall
be entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of
record on the record date for determining the stockholders entitled to vote at the meeting. When a
quorum is present or represented at any meeting, the vote of the holders of a majority of the
voting power of the shares of stock present in person or represented by proxy and entitled to vote
thereon shall decide any question brought before such meeting, unless the question is one upon
which, by express provision of applicable law, of the rules or regulations of any stock exchange
applicable to the Corporation, of any regulation applicable to the Corporation or its securities,
of the Certificate of Incorporation or of these By-laws, a different vote is required, in which
case such express provision shall govern and control the decision of such question.
Notwithstanding the foregoing sentence and subject to the Certificate of Incorporation, all
elections of directors shall be determined by a plurality of the votes cast in respect of the
shares present in person or represented by proxy at the meeting and entitled to vote on the
election of directors.
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SECTION 2.07 Chairman of Meetings. The Chairman of the Board of Directors, if one
is elected, or, in his or her absence or disability, the President of the Corporation, shall serve
as chairman of and preside at all meetings of the stockholders.
SECTION 2.08 Secretary of Meetings. The Secretary of the Corporation shall act as
Secretary at all meetings of the stockholders. In the absence or disability of the Secretary, the
Chairman of the Board of Directors or the President shall appoint a person to act as secretary at
such meetings.
SECTION 2.09 Consent of Stockholders in Lieu of Meeting. Except as otherwise
provided in the Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of the stockholders, must be effected at a duly called annual or special meeting
of such holders and may not be effected by any consent in writing by the stockholders; provided,
however, that any action required or permitted to be taken by the holders of Preferred Stock,
voting separately as a series or separately as a class with one or more other such series, may be
taken without a meeting, without prior notice and without a vote, to the extent expressly permitted
by the certificate of designation of the Preferred Stock. Delivery made to the Corporations
registered office shall be made by hand or by certified or registered mail, return receipt
requested.
SECTION 2.10 Adjournment. At any meeting of stockholders of the Corporation, if
less than a quorum is present in person or by proxy, the person presiding at the meeting or
stockholders holding a majority in voting power of the shares of stock of the Corporation present
in person or by proxy and entitled to vote thereat shall have the power to adjourn the meeting from
time to time without notice other than announcement at the meeting until a quorum is present. Any
business may be transacted at the adjourned meeting that might have been transacted at the meeting
originally noticed. If the adjournment is for more than thirty (30) days, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for determination of stockholders entitled to vote is fixed
for the adjourned meeting, the Board of Directors shall fix the record date for determining
stockholders entitled to notice of such adjourned meeting in accordance with Section 5.05(a) of
these By-laws and shall give notice of the adjourned meeting to each stockholder of record as of
the record date so fixed for notice of such adjourned meeting.
SECTION 2.11 Remote Communication. If authorized by the Board of Directors in its
sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxy holders not physically present at a meeting of stockholders may, by means of
remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote communication,
provided, that
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(i) the Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder;
(ii) the Corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings; and
(iii) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be maintained
by the Corporation.
ARTICLE III
Board of Directors
SECTION 3.01 Powers. The business and affairs of the Corporation shall be managed
by or under the direction of its Board of Directors.
SECTION 3.02 Number and Term. Subject to the Certificate of Incorporation, the
number of directors shall be fixed by resolution of the Board of Directors. The Board of Directors
shall be elected by the stockholders at their annual meeting, and the term of each elected director
shall be as set forth in the Certificate of Incorporation. Directors need not be stockholders.
SECTION 3.03 Chairman. The Chairman of the Board of Directors shall be a member
of the Board of Directors and shall preside at all meetings of the Board of Directors and of the
stockholders. In addition, the Chairman of the Board of Directors, if any, shall have such powers
and perform such other duties as from time to time may be assigned to him or her by the Board of
Directors.
SECTION 3.04 Resignations. Any director may resign at any time upon notice given
in writing or by electronic transmission. The resignation shall take effect at the time specified
therein, and if no time is specified, at the time of its receipt by the President or Secretary of
the Corporation. The acceptance of a resignation shall not be necessary to make it effective
unless otherwise expressly provided in the resignation.
SECTION 3.05 Removal. Directors of the Corporation may be removed only as
provided in the Certificate of Incorporation.
SECTION 3.06 Vacancies and Newly Created Directorships. Except as otherwise
provided by law or the Certificate of Incorporation, and subject to the rights to fill such
vacancies granted under any Stockholders Agreement, vacancies occurring in any directorship and
newly created directorship resulting from any increase in the number of directors shall be filled
only by a majority vote of the remaining directors then in office, although less than a quorum, or
by a sole remaining director. Any director so chosen shall hold office
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until the next election of the class for which such director shall have been chosen and until
his or her successor shall be elected and qualified, or until his or her earlier death,
resignation, retirement, disqualification or removal.
SECTION 3.07 Meetings. Regular meetings of the Board of Directors may be held at
such places and times as may be determined from time to time by the Board of Directors or as may be
specified in a notice of meeting. Special meetings of the Board of Directors may be called by the
President of the Corporation, and shall be called by the President or the Secretary of the
Corporation if directed by the Chairman of the Board of Directors or by any three (3) directors.
Notice need not be given of regular meetings of the Board of Directors. At least twenty four (24)
hours before each special meeting of the Board of Directors, either written notice, notice by
electronic transmission or oral (either in person or by telephone) notice of the time, date and
place of the meeting and the purpose or purposes for which the meeting is called shall be given to
each director.
SECTION 3.08 Quorum, Voting and Adjournment. A majority of the total number of
directors or of a committee thereof shall constitute a quorum for the transaction of business by
the Board of Directors or, as applicable, such committee thereof. Except as otherwise provided by
law, the Certificate of Incorporation or these By-laws, the act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board of Directors or, as
applicable, a committee thereof. In the absence of a quorum, a majority of the directors present
thereat may adjourn such meeting to another time and place. Notice of such adjourned meeting need
not be given if the time and place of such adjourned meeting are announced at the meeting so
adjourned.
SECTION 3.09 Committees. The Board of Directors may designate one or more
committees, including but not limited to an Executive Committee, an Audit Committee, a Nominating
and Corporate Governance Committee and a Compensation Committee, each such committee to consist of
one or more of the directors of the Corporation. Any director may belong to any number of
committees of the Board of Directors. The Board of Directors may designate one or more directors
as alternate members of any committee to replace any absent or disqualified member at any meeting
of the committee. Any committee, to the extent provided in the resolution of the Board of
Directors establishing such committee, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the Corporation, and may
authorize the corporate seal of the Corporation to be affixed to all papers which may require it;
but no committee shall have the power or authority in reference to the following matters: (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 or (b) adopting, amending or repealing any by-law of the Corporation. All committees
of the Board of Directors shall keep minutes of their meetings and shall report their proceedings
to the Board of Directors when requested or required by the Board of Directors.
SECTION 3.10 Action Without a Meeting. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting if all members of the
Board of Directors or such committee, as the case may be, consent thereto in
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writing or by electronic transmission. Such writing or writings or electronic transmission or
transmissions shall be filed in the minutes of proceedings of the Board of Directors. Such filings
shall be in paper form if the minutes are maintained in paper form or shall be in electronic form
if the minutes are maintained in electronic form.
SECTION 3.11 Remote Meeting. Unless otherwise restricted by the Certificate of
Incorporation, members of the Board of Directors, or any committee thereof, may participate in a
meeting by means of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a meeting by means of
conference telephone or other such communications equipment shall constitute presence in person at
such meeting.
ARTICLE IV
Officers
SECTION 4.01 Number. The officers of the Corporation shall include a President
and a Secretary, each of whom shall be elected by the Board of Directors and shall hold office for
such term as shall be determined by the Board of Directors and until his or her successor is
elected and qualified or until his or her earlier death, resignation, retirement, disqualification
or removal. In addition, the Board of Directors may elect one or more other officers from time to
time including one or more Vice Presidents, including one or more Executive Vice Presidents, a
Treasurer and one or more Assistant Treasurers and one or more Assistant Secretaries, each of whom
shall hold office for such term and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors. The initial officers shall be elected at
the first meeting of the Board of Directors and, thereafter, at the annual meeting of the Board of
Directors and/or at such other times as may be determined from time to time by the Board of
Directors. Any number of offices may be held by the same person.
SECTION 4.02 Other Officers and Agents. The Board of Directors may elect such
other officers and agents as it deems advisable, each of whom shall hold office for such term and
shall exercise and perform such powers and duties as shall be determined from time to time by the
Board of Directors.
SECTION 4.03 President. The President shall exercise such duties as customarily
pertain to the office of President and shall have general and active management of the property,
business and affairs of the Corporation, subject to the supervision and control of the Board of
Directors. In addition, the President shall have such further powers and perform such other duties
as from time to time are assigned to him or her by the Board of Directors or these By-laws.
In the absence, disability or refusal of the Chairman of the Board of Directors, if any, to
act, or if there is no Chairman of the Board of Directors, the President shall preside at all
meetings of the stockholders and an individual designated by a majority of the Board of Directors
shall preside at all meetings of the Board of Directors. Except as the Board of Directors may
otherwise determine, the President shall have the authority to execute bonds,
10
mortgages and other contracts on behalf of the Corporation, and to cause the corporate seal to
be affixed to any instrument requiring it and, when so affixed, the corporate seal shall be
attested by the signature of the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer.
SECTION 4.04 Vice Presidents. Each Vice President, if any are elected, shall have
such powers and shall perform such duties as from time to time are assigned to him or her by the
President or the Board of Directors.
SECTION 4.05 Treasurer. The Treasurer, if any, shall have custody of the
corporate funds, securities, evidences of indebtedness and other valuables of the Corporation and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation. He or she shall deposit all moneys and other valuables in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation, taking proper vouchers therefor. He or she
shall render to the President and the Board of Directors, upon the request of either, a report of
the financial condition of the Corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond for the faithful discharge of his or her duties in such amount
and with such surety as the Board of Directors shall prescribe. In addition, the Treasurer, if
any, shall have such further powers and perform such other duties as from time to time are assigned
to him or her by the Board of Directors.
SECTION 4.06 Secretary. The Secretary shall: (a) cause minutes of all meetings
of the stockholders and directors to be recorded and kept; (b) cause all notices required by these
By-laws or otherwise to be given properly; (c) see that the minute books, stock books, and other
nonfinancial books, records and papers of the Corporation are kept properly; and (d) cause all
reports, statements, returns, certificates and other documents to be prepared and filed when and as
required. In addition, the Secretary shall have such further powers and perform such other duties
as from time to time are assigned to him or her by the Board of Directors.
SECTION 4.07 Assistant Treasurers and Assistant Secretaries. Each Assistant
Treasurer and each Assistant Secretary, if any are elected, shall be vested with all the powers and
shall perform all the duties of the Treasurer and Secretary, respectively, in the absence or
disability of such officer, unless or until the Board of Directors shall otherwise determine. In
addition, each Assistant Treasurer and Assistant Secretary, if any, shall have such further powers
and shall perform such other duties as from time to time are assigned to him or her by the Board of
Directors.
SECTION 4.08 Corporate Funds and Checks. The funds of the Corporation shall be
kept in such depositories as shall from time to time be prescribed by the Board of Directors. All
checks or other orders for the payment of money shall be signed by the President or the Secretary
or such other person or agent as may from time to time be authorized and with such
countersignature, if any, as may be required by the Board of Directors.
SECTION 4.09 Contracts and Other Documents. The President and the Secretary, or
such other officer or officers as may from time to time be authorized by the Board
11
of Directors or
any committee thereof given specific authority in the premises by the Board of
Directors, shall have power to sign and execute on behalf of the Corporation deeds,
conveyances and contracts, and any and all other documents requiring execution by the Corporation.
SECTION 4.10 Ownership of Stock of Another Corporation. Unless otherwise directed
by the Board of Directors, the President or the Secretary, or such other officer or agent as shall
be authorized by the Board of Directors, shall have the power and authority, on behalf of the
Corporation, to attend and to vote at any meeting of equityholders of any entity in which the
Corporation holds securities or equity interests and may exercise, on behalf of the Corporation,
any and all of the rights and powers incident to the ownership of such securities or equity
interests at any such meeting, including the authority to execute and deliver proxies and consents
on behalf of the Corporation.
SECTION 4.11 Delegation of Duties. In the absence, disability or refusal of any
officer to exercise and perform his or her duties, the Board of Directors may delegate to another
officer such powers or duties.
SECTION 4.12 Resignation and Removal. Any officer of the Corporation may be
removed from office for or without cause at any time by the Board of Directors. Any officer may
resign at any time upon notice given in writing or by electronic transmission. The resignation
shall take effect at the time specified therein, and if no time is specified, at the time of its
receipt by the President or Secretary of the Corporation. The acceptance of a resignation shall
not be necessary to make it effective unless otherwise expressly provided in the resignation.
SECTION 4.13 Vacancies. The Board of Directors shall have power to fill vacancies
occurring in any office.
ARTICLE V
Stock
SECTION 5.01 Certificates of Stock. The shares of stock of the Corporation shall
be represented by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the Corporations stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Every holder of stock in the Corporation
represented by certificates shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the Chairman of the Board of Directors, or the Vice Chairman of the Board of
Directors or the President or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, certifying the number and class of shares of stock in the
Corporation owned by such holder. Any or all of the signatures on the certificate may be a
facsimile. The Board of Directors shall have the power to appoint one or more transfer agents
and/or registrars for the transfer or registration of certificates of stock of any class, and may
require stock certificates to be countersigned or registered by one or more of such transfer agents
and/or registrars.
SECTION 5.02 Transfer of Shares. Shares of stock of the Corporation shall be
transferable upon its books by the holders thereof, in person or by their duly authorized
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attorneys or legal representatives, upon surrender to the Corporation by delivery thereof to the
person in charge of the stock and transfer books and ledgers. Certificates representing such
shares, if any, shall be cancelled and new certificates, if the shares are to be certificated,
shall thereupon be issued. A record shall be made of each transfer. Whenever any transfer of
shares shall be made for collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented, both the transferor and transferee
request the Corporation to do so. The Board of Directors shall have power and authority to make
such rules and regulations as it may deem necessary or proper concerning the issue, transfer and
registration of certificates for shares of stock of the Corporation.
SECTION 5.03 Lost, Stolen, Destroyed or Mutilated Certificates. A new certificate
of stock may be issued in the place of any certificate previously issued by the Corporation alleged
to have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, require
the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to
give the Corporation a bond, in such sum as the Board of Directors may direct, and/or to indemnify
the Corporation against any claims that may be made against it in connection therewith. A new
certificate of stock may be issued in the place of any certificate previously issued by the
Corporation that has become mutilated upon the surrender by such owner of such mutilated
certificate.
SECTION 5.04 List of Stockholders Entitled To Vote. The officer who has charge of
the stock ledger shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting
(provided, however, if the record date for determining the stockholders entitled to vote
is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders
entitled to vote as of the tenth (10th) day before the meeting date), arranged in
alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, at least ten (10) days prior to the meeting (a) on a
reasonably accessible electronic network; provided that the information required to gain access to
such list is provided with the notice of meeting or (b) during ordinary business hours at the
principal place of business of the Corporation. If the meeting is to be held at a physical
location, then a list of stockholders entitled to vote at the meeting shall be produced and kept at
the time and place of the meeting during the whole time thereof and may be examined by any
stockholder who is present. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information required to access such
list shall be provided with the notice of the meeting. Except as otherwise provided by
law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the list of stockholders required by this Section 5.04 or to vote in person or by proxy at any
meeting of stockholders.
SECTION 5.05 Fixing Date for Determination of Stockholders of Record.
(A) In order that the Corporation may determine the stockholders entitled to notice of any
meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall, unless
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otherwise required by law,
not be more than sixty (60) nor less than ten (10) days before the date
of such meeting. If the Board of Directors so fixes a date, such date shall also be the
record date for determining the stockholders entitled to vote at such meeting unless the Board of
Directors, at the time it fixes such record date, determines that a later date on or before the
date of the meeting shall be the date for making such determination. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for determination of
stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the
record date for determination of stockholders entitled to notice of such adjourned meeting the same
or an earlier date as that fixed for determination of stockholders entitled to vote in accordance
herewith at the adjourned meeting.
(B) In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which shall not be more than
sixty (60) days prior to such other action. If no such record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
(C) Under circumstances, if any, in which stockholders are permitted to act by written
consent without a meeting in accordance with the Certificate of Incorporation and these By-laws,
and unless otherwise restricted by the Certificate of Incorporation and/or these By-laws, in order
that the Corporation may determine the stockholders entitled to express consent to corporate action
in writing without a meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Under circumstances, if
any, in which stockholders are permitted to act by written consent without a meeting in accordance
with the Certificate of Incorporation and these By-laws, if no record date for determining
stockholders entitled to express consent to corporate action in writing without a meeting is fixed
by the Board of Directors, (i) when no prior action of the Board of Directors is required by law,
the record date for such purpose shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation in accordance with
applicable law, and (ii) if prior action by the Board of Directors is required by law, the record
date for such purpose shall be at the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action.
SECTION 5.06 Registered Stockholders. Prior to the surrender to the Corporation
of the certificate or certificates for a share or shares of stock with a request to record the
transfer of such share or shares, the Corporation may treat the registered owner as the person
entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the
rights and powers of an owner. To the fullest extent permitted by law, the Corporation shall not
14
be bound to recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other notice thereof.
ARTICLE VI
Notice and Waiver of Notice
SECTION 6.01 Notice. 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
otherwise may be given effectively to stockholders, any notice to stockholders may be given by
electronic transmission in the manner provided in Section 232 of the DGCL.
SECTION 6.02 Waiver of Notice. 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 nor the purpose of any meeting
need be specified in such a waiver. Attendance at any meeting (in person or by remote
communication) shall constitute waiver of notice except attendance for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting is
not lawfully called or convened.
ARTICLE VII
Indemnification
SECTION 7.01 Indemnification Respecting Third Party Claims.
(A) Indemnification of Directors and Officers. The Corporation, to the fullest
extent and in the manner permitted by the laws of the State of Delaware as in effect from time to
time, shall indemnify in accordance with the following provisions of this Article VII any person (a
Covered Person) who was or is made a party to, is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding (including any appeal
thereof), whether civil, criminal, administrative, regulatory or investigative in nature (other
than an action by or in the right of the Corporation), by reason of the fact that such Covered
Person is or was a director or officer of the Corporation, or, at a time when he or she was a
director or officer of the Corporation, is or was serving at the request of, or to represent the
interests of, the Corporation as a director, officer, partner, member, trustee, fiduciary, employee
or agent (a Subsidiary Officer) of another corporation, partnership, joint venture,
limited liability company, trust, employee benefit plan or other enterprise, including any
charitable or not-for-profit public service organization or trade association (an Related
Entity), against expenses (including attorneys fees and disbursements), costs, judgments,
fines, penalties and amounts paid in settlement actually and reasonably incurred by such Covered
Person in connection with such action, suit or proceeding if such Covered Person acted in good
faith and in a manner such Covered Person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful; provided, however, that the
Corporation shall
15
not be obligated to indemnify against any amount paid in settlement unless the Corporation has
consented to such settlement. The termination of any action, suit or proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the Covered Person did not act in good faith and in a manner which such
Covered Person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that such Covered Person had
reasonable cause to believe that his or her conduct was unlawful. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph, a Covered Person shall not be entitled, as
a matter of right, to indemnification pursuant to this paragraph against costs or expenses incurred
in connection with any action, suit or proceeding commenced by such Covered Person against the
Corporation or any Related Entity or any person who is or was a director, officer, partner, member,
trustee, fiduciary, employee or agent of the Corporation or a Subsidiary Officer of any Related
Entity in their capacity as such, but such indemnification may be provided by the Corporation in a
specific case as permitted by Section 7.06 of these By-laws; provided that such Covered Person
shall, to the fullest extent permitted by law, be entitled to indemnification in connection with
any action, suit or proceeding commenced by such Covered Person to enforce his or her rights under
this Article VII.
(B) Indemnification of Employees and Agents. The Corporation may indemnify any
employee or agent of the Corporation in the manner and to the same or a lesser extent that it shall
indemnify a Covered Person under paragraph (A) of this Section 7.01.
SECTION 7.02 Indemnification Respecting Derivative Claims.
(A) Indemnification of Directors and Officers. The Corporation, to the fullest
extent and in the manner permitted by the laws of the State of Delaware as in effect from time to
time, shall indemnify in accordance with the following provisions of this Article VII any Covered
Person who was or is made a party to, is threatened to be made a party to or is involved in any
threatened, pending or completed action or suit (including any appeal thereof) brought by or in the
right of the Corporation to procure a judgment in its favor by reason of the fact that such Covered
Person is or was a director or officer of the Corporation, or, at a time when he or she was a
director or officer of the Corporation, is or was serving at the request of, or to represent the
interests of, the Corporation as a Subsidiary Officer of a Related Entity against expenses
(including attorneys fees and disbursements) and costs actually and reasonably incurred by such
Covered Person in connection with such action or suit if such Covered Person acted in good faith
and in a manner such Covered Person reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in respect of any claim,
issue or matter as to which such Covered Person shall have been adjudged to be liable to the
Corporation unless, and only to the extent that, the Court of Chancery of the State of Delaware or
the court in which such judgment was rendered shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such Covered Person is
fairly and reasonably entitled to indemnity for such expenses and costs as the Court of Chancery of
the State of Delaware or such other court shall deem proper. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph, a Covered Person shall not be entitled, as
a matter of right, to indemnification pursuant to this paragraph against costs and expenses
incurred in connection with any action or suit brought by or in the right of the Corporation
commenced by such Covered Person, but such indemnification
16
may be provided by the Corporation in any specific case as permitted by Section 7.06 of these
By-laws; provided that such Covered Person shall, to the fullest extent permitted by law, be
entitled to indemnification in connection with any action, suit or proceeding commenced by such
Covered Person to enforce his or her rights under this Article VII.
(B) Indemnification of Employees and Agents. The Corporation may indemnify any
employee or agent of the Corporation in the manner and to the same or a lesser extent that it shall
indemnify any Covered Person under paragraph (A) of this Section 7.02.
SECTION 7.03 Determination of Entitlement to Indemnification. Any indemnification
to be provided under Section 7.01 or 7.02 of these By-laws (unless ordered by a court of competent
jurisdiction) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification is proper under the circumstances because such Covered Person
has met the applicable standard of conduct set forth in such paragraph. Such determination shall
be made in accordance with any applicable procedures authorized by the Board of Directors and in
accordance with the DGCL. In the event a request for indemnification is made after final
disposition of the proceeding in question by any Covered Person referred to in paragraph (A) of
Section 7.01 or 7.02 of these By-laws, the Corporation shall use its reasonable efforts to cause
such determination to be made not later than ninety (90) days after such request is made.
SECTION 7.04 Right to Indemnification in Certain Circumstances.
(A) Indemnification Upon Successful Defense. Notwithstanding the other provisions
of this Article VII, to the extent that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
Section 7.01 or 7.02 of these By-laws, or in defense of any claim, issue or matter therein, or in
any action, suit or proceeding brought by the director or officer to enforce rights to
indemnification or advancement of expenses and costs granted pursuant to this Article VII, such
Covered Person shall, to the fullest extent permitted by law, be indemnified against expenses
(including attorneys fees and disbursements) and costs actually and reasonably incurred by such
Covered Person in connection therewith.
(B) Indemnification for Service As a Witness. To the extent any Covered Person
who is or was a director or officer of the Corporation has served or prepared to serve as a witness
in any action, suit or proceeding (whether civil, criminal, administrative, regulatory or
investigative in nature), including any investigation by any legislative body or any regulatory or
self-regulatory body by which the Corporations business is regulated, by reason of his or her
service as a director or officer of the Corporation or his or her service as a Subsidiary Officer
of a Related Entity at a time when he or she was a director or officer of the Corporation (assuming
such Covered Person is or was serving at the request of, or to represent the interests of, the
Corporation as a Subsidiary Officer of such Related Entity), but excluding service as a witness in
an action or suit commenced by such person or to which such person is named a party (unless such
expenses were incurred with the approval of the Board of Directors, a committee thereof or the
Chairman, a Vice Chairman, the President or the Chief Executive Officer of the Corporation), the
Corporation shall, to the fullest extent permitted by law, indemnify such Covered Person against
out-of-pocket costs and expenses (including attorneys fees and
17
disbursements) actually and reasonably incurred by such Covered Person in connection therewith
and shall use its reasonable efforts to provide such indemnity within forty-five (45) days after
receipt by the Corporation from such Covered Person of a statement requesting such indemnification,
averring such service and reasonably evidencing such expenses and costs; it being understood,
however, that the Corporation shall have no obligation under this Article VII to compensate such
Covered Person for such Covered Persons time or efforts so expended. The Corporation may
indemnify any employee or agent of the Corporation to the same or a lesser extent as it may
indemnify any director or officer of the Corporation pursuant to the foregoing sentence of this
paragraph.
SECTION 7.05 Advances of Expenses.
(A) Advances to Directors and Officers. To the fullest extent not prohibited by
applicable law, expenses and costs incurred by any Covered Person referred to in paragraph (A) of
Section 7.01 or 7.02 of these By-laws in defending a civil, criminal, administrative, regulatory or
investigative action, suit or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking in writing by or on
behalf of such Covered Person to repay such amount if it shall ultimately be determined that such
Covered Person is not entitled to be indemnified in respect of such costs and expenses by the
Corporation as authorized by this Article VII.
(B) Advances to Employees and Agents. To the fullest extent not prohibited by
applicable law, expenses and costs incurred by any person referred to in paragraph (B) of Section
7.01 or 7.02 of these By-laws in defending a civil, criminal, administrative, regulatory or
investigative action, suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of Directors, a committee
thereof or an officer of the Corporation authorized to so act by the Board of Directors, upon
receipt of an undertaking in writing by or on behalf of such person to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
Corporation in respect of such costs and expenses as authorized by this Article VII.
SECTION 7.06 Indemnification Not Exclusive.
(A) The provision of indemnification to or the advancement of expenses and costs to any
Covered Person under this Article VII, or the entitlement of any Covered Person to indemnification
or advancement of expenses and costs under this Article VII, shall not limit or restrict in any way
the power of the Corporation to indemnify or advance expenses and costs to such Covered Person in
any other way permitted by law or be deemed exclusive of, or invalidate, any right to which any
Covered Person seeking indemnification or advancement of expenses and costs may be entitled under
any law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action
in such Covered Persons capacity as an officer, director, employee or agent of the Corporation and
as to action in any other capacity.
(B) Given that certain jointly indemnifiable claims (as defined below) may arise due to
the service of one or more Covered Persons to or at the request of the Corporation and also one or
more indemnitee-related entities (as defined below), the Corporation shall be fully and primarily
responsible for the payment to each Covered Person in respect of
18
indemnification or advancement of expenses in connection with any such jointly indemnifiable
claims, pursuant to and in accordance with the terms of this Article VII, irrespective of any right
of recovery the Covered Person may have from the indemnitee-related entities. Under no
circumstance shall the Corporation be entitled to any right of subrogation or contribution by the
indemnitee-related entities and no right of advancement or recovery the Covered Person may have
from the indemnitee-related entities shall reduce or otherwise alter the rights of the Covered
Person or the obligations of the Corporation hereunder. In the event that any of the
indemnitee-related entities shall make any payment to the Covered Person in respect of
indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the
indemnitee-related entity making such payment shall be subrogated to the extent of such payment to
all of the rights of recovery of the Covered Person against the Corporation, and the Covered Person
shall execute all papers reasonably required and shall do all things that may be reasonably
necessary to secure such rights, including the execution of such documents as may be necessary to
enable the indemnitee-related entities effectively to bring suit to enforce such rights. Each of
the indemnitee-related entities shall be third-party beneficiaries with respect to this Section
7.06(B) of these By-laws, entitled to enforce this Section 7.06(B) of these By-laws.
For purposes of this Section 7.06(B) of these By-laws, the following terms shall have the
following meanings:
(1) The term indemnitee-related entities means any corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
(other than the Corporation or any other corporation, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise for which the Covered Person has agreed,
on behalf of the Corporation or at the Corporations request, to serve as a director, officer,
employee or agent and which service is covered by the indemnity described herein) from whom a
Covered Person may be entitled to indemnification or advancement of expenses with respect to which,
in whole or in part, the Corporation may also have an indemnification or advancement obligation.
(2) The term jointly indemnifiable claims shall be broadly construed and shall
include, without limitation, any action, suit or proceeding for which the Covered Person shall be
entitled to indemnification or advancement of expenses from both the indemnitee-related entities
and the Corporation pursuant to Delaware law, any agreement or certificate of incorporation,
by-laws, partnership agreement, operating agreement, certificate of formation, certificate of
limited partnership or comparable organizational documents of the Corporation or the
indemnitee-related entities, as applicable.
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SECTION 7.07 Corporate Obligations; Reliance.
(A) The rights granted pursuant to the provisions of this Article VII shall vest at the
time a person becomes a director or officer of the Corporation and shall be deemed to create a
binding contractual obligation on the part of the Corporation to the persons who from time to time
are elected as officers or directors of the Corporation, and such persons in acting in their
capacities as officers or directors of the Corporation or Subsidiary Officers of any Related Entity
shall be entitled to rely on such provisions of this Article VII without giving notice thereof to
the Corporation.
(B) Without the consent of any affected Covered Person, the Corporation shall not, in
connection with the settlement or resolution of any claim alleged against it in any action, suit or
proceeding, seek or consent to entry of an order that releases, bars or otherwise affects the
rights of indemnification and advancement of expenses provided in this Article VII.
SECTION 7.08 Amendment or Repeal. Any repeal or modification of the provisions of
this Article VII shall not adversely affect any right or protection hereunder of any Covered Person
in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or
completed) arising out of, or related to, any act or omissions occurring prior to the time of such
repeal or modification.
SECTION 7.09 Accrual of Claims; Successors. The indemnification provided or
permitted under the foregoing provisions of this Article VII shall or may, as the case may be,
apply in respect of any expense, cost, judgment, fine, penalty or amount paid in settlement,
whether or not the claim or cause of action in respect thereof accrued or arose before or after the
effective date of such provisions of this Article VII. The right of any Covered Person who is or
was a director, officer, employee or agent of the Corporation or a Subsidiary Officer to
indemnification or advancement of expenses as provided under the foregoing provisions of this
Article VII shall continue after he or she shall have ceased to be a director, officer, employee,
agent or Subsidiary Officer and shall inure to the benefit of the heirs, distributees, executors,
administrators and other legal representatives of such Covered Person.
SECTION 7.10 Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of, or to represent the interests of, the Corporation as a Subsidiary
Officer of any Related Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such persons status as such, whether or not
the Corporation would have the power to indemnify such person against such liability under the
provisions of this Article VII or applicable law.
SECTION 7.11 Definitions of Certain Terms. For purposes of this Article VII, (a)
references to the Corporation shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed into the Corporation
in a consolidation or merger if such corporation would have been permitted (if its corporate
existence had continued) under applicable law to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request, or to represent the interests of,
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such constituent corporation as a Subsidiary Officer of any Related Entity shall stand in the
same position under the provisions of this Article VII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
existence had continued; (b) references to fines shall include any excise taxes assessed on a
person with respect to an employee benefit plan; (c) references to serving at the request of the
Corporation shall include any service as a director, officer, partner, member, trustee, fiduciary,
employee or agent of the Corporation or as a Subsidiary Officer of any Related Entity which service
imposes duties on, or involves services by, such director, officer, partner, member, trustee,
fiduciary, employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and (d) a Covered Person who acted in good faith and in a manner such Covered Person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interest of the
Corporation as referred to in this Article VII.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Electronic Transmission. For purposes of these By-laws, electronic
transmission 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.
SECTION 8.02 Corporate Seal. The Board of Directors may provide a suitable
corporate seal, containing the name of the Corporation, which corporate seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a committee thereof,
duplicates of the corporate seal may be kept and used by the Treasurer or by an Assistant Secretary
or Assistant Treasurer.
SECTION 8.03 Fiscal Year. The fiscal year of the Corporation shall end on
December 31 of each year, or such other twelve (12) consecutive months as the Board of Directors
may designate.
SECTION 8.04 Section Headings. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.
SECTION 8.05 Inconsistent Provisions. In the event that any provision of these
By-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL
or any other applicable law, such provision of these By-laws shall not be given any effect to the
extent of such inconsistency but shall otherwise be given full force and effect.
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ARTICLE IX
Amendments
SECTION 9.01 Amendments. Subject to the Certificate of Incorporation, these
By-laws may be amended, added to, rescinded or repealed at any meeting of the Board of Directors or
of the stockholders; provided, however, that, notwithstanding any other provisions of these By-laws
or any provision of law which might otherwise permit a lesser vote of the stockholders, the
affirmative vote of the holders of at least 75% in voting power of all outstanding shares of stock
of the Corporation entitled to vote generally in the election of directors, voting together as a
single class, shall be required in order for the stockholders to alter, amend or repeal any
provision of the By-laws or to adopt provisions inconsistent therewith.
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