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8-K - FORM 8-K - BOB EVANS FARMS INC | c22006e8vk.htm |
Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
BOB EVANS FARMS, INC.
(As Amended and Restated August 23, 2011)
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of the corporation shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Business Offices. The corporation 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 II
MEETINGS OF STOCKHOLDERS
Section 2.01. Place of Meetings. All meetings of the stockholders shall be held at
such place either within or without the State of Delaware as shall be designated from time to time
by the board of directors and stated in the notice of the meeting.
Section 2.02. Annual Meetings. Annual meetings of stockholders for the purpose of
electing directors and for the transaction of such other proper business as may come before such
meetings shall be held on the second Monday in September if not a legal holiday, and if a legal
holiday, then on the next day following, or on such other date as shall be designated from time to
time by the board of directors and stated in the notice of the meeting.
Section 2.03. Notice of Annual Meeting. Notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the meeting.
Section 2.04. 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 the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten 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 corporations principal
office. The list shall 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 2.05. Special Meetings. Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be
called by the chief executive officer and shall be called by the chief executive officer or
secretary at the request in writing of two-thirds of the board of directors or of the holders of a
majority of the stock issued and outstanding and entitled to vote on the date such request was
received by the corporation. Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.06. Notice of Special Meetings. Notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 2.07. Director Nominations and Stockholder Business.
(a) Notice of Nominations of Director Candidates at Annual Meetings. At any annual meeting of
stockholders, only persons nominated in accordance with this section shall be eligible to serve as
directors of the corporation. For any annual meeting, nominations of persons for election as a
director of the corporation may be made only (i) by or at the direction of the board of directors,
or (ii) by a stockholder of the corporation who (A) was a stockholder of record at the time notice
was given for the meeting, (B) is a stockholder at the time of the annual meeting, (C) is entitled
to vote at the annual meeting and (D) has complied with all of the requirements of this Section
2.07(a).
Any stockholder nomination must be made pursuant to a timely notice to the secretary of the
corporation. To be timely, a stockholders notice must be received by the secretary not more than
120 days and not less than 90 days in advance of the anniversary date of the preceding years
annual meeting; provided, however, that if the date of the annual meeting is advanced or delayed
(other than as a result of adjournment) by more than 30 days from the anniversary date of the
preceding years annual meeting, the secretary must receive the notice no later than the close of
business on the later of (i) the 90th day before the annual meeting or (ii) the close of business
on the 10th day following the day on which public disclosure of the date of the annual meeting is
first made. For purposes of this section public disclosure means disclosure by press release or
other method (or combination of methods) that is designed to provide broad, non-exclusionary
distribution of the information to the public or by a filing with the Securities and Exchange
Commission. In no event shall any postponement or adjournment of an annual meeting commence a new
time period for the giving of a stockholders notice of a nomination.
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Every notice by a stockholder pursuant to this Section 2.07(a) shall set forth:
(i) | the name and address, as they appear on the corporations books, of the stockholder of the corporation giving the notice and who intends to make a nomination and of any Stockholder Related Person (as defined below); |
(ii) | (A) the class and number of shares of the corporations stock which are held of record or are beneficially owned by such stockholder and by any Stockholder Related Person, (B) and any option, warrant, convertible security or similar right with an exercise or conversion privilege with an exercise price, conversion right or other payment or settlement mechanism related to any class of the corporations shares whether or not subject to settlement in the corporations shares (collectively, Derivative Instruments) directly or indirectly held by the stockholder and any Stockholder Related Person, and the stockholders written representation as to the accuracy of the foregoing; |
(iii) | a description of (A) any derivative positions in any securities of the corporation that are owned beneficially or of record by the stockholder or any Stockholder Related Person, (B) any hedging or other transaction or series of transactions, agreement, arrangement or understanding with respect to any of the corporations securities entered into or made by such stockholder or any Stockholder Related Person, (C) any short interest in any security of the corporation (which shall be present if such person has the opportunity to profit, directly or indirectly from any decrease in the value of the subject security), (D) any rights to dividends on shares of the corporation that are separated or separable from the underlying shares, (E) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by any general or limited partnership in which the stockholder is a general partner, and (F) any performance related fees that such stockholder is entitled to based on any increase or decrease in the value of the corporations shares or Derivative Instruments, which description shall be updated upon any changes in the foregoing after the date of the notice but prior to the date of the meeting; |
(iv) | a description of any proxy, transaction, agreement, arrangement or understanding pursuant to which such stockholder or any Stockholder Related Person has a right to vote any of the corporations securities; |
(v) | a description of all arrangements or understandings between or among the stockholder, any Stockholder Related Person and each nominee; |
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(vi) | all information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission if the nominee had been nominated by the board of directors; |
(vii) | the written consent of each nominee to serve as director of the corporation if so elected and a statement as to whether the nominee, if elected, intends to tender, promptly following such persons election, an irrevocable resignation effective upon (A) such persons failure to receive the required vote for reelection at the next meeting at which the person to would face reelection and (B) acceptance of the resignation by the board of directors; |
(viii) | a representation that the stockholder (A) owns the stated shares of the corporation, (B) intends to hold them through the date of the annual meeting and (C) intends to appear at the meeting to make the nomination specified in the notice; |
(ix) | whether the stockholder or any Stockholder Related Person intends to deliver a proxy statement and form of proxy to the holders of the corporations shares regarding the election of such nominee(s); |
(x) | a written statement from each nominee that such nominee is not and will not become a party to any agreement, arrangement or understanding (A) that could limit or interfere with such persons ability, if elected, to carry out such persons fiduciary duties as a director of the corporation or (B) with any person other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service as a director of the corporation; and |
(xi) | a director questionnaire (which is available from the secretary upon request), regarding matters related to the nominees independence and such other matters as may be contained thereon, completed and signed by each nominee. |
For purposes of Section 2.07, a Stockholder Related Person of any stockholder means (i) a
person controlling, 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 Related Person.
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(b) Notice of Nominations of Director Candidates at Special Meetings. At any special meeting
of the stockholders, only persons nominated in accordance with this section shall be
eligible to serve as directors of the corporation. For any special meeting, nominations of persons
for election as a director of the corporation may be made only (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 the special meeting, by a stockholder of the corporation who (A) was a
stockholder of record at the time notice was given for the meeting, (B) is a stockholder at the
time of the special meeting, (C) is entitled to vote at the special meeting and (D) has complied
with all of the requirements of this Section 2.07(b).
Any stockholder nomination must be made pursuant to a timely notice to the secretary of the
corporation. To be timely, a stockholders notice must be received by the secretary not more than
120 days and not less than 90 days prior to the date of the special meeting; provided, however,
that if the first public disclosure (as defined in Section 2.07(a) above) of such special meeting
is less than 100 days prior to the date of the special meeting, the secretary must receive the
notice no later than the close of business on the 10th day following the day on which public
disclosure is first made of the date of the special meeting and the nominees proposed by the board
of directors to be elected at such meeting. In no event shall any postponement or adjournment of a
special meeting commence a new time period for the giving of a stockholders notice of a
nomination. Any notice of a stockholder nomination pursuant to this Section 2.07(b) shall include
all of the information required to be set forth by clauses (i) through (xi) of the third paragraph
of Section 2.07(a).
(c) Notice of Business Other than Director Nominations at Annual Meeting. At any annual
meeting of the stockholders, only business brought in accordance with this section shall be
conducted. For any annual meeting, business may be brought before the meeting only (i) by or at the
direction of the board of directors, or (ii) by a stockholder of the corporation who (A) was a
stockholder of record at the time notice was given for the meeting, (B) is a stockholder at the
time of the meeting, (C) is entitled to vote at the meeting and (D) has complied with all of the
requirements of this Section 2.07(c).
Business may be brought before an annual meeting only pursuant to a timely notice to the
secretary of the corporation. To be timely, a stockholders notice must be received by the
secretary not more than 120 days and not less than 90 days in advance of the anniversary date of
the preceding years annual meeting; provided, however, that if the date of the annual meeting is
advanced or delayed (other than as a result of adjournment) by more than 30 days from the
anniversary of the preceding years annual meeting, the secretary must receive the notice no later
than the close of business on the later of (i) the 90th day before the annual meeting or (ii) the
close of business on the 10th day following the day on which public disclosure (as defined in
Section 2.07(a) above) of the date of the annual meeting is first made.
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Every notice by a stockholder pursuant to this Section 2.07(c) shall set forth:
(i) | the name and address, as they appear on the corporations books, of the stockholder of the corporation giving the notice and who intends to bring such business and of any Stockholder Related Person (as defined in Section 2.07(a) above); |
(ii) | (A) the class and number of shares of the corporations stock which are held of record or are beneficially owned by such stockholder and by any Stockholder Related Person, (B) any Derivative Instruments directly or indirectly held by the stockholder or any Stockholder Related Person, and the stockholders written representation as to the accuracy of the foregoing; |
(iii) | the information required by clause (iii) of the third paragraph of Section 2.07(a) above; |
(iv) | a description of any proxy, transaction, agreement, arrangement or understanding pursuant to which such stockholder or any Stockholder Related Person has a right to vote any of the corporations securities; |
(v) | a description of any material interest of the stockholder or any Stockholder Related Person in such business; |
(vi) | a representation that the stockholder (A) owns the stated _____shares of the corporation, (B) intends to hold them through the date of the annual meeting and (C) intends to appear at the meeting to present the business specified in the notice; and |
(vii) | whether the stockholder or any Stockholder Related Person intends to deliver a proxy statement and form of proxy to the holders of the corporations shares regarding such business. |
(d) Notice of Business Other than Director Nominations at Special Meeting. At any special
meeting of the stockholders, only business brought in accordance with this section shall be
conducted. For any special meeting, business may be brought before the meeting only (i) by or at
the direction of the board of directors; or (ii) by a stockholder of the corporation who (A) was a
stockholder of record at the time notice was given for the meeting, (B) is a stockholder at the
time of the meeting, (C) is entitled to vote at the meeting and (D) has complied with all of the
requirements of this Section 2.07(d).
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Business may be brought before a special meeting only pursuant to a timely notice to the
secretary of the corporation. To be timely, a stockholders notice must be received by the
secretary not more than 120 days and not less than 90 days in advance of the date of the special
meeting; provided, however, that if the first public disclosure (as defined in Section 2.07(a)
above) of such special meeting is less than 100 days prior to the date of the special meeting, the
secretary must receive the notice no later than the close of business on the 10th day following the
day on which public disclosure is first made of the date of the special meeting and of the business
to be conducted at such meeting. In no event shall any postponement or adjournment of a special
meeting commence a new time period for the giving of a stockholders notice of business. Any notice
of business pursuant to this Section 2.07(d) shall include all of the information required to be
set forth by clauses (i) through (vii) of the third paragraph of Section 2.07(c).
(e) General. No nominations shall be considered and no business shall be conducted at any
meeting except in accordance with the provisions of this Section 2.07. At any meeting of
stockholders, the presiding officer may declare out of order and disregard any nomination or other
business that was not properly brought before the meeting in accordance with this Section 2.07. If
the stockholder does not appear in person or by proxy at the meeting to present the nominee(s) or
business, such proposed nominee(s) or business shall not be considered or transacted.
Notwithstanding the foregoing provisions of this Section 2.07, a stockholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934 (the Exchange Act) and
the rules and regulations thereunder with respect to the matters set forth in this Section 2.07.
Nothing in this Section 2.07 shall be deemed to affect any rights of, or limitations on,
stockholders to request inclusion of proposals in the corporations proxy statement pursuant to
Rule 14a-8 under the Exchange Act or any successor rule or regulation. To the extent a stockholder
submits a proposal for inclusion in the corporations proxy statement for an annual meeting that is
appropriate for inclusion therein and otherwise complies with and satisfies the requirements of
Rule 14a-8 under the Exchange Act, the requirements of this Section 2.07 shall be deemed to have
been satisfied.
Section 2.08. Quorum. The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as originally notified.
If the adjournment is for more than thirty 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.
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Section 2.09. Vote Required. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the certificate of incorporation or by-laws a different
vote is required in which case such express provision shall govern and control the decision of such
question.
Section 2.10. Voting Rights; Proxies. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after eleven months from its date, unless the proxy
provides for a longer period.
Section 2.11. Action Without Meeting. 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 all of the holders of outstanding
stock who would be entitled to notice of such meeting.
ARTICLE III
DIRECTORS
Section 3.01. Number of Directors. The number of directors of the corporation shall be
not less than nine (9) nor more than fifteen (15). Initially there shall be nine (9) directors and
thereafter the number of directors shall be as provided from time to time in the by-laws, provided
that no amendment to the by-laws decreasing the number of directors shall have the effect of
shortening the term of any incumbent director, and provided further that no action shall be taken
by the directors (whether through amendment of the by-laws or otherwise) to increase the number of
directors as provided in the by-laws from time to time unless at least eighty percent (80%) of the
directors then in office shall concur in said action. Directors need not be stockholders.
Without limiting the term of any director previously elected, directors elected to the board
of directors at or after the annual meeting of stockholders held in 2011 shall hold office until
the first annual meeting of stockholders following their election and until his or her successor
shall have been duly elected and qualified or until the directors earlier death, resignation or
removal.
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Section 3.02. 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, or by a sole remaining director, and the directors so chosen shall hold office until the
next election of directors and until their successors are duly elected and shall qualify, or until
such directors earlier resignation, removal or death. If there are no directors in office, then an
election of directors may be held in the manner provided by applicable statute and these by-laws.
Section 3.03. Authority of Board of Directors. The business of the corporation shall
be managed by or under the direction of its board of directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or required to be exercised or done by
the stockholders.
Section 3.04. Voting in Director Elections; Resignation.
(a) Except as provided in Section 3.02 of these by-laws or as provided in paragraph (b) of
this Section 3.04, each director shall be elected by the vote of the majority of the votes cast
with respect to that directors election at any meeting for the election of directors at which a
quorum is present. For purposes of this section, a majority of the votes cast means that the number
of shares voted for a director must exceed 50% of the votes cast with respect to that director.
Votes cast against a director will count as votes cast, but abstentions will not count as votes
cast with respect to that director.
(b) In any contested election, the nominees receiving a plurality of the votes cast by
holders of shares represented in person or by proxy at any meeting at which a quorum is present and
entitled to vote on the election of directors shall be elected. For purposes of this Section 3.04,
a contested election shall exist if the number of nominees for election as directors at the
meeting in question nominated by (i) the board of directors, (ii) any stockholder, or (iii) a
combination thereof exceeds the number of directors to be elected. The determination as to whether
an election is a contested election shall be made as of the record date for the meeting in
question. Once an election is determined to be a contested election, the plurality standard shall
remain in effect through the completion of the meeting, regardless whether the election ceases to
be a contested election after the record date but prior to the meeting.
(c) In order for any incumbent director to become a nominee of the board of directors for
further service as a director, such person must submit an irrevocable resignation to the board of
directors, contingent upon (i) that person not receiving more than 50% of the votes cast, and (ii)
acceptance of the resignation by the board in accordance with policies and procedures adopted by
the board.
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The board of directors, acting on the recommendation of the Nominating and Corporate
Governance Committee, shall, within 90 days of receiving the certified vote pertaining to such
election, determine whether to accept the resignation of an unsuccessful incumbent, and in making
this determination the board may consider any factors or other information that it deems
appropriate or relevant. The Nominating and Corporate Governance Committee and the board of
directors expect an unsuccessful incumbent to voluntarily recuse himself or herself from
participation in such deliberations.
Section 3.05. Place of Meetings. The board of directors of the corporation may hold
meetings, both regular and special, either within or without the State of Delaware.
Section 3.06. Regular Meetings. A regular meeting of the board of directors shall be
held immediately after the annual meeting of stockholders at the same place as such annual meeting
is held and no notice of such meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present. In the event such meeting is
not held at the time and place provided herein, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special meetings of the board of
directors, or as shall be specified in a written waiver signed by all of the directors. Other
regular meetings of the board of directors may be held without notice at such time and at such
place as shall from time to time be determined by the board. Unless otherwise restricted by the
certificate of incorporation or these by-laws, members of the board of directors, or any committee
designated by the board of directors, may participate in a meeting of the board of directors, or
any 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 such participation in a
meeting shall constitute presence in person at the meeting.
Section 3.07. Special Meetings. Special meetings of the board of directors may be
called by the chairman of the board or the chief executive officer on three days notice to each
director, either personally or by mail, telephone or facsimile transmission; special meetings shall
be called by the chairman of the board, the chief executive officer or the secretary in like manner
and on like notice on the written request of two directors.
Section 3.08. Quorum. At all meetings of the board of directors a majority of the
directors shall constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the board of directors the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.09. Action Without Meeting. Unless otherwise restricted by the certificate
of incorporation or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a meeting, if all members
of
the board of directors or 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 of directors or
committee.
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Section 3.10. Committees of Directors. 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 not less than three 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 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.
Any such committee, to the extent provided in the 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 which may require it; but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting an agreement of merger or
consolidation, 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; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or authority to declare
a dividend or to authorize the issuance of stock. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the board of directors.
Section 3.11. Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
Section 3.12. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the board of directors shall have the authority to
fix the compensation of directors. The directors may be paid their expenses, if any, of attendance
at each meeting of the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such payment shall preclude
any director from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
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Section 3.13. Removal. Notwithstanding any other provisions of the certificate of
incorporation or the by-laws of the corporation (and notwithstanding the fact that some lesser
percentage may be specified by law, the certificate of incorporation or the by-laws of the
corporation), any director or the entire board of directors of the corporation may be removed from
office at any time, with or without cause, but only by the affirmative vote of the holders of at
least eighty percent (80%) of all of the outstanding shares of capital stock of the corporation
entitled to vote on the election of directors at a meeting of stockholders called for that purpose,
except that if the board of directors, by an affirmative vote of at least two-thirds (66 2/3%) of
the entire board of directors, recommends removal of a director to the stockholders, such removal
may be effected by the affirmative vote of the holders of at least a majority of the outstanding
shares of capital stock of the corporation entitled to vote on the election of directors at a
meeting of stockholders for that purpose.
Section 3.14 Resignation. Any director may resign at any time upon notice given in
writing or by electronic transmission to the chairman or the chief executive officer. A resignation
is effective when delivered unless the resignation specifies (i) a later effective date, or (ii) an
effective date determined upon the happening of an event or events (including, but not limited to,
a failure to receive at least 50% of the votes cast in a director election and the acceptance by
the board of the resignation).
ARTICLE IV
NOTICES
Section 4.01. Form of Notice. Whenever, under the provisions of Delaware law, the
certificate of incorporation or these by-laws, notice is required to be given to any stockholder,
it shall not be construed to mean personal notice, but such notice may be given (a) in writing, by
mail, addressed to such stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail, or (b) by a form of electronic
transmission consented to by the stockholder to whom the notice is given, except to the extent
prohibited by Delaware law. Any consent to receive notice by electronic transmission shall be
revocable by the stockholder by written notice to the corporation.
Whenever, under the provisions of Delaware law, the certificate of incorporation or of these
by-laws, notice is required to be given to any director, such notice may be given personally or by
telephone, facsimile transmission, electronic mail, or given in a writing, addressed to such
director, at his address as it appears on the records of the corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail.
Section 4.02. Waiver of Notice. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
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ARTICLE V
OFFICERS
Section 5.01. Officers. The officers of the corporation will be elected by the board
of directors. The board of directors, in its discretion, may elect a chairman of the board, a chief
executive officer, vice-presidents, a secretary, a treasurer and such other officers as determined
by the board of directors from time to time in accordance with Section 5.02 of these by-laws. Any
number of offices may be held by the same person, unless otherwise prohibited by the certificate of
incorporation, these by-laws or applicable law or regulation. The officers of the corporation need
not be stockholders or directors of the corporation, except that the chairman of the board must be
a director of the corporation. In the absence of any officer, or if any officer is unable to
perform his or her duties or for any reason, the board may delegate any or all of the powers and
duties of such officer to any other officer or to any director.
Section 5.02. Additional Officers. The board of directors may appoint such additional
officers as it shall deem necessary. Such additional officers shall have such powers, authority and
responsibilities as the board may from time to time determine. Each additional officer shall hold
his or her office at the pleasure of the board.
Section 5.03. Term; Removal of Officers. The officers of the corporation shall hold
office until their successors are chosen and qualify, or until their earlier death, resignation or
removal. Any officer may resign at any time by giving written notice to the corporation. Unless
stated in the resignation, the acceptance of the resignation shall not be necessary to make it
effective. A resignation shall be effective at the time specified in the resignation or, if no time
is specified, at the time of receipt. Any officer may be suspended or removed at any time, with or
without cause, by the affirmative vote of a majority of the board of directors. Subject to any
contractual limitations, the chief executive officer may suspend the powers, duties, authority,
responsibilities and compensation of any employee, including any officer, for a period of time
sufficient to permit a decision to be made by the board regarding such persons reinstatement,
further suspension or removal. The board may fill any vacancy occurring in any office of the
corporation in the same manner as provided for the election or appointment of such person.
Section 5.04. Duties of the Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and the board of directors. The chairman shall have
such other powers and duties as the directors shall from time to time assign to him.
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Section 5.05. Duties of the Chief Executive Officer. The chief executive officer of
the corporation shall be the senior executive of the corporation and shall have general control and
management of the business affairs and policies of the corporation. Among other things, the chief
executive officer shall direct and coordinate the development of short-range and long-range goals
and objectives, policies, budgets and operating plans of the corporation and, upon approval by the
board of directors, oversee their interpretation, implementation and achievement. In conjunction
with the board of directors, the chief executive officer shall establish an organizational
hierarchy and delegate authority to other executives regarding policies, contractual commitments,
expenditures and personnel matters. The chief executive officer shall represent the corporation to
its stockholders, the financial community, industry groups, key customers, governmental
representatives and regulatory agencies and the general public. The chief executive officer shall
have such other powers and perform such other duties as from time to time may be conferred upon him
or her by the board of directors.
Section 5.06. Duties of the Vice-Presidents. The vice-presidents shall perform such
duties and have such powers as the board of directors may from time to time prescribe.
Section 5.07. Duties of the Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the proceedings of the
meetings of the corporation and of the board of directors in a book to be kept for that purpose and
shall perform like duties for the standing committees when required. The secretary shall give, or
cause to be given, notice of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the board of directors or
the chief executive officer, under whose supervision he or she shall be. The secretary shall have
custody of the corporate seal of the corporation and the secretary, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and when so affixed, it may
be attested by his or her signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his or her signature.
Section 5.08. Duties of the Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall, in the absence of
the secretary or in the event of the secretarys inability or refusal to act, perform the duties
and exercise the powers of the secretary and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
Section 5.09. Duties of the Treasurer. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories as may be designated
by the board of directors.
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The treasurer shall disburse the funds of the corporation as may be ordered by the board of
directors, taking proper vouchers for such disbursements, and shall render to the chief executive
officer and the board of directors, at its regular meetings, or when the board of directors so
requires, an account of all his or her transactions as treasurer and of the financial condition of
the corporation.
If required by the board of directors, the treasurer shall give the corporation a bond (which
shall be renewed each year) in such sum and with such surety or sureties as shall be satisfactory
to the board of directors for the faithful performance of the duties of his or her office and for
the restoration to the corporation, in case of his or her death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in his or
her possession or under his or her control belonging to the corporation.
Section 5.10. Duties of the Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the board of directors
(or if there be no such determination, then in the order of their election) shall, in the absence
of the treasurer or in the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
ARTICLE VI
STOCK AND STOCKHOLDERS
Section 6.01. Certificates. Shares of stock of the corporation may be certificated or
uncertificated, as provided in the General Corporation Law of Delaware. Every holder of stock in
the corporation shall be entitled, upon written request to the corporation or its transfer agent or
registrar, to have a certificate signed in the name of the corporation by the chairman of the board
of directors, the chief executive officer or a vice-president and the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation and certifying the number
of shares owned by such holder in the corporation. Any of or all the signatures on the certificate
may be 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 by the corporation
with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
Certificates representing shares of the Corporation, if any, shall be in such form as the Board of
Directors shall prescribe.
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Section 6.02. Lost Certificates. The board of directors (through the corporations
duly authorized officers) may direct a new certificate or certificates, or uncertificated shares,
to be issued in place of any certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate or certificates or of uncertificated shares, the board of directors (through the
corporations duly authorized officers) may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representative, to advertise the same in such manner as it shall require and/or to
give the corporation a bond in such sum 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, stolen or
destroyed.
Section 6.03. Record Date. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or 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 nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. 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 6.04. 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 to hold liable for calls and assessments a person
registered on its books as the owner of shares, 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.
Section 6.05. Transfers. Where stock of the corporation is presented to the
corporation or its proper agents with a request to register transfer, the transfer shall be
registered as requested if:
1. (a) In the case of certificated shares, (i) an appropriate person signs on each
certificate so presented or signs on a separate document an assignment or transfer of shares
evidenced by each such certificate, or signs a power to assign or transfer such shares, or when the
signature of an appropriate person is written without more on the back of each such certificate;
(ii) reasonable assurance is given that the endorsement of each appropriate person is genuine and
effective; and (iii) the corporation or its agents may refuse to register a transfer of shares
unless the signature of each appropriate person is guaranteed by an eligible guarantor
institution as defined in Rule 17Ad-15 under the Securities Act of 1934 or any successor rule or
regulation; and
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(b) In the case of uncertificated shares, (i) the holder has given proper instructions and
(ii) has provided such proof of authenticity as the corporation or its transfer agent or registrar
reasonably requires; and
2. All applicable laws relating to the collection of transfer or other taxes have been
complied with; and
3. The corporation or its agents are not otherwise required or permitted to refuse to
register such transfer.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Dividends. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared by the board of
directors pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation. Before payment of any
dividend, there may be set aside out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion, deem proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the directors shall deem
conducive to the interest of the corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
Section 7.02. Annual Statement. The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the corporation.
Section 7.03. Checks. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as the board of
directors may from time to time designate.
Section 7.04. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
Section 7.05. Seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words Corporate Seal, Delaware. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
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ARTICLE VIII
AMENDMENTS
Section 8.01. Amendments. These by-laws may be amended or repealed by the board of
directors pursuant to the certificate of incorporation or by affirmative vote of the holders of
record of shares entitling them to exercise a majority of the voting power on such proposal:
provided, however, that the provisions set forth in this Article VIII, in Article II, Sections 2.05
and 2.08 and in Article III, Section 3.13, herein may not be repealed or amended in any respect
unless such action is approved by the affirmative vote of the holders of eighty percent (80%) of
the stock issued and outstanding and entitled to vote thereon.
ARTICLE IX
INDEMNIFICATION
Section 9.01. Indemnification as of Right for Directors and Officers. Each director or
officer of the corporation who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a proceeding), by reason of the fact that he or she is or was a
director or officer 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 (hereinafter an indemnitee), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be indemnified and held
harmless by the corporation to the fullest extent permitted by Delaware Law against all expense,
liability and loss (including attorneys fees, judgments, fines, taxes, penalties and amounts paid
in settlement) reasonably incurred or suffered by such indemnitee in connection therewith;
provided, however, that, except as provided in Section 9.02 hereof with respect to proceedings to
enforce rights to indemnification, the corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the board. The right to indemnification conferred in this
Section 9.01 shall include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter an advancement of
expenses); provided, however, that, if Delaware Law so requires, expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be advanced only upon delivery to the corporation of an undertaking
(hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal
(hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified for
such expenses under this Section 9.01 or otherwise.
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Section 9.02. Enforcement. If a claim under Section 9.01 is not paid in full by the
corporation within sixty days after a written claim has been received by the corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or
defending such suit. It shall be a defense of the corporation in any suit brought by an indemnitee
to enforce a right to indemnification hereunder (but not in a suit to enforce a right to an
advancement of expenses) that the indemnitee has not met the applicable standard of conduct set
forth in Delaware Law, and a final adjudication that an indemnitee has not met such standard shall
entitle the corporation to recover such expenses pursuant to the terms of an undertaking. Neither
the failure of the corporation (including the board, independent legal counsel or its stockholders)
to have made a determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of
conduct set forth in Delaware Law, nor an actual determination by the corporation (including the
board, independent legal counsel or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a
defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or by the corporation to recover an advancement of
expenses, the burden of proving that the indemnitee is not entitled to be indemnified in any
respect, or to such advancement of expenses, under this Article IX or otherwise shall be on the
corporation.
Section 9.03. Discretionary Indemnification for Agents and Employees. The corporation
may, to the extent approved or ratified from time to time by the board, grant rights to
indemnification, and to the advancement of expenses to any employee or agent of the corporation to
the fullest extent contemplated by this Article IX with respect to the indemnification and
advancement of expenses of directors and officers of the corporation.
Section 9.04. Article IX Exclusive. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this Article IX shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under the corporations or any other corporations certificate of incorporation or
by-laws, other charter documents, agreement, vote of stockholders or disinterested directors or
otherwise, or under Delaware Law or any other applicable statute or regulation, both as to action
in such persons official capacity and as to action in another capacity while holding such office.
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Section 9.05. Continuation of Indemnification. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article IX shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person, except in any such case to the extent that any grant
of rights to indemnification and advancement of expenses pursuant to Section 9.03 otherwise
provides, and shall be binding upon any successor to the corporation to the fullest extent
permitted by Delaware Law, as from time to time in effect.
Section 9.06. Insurance. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or arising out of such
persons status as such, whether or not the corporation would have the power to indemnify such
person against such liability under the provisions of this Article IX or Delaware Law.
Section 9.07. Certain Definitions. For purposes of this Article, references to other
enterprises shall include employee benefit plans; references to fines shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and references to a director
or officer of the corporation serving at the request of the corporation shall include any service
as a director, officer, employee or agent of the corporation which imposes duties on, or involves
services by, such director or officer with respect to an employee benefit plan, its participants,
or beneficiaries. For purposes of determining whether a person has met the applicable standard of
conduct set forth in Delaware Law, a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the
corporation.
Section 9.08. Severability. In the event that any provision of this Article IX is
determined by a court of competent jurisdiction to require the corporation to do or to fail to do
an act which is in violation of applicable law, such provision shall be limited or modified in its
application to the minimum extent necessary to avoid a violation of law, and, as so limited or
modified, such provision and the balance of this Article IX shall be enforceable by an indemnitee
in accordance with its terms.
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