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8-K - FORM 8-K - INOVIO PHARMACEUTICALS, INC. | w84047e8vk.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
INOVIO PHARMACEUTICALS, INC.
a Delaware corporation
(Adopted August 10, 2011)
TABLE OF CONTENTS
Page | ||||
ARTICLE 1 OFFICES |
1 | |||
Section 1.1. Registered Office |
1 | |||
Section 1.2. Other Offices |
1 | |||
ARTICLE 2 STOCKHOLDERS MEETINGS |
1 | |||
Section 2.1. Place of Meetings |
1 | |||
Section 2.2. Annual Meetings |
2 | |||
Section 2.3. Special Meetings |
2 | |||
Section 2.4. Notice of Meetings |
2 | |||
Section 2.5. Quorum and Voting |
3 | |||
Section 2.6. Voting Rights |
4 | |||
Section 2.7. Voting Procedures and Inspectors of Elections |
5 | |||
Section 2.8. List of Stockholders |
6 | |||
Section 2.9. Stockholder Proposals at Annual Meetings |
6 | |||
Section 2.10. Nominations of Persons for Election to the Board of Directors |
8 | |||
Section 2.11. Action Without Meeting |
10 | |||
ARTICLE 3 DIRECTORS |
10 | |||
Section 3.1. Number and Term of Office |
10 | |||
Section 3.2. Powers |
10 | |||
Section 3.3. Vacancies |
10 | |||
Section 3.4. Resignations and Removals |
10 | |||
Section 3.5. Meetings |
11 | |||
Section 3.6. Quorum and Voting |
11 | |||
Section 3.7. Action Without Meeting |
12 | |||
Section 3.8. Fees and Compensation |
12 | |||
Section 3.9. Committees |
12 | |||
Section 3.10. Chairman of the Board |
13 | |||
ARTICLE 4 OFFICERS |
13 | |||
Section 4.1. Officers Designated |
13 | |||
Section 4.2. Tenure and Duties of Officers |
14 | |||
ARTICLE 5 EXECUTION OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY THE
CORPORATION |
15 | |||
Section 5.1. Execution of Corporate Instruments |
15 | |||
Section 5.2. Voting of Securities Owned by Corporation |
16 | |||
ARTICLE 6 SHARES OF STOCK |
16 | |||
Section 6.1. Form and Execution of Certificates |
16 | |||
Section 6.2. Lost Certificates |
16 | |||
Section 6.3. Transfers |
17 | |||
Section 6.4. Fixing Record Dates |
17 |
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Page | ||||
Section 6.5. Registered Stockholders |
17 | |||
ARTICLE 7 OTHER SECURITIES OF THE CORPORATION |
18 | |||
ARTICLE 8 CORPORATE SEAL |
18 | |||
ARTICLE 9 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS |
18 | |||
Section 9.1. Right to Indemnification |
18 | |||
Section 9.2. Authority to Advance Expenses |
19 | |||
Section 9.3. Right of Claimant to Bring Suit |
19 | |||
Section 9.4. Provisions Nonexclusive |
20 | |||
Section 9.5. Authority to Insure |
20 | |||
Section 9.6. Enforcement of Rights |
20 | |||
Section 9.7. Survival of Rights |
20 | |||
Section 9.8. Settlement of Claims |
20 | |||
Section 9.9. Effect of Amendment |
20 | |||
Section 9.10. Subrogation |
21 | |||
Section 9.11. No Duplication of Payments |
21 | |||
Section 9.12. Saving Clause |
21 | |||
ARTICLE 10 NOTICES |
21 | |||
ARTICLE 11 AMENDMENTS |
22 |
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AMENDED AND RESTATED
BYLAWS
OF
INOVIO PHARMACEUTICALS, INC.
(Adopted August 10, 2011)
ARTICLE 1
OFFICES
Section 1.1. Registered Office.
The registered office of the corporation in the State of Delaware shall be in the City
of Wilmington, County of New Castle.
Section 1.2. Other Offices.
The corporation shall also have and maintain an office or principal place of business at
San Diego, California, and may also have offices at such other places, both within and without the
State of Delaware as the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE 2
STOCKHOLDERS MEETINGS
Section 2.1. Place of Meetings.
(a) Meetings of stockholders may be held at such place, either within or without the
State of Delaware, as may be designated by or in the manner provided in these Bylaws or, if not so
designated, as determined by the Board of Directors. The Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any place, but may instead be held
solely by means of remote communication as authorized by paragraph (b) of this Section 2.1.
(b) 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 proxyholders not
physically present at a meeting of stockholders may, by means of remote communication:
(1) Participate in a meeting of stockholders; and
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(2) 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 (A) 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,
(B) 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 (C) 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.
(c) For purposes of this Section 2.1, remote communication shall include (1) telephone or
other voice communications and (2) electronic mail or other form of written or visual electronic
communications or transmission.
Section 2.2. Annual Meetings.
The annual meetings of the stockholders of the corporation, for the purpose of election
of directors and for such other business as may lawfully come before it, shall be held on such date
and at such time as may be designated from time to time by the Board of Directors.
Section 2.3. Special Meetings.
Special meetings of the stockholders of the corporation may be called, for any purpose or
purposes, by the Chairman of the Board or the Chief Executive Officer or the Board of Directors at
any time.
Section 2.4. Notice of Meetings.
(a) Except as otherwise provided by law or the Certificate of Incorporation, written
notice of each meeting of stockholders, specifying the place, if any, date and hour and purpose or
purposes of the meeting, and the means of remote communication, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to
vote thereat, directed to his address as it appears upon the books of the corporation; except that
where the matter to be acted on is a merger or consolidation of the Corporation or a sale, lease or
exchange of all or substantially all of its assets, such notice shall be given not less than 20 nor
more than 60 days prior to such meeting.
(b) If at any meeting action is proposed to be taken that, if taken, would entitle
stockholders fulfilling the requirements of section 262(d) of the Delaware General Corporation Law
to an appraisal of the fair value of their shares, the notice of such meeting shall contain a
statement of that purpose and to that effect and shall be accompanied by a copy of that statutory
section.
(c) When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote
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communication, if any, by which stockholders and proxyholders may be deemed to be present
in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment
is taken unless the adjournment is for more than thirty days, or unless after the adjournment a new
record date is fixed for the adjourned meeting, in which event a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any meeting of stockholders may be waived in
writing, either before or after such meeting, and, to the extent permitted by law, will be waived
by any stockholder by his attendance thereat, in person or by proxy. Any stockholder so waiving
notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if
due notice thereof had been given.
(e) Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any provision of Delaware
General Corporation Law, the Certificate of Incorporation, or these Bylaws shall be effective if
given by a form of electronic transmission consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (i) the corporation is unable to deliver
by electronic transmission two consecutive notices given by the corporation in accordance with such
consent, and (ii) such inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent or other person responsible for the giving of notice;
provided, however, the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action. Notice given pursuant to this subparagraph (e) shall be
deemed given: (1) if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive notice; (3) if by a
posting on an electronic network together with separate notice to the stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if
by any other form of electronic transmission, when directed to the stockholder. An affidavit of
the secretary or an assistant secretary or of the transfer agent or other agent of the corporation
that the notice has been given by a form of electronic transmission shall, in the absence of fraud,
be prima facie evidence of the facts stated therein. For purposes of these Bylaws, 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 2.5. Quorum and Voting.
(a) At all meetings of stockholders except where otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or by proxy duly authorized,
of the holders of one-third of the outstanding shares of stock entitled to vote shall constitute a
quorum for the transaction of business. Shares, the voting of which at said meeting have been
enjoined, or which for any reason cannot be lawfully voted at such meeting, shall not be counted to
determine a quorum at said meeting. In the absence of a quorum, any meeting of stockholders may be
adjourned, from time to time, by vote of the holders of a majority of the
shares represented thereat, but no other business shall be transacted at such meeting. At
such
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adjourned meeting at which a quorum is present or represented, any business may be transacted
which might have been transacted at the original meeting. The stockholders present at a duly
called or convened meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
(b) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all
action taken by the holders of a majority of the voting power represented at any meeting at which a
quorum is present shall be valid and binding upon the corporation.
Section 2.6. Voting Rights.
(a) Except as otherwise provided by law, only persons in whose names shares entitled to
vote stand on the stock records of the corporation on the record date for determining the
stockholders entitled to vote at said meeting shall be entitled to vote at such meeting. Shares
standing in the names of two or more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of such persons is present in person
or represented by proxy, such person shall have the right to vote such shares and such shares shall
be deemed to be represented for the purpose of determining a quorum.
(b) Every person entitled to vote or to execute consents shall have the right to do so either
in person or by an agent or agents authorized by a written proxy executed by such person or his
duly authorized agent, which proxy shall be filed with the Secretary of the corporation at or
before the meeting at which it is to be used. Said proxy so appointed need not be a stockholder.
No proxy shall be voted on after three years from its date unless the proxy provides for a longer
period. Unless and until voted, every proxy shall be revocable at the pleasure of the person who
executed it or of his legal representatives or assigns, except in those cases where an irrevocable
proxy permitted by statute has been given.
(c) Without limiting the manner in which a stockholder may authorize another person or persons
to act for him as proxy pursuant to subsection (b) of this section, the following shall constitute
a valid means by which a stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another person or persons to act for him
as proxy. Execution may be accomplished by the stockholder or his authorized officer, director,
employee or agent signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telephone, telegram, cablegram or other means of
electronic transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, provided that any such telephone,
telegram, cablegram or other means of electronic transmission must either set forth or be submitted
with information from which it can be determined that the telephone, telegram,
cablegram or other electronic transmission was authorized by the stockholder. Such
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authorization can be established by the signature of the stockholder on the proxy, either in
writing or by a signature stamp or facsimile signature, or by a number or symbol from which the
identity of the stockholder can be determined, or by any other procedure deemed appropriate by the
inspectors or other persons making the determination as to due authorization.
If it is determined that such telegrams, cablegrams or other electronic transmissions are valid,
the inspectors or, if there are no inspectors, such other persons making that determination shall
specify the information upon which they relied.
(d) Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to subsection (c) of this section may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or transmission.
Section 2.7. Voting Procedures and Inspectors of Elections.
(a) The corporation shall, in advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and make a written report thereof. The corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, 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.
(b) The inspectors shall (i) ascertain the number of shares outstanding and the voting power
of each, (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 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.
(c) 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 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.
(d) 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 accordance with Sections 211(e) or 212(c)(2) of the Delaware General
Corporation Law, or any information provided pursuant to Section 211(a)(2)(B)(i) or (iii) thereof,
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
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nominees or
similar persons which represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes 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 pursuant to subsection (b)(v) of this section 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 2.8. List of Stockholders.
The officer who has charge of the stock ledger of the corporation shall prepare and make,
at least ten days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at said meeting, arranged in alphabetical order, showing the address of and the
number of shares registered in the name of each stockholder. The corporation need not include
electronic mail addresses or other electronic contact information on such list. Such list shall be
open to the examination of any stockholder for any purpose germane to the meeting for a period of
at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided
that the information required to gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours at the principal place of business of the
corporation. In the event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is to be held at a place, then
the list shall 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. 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.
Section 2.9. Stockholder Proposals at Annual Meetings.
At an annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be specified in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements for business to be properly brought
before an annual meeting by a stockholder, whether or not the stockholder is seeking to have a
proposal included in the corporations proxy statement or information statement under any
applicable rule of the Securities and Exchange Commission (the SEC), including, but not limited
to, Regulation 14A or Regulation 14C under the Securities and Exchange Act of 1934, as amended (the
Exchange Act), the stockholder must have given timely notice thereof in writing to the Secretary
of the corporation. To be timely, in the case of a stockholder seeking to have a proposal included
in the corporations proxy statement or information statement, a stockholders notice must be
delivered to the Secretary at the corporations principal executive offices not less than 120 days
or more than 180 days prior to the first anniversary (the Anniversary) of the date on which the
corporation first mailed its proxy materials (or, in the absence of proxy materials,
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its notice of meeting) for the previous years annual meeting of stockholders. However, if
the corporation did not hold an annual meeting the previous year, or if the date of the annual
meeting is advanced more than 30 days prior to or delayed by more than 30 days after the
Anniversary of the preceding years annual meeting, then notice by the stockholder to be timely
must be delivered to the Secretary at the corporations principal executive offices not later than
the close of business on the later of (i) the 90th day prior to such annual meeting or (ii) the
15th day following the day on which public announcement of the date of such meeting is first made.
If the stockholder is not seeking inclusion of the proposal in the corporations proxy statement or
information statement, timely notice consists of a stockholders notice delivered to or mailed and
received at the principal executive offices of the corporation not less than 90 days prior to the
date of the annual meeting. In no event shall any adjournment or postponement of an annual meeting
or the announcement thereof commence a new time period for the giving of a stockholders notice as
described above. Other than with respect to stockholder proposals relating to director
nomination(s) which requirements are set forth in Section 2.10 below, a stockholders notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name and record address of
the stockholder proposing such business, (iii) the class and number of shares of the corporation
which are beneficially owned by the stockholder, (iv) any material interest of the stockholder in
such business, (v) as to the stockholder giving the notice and any Stockholder Associated Person
(as defined below) or any member of such stockholders immediate family sharing the same household,
whether and the extent to which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or understanding (including,
but not limited to, any short position or any borrowing or lending of shares of stock) has been
made, the effect or intent of which is to mitigate loss or increase profit to or manage the risk or
benefit of stock price changes for, or to increase or decrease the voting power of, such
stockholder, such Stockholder Associated Person or family member with respect to any share of stock
of the corporation (each, a Relevant Hedge Transaction), and (vi) as to the stockholder giving
the notice and any Stockholder Associated Person or any member of such stockholders immediate
family sharing the same household, to the extent not set forth pursuant to the immediately
preceding clause, (a) whether and the extent to which such stockholder, Stockholder Associated
Person or family member has direct or indirect beneficial ownership of any option, warrant,
convertible security, stock appreciation right, or similar right with an exercise or conversion
privilege or a settlement payment or mechanism at a price related to any class or series of shares
of the corporation, whether or not such instrument or right shall be subject to settlement in the
underlying class or series of capital stock of the corporation or otherwise, or any other direct or
indirect opportunity to profit or share in any profit derived from any increase or decrease in the
value of shares of the corporation (a Derivative Instrument), (b) any rights to dividends on the
shares of the corporation owned beneficially by such stockholder, Stockholder Associated Person or
family member that are separated or separable from the underlying shares of the corporation, (c)
any proportionate interest in shares of the corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such stockholder, Stockholder Associated
Person or family member is a general partner or, directly or indirectly, beneficially owns an
interest in a general partner and (d) any performance-related fees (other than an asset-based fee)
that such stockholder, Stockholder Associated Person or family member is entitled to based on any
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increase or decrease in the value of shares of the corporation or Derivative Instruments, if
any, as of the date of such notice (which information shall be supplemented by such stockholder and
beneficial owner, if any, not later than 10 days after the record date for the meeting to disclose
such ownership as of the record date).
For purposes of this Section 2.9 and Section 2.10, Stockholder Associated Person of any
stockholder shall mean (i) any person controlling or controlled by, directly or indirectly, or
acting in concert with, such stockholder, (ii) any beneficial owner of shares of stock of the
corporation owned of record or beneficially by such stockholder and (iii) any person controlling,
controlled by or under common control with such Stockholder Associated Person.
Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in Section 2.1 and this Section
2.9, provided, however, that nothing in this Section 2.9 shall be deemed to preclude discussion by
any stockholder of any business properly brought before the annual meeting in accordance with said
procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance with the provisions
of Section 2.1 and this Section 2.9, and if he should so determine he shall so declare to the
meeting, and any such business not properly brought before the meeting shall not be transacted.
Nothing in this Section 2.9 shall affect the right of a stockholder to request inclusion of a
proposal in the corporations proxy statement or information statement to the extent that such
right is provided by an applicable rule of the SEC.
Section 2.10. Nominations of Persons for Election to the Board of Directors.
In addition to any other applicable requirements, only persons who are nominated in
accordance with the following procedures shall be eligible for election as directors. Nominations
of persons for election to the Board of Directors of the corporation may be made at a meeting of
stockholders by or at the direction of the Board of Directors, by any nominating committee or
person appointed by the Board of Directors or by any stockholder of the corporation entitled to
vote for the election of directors at the meeting who complies with the notice procedures set forth
in this Section 2.10. Such nominations, other than those made by or at the direction of the Board
of Directors, shall be made pursuant to timely notice in writing to the Secretary of the
corporation, which shall be the exclusive means for a stockholder to make nominations whether or
not the stockholder is seeking to have a proposal included in the corporations proxy statement or
information statement under an applicable rule of the SEC, including, but not limited to,
Regulation 14A or Regulation 14C under the Exchange Act. To be timely, in the case of a
stockholder seeking to have a nomination included in the corporations proxy statement or
information statement, a stockholders notice must be delivered to or mailed and received at the
principal executive offices of the corporation, not less than 120 days or more than 180 days prior
to the first Anniversary of the date on which the corporation first mailed its proxy materials (or,
in the absence of proxy materials, its notice of meeting) for the previous years annual meeting of
stockholders. However, if the corporation did not hold an annual meeting the previous year,
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or if the date of the annual meeting is advanced more than 30 days prior to or delayed by more
than 30 days after the Anniversary of the preceding years annual meeting, then notice by the
stockholder to be timely must be delivered to the Secretary at the corporations principal
executive offices not later than the close of business on the later of (i) the 90th day prior to
such annual meeting or (ii) the 15th day following the day on which public announcement of the date
of such meeting is first made. If the stockholder is not seeking inclusion of the nomination in
the corporations proxy statement or information statement, timely notice consists of a
stockholders notice delivered to or mailed and received at the principal executive offices of the
corporation not less than 90 days prior to the date of the annual meeting. In no event shall any
adjournment or postponement of an annual meeting or the announcement thereof commence a new time
period for the giving of a stockholders notice as described above. The stockholders notice
relating to director nomination(s) shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or employment of the person,
(iii) the class and number of shares of the corporation which are beneficially owned by the person,
and (iv) any other information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Regulation 14A under the Exchange
Act; (b) as to the stockholder giving the notice, (i) the name and record address of the
stockholder, and (ii) the class and number of shares of the corporation which are beneficially
owned by the stockholder; (c) as to the stockholder giving the notice and any Stockholder
Associated Person (as defined in Section 2.9), to the extent not set forth pursuant to the
immediately preceding clause, whether and the extent to which any Relevant Hedge Transaction (as
defined in Section 2.9) has been entered into, and (d) as to the stockholder giving the notice and
any Stockholder Associated Person, (1) whether and the extent to which any Derivative Instrument
(as defined in Section 2.9) is directly or indirectly beneficially owned, (2) any rights to
dividends on the shares of the corporation owned beneficially by such stockholder that are
separated or separable from the underlying shares of the corporation, (3) any proportionate
interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a
general or limited partnership in which such stockholder is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner and (4) any performance-related fees
(other than an asset-based fee) that such stockholder is entitled to based on any increase or
decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the
date of such notice, including without limitation any such interests held by members of such
stockholders immediate family sharing the same household (which information shall be supplemented
by such stockholder and beneficial owner, if any, not later than 10 days after the record date for
the meeting to disclose such ownership as of the record date). The corporation may require any
proposed nominee to furnish such other information as may reasonably be required by the corporation
to determine the eligibility of such proposed nominee to serve as a director of the corporation.
No person shall be eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
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Section 2.11. Action Without Meeting.
Any action required or permitted to be taken by the stockholders of the corporation must
be effected at a duly called annual or special meeting of stockholders of the corporation and may
not be effected by any consent in writing by such stockholders.
ARTICLE 3
DIRECTORS
Section 3.1. Number and Term of Office.
The number of directors shall be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of directors then in office.
Except as provided in Section 3.3 of this Article III, the directors shall be elected by a
plurality vote of the shares represented in person or by proxy at the stockholders annual meeting
in each year and entitled to vote on the election of directors. Elected directors shall hold
office until the next annual meeting and until their successors shall be duly elected and
qualified. Directors need not be stockholders. If, for any cause, the Board of Directors shall
not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at
a special meeting of the stockholders called for that purpose in the manner provided in these
Bylaws.
Section 3.2. Powers.
The powers of the corporation shall be exercised, its business conducted and its property
controlled by or under the direction of the Board of Directors.
Section 3.3. Vacancies.
Vacancies and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director, and each director so elected shall hold office for the
unexpired portion of the term of the director whose place shall be vacant and until his successor
shall have been duly elected and qualified. A vacancy in the Board of Directors shall be deemed to
exist under this section in the case of the death, removal or resignation of any director, or if
the stockholders fail at any meeting of stockholders at which directors are to be elected
(including any meeting referred to in Section 3.4 below) to elect the number of directors then
constituting the whole Board.
Section 3.4. Resignations and Removals.
(a) Any director may resign at any time by delivering his resignation to the Secretary in
writing or by electronic transmission, such resignation to specify whether it will be effective at
a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors. If
no such specification is made it shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the Board effective at a future
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date, a majority of the directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so chosen shall hold office for the
unexpired portion of the term of the director whose place shall be vacated and until his successor
shall have been duly elected and qualified.
(b) At a special meeting of stockholders called for the purpose in the manner hereinabove
provided, the Board of Directors or any individual director may be removed from office, with or
without cause, and a new director or directors elected by a vote of stockholders holding a majority
of the outstanding shares entitled to vote at an election of directors.
Section 3.5. Meetings.
(a) The annual meeting of the Board of Directors shall be held immediately after the
annual stockholders meeting and at the place where such meeting is held or at the place announced
by the Chairman at such meeting. No notice of an annual meeting of the Board of Directors shall be
necessary, and such meeting shall be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular meetings of the Board of Directors shall
be held in the office of the corporation required to be maintained pursuant to Section 1.2 of
Article I hereof. Regular meetings of the Board of Directors may also be held at any place, within
or without the State of Delaware, which has been designated by resolutions of the Board of
Directors or the written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any time and place within or
without the State of Delaware whenever called by the Chairman of the Board or, if there is no
Chairman of the Board, by the Chief Executive Officer, or by any of the directors.
(d) Written notice of the time and place of all regular and special meetings of the Board of
Directors shall be delivered personally to each director or sent by telegram or facsimile
transmission or other form of electronic transmission at least 24 hours before the start of the
meeting, or sent by first class mail at least 120 hours before the start of the meeting. Notice of
any meeting may be waived in writing at any time before or after the meeting and will be waived by
any director by attendance thereat.
Section 3.6. Quorum and Voting.
(a) A quorum of the Board of Directors shall consist of a majority of the total number of
directors then in office, but not less than one; provided, however, at any meeting whether a quorum
be present or otherwise, a majority of the directors present may adjourn from time to time until
the time fixed for the next regular meeting of the Board of Directors, without notice other than by
announcement at the meeting.
(b) At each meeting of the Board at which a quorum is present, all questions and business
shall be determined by a vote of a majority of the directors present, unless a different vote be
required by law, the Certificate of Incorporation, or these Bylaws.
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(c) Any member of the Board of Directors, or of any committee thereof, may participate in a
meeting by means of conference telephone or other communication equipment by means of which all
persons participating in the meeting can hear each other, and participation in a meeting by such
means shall constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice if a quorum be present and if, either before or after the meeting,
each of the directors not present shall sign a written waiver of notice, or a consent to holding
such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the meeting.
Section 3.7. Action Without Meeting.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, 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 of such committee,
as the case may be, consent thereto in writing or by electronic transmission, and such writing or
writings or electronic transmission or transmissions are filed with the minutes of proceedings of
the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper
form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.8. Fees and Compensation.
Directors and members of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors.
Section 3.9. Committees.
(a) Executive Committee: The Board of Directors may appoint an Executive Committee of
not less than one member, each of whom shall be a director. The Executive Committee, to the extent
permitted by law, shall have and may exercise when the Board of Directors is not in session all
powers of the Board in the management of the business and affairs of the corporation, except such
committee shall not have the power or authority to amend these Bylaws or to approve or recommend to
the stockholders any action which must be submitted to stockholders for approval under the Delaware
General Corporation Law.
(b) Other Committees: The Board of Directors may from time to time appoint such other
committees as may be permitted by law. Such other committees appointed by the Board of Directors
shall have such powers and perform such duties as may be prescribed by the resolution or
resolutions creating such committee, but in no event shall any such committee have the powers
denied to the Executive Committee in these Bylaws.
(c) Term: The terms of members of all committees of the Board of Directors shall expire on
the date of the next annual meeting of the Board of Directors following their
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appointment; provided that they shall continue in office until their successors are appointed.
The Board, subject to the provisions of subsections (a) or (b) of this Section 3.9, may at any
time increase or decrease the number of members of a committee or terminate the existence of a
committee; provided that no committee shall consist of less than one member. The membership of a
committee member shall terminate on the date of his death or voluntary resignation, but the Board
may at any time for any reason remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or increase in the number of members of
the committee. The Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting of the committee,
and, in addition, in the absence or disqualification of any member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(d) Meetings: Unless the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this Section 3.9 shall be held at
such times and places as are determined by the Board of Directors, or by any such committee, and
when notice thereof has been given to each member of such committee, no further notice of such
regular meetings need be given thereafter; special meetings of any such committee may be held at
the principal office of the corporation required to be maintained pursuant to Section 1.2 of
Article I hereof; or at any place which has been designated from time to time by resolution of such
committee or by written consent of all members thereof, and may be called by any director who is a
member of such committee upon written notice to the members of such committee of the time and place
of such special meeting given in the manner provided for the giving of written notice to members of
the Board of Directors of the time and place of special meetings of the Board of Directors. Notice
of any special meeting of any committee may be waived in writing at any time after the meeting and
will be waived by any director by attendance thereat. A majority of the authorized number of
members of any such committee shall constitute a quorum for the transaction of business, and the
act of a majority of those present at any meeting at which a quorum is present shall be the act of
such committee.
Section 3.10. Chairman of the Board.
The Board of Directors may designate a Chairman of the Board from among the members of
the Board of Directors. The Chairman of the Board shall preside at all meetings of directors and
stockholders. The Chairman of the Board, in such capacity, shall not be an officer of the
corporation unless expressly designated as such by the Board of Directors.
ARTICLE 4
OFFICERS
Section 4.1. Officers Designated.
The officers of the corporation shall be a Chief Executive Officer, President, Chief
Financial Officer and Secretary. The Board of Directors or the President may also appoint one
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or more Vice-Presidents, assistant secretaries and such other officers and agents with such
powers and duties as it or he shall deem necessary. The order of the seniority of the Vice-
Presidents shall be in the order of their nomination unless otherwise determined by the Board of
Directors. The Board of Directors may assign such additional titles to one or more of the officers
as they shall deem appropriate. Any one person may hold any number of offices of the corporation
at any one time unless specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by or in the manner designated by
the Board of Directors.
Section 4.2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at the pleasure of the Board of Directors
and until their successors shall have been duly elected and qualified, unless sooner removed.
Any officer elected or appointed by the Board of Directors may be removed at any time by the Board
of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors. Nothing in these Bylaws shall be construed as creating any kind
of contractual right to employment with the corporation.
(b) Duties of the Chief Executive Officer: Unless provided otherwise by a resolution adopted
by the Board of Directors, the Chief Executive Officer (i) shall have general active management of
the business of the corporation; (ii) shall, in the absence of the Chairman of the Board of
Directors, preside at all meetings of the stockholders and Board of Directors; (iii) shall see that
all orders and resolutions of the Board are carried into effect; (iv) may maintain records of and
certify proceedings of the Board and stockholders; and (v) shall perform such other duties as may
from time to time be assigned by the Board of Directors.
(c) Duties of President: The President shall perform such duties and have such powers as the
Board of Directors shall designate from time to time.
(d) Duties of Chief Financial Officer: The Chief Financial Officer shall keep or cause to be
kept the books of account of the corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the corporation in such form and as often as required by the
Board of Directors or the Chief Executive Officer. The Chief Financial Officer, subject to the
order of the Board of Directors, shall have the custody of all funds and securities of the
corporation. The Chief Financial Officer shall perform all other duties commonly incident to his
office and shall perform such other duties and have such other powers as the Board of Directors or
the Chief Executive Officer shall designate from time to time. The Chief Executive Officer may
direct any Vice-President to assume and perform the duties of the Chief Financial Officer in the
absence or disability of the Chief Financial Officer, and each such Vice-President shall perform
such other duties and have such other powers as the Board of Directors or the Chief Executive
Officer shall designate from time to time. The Chief Financial Officer shall be the Treasurer of
the corporation.
(e) Duties of Vice-Presidents: The Vice-Presidents, in the order of their seniority, may
assume and perform the duties of the Chief Executive Officer in the absence or
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disability of the Chief Executive Officer or whenever the office of the Chief Executive
Officer is vacant. The Vice-President shall perform such other duties and have such other powers
as the Board of Directors or the Chief Executive Officer shall designate from time to time.
(f) Duties of Secretary: The Secretary shall attend all meetings of the stockholders and of
the Board of Directors and any committee thereof, and shall record all acts and proceedings thereof
in the minute book of the corporation, which may be maintained in either paper or electronic form.
The Secretary shall give notice, in conformity with these Bylaws, of all meetings of the
stockholders and of all meetings of the Board of Directors and any Committee thereof requiring
notice. The Secretary shall perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. The President may direct any assistant secretary to
assume and perform the duties of the Secretary in the absence or disability of the Secretary, and
each assistant secretary shall perform such other duties and have such other powers as the Board of
Directors or the Chief Executive Officer shall designate from time to time.
ARTICLE 5
EXECUTION OF CORPORATE INSTRUMENTS, AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 5.1. Execution of Corporate Instruments.
(a) The Board of Directors may in its discretion determine the method and designate the
signatory officer or officers, or other person or persons, to execute any corporate instrument or
document, or to sign the corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the Board of Directors or otherwise required
by law, formal contracts of the corporation, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and other corporate instruments or documents
requiring the corporate seal, and certificates of shares of stock owned by the corporation, shall
be executed, signed or endorsed by the Chief Executive Officer or the President; such documents may
also be executed by any Vice-President and by the Chief Financial Officer or Secretary or any
assistant secretary. All other instruments and documents requiring the corporate signature but not
requiring the corporate seal may be executed as aforesaid or in such other manner as may be
directed by the Board of Directors.
(c) All checks and drafts drawn on banks or other depositaries on funds to the credit of the
corporation or in special accounts of the corporation shall be signed by such person or persons as
the Board of Directors shall authorize so to do.
(d) Execution of any corporate instrument may be effected in such form, either manual,
facsimile or electronic signature, as may be authorized by the Board of Directors.
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Section 5.2. Voting of Securities Owned by Corporation.
All stock and other securities of other corporations owned or held by the corporation for
itself or for other parties in any capacity shall be voted, and all proxies with respect thereto
shall be executed, by the person authorized so to do by resolution of the Board of Directors or, in
the absence of such authorization, by the Chief Executive Officer, the President, or by any
Vice-President.
ARTICLE 6
SHARES OF STOCK
Section 6.1. Form and Execution of Certificates.
The shares 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 its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the corporation.
Certificates for the shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in the corporation
shall be entitled to have a certificate signed by, or in the name of the corporation by, the Chief
Executive Officer or President or any Vice-President and by the Chief Financial Officer or the
Secretary or assistant secretary, certifying the number of shares owned by him in the corporation.
Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue. If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as otherwise provided in
section 202 of the Delaware General Corporation Law, in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Section 6.2. Lost Certificates.
The Board of Directors may direct a new certificate or certificates (or uncertificated
shares in lieu of a new certificate) to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or certificates (or uncertificated shares in lieu
of
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a new certificate), the Board of Directors may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost or destroyed certificate or certificates,
or his legal representative, to indemnify the corporation in such manner as it shall require and/or
to give the corporation a surety bond in such form and amount as it may direct as indemnity against
any claim that may be made against the corporation with respect to the certificate alleged to have
been lost or destroyed.
Section 6.3. Transfers.
Transfers of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, who shall furnish proper
evidence of authority to transfer, and in the case of stock represented by a certificate, upon the
surrender of a certificate or certificates for a like number of shares, properly endorsed.
Section 6.4. Fixing Record Dates.
(a) In order that the corporation may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than 60
nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the date on which the meeting is held. A determination of stockholders of record entitled 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.
(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 the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 6.5. Registered Stockholders.
The corporation shall be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends and to vote as such owner, and shall not
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, except as
otherwise provided by the laws of Delaware.
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ARTICLE 7
OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the corporation, other than stock
certificates, may be signed by the Chief Executive Officer or President or any Vice-President or
such other person as may be authorized by the Board of Directors and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the signature of the
Secretary or an assistant secretary, or the Chief Financial Officer; provided, however, that where
any such bond, debenture or other corporate security shall be authenticated by the manual signature
of a trustee under an indenture pursuant to which such bond, debenture or other corporate security
shall be issued, the signature of the persons signing and attesting the corporate seal on such
bond, debenture or other corporate security may be the imprinted facsimile of the signatures of
such persons. Interest coupons appertaining to any such bond, debenture or other corporate
security, authenticated by a trustee as aforesaid, shall be signed by the Chief Financial Officer
of the corporation, or such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer who shall have
signed or attested any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon has ceased to be an officer of the corporation before the bond, debenture or
other corporate security so signed or attested shall have been delivered, such bond, debenture or
other corporate security nevertheless may be adopted by the corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have been used thereon had
not ceased to be such officer of the corporation.
ARTICLE 8
CORPORATE SEAL
The corporate seal shall consist of a die bearing the name of the corporation and the
state and date of its incorporation. Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE 9
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 9.1. Right to Indemnification.
Each person who was or is a party or is threatened to be made a party to or is involved
(as a party, witness, or otherwise), in any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (hereinafter a Proceeding),
by reason of the fact that he, or a person of whom he is the legal representative, is or was a
director, officer, employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation or of a partnership,
joint venture, trust, or other enterprise, including service with respect to employee benefit
plans, whether the basis of the Proceeding is alleged action in an official capacity as a director,
officer,
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employee, or agent or in any other capacity while serving as a director, officer, employee, or
agent (hereafter an Agent), shall be indemnified and held harmless by the corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended or interpreted (but, in the case of any such amendment or interpretation, only
to the extent that such amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses, liability, and loss
(including attorneys fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or
to be paid in settlement, and any interest, assessments, or other charges imposed thereon, and any
federal, state, local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered by such person in
connection with investigating, defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in, any Proceeding (hereinafter Expenses);
provided, however, that except as to actions to enforce indemnification rights pursuant to Section
9.3 of this Article, the corporation shall indemnify any Agent seeking indemnification in
connection with a Proceeding (or part thereof) initiated by such person only if the Proceeding (or
part thereof) was authorized by the Board of Directors of the corporation.
Section 9.2. Authority to Advance Expenses.
Expenses incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final disposition of such
Proceeding, provided, however, that if required by the Delaware General Corporation Law, as
amended, such Expenses shall be advanced only upon delivery to the corporation of an undertaking by
or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized in this Article or
otherwise. Expenses incurred by other Agents of the corporation (or by the directors or officers
not acting in their capacity as such, including service with respect to employee benefit plans) may
be advanced upon such terms and conditions as the Board of Directors deems appropriate. Any
obligation to reimburse the corporation for Expense advances shall be unsecured and no interest
shall be charged thereon.
Section 9.3. Right of Claimant to Bring Suit.
If a claim under Section 9.1 or 9.2 of this Article is not paid in full by the
corporation within 90 days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the
expense (including attorneys fees) of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final disposition where the required undertaking has been tendered to
the corporation) that the claimant has not met the standards of conduct that make it permissible
under the Delaware General Corporation Law for the corporation to indemnify the claimant for the
amount claimed. The burden of proving such a defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an actual
19
determination by the corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant had not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that claimant has not met the applicable standard of
conduct.
Section 9.4. Provisions Nonexclusive.
The rights conferred on any person by this Article shall not be exclusive of any other
rights that such person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in another capacity while
holding such office. To the extent that any provision of the Certificate of Incorporation,
agreement, or vote of the stockholders or disinterested directors is inconsistent with these
Bylaws, the provision, agreement, or vote shall take precedence.
Section 9.5. Authority to Insure.
The corporation may purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have the power to indemnify the Agent
against such Expense under applicable law or the provisions of this Article.
Section 9.6. Enforcement of Rights
Without the necessity of entering into an express contract, all rights provided under this
Article shall be deemed to be contractual rights and be effective to the same extent and as if
provided for in a contract between the corporation and such Agent. Any rights granted by this
Article to an Agent shall be enforceable by or on behalf of the person holding such right in any
court of competent jurisdiction.
Section 9.7. Survival of Rights.
The rights provided by this Article shall continue as to a person who has ceased to be an
Agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
Section 9.8. Settlement of Claims.
The corporation shall not be liable to indemnify any Agent under this Article (a) for any
amounts paid in settlement of any action or claim effected without the corporations written
consent, which consent shall not be unreasonably withheld; or (b) for any judicial award if the
corporation was not given a reasonable and timely opportunity, at its expense, to participate in
the defense of such action.
Section 9.9. Effect of Amendment.
Any amendment, repeal, or modification of this Article that adversely affects any rights
provided in this Article to an Agent shall only be effective upon the prior written consent of such
Agent.
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Section 9.10. Subrogation.
In the event of payment under this Article, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of the Agent, who shall execute all papers
required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation effectively to bring suit to
enforce such rights.
Section 9.11. No Duplication of Payments.
The corporation shall not be liable under this Article to make any payment in connection
with any claim made against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote, or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 9.12. Saving Clause.
If this Article or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the corporation shall nevertheless indemnify each Agent to the fullest
extent not prohibited by any applicable portion of this Article that shall not have been
invalidated, or by any other applicable law.
ARTICLE 10
NOTICES
Whenever, under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (i) in writing, timely and duly deposited in the United
States Mail, postage prepaid, and addressed to his last known post office address as shown by the
stock record of the corporation or its transfer agent, or (ii) by a means of electronic
transmission that satisfies the requirements of Section 2.4(e) of these Bylaws, and has been
consented to by the stockholder to whom the notice is given. Any notice required to be given to
any director may be given by either of the methods hereinabove stated, except that such notice,
other than one that is delivered personally, shall be sent to such address or (in the case of
electronic communication) such e-mail address, facsimile telephone number or other form of
electronic address as such director shall have submitted in writing or by electronic communication
to the Secretary of the corporation, or, in the absence of such submission, to the last known post
office address of such director. If no address of a stockholder or director is known, such notice
may be sent to the office of the corporation required to be maintained pursuant to Section 1.2 of
Article I hereof. An affidavit of mailing, executed by a duly authorized and competent employee of
the corporation or its transfer agent appointed with respect to the class of stock affected,
specifying the name and address or the names and addresses of the stockholder or stockholders,
director or directors, to whom any such notice or notices was or were given, and the time and
method of giving the same, shall be conclusive evidence of the statements therein contained.
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All notices given by mail, as above provided, shall be deemed to have been given as at the
time of mailing and all notices given by means of electronic transmission shall be deemed to
have been given as at the sending time recorded by the electronic transmission equipment
operator transmitting the same. It shall not be necessary that the same method of giving notice be
employed in respect of all directors, but one permissible method may be employed in respect of any
one or more, and any other permissible method or methods may be employed in respect of any other or
others. The period or limitation of time within which any stockholder may exercise any option or
right, or enjoy any privilege or benefit, or be required to act, or within which any director may
exercise any power or right, or enjoy any privilege, pursuant to any notice sent him in the manner
above provided, shall not be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation, or of these Bylaws, a
waiver thereof in writing signed by the person or persons entitled to said notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
Whenever notice is required to be given, under any provision of law or of the Certificate of
Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the
giving of such notice to such person shall not be required and there shall be no duty to apply to
any governmental authority or agency for a license or permit to give such notice to such person.
Any action or meeting that shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice had been duly
given. In the event that the action taken by the corporation is such as to require the filing of a
certificate under any provision of the Delaware General Corporation Law, the certificate shall
state, if such is the fact and if notice is required, that notice was given to all persons entitled
to receive notice except such persons with whom communication is unlawful.
ARTICLE 11
AMENDMENTS
Except as otherwise provided in Section 9.9 above, these Bylaws may be repealed, altered
or amended or new Bylaws adopted at any meeting of the stockholders, either annual or special, by
the affirmative vote of a majority of the stock entitled to vote at such meeting, unless a larger
vote is required by these Bylaws or the Certificate of Incorporation. Except as otherwise provided
in Section 9.9 above, the Board of Directors shall also have the authority to repeal, alter or
amend these Bylaws or adopt new Bylaws (including, without limitation, the amendment of any Bylaws
setting forth the number of directors who shall constitute the whole Board of Directors) by
unanimous written consent or at any annual, regular, or special meeting by the affirmative vote of
a majority of the whole number of directors, subject to the power of the stockholders to change or
repeal such Bylaws and provided that the Board of Directors shall not make or alter any Bylaws
fixing the qualifications, classifications, or term of office of directors.
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