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Exhibit 3.01
BYLAWS OF
SYMANTEC CORPORATION
(A DELAWARE CORPORATION)
(as amended and restated on April 26, 2011)
SYMANTEC CORPORATION
(A DELAWARE CORPORATION)
(as amended and restated on April 26, 2011)
ARTICLE I
STOCKHOLDERS
STOCKHOLDERS
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be held for the election
of directors at such date, time and place, either within or without the State of Delaware, as the
Board of Directors shall each year fix. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings.
(a) Special meetings of stockholders for any purpose or purposes may be called at any time by
the Chairman of the Board, the President or the Board of Directors. Special meetings may not be
called by any other person or persons, except as provided in Section 1.2(b) below.
(b) Special meetings of the stockholders of the Corporation shall be called by the Board
of Directors upon written request to the Secretary of the Corporation of one or more stockholders
representing in the aggregate not less than twenty five percent (25%) of the outstanding shares
entitled to vote on the matter or matters to be brought before the proposed special meeting. A
request to the Secretary of the Corporation shall be signed by each stockholder, or a duly
authorized agent of such stockholder, requesting the special meeting and shall be accompanied by a
notice setting forth the information required by subparagraph (a)(ii) of Section 1.12 of this
Article as to the business proposed to be conducted and any nominations proposed to be presented at
such special meeting and as to the stockholder(s) proposing such business or nominations, and by a
representation by the stockholder(s) that within five (5) business days after the record date for
any such special meeting it will provide such information as of the record date for such special
meeting. A special meeting requested by stockholders shall be held at such date, time and place
within or without the State of Delaware as may be fixed by the Board of Directors; provided,
however, that the date of any such special meeting shall not be more than ninety (90) days after
the request to call the special meeting is received by the Secretary of the Corporation.
Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if
either (a) the Board of Directors has called or calls for an annual meeting of stockholders to be
held within ninety (90) days after the Secretary of the Corporation receives the request for the
special meeting and the Board of Directors determines in good faith that the business of such
annual meeting includes (among any other matters properly brought before the annual meeting) the
business specified in the request or (b) an annual or special meeting that included the business
specified in the request (as determined in good faith by the Board of Directors) was held not more
than ninety (90) days before the request to call the special meeting was received by the Secretary
of the Corporation. A stockholder may revoke a request for a special meeting at any time by written
revocation delivered to the Secretary of the Corporation, and if such revoking stockholder had
joined with other stockholders to submit the request for a special meeting pursuant to this
subparagraph (b), and if the remaining unrevoked requests from stockholders joining in such request
represent less than the requisite number of shares entitling the stockholders to request the
calling of a special meeting, the Board of Directors, in its discretion, may refrain from calling
the special meeting or cancel the special meeting, as the case may be. Business transacted at a
special meeting requested by stockholders shall be limited to the purpose(s) stated in the request
for meeting, provided, however, that the Board of Directors shall have the authority in its
discretion to submit additional matters to the stockholders, and to cause other business to be
transacted, at any special meeting requested by stockholders.
(c) 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. The chairman
of the meeting shall have the power and duty to determine whether a nomination or any other
business brought before a special meeting was made in accordance with the procedures set forth in
this section, and, if any nomination or other business is not in compliance with this section
(including if the stockholder does not provide the information that it represents it will provide
under this section to the Corporation within five (5) business days following the record date for
the meeting), to declare that such defective nomination or proposal shall be disregarded,
notwithstanding that proxies in respect of such matters may have been received.
Section 1.3. Notice of Meetings. Written notice of all meetings of stockholders shall be given
stating the place, date and time of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Unless otherwise required by applicable law or the
Certificate of Incorporation of the Corporation, such notice shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote
at such meeting.
Section 1.4. Adjournments. Any meeting of stockholders may adjourn from time to time to
reconvene at the same or another place, and notice need not be given of any such adjourned meeting
if the time, date and place thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned
meeting the Corporation may transact any business that might have been transacted at the original
meeting.
Section 1.5. Quorum. At each meeting of stockholders, the holders of a majority of the shares
of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum
for the transaction of business, except if otherwise required by law. If a quorum shall fail to
attend any meeting, the chairman of the meeting or the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, at the meeting may adjourn the meeting. Shares of
the Corporations stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other corporation are held,
directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation
or any other corporation to vote any of the Corporations stock held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over by such person as
the Board of Directors may designate, or, in the absence of such a person, the Chairman of the
Board, or, in the absence of such person, the President of the Corporation, or, in the absence of
such person, such person as may be chosen by the holders of a majority of the shares entitled to
vote who are present, in person or by proxy, at the meeting. Such person shall be chairman of the
meeting and shall determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seems to him or her to be in
order. The Secretary of the Corporation shall act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, each stockholder shall be entitled to one vote for each share of
stock held by such stockholder. Each stockholder entitled to vote at a meeting of stockholders, or
to express consent or dissent to corporate action in writing without a meeting, may authorize
another person or persons to act for such stockholder by proxy. If a vote is to be taken by written
ballot, each such ballot shall state the
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name of the stockholder or proxy voting and such other information as the chairman of the
meeting deems appropriate. At all meetings of stockholders for the election of directors, the
affirmative vote of the majority of the votes cast (as such vote is defined in Article II, Section
2.1 of these Bylaws) shall be sufficient to elect, unless the election of directors meets both
conditions of the proviso to the fourth sentence of Section 2.1, in which case a plurality of the
votes cast shall be sufficient to elect. All other elections or questions, unless otherwise
provided by applicable law, the Certificate of Incorporation or these Bylaws, shall be decided by
the affirmative vote of the holders of a majority of the shares of stock entitled to vote thereon
that are present in person or represented by proxy at the meeting.
Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty days prior to any other action. If no record date is
fixed by the Board of Directors, then the record date shall be as provided by law. 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 the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each stockholder, shall be open
to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be held. The list may
also be produced and kept at the time and place of the meeting during the whole time thereof and
may be inspected by any stockholder who is present.
Section 1.10. Action by Consent of Stockholders. Unless 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 such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of 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. Prompt
notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
In order that the corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors
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is required by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in the State of Delaware, its principal place of business, or any officer
or agent of the corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the corporations registered office shall be by hand or
by certified or registered mail, return receipt requested. If no record date has been fixed by the
Board of Directors and prior action by the Board of Directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate action in writing without
a meeting shall be at the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
Section 1.11. Inspectors of Elections.
(a) Applicability. Unless otherwise provided in the Corporations Certificate of Incorporation
or required by the Delaware General Corporation Law, the following provisions of this Section 1.11
shall apply only if and when the Corporation has a class of voting stock that is: (i) listed on a
national securities exchange; (ii) authorized for quotation on an interdealer quotation system of a
registered national securities association; or (iii) held of record by more than 2,000
stockholders; in all other cases, observance of the provisions of this Section 1.11 shall be
optional and at the discretion of the Corporation.
(b) Appointment. The Corporation shall, in advance of any meeting of stockholders, appoint one
or more inspectors of election to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the meeting.
(c) Inspectors Oath. Each inspector of election, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(d) Duties of Inspectors. At a meeting of stockholders, the inspectors of election shall (i)
ascertain the number of shares outstanding and the voting power of each share, (ii) determine the
shares represented at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a record of the disposition of
any challenges made to any determination by the inspectors and (v) certify their determination of
the number of shares represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
(e) Opening and Closing of Polls. The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall be announced by the
inspectors at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of
Chancery upon application by a stockholder shall determine otherwise.
(f) Determinations. In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes submitted with those
proxies, any information provided in connection with proxies in accordance with Section 212(c)(2)
of the Delaware General Corporation Law, the ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information for the limited
purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their
nominees or similar persons that represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes
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than the stockholder holds of record. If the inspectors consider other reliable information
for the limited purpose permitted herein, the inspectors at the time they make their certification
of their determinations pursuant to this Section 1.11 shall specify the precise information
considered by them, including the person or persons from whom they obtained the information, when
the information was obtained, the means by which the information was obtained and the basis for the
inspectors belief that such information is accurate and reliable.
Section 1.12. Notice of Stockholder Business; Nominations.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders shall be made at an annual meeting of stockholders (A)
pursuant to the Corporations notice of such meeting, (B) by or at the direction of the Board of
Directors or (C) by any stockholder of the Corporation who was a stockholder of record at the time
of giving of the notice provided for in this Section 1.12, who is entitled to vote at such meeting
and who complies with the notice procedures set forth in this Section 1.12.
(ii) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (C) of subparagraph (a)(i) of this Section 1.12, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To be timely, a stockholders
notice shall be delivered to the Secretary at the principal executive offices of the Corporation
not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first
anniversary of the preceding years annual meeting of stockholders; provided, however, that in the
event that the date of the annual meeting is more than thirty (30) days before or more than sixty
(60) days after such anniversary date, notice by the stockholder, to be timely, must be so
delivered not later than the close of business on the tenth (10th) day following the day on which
public announcement of the date of such meeting is first made by the Corporation. In no event shall
the public announcement of an adjournment or postponement of a meeting of stockholders commence a
new time period (or extend any time period) for the giving of a stockholders notice as described
above. Such stockholders notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the Exchange Act), including such persons written consent to being named in
the proxy statement as a nominee and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made, (1) the name and
address of such stockholder, as they appear on the Corporations books, and of such beneficial
owner and (2) the class and number of shares of the Corporation that are owned beneficially and
held of record by such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of subparagraph (a)(ii) of this Section
1.12 to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased board of directors
at least seventy (70) days prior to the first anniversary of the preceding years annual meeting of
stockholders (or, if the annual meeting of stockholders is held more than thirty (30) days before
or sixty (60) days after such anniversary
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date, at least seventy (70) days prior to such annual meeting), a stockholders notice
required by this Section 1.12 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public announcement is first made
by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporations
notice of such 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 such meeting (i) by or at the direction of the Board of Directors or (ii)
provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving
of notice of the special meeting, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.12. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Corporations notice of meeting, if the stockholders
notice required by subparagraph (a)(ii) of this Section 1.12 shall be delivered to the Secretary of
the Corporation at the principal executive offices of the Corporation not earlier than 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.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in this
Section 1.12 shall be eligible 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 or these Bylaws, 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 this Section 1.12 and, if any proposed nomination or
business is not in compliance herewith, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 1.12, the term 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 sections 13, 14 or 15(d) of the Exchange Act.
(iii) 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 herein. Nothing in this Section 1.12 shall be
deemed to affect any rights of stockholders to request inclusion of proposals in the Corporations
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
BOARD OF DIRECTORS
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Section 2.1. Number; Qualifications; Election by Stockholders. The Board of Directors shall
consist of one or more members. The initial number of directors shall be one, and thereafter shall
be fixed from time to time by resolution of the Board of Directors. Directors need not be
stockholders. Except as provided in Section 2.2 of this Article, each nominee for director shall
be elected director by the affirmative vote of the majority of the votes cast with respect to such
nominee at any meeting for the election of directors at which a quorum is present; provided,
however, that directors shall be elected by a plurality of the votes cast at any meeting of
stockholders for which (i) the Secretary of the Corporation receives a notice that a stockholder
has nominated a person for election to the Board of Directors in compliance with the advance notice
requirements for stockholder nominees for director set forth in Article I, Section 1.12 of these
Bylaws and (ii) such nomination has not been withdrawn by such stockholder on or before the tenth
(10th) day before the Corporation first mails its notice of meeting for such meeting to
the stockholders. For purposes of this Section 2.1 and Article I, Section 1.7 of these Bylaws,
election by the affirmative vote of the majority of the votes cast means the votes cast for a
nominees election must exceed the votes cast against that nominees election. If directors are
to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against
a nominee.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board of Directors shall initially
consist of the person or persons elected by the incorporator. Each director shall hold office until
the next annual meeting of stockholders and until his or her successor is elected and qualified, or
until his or her earlier resignation or removal. Any director may resign at any time upon written
notice to the Corporation. Subject to the rights of any holders of Preferred Stock then
outstanding, (i) any director or the entire Board of Directors may be removed, with or without
cause, by the holders or a majority of the shares then entitled to vote at an election of
directors, and (ii) any vacancy occurring in the Board of Directors for any cause, and any newly
created directorship resulting from any increase in the authorized number of directors to be
elected by all stockholders having the right to vote as a single class, may be filled by the
stockholders, by a majority of the directors then in office, although less than a quorum, or by a
sole remaining director. No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such
places, within or without the State of Delaware, and at such times as the Board of Directors may
from time to time determine. Notice of regular meetings need not be given if the date, times and
places thereof are fixed by resolution of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President or a majority of the members of the Board of Directors then in
office and may be held at any time, date or place, within or without the State of Delaware, as the
person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting
shall be given, orally or in writing, by the person or persons calling the meeting to all directors
at least four days before the meeting if the notice is mailed, or at least twenty-four hours before
the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram,
facsimile or similar communication method. Unless otherwise indicated in the notice, any and all
business may be transacted at a special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any
committee of the Board, may participate in a meeting of the Board or such committee 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
conference telephone or similar communications equipment shall constitute presence in person at
such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors a
majority of the total number of authorized directors shall constitute a quorum for the transaction
of
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business. Except as otherwise provided herein or in the Certificate of Incorporation, or
required by law, the vote 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.
Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the
Chairman of the Board, or in his or her absence by the President, or in his or her absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or
her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Written Action by Directors. 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 or such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 2.9. Powers. The Board of Directors may, except as otherwise required by law or the
Certificate of Incorporation, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
Section 2.10. Compensation of Directors. Directors, as such, may receive, pursuant to a
resolution of the Board of Directors, fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
COMMITTEES
Section 3.1. Committees. The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any Meeting of the committee.
In the absence or disqualification of a member of the committee, the member or members thereof
present at any meetings and not disqualified from voting, whether or not he, she or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
place of any such absent or disqualified member. Any such committee, to the extent provided in a
resolution of the Board of Directors, 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 seal of the Corporation to be affixed to all papers that may require it; but no such
committee shall have the power or authority in reference to amending the Certificate of
Incorporation (except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board of Directors as
provided in subsection (a) of Section 151 of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to dividends, redemption,
dissolution and distribution of assets of the Corporation, or the conversion into, or the exchange
of such shares for, shares of any other class classes or any other series of the same or any other
class or classes of stock of the Corporation, or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), adopting an agreement of merger or
consolidation under Sections 251 or 252 of the Delaware General Corporation Law, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the Corporations
property and assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and unless the resolution
of the Board of Directors expressly so provides, no such committee shall have the power or
authority to declare a dividend, authorize the issuance of stock or adopt a certificate of
ownership and merger pursuant to section 253 of the Delaware General Corporation Law.
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Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of a President, one or
more Vice Presidents, a Secretary, a Treasurer and such other officers, including a Chairman of the
Board of Directors and/or Chief Financial Officer, as may from time to time be appointed by the
Board of Directors. Officers shall be elected by the Board of Directors. Each officer shall hold
office until his or her successor is elected and qualified or until his or her earlier resignation
or removal. Any number of offices may be held by the same person. Any officer may resign at any
time upon written notice to the Corporation. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2. Chairman of the Board. The Chairman of the Board shall have the power to preside
at all meetings of the Board of Directors and shall have such other powers and duties as the Board
of Directors may from time to time prescribe.
Section 4.3. President. Unless otherwise designated by the Board of Directors, the President
shall be the chief executive officer of the Corporation. Subject to the provisions of these Bylaws
and to the direction of the Board of Directors, he or she shall have the responsibility for the
general management and control of the business and affairs of the Corporation and shall perform all
duties and have all powers that are commonly incident to the office of chief executive or that are
delegated to him or her by the Board of Directors. He or she shall have general supervision and
direction of all of the officers, employees and agents of the Corporation.
Section 4.4. Vice President. Each Vice President shall have all such powers and duties as are
commonly incident to the office of Vice President, or that are delegated to him or her by the Board
of Directors or the President. A Vice President may be designated by the Board to perform the
duties and exercise the powers of the President in the event of the Presidents absence or
disability.
Section 4.5. Chief Financial Officer. Subject to the direction of the Board of Directors and
the President, the Chief Financial Officer shall perform all duties and have all powers that are
commonly incident to the office of chief financial officer.
Section 4.6. Treasurer. The Treasurer shall have custody of all monies and securities of the
Corporation. He or she shall make such disbursements of the funds of the Corporation as are
authorized and shall render from time to time an account of all such transactions. The Treasurer
shall also perform such other duties and have such other powers as are commonly incident to the
office of Treasurer, or as the Board of Directors or the President may from time to time prescribe.
Section 4.7. Secretary. The Secretary shall issue or cause to be issued all authorized notices
for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board
of Directors. He or she shall have charge of the corporate books and records and shall perform such
other duties and have such other powers as are commonly incident to the office of Secretary, or as
the Board of Directors or the President may from time to time prescribe.
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Section 4.8. Delegation of Authority. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officers or agents, notwithstanding any provision
hereof.
Section 4.9. Removal. Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors. Such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation.
ARTICLE V
STOCK
STOCK
Section 5.1. Certificates. Every holder of stock 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
President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation, certifying the number of shares owned by such
stockholder in the Corporation. Any or all of the signatures on the certificate may be a facsimile.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The
Corporation may issue a new certificate of stock in the place of any certificate previously issued
by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of
the lost, stolen or destroyed certificate, or such owners legal representative, to give the
Corporation a bond sufficient to indemnify it 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 such
new certificate.
Section 5.3. Other Regulations. The issue, transfer, conversion and registration of stock
certificates shall be governed by such other regulations as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
INDEMNIFICATION
Section 6.1. Indemnification of Officers and Directors. Each person who was or is made a party
to, or is threatened to be made a party to, or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a proceeding), by reason of the fact
that he or she or a person of whom he or she is the legal representative, is or was a director or
officer of the Corporation (including any constituent corporation absorbed in a merger) or is or
was serving at the request of the Corporation (including any such constituent corporation) as a
director or officer of another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by the Delaware General Corporation
Law, against all expenses, liability and loss (including attorneys fees, judgments, fines, ERISA
excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith, and such indemnification shall continue as to a
person who has ceased to be a director or officer and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that the Corporation shall indemnify any
such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
Section 6.2. Advance of Expenses. The Corporation shall pay all expenses incurred by such a
director or officer in defending any such proceeding as they are incurred in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by a director or officer in advance of the final
disposition of such proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer to repay all amounts so advanced if it
should be determined ultimately
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that such director or officer is not entitled to be indemnified under this Article VI or otherwise;
and provided further that the Corporation shall not be required to advance any expenses to a person
against whom the Corporation brings a claim, in a proceeding, alleging that such person has
breached his or her duty of loyalty to the Corporation, committed an act or omission not in good
faith or that involves intentional misconduct or a knowing violation of law, or derived an improper
personal benefit from a transaction; and provided further that the Corporation shall not be
obligated to advance expenses incurred by a director or officer in defending any proceeding if: (i)
members of the Board of Directors consisting of those who are not parties to the proceeding for
which indemnification is sought, even though less than a quorum, or (ii) independent legal counsel,
selected by the indemnified director or officer and approved by the Board of Directors, which
approval may not be unreasonably withheld, or (iii) a panel of arbitrators (one of whom is selected
by the Corporation, another of whom is selected by the indemnified director or officer and the last
of whom is selected by the first two arbitrators so selected), determines in good faith, that the
facts known to them at the time such determination is made demonstrate clearly and convincingly
that such director or officer acted in bad faith.
Section 6.3. Non-Exclusivity of Rights. The rights conferred on any person in this Article VI
shall not be exclusive of any other right that such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote or consent of
stockholders or disinterested directors or otherwise.
Section 6.4. Indemnification Contracts. The Board of Directors is authorized to cause the
Corporation to enter into a contract with any director, officer or employee of the Corporation, or
any person serving at the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, including employee benefit
plans, providing for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VI.
Section 6.5. Insurance. The Corporation shall maintain insurance, at its expense, to the
extent it determines such to be reasonably available, to protect itself, its directors and
officers, and any other persons the Board of Directors may select, against any such expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation Law.
Section 6.6. Effect of Amendment. Any amendment, repeal or modification of any provision of
this Article VI shall be prospective only, and shall not adversely affect any right or protection
conferred on a person pursuant to this Article VI and existing at the time of such amendment,
repeal or modification.
ARTICLE VII
NOTICES
NOTICES
Section 7.1. Notice. Except as otherwise specifically provided herein or required by law, all
notices required to be given pursuant to these Bylaws shall be in writing and may in every
instance be effectively given by hand delivery (including use of a delivery service), by depositing
such notice in the mail, postage prepaid, or by sending such notice by prepaid telegram, telex,
mailgram or facsimile. Any such notice shall be addressed to the person to whom notice is to be
given at such persons address as it appears on the records of the Corporation. The notice shall be
deemed given (i) in the case of hand delivery, when received by the person to whom notice is to be
given or by any person accepting such notice on behalf of such person, (ii) in the case of delivery
by mail, when deposited in the mail, and (iii) in the case of delivery via telegram, mailgram,
telex, or facsimile, when dispatched.
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Section 7.2. Waiver of Notice. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting 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.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified in any written
waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
INTERESTED DIRECTORS
Section 8.1. Interested Directors; Quorum. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board or committee thereof that authorizes the contract or transaction, or solely because his,
her or their votes are counted for such purpose if: (i) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; (ii) the material facts as to his, her or
their relationship or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 9.1. Fiscal Year. The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
Section 9.2. Seal. The Board of Directors may provide for a corporate seal, which shall have
the name of the Corporation inscribed thereon and shall otherwise be in such form as may be
approved from time to time by the Board of Directors.
Section 9.3. Form of Records. Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account and minute books, may be kept on, or
be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other
information storage device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
Section 9.4. Reliance Upon Books and Records. A member the Board of Directors, shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of
account or reports made to the Corporation by any of its officers, or by an independent certified
public accountant, or
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by an appraiser selected with reasonable care by the Board of Directors or by any such
committee, or in relying in good faith upon other records of the Corporation.
Section 9.5. Certificate of Incorporation Governs. In the event of any conflict between the
provisions of the Corporations Certificate of Incorporation and Bylaws, the provisions of the
Certificate of Incorporation shall govern.
Section 9.6. Severability. If any provision of these Bylaws shall be held to be invalid,
illegal, unenforceable or in conflict with the provisions of the Corporations Certificate of
Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible
consistent with such holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such provision held to be
invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not
themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation)
shall remain in full force and effect.
Section 9.7 Forum for Certain Actions. Except for (a) actions in which the Court of Chancery
in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction
of the Delaware courts, and (b) actions in which a federal court has assumed exclusive jurisdiction
of a proceeding, any derivative action brought by or on behalf of the Corporation, and any direct
action brought by a stockholder against the Corporation or any of its directors or officers,
alleging a violation of the Delaware General Corporation Law, the Certificate of Incorporation or
these Bylaws or breach of fiduciary duties or other violation of Delaware decisional law relating
to the internal affairs of the Corporation, shall be brought in the Court of Chancery in the State
of Delaware, which shall be the sole and exclusive forum for such proceedings; provided, however,
that the Corporation may consent to an alternative forum for any such proceedings upon the approval
of the Board of Directors of the Corporation. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice
of and consented to the provisions of this Section 9.7.
ARTICLE X
AMENDMENT
AMENDMENT
Section 10.1. Amendments. Shareholders of the Corporation holding a majority of the
Corporations outstanding voting stock shall have the power to adopt, amend or repeal Bylaws. The
Board of Directors of the Corporation shall also have the power to adopt, amend or repeal Bylaws of
the Corporation, except as such power may be expressly limited by Bylaws adopted by the
shareholders.
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