Current Report — Form 8-K Filing Table of Contents
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1: 8-K Current Report HTML 46K
2: EX-3.02 Articles of Incorporation/Organization or By-Laws HTML 36K
3: EX-3.03 Articles of Incorporation/Organization or By-Laws HTML 159K
4: EX-4.03 Instrument Defining the Rights of Security Holders HTML 284K
EX-3.03 — Articles of Incorporation/Organization or By-Laws
Section 1.1
Annual Meeting. The
annual meeting of the stockholders of the corporation shall be held on such
date as shall be fixed by the board of directors, at such time and place within
or without the State of Delaware as may be designated in the notice of meeting. The board of directors may, in its sole
discretion, determine that the annual meeting of stockholders shall not be held
at any place, but may instead be held solely by means of remote communication
as authorized by the General Corporation Law of the State of Delaware (the “DGCL”). If the day fixed for the annual meeting shall
fall on a legal holiday, the meeting shall be held on the next succeeding day
not a legal holiday.
Section 1.2
Special Meetings. Special meetings of the stockholders may be
called at any time only by the president, the chief executive officer or the
board of directors. Special meetings of
the stockholders shall be held at such time, date and place within or outside
of the State of Delaware as may be designated in the notice of such
meeting. The board of directors may, in
its sole discretion, determine that a special meeting of stockholders shall not
be held at any place, but may instead be held solely by means of remote
communication as authorized by the DGCL.
Business transacted at any special meeting of the stockholders shall be
limited to the purpose or purposes stated in the notice of such meeting.
Section 1.3
Notice of Meeting. A written notice stating the place, if any,
date, and hour of each meeting of the stockholders, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed
present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote at such meeting, and to each
stockholder who, under the Certificate of Incorporation or these by-laws, is
entitled to such notice, by delivering such notice to such person or leaving it
at his, her or its residence or usual place of business, or by mailing it,
postage prepaid, and addressed to such stockholder at his address as it appears
upon the books of the corporation or by giving notice by electronic
transmission as permitted by Section 8.10 of these by-laws, at least ten (10) days
and not more than sixty (60) before the meeting. Such notice shall be given by the secretary,
an assistant secretary, or any other officer or person designated either by the
secretary or by the person or persons calling the meeting.
The
requirement of notice to any stockholder may be waived (i) by a written
waiver of notice, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether executed or
transmitted before or after the meeting by the stockholder or his attorney
thereunto duly authorized, and filed with the records of the
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meeting,
(ii) if communication with such stockholder is unlawful, (iii) by
attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice, or (iv) as otherwise excepted by
law. A waiver of notice or electronic
transmission of any regular or special meeting of the stockholders need not
specify the business to be transacted or the purposes of the meeting unless so
required by the Certificate of Incorporation or these by-laws.
If
a meeting is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken, except that if the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting. At the adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting.
Section 1.4
Notice of Stockholder Business and Nominations.
(A) Annual Meetings
of Stockholders.
(1) Nominations of persons for
election to the board of directors and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
only (a) pursuant to the corporation’s notice of meeting (or any
supplement thereto), (b) by or at the direction of the nominating and
corporate governance committee of the board of directors, if any, or the board
of directors or (c) by any stockholder of the corporation who was a
stockholder of record of the corporation at the time the notice provided for in
this Section 1.4 is delivered to the secretary of the corporation, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 1.4.
(2) For nominations or other
business to be properly brought before an annual meeting of stockholders by a
stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 1.4,
the stockholder must have given timely notice thereof in writing to the
secretary of the corporation and any such proposed business other than the
nominations of persons for election to the board of directors must constitute a
proper matter for stockholder action. To
be timely, a stockholder’s notice shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the ninetieth day nor earlier than the close of business on the one
hundred twentieth day prior to the first anniversary of the preceding year’s
annual meeting (provided, however, that in the event that the date of the
annual meeting is more than thirty days before or more than seventy days after
such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth day prior to
such annual meeting and not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first made by
the corporation). In no event shall the
public announcement of an adjournment or postponement of an annual meeting of
stockholders commence a new time
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period (or extend any time period) for the giving of a stockholder’s
notice as described above. Such
stockholder’s notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Section 14(a) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and
regulations promulgated thereunder, and (ii) such person’s written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected; (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the by-laws of the corporation, the
language of the proposed amendment), the reasons for conducting such business
at the meeting and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation’s books, and of such beneficial
owner, (ii) the class or series and number of shares of capital stock of
the corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) a description of any agreement,
arrangement or understanding with respect to the nomination or proposal between
or among such stockholder and/or such beneficial owner, any of their respective
affiliates or associates, and any others acting in concert with any of the
foregoing, (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, convertible securities, stock appreciation or similar
rights, hedging transactions, and borrowed or loaned shares) that has been
entered into as of the date of the stockholder’s notice by, or on behalf of
such stockholder and such beneficial owners, whether or not such instrument or
right shall be subject to settlement in underlying shares of capital stock of
the corporation, the effect or intent of which is to mitigate loss to manage
risk or benefit of share price changes for, or increase or decrease the voting
power of, such stockholder or such beneficial owner, with respect to the shares
of stock of the corporation, (v) a representation that the stockholder is
a holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
business or nomination, (vi) a representation whether the stockholder or
the beneficial owner, if any, intends or is part of a group which intends (a) to
deliver a proxy statement and/or form of proxy to holders of at least the percentage
of the corporation’s outstanding capital stock required to approve or adopt the
proposal or elect the nominee and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination, and (vii) any
other information relating to such stockholder and beneficial owner, if any,
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in an election contest pursuant
to and in accordance with Section 14(a) of the Exchange Act and the rules and
regulations promulgated thereunder. The
foregoing notice requirements of this Section 1.4 shall be deemed
satisfied by a stockholder with respect to business other than a nomination if
the stockholder has notified the corporation of his, her or its intention to
present a proposal at an annual meeting in compliance with applicable rules and
regulations promulgated under the Exchange Act and such stockholder’s proposal
has been included in a
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proxy statement that has been prepared by the corporation to solicit
proxies for such annual meeting. The
corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
(3) Notwithstanding anything in
the second sentence of paragraph (A)(2) of this Section 1.4 to the contrary, in the event
that the number of directors to be elected to the board of directors of the
corporation is increased effective at the annual meeting and there is no public
announcement by the corporation naming the nominees for the additional
directorships at least one hundred days prior to the first anniversary of the
preceding year’s annual meeting, a stockholder’s notice required by this Section 1.4
shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth day following the day on which such public announcement
is first made by the corporation.
(B) Special
Meetings of Stockholders. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the corporation’s notice of
meeting. Nominations of persons for
election to the board of directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporation’s
notice of meeting (1) by or at the direction of the board of directors or (2) provided
that the board of directors has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who is a stockholder of
record at the time the notice provided for in this Section 1.4 is
delivered to the secretary of the corporation, who is entitled to vote at the
meeting and upon such election and who complies with the notice procedures set
forth in this Section 1.4. In the
event the corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the board of directors, any such
stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as
specified in the corporation’s notice of meeting, if the stockholder’s notice
required by paragraph (A)(2) of this Section 1.4 shall be delivered
to the secretary at the principal executive offices of the corporation not
earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than the close of business on the later of the
ninetieth day prior to such special meeting or the tenth day following the day
on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the board of directors to be elected at such
meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
(C) General.
(1) Only such
persons who are nominated in accordance with the procedures set forth in this Section 1.4
shall be eligible to be elected at an annual or special meeting of stockholders
of the corporation to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 1.4. Except as otherwise provided
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by law, the chairman of the meeting shall
have the power and duty (a) to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this Section 1.4
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of
such stockholder’s nominee or proposal in compliance with such stockholder’s
representation as required by clause (A)(2)(c)(vi) of this Section 1.4) and (b) if
any proposed nomination or business was not made or proposed in compliance with
this Section 1.4, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of
this Section 1.4, unless otherwise required by law, if the stockholder (or
a qualified representative of the stockholder) does not appear at the annual or
special meeting of stockholders of the corporation to present a nomination or
proposed business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the corporation. For purposes of this Section 1.4, to be
considered a qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or
electronic transmission, at the meeting of stockholders.
(2) For purposes of this Section 1.4,
“public announcement” shall include disclosure in a press release reported by a
national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act and the rules and regulations promulgated thereunder.
(3) Notwithstanding the foregoing provisions of
this Section 1.4, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in this Section 1.4;
provided however, that any references in these by-laws to the Exchange Act or
the rules and regulations promulgated thereunder are not intended to and
shall not limit any requirements applicable to nominations or proposals as to
any other business to be considered pursuant to this Section 1.4
(including paragraphs A(1)(c) and B hereof), and compliance with
paragraphs A(1)(c) and B of this Section 1.4 shall be the exclusive
means for a stockholder to make nominations or submit other business (other
than, as provided in the penultimate sentence of A(2), matters brought properly
under and in compliance with Rule 14a-8 of the Exchange Act, as may be
amended from time to time). Nothing in
this Section 1.4 shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals or nominations in the
corporation’s proxy statement pursuant to applicable rules and regulations
promulgated under the Exchange Act or (b) of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
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Section 1.5
Quorum. The holders
of a majority in voting power of all stock issued, outstanding and entitled to
vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is present.
Section 1.6
Voting and Proxies. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the corporation, unless otherwise provided by law or by the Certificate of
Incorporation. Stockholders may vote
either in person or by proxy. Any such
proxy may be in writing, or by means of electronic transmission (including
telephone, electronic mail, the Internet or such other electronic means as the
board of directors may determine from time to time) that sets forth or is
submitted with information from which it can be determined that such
transmission was authorized by the stockholder, or by such other means
permitted under applicable law. No proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. Proxies shall be filed with the secretary of
the meeting, or of any adjournment thereof.
Except as otherwise limited therein, proxies shall entitle the persons
authorized thereby to vote at any adjournment of such meeting. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to
stock held in the name of two or more persons shall be valid if executed by one
of them unless at or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of them.
Section 1.7
Action at Meeting. When a quorum is present at any meeting of
stockholders, a plurality of the votes properly cast for election to any office
shall elect to such office, and a majority of the votes properly cast upon any
question other than election to an office shall decide such question, except
where a larger vote is required by law, the Certificate of Incorporation or
these by-laws. No ballot shall be
required for any election unless requested by a stockholder present or
represented at the meeting and entitled to vote in the election.
Section 1.8
Action Without Meeting. All action required or permitted to be taken
by the stockholders must be taken at a meeting of the stockholders duly called
and held in accordance with law and in accordance with the Certificate of
Incorporation and these bylaws. The
stockholders cannot act by written consent.
Section 1.9
Voting of Shares of Certain Holders. Shares of stock of the corporation standing
in the name of another corporation, domestic or foreign, may be voted by such
officer, agent, or proxy as the by-laws of such corporation may prescribe, or,
in the absence of such provision, as the board of directors of such corporation
may determine.
Shares
of stock of the corporation standing in the name of a deceased person, a minor
ward or an incompetent person, may be voted by his administrator, executor,
court-appointed guardian or conservator without a transfer of such shares into
the name of such administrator, executor, court appointed guardian or
conservator. Shares of capital stock of
the corporation standing in the name of a trustee or fiduciary may be voted by
such trustee or fiduciary.
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Shares
of stock of the corporation standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
A
stockholder whose shares are pledged shall be entitled to vote such shares
unless in the transfer by the pledgor on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or its proxy shall be entitled to vote the shares so transferred.
Shares
of its own stock belonging to this corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining the total
number of outstanding shares at any given time, but shares of its own stock
held by the corporation in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares.
Section 1.10
Stockholder Lists. The secretary (or the corporation’s transfer
agent or other person authorized by these by-laws or by law) 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. The
corporation shall not be required to 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 ten 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
corporation’s principal executive office.
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 network, and the information required
to access such list shall be provided with the notice of the meeting.
ARTICLE II.
Board of Directors
Section 2.1
Powers. Except as
reserved to the stockholders by law or by the Certificate of Incorporation, the
business of the corporation shall be managed under the direction of the board
of directors, who shall have and may exercise all of the powers of the
corporation. In particular, and without
limiting the foregoing, the board of directors shall have the power to issue or
reserve for issuance from time to time the whole or any part of the capital
stock of the corporation which may be authorized from time to time to such
person, for such consideration and upon such terms and conditions as they shall
determine, including the granting of options, warrants or conversion or other
rights to stock.
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Section 2.2
Number of Directors; Qualifications. Subject to Section 2.5, the board of
directors shall consist of such number of directors (which shall not be less
than three) as shall be fixed initially by the incorporator(s) and
thereafter, from time to time, by resolution of the board of directors. No director need be a stockholder.
Section 2.3
Election of Directors. The initial board of directors shall be
designated in the Certificate of Incorporation, or if not so designated,
elected by the incorporator(s) at the first meeting thereof. Thereafter, directors shall be elected by the
stockholders at their annual meeting or at any special meeting the notice of
which specifies the election of directors as an item of business for such
meeting, in accordance with the provisions of the Certificate of Incorporation.
Section 2.4
Vacancies. In the case
of any vacancy in the board of directors from death, resignation,
disqualification or other cause, including a vacancy resulting from enlargement
of the board, the appointment or election of a director to fill such vacancy
shall be only by vote of a majority of the directors then in office, whether or
not constituting a quorum. The director
thus appointed or elected shall hold office until his successor is duly elected
and qualified or his earlier resignation or removal.
Section 2.5
Change in Size of the Board. The number of members of the board of
directors may be changed by vote of a majority of the directors then in office
or by the stockholders by vote of eighty percent (80%) of the shares of voting
stock outstanding.
Section 2.6
Tenure and Resignation. Except as otherwise provided by law, by the
Certificate of Incorporation or by these by-laws, directors shall hold office
until the next annual meeting of stockholders and thereafter until their
successors are duly elected and qualified.
Any director may resign by delivering or mailing postage prepaid a
written resignation, or by giving notice by electronic transmission as
permitted by Section 8.10 of these by-laws, to the corporation at its
principal office or to the chairman of the board, if any, or to the president,
secretary or assistant secretary, if any.
Such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some other event.
Section 2.7 Removal. A director
may be removed from office only for cause, by vote of the holders of
eighty percent (80%) of the voting stock then outstanding, after reasonable
notice and opportunity to be heard before the body proposing to remove him.
Section 2.8
Meetings. Regular
meetings of the board of directors may be held without call or notice at such
times and such places within or without the State of Delaware as the board of
directors may, from time to time, determine, provided that notice of the first
regular meeting following any such determination shall be given to directors
absent from such determination. A
regular meeting of the board of directors shall be held without notice immediately
after, and at the same place as, the annual meeting of the stockholders or the
special meeting of the stockholders held in place of such annual meeting,
unless a quorum of the directors is not then present. Special meetings of the board of directors
may be held at any time and at any place designated in the call of the meeting
when called by the chairman of the board, the chief executive officer, the
president (if a director) or a majority of the directors. Members of the board of directors or any
committee elected thereby may
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participate in a meeting of
such board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at the meeting.
Section 2.9
Notice of Meeting. It shall be sufficient notice to a director
to send or give notice (i) by mail at least seventy-two (72) hours before
the meeting addressed to such person at his usual or last known business or
residence address or (ii) in person, by telephone, facsimile or electronic
transmission to the extent provided in Section 8.10 of these by-laws, at
least twenty-four (24) hours before the meeting. Notice shall be given by the secretary, or in
his absence or unavailability, may be given by any of an assistant secretary,
if any, or by the officer or directors calling the meeting. The requirement of notice to any director may
be waived by a written waiver of notice signed by the person entitled to notice
or a waiver by electronic transmission by the person entitled to notice,
executed or transmitted by such person before or after the meeting or meetings,
and filed with the records of the meeting, or by attendance at the meeting
without protesting prior thereto or at its commencement the lack of
notice. A notice or waiver of notice of
a meeting of the board of directors or any committee thereof need not specify
the purposes of the meeting.
Section 2.10
Agenda. Any lawful
business may be transacted at a meeting of the board of directors,
notwithstanding the fact that the nature of the business may not have been
specified in the notice or waiver of notice of the meeting.
Section 2.11
Quorum. At any
meeting of the board of directors, a majority of the directors then in office
shall constitute a quorum for the transaction of business. Any meeting may be adjourned by a majority of
the votes cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
Section 2.12
Action at Meeting. Any motion adopted by vote of the majority of
the directors present at a meeting at which a quorum is present shall be the
act of the board of directors, except where a different vote is required by
law, by the Certificate of Incorporation or by these by-laws.
Section 2.13
Action Without Meeting. Any action required or permitted to be taken
at any meeting of the board of directors, or any committee thereof, may be
taken without a meeting if all of the members of the board of directors or
committee, as the case may be, consent to the action in writing or by
electronic transmission and the writing(s) or electronic transmission(s) are
filed with the minutes of proceedings of the board of directors or
committee. Such filing shall be in paper
form if the minutes are in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Such consent shall be treated for all purposes as a vote of the board of
directors or committee, as the case may be, at a meeting.
Section 2.14 Committees. The board
of directors may, by the affirmative vote of a majority of the directors then
in office, appoint an executive committee or other committees consisting of one
or more directors and may by vote delegate to any such committee some or all of
their powers except those which by law, the Certificate of Incorporation or
these by-laws they may not delegate. In
addition to other committees that the board of directors may
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designate from time to time,
the board of directors shall designate a compensation committee and an audit
committee. In the absence or
disqualification of a member of a committee, the members of the committee
present and not disqualified, whether or not they constitute a quorum, may by
unanimous vote appoint another member of the board of directors to act at the
meeting in place of the absent or disqualified member. A committee may create
one or more subcommittees, each subcommittee to consist of one or more members
of the committee, and delegate to such subcommittee any or all of the powers of
the committee. Unless the board of directors shall otherwise provide, any such
committee may make rules for the conduct of its business, but unless
otherwise provided by the board of directors or such rules, its meetings shall
be called, notice given or waived, its business conducted or its action taken
as nearly as may be in the same manner as is provided in these by-laws with
respect to meetings or for the conduct of business or the taking of actions by
the board of directors. The board of
directors shall have power at any time to fill vacancies in, change the
membership of, or discharge any such committee at any time. The board of directors shall have power to
rescind any action of any committee, but no such rescission shall have
retroactive effect.
ARTICLE III.
Officers
Section 3.1
Enumeration. The
officers shall consist of a president, a treasurer, a secretary and such other
officers and agents (including a chairman of the board, a chief executive
officer, one or more vice-presidents, assistant treasurers and assistant
secretaries), as the board of directors may, in its discretion, determine.
Section 3.2
Election. The
president, treasurer and secretary shall be elected annually by the directors
at their first meeting following the annual meeting of the stockholders or any
special meeting held in lieu of the annual meeting. Other officers may be chosen by the directors
at such meeting or at any other meeting.
Section 3.3
Qualification. An
officer may, but need not, be a director or stockholder. Any two or more offices may be held by the
same person. Any officer may be required
by the directors to give bond for the faithful performance of his duties to the
corporation in such amount and with such sureties as the directors may
determine. The premiums for such bonds
may be paid by the corporation.
Section 3.4
Tenure. Except as
otherwise provided by the Certificate of Incorporation or these by-laws, the
term of office of each officer shall be for one year or until his successor is
elected and qualified or until his earlier resignation or removal.
Section 3.5
Removal. Any officer
may be removed from office, with or without cause, by the affirmative vote of a
majority of the directors then in office; provided, however, that an officer
may be removed for cause only after reasonable notice and opportunity to be
heard by the board of directors prior to action thereon.
Section 3.6
Resignation. Any
officer may resign by delivering or mailing postage prepaid a written
resignation, or by giving notice by electronic transmission as permitted by Section 8.10
of these by-laws, to the corporation at its principal office or to the
president,
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secretary, or assistant
secretary, if any, and such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of
some event.
Section 3.7
Vacancies. A vacancy
in any office arising from any cause may be filled for the unexpired portion of
the term by the board of directors.
Section 3.8 Chairman of the Board. The board of directors may appoint a chairman
of the board and may designate the chairman of the board as chief executive
officer. If the board of directors
appoints a chairman of the board, he shall preside at all meetings of the stockholders
and of the board of directors at which present and shall perform such other
duties and possess such other powers as are assigned to him by the
board of directors.
Section 3.9 Chief
Executive Officer. The
board of directors may appoint a chief executive officer, who may be a person
other than the chairman of the board or the president. Unless a chairman of the board is so
designated or except as otherwise voted by the board of directors, the chief
executive officer shall preside at all meetings of the stockholders and of the
board of directors at which present. The
chief executive officer shall have such duties and powers as are commonly
incident to the office and such duties and powers as the board of directors
shall from time to time designate.
Section 3.10
President. The
president shall be the chief executive officer of the corporation, unless
another person is so designated. The
president shall have such duties and powers as are commonly incident to the
office and such duties and powers as the board of directors shall from time to
time designate.
Section 3.11
Vice-President(s). The vice-president(s), if any, shall have
such powers and perform such duties as the board of directors may from time to
time determine.
Section 3.12
Treasurer and Assistant Treasurers. The treasurer, subject to the direction and
under the supervision and control of the board of directors, shall have general
charge of the financial affairs of the corporation. The treasurer shall have custody of all
funds, securities and valuable papers of the corporation, except as the board
of directors may otherwise provide. The
treasurer shall keep or cause to be kept full and accurate records of account
which shall be the property of the corporation, and which shall be always open
to the inspection of each elected officer and director of the corporation. The treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as
may be authorized by the board of directors.
The treasurer shall have the power to endorse for deposit or collection
all notes, checks, drafts, and other negotiable instruments payable to the
corporation. The treasurer shall perform
such other duties as are incidental to the office, and such other duties as may
be assigned by the board of directors.
Assistant
treasurers, if any, shall have such powers and perform such duties as the board
of directors may from time to time determine.
Section 3.13
Secretary and Assistant Secretaries. The secretary shall record, or cause to be
recorded, all proceedings of the meetings of the stockholders and directors
(including committees thereof) in the book of records of this corporation. The record books
11
shall be open at reasonable
times to the inspection of any stockholder, director, or officer. The secretary shall notify the stockholders
and directors, when required by law or by these by-laws, of their respective
meetings, and shall perform such other duties as the directors and stockholders
may from time to time prescribe. The
secretary shall have the custody and charge of the corporate seal, and shall
affix the seal of the corporation to all instruments requiring such seal, and
shall certify under the corporate seal the proceedings of the directors and of
the stockholders, when required. In the
absence of the secretary at any such meeting, a temporary secretary shall be
chosen who shall record the proceedings of the meeting in the aforesaid books.
Assistant secretaries, if
any, shall have such powers and perform such duties as the board of directors
may from time to time designate.
Section 3.14
Other Powers and Duties. Subject to these by-laws and to such
limitations as the board of directors may from time to time prescribe, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the board of directors.
ARTICLE IV.
Capital Stock
Section 4.1 Stock
Certificates. The shares
of capital stock of the corporation shall be represented by certificates in
such form as shall, in conformity to law, be prescribed from time to time by
the board of directors, provided that the board of directors may provide by
resolution or resolutions that some or all of any or all classes or series of
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. Each certificate shall be signed by the
president or vice-president and treasurer or assistant treasurer or such other
officers designated by the board of directors from time to time as permitted by
law, shall bear the seal of the corporation, and shall express on its face its
number, date of issue, class, the number of shares for which, and the name of
the person to whom, it is issued. The
corporate seal and any or all of the signatures of corporation officers may be
facsimile.
If
an officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed on, a certificate shall have ceased to be such before
the 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 time of
its issue.
Section 4.2
Transfer of Shares. Transfers of stock shall be made only on the
books of the corporation, and in the case of certificated shares of stock,
title to a certificate of stock and to the shares represented thereby shall be
transferred by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented
thereby. Upon surrender of a certificate
for the shares being transferred, a new certificate or certificates shall be
issued according to the interests of the parties. In the case of uncertificated shares of
stock, title to the uncertificated shares shall be transferred upon receipt by
the corporation or
12
its transfer agent of proper
transfer instructions from the registered holder of the shares or by transfer
instructions accompanied by a written assignment of the same, or a properly
executed written power of attorney to sell, assign or transfer the
uncertificated shares.
Section 4.3
Record Holders.
Except as otherwise may be required by law, by the Certificate of
Incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote with
respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
corporation in accordance with the requirements of these by-laws.
It
shall be the duty of each stockholder to notify the corporation of his post
office address.
Section 4.4
Record Date.
(a) In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournments thereof, the board of directors
may fix a record date, which record date shall not precede the date on which
the resolution fixing the record date is adopted by the board of directors and
which record date shall, unless otherwise required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed, the
record date for determining stockholders entitled to receive notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the board 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 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 on which the resolution fixing the record date is adopted
by the board of directors, and which record date shall be not be more than
sixty (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 4.5
Transfer Agent and Registrar for Shares of Corporation. The board of directors may appoint a transfer
agent and a registrar of the certificates of stock of the corporation. Any transfer agent so appointed shall
maintain, among other records, a stockholders’ ledger, setting forth the names
and addresses of the holders of all issued shares of stock of the corporation,
the number of shares held by each, the certificate numbers representing such
shares, and the date of issue of the certificates representing such
shares. Any registrar so appointed shall
maintain, among other records, a share register, setting forth the total number
of shares of each class of shares which the corporation is authorized to issue
13
and the total number of
shares actually issued. The stockholders’
ledger and the share register are hereby identified as the stock transfer books
of the corporation; but as between the stockholders’ ledger and the share
register, the names and addresses of stockholders, as they appear on the
stockholders’ ledger maintained by the transfer agent shall be the official
list of stockholders of record of the corporation. The name and address of each stockholder of
record, as they appear upon the stockholders’ ledger, shall be conclusive
evidence of who are the stockholders entitled to receive notice of the meetings
of stockholders, to vote at such meetings, to examine a complete list of the
stockholders entitled to vote at meetings, and to own, enjoy and exercise any
other property or rights deriving from such shares against the corporation. Stockholders, but not the corporation, its
directors, officers, agents or attorneys, shall be responsible for notifying
the transfer agent, in writing, of any changes in their names or addresses from
time to time, and failure to do so will relieve the corporation, its other
stockholders, directors, officers, agents and attorneys, and its transfer agent
and registrar, of liability for failure to direct notices or other documents,
or pay over or transfer dividends or other property or rights, to a name or address
other than the name and address appearing in the stockholders’ ledger
maintained by the transfer agent.
Section 4.6 Loss
of Certificates. In case of
the loss, destruction or mutilation of a certificate of stock, a replacement
certificate may be issued in place thereof upon such terms as the board of
directors may prescribe, including, in the discretion of the board of
directors, a requirement of bond and indemnity to the corporation.
Section 4.7
Restrictions on Transfer. Every certificate for shares of stock which
are subject to any restriction on transfer, whether pursuant to the Certificate
of Incorporation, the by-laws or any agreement to which the corporation is a
party, shall have the fact of the restriction noted conspicuously on the certificate
and shall also set forth on the face or back either the full text of the
restriction or a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge.
Section 4.8
Multiple Classes of Stock. The amount and classes of the capital stock
and the par value, if any, of the shares, shall be as fixed in the Certificate
of Incorporation. At all times when
there are two or more classes of stock, the several classes of stock shall
conform to the description and the terms and have the respective preferences,
voting powers, restrictions and qualifications set forth in the Certificate of
Incorporation and these by-laws. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back either (i) the
full text of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series authorized to be issued,
or (ii) a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
ARTICLE V.
Dividends
Section 5.1 Declaration
of Dividends. Except as
otherwise required by law or by the Certificate of Incorporation, the board of
directors may, in its discretion, declare what, if any, dividends shall be paid
from the surplus or from the net profits of the corporation for the
14
current or preceding fiscal
year, or as otherwise permitted by law.
Dividends may be paid in cash, in property, in shares of the corporation’s
stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may
designate.
Section 5.2
Reserves. Before the
payment of any dividend and before making any distribution of profits, the
board of directors, from time to time and in its absolute discretion, shall have
power to set aside out of the surplus or net profits of the corporation such
sum or sums as the board of directors deems proper and sufficient as a reserve
fund to meet contingencies or for such other purpose as the board of directors
shall deem to be in the best interests of the corporation, and the board of
directors may modify or abolish any such reserve.
ARTICLE VI.
Powers of Officers to Contract
with the Corporation
Any
and all of the directors and officers of the corporation, notwithstanding their
official relations to it, may enter into and perform any contract or agreement
of any nature between the corporation and themselves, or any and all of the
individuals from time to time constituting the board of directors of the
corporation, or any firm or corporation in which any such director may be
interested, directly or indirectly, whether such individual, firm or
corporation thus contracting with the corporation shall thereby derive personal
or corporate profits or benefits or otherwise; provided, that (i) the
material facts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii) if
the material facts as to such person’s relationship or interest are disclosed
or are known to the stockholders entitled to vote thereon, and the contract is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee
thereof, or the stockholders. Any
director of the corporation who is interested in any transaction as aforesaid
may nevertheless be counted in determining the existence of a quorum at any
meeting of the board of directors which shall authorize or ratify any such
transaction. This Article shall not
be construed to invalidate any contract or other transaction which would
otherwise be valid under the common or statutory law applicable thereto.
ARTICLE VII.
Indemnification
Section 7.1
Definitions. For
purposes of this Article VII the following terms shall have the meanings
indicated:
“Corporate
Status” describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the express written request
of the corporation.
“Court”
means the Court of Chancery of the State of Delaware, the court in which the
Proceeding in respect of which indemnification is sought by a Covered Person
shall have
15
been brought or is pending,
or another court having subject matter jurisdiction and personal jurisdiction
over the parties.
“Covered
Person” means a person who is a present or former director or Officer of the
corporation and shall include such person’s legal representatives, heirs,
executors and administrators.
“Disinterested”
describes any individual, whether or not that individual is a director,
Officer, employee or agent of the corporation, who is not and was not and is
not threatened to be made a party to the Proceeding in respect of which
indemnification, advancement of Expenses or other action is sought by a Covered
Person.
“Expenses”
shall include, without limitation, all reasonable attorneys’ fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
“Good
Faith” shall mean a Covered Person having acted in good faith and in a manner
such Covered Person reasonably believed to be in or not opposed to the best
interests of the corporation or, in the case of an employee benefit plan, the
best interests of the participants or beneficiaries of said plan, as the case
may be, and, with respect to any Proceeding which is criminal in nature, having
had no reasonable cause to believe such Covered Person’s conduct was unlawful.
“Improper
Personal Benefit” shall include, but not be limited to, the personal gain in
fact by reason of a person’s Corporate Status of a financial profit, monies or
other advantage not also accruing to the benefit of the corporation or to the
stockholders generally and which is unrelated to his usual compensation
including, but not limited to, (i) in exchange for the exercise of
influence over the corporation’s affairs, (ii) as a result of the
diversion of corporate opportunity, or (iii) pursuant to the use or
communication of confidential or inside information for the purpose of
generating a profit from trading in the corporation’s securities.
Notwithstanding the foregoing, “Improper Personal Benefit” shall not include
any benefit, directly or indirectly, related to actions taken in order to
evaluate, discourage, resist, prevent or negotiate any transaction with or
proposal from any person or entity seeking control of, or a controlling
interest in, the corporation.
“Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and may include law firms or members thereof that
are regularly retained by the corporation but not by any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who,
under the standards of professional conduct then prevailing and applicable to
such counsel, would have a conflict of interest in representing either the
corporation or Covered Person in an action to determine the Covered Person’s
rights under this Article.
16
“Officer”
means the chairman of the board, the president, vice presidents, treasurer,
assistant treasurer(s), secretary, assistant secretary and such other executive
officers as are appointed by the board of directors of the corporation and
explicitly entitled to indemnification hereunder.
“Proceeding”
includes any actual, threatened or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation (including any internal
corporate investigation), administrative hearing or any other proceeding,
whether civil, criminal, administrative or investigative, other than one
initiated by the Covered Person, but including one initiated by a Covered
Person for the purpose of enforcing such Covered Person’s rights under this Article to
the extent provided in Section 7.14 of this Article. “Proceeding” shall
not include any counterclaim brought by any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2 Right
to Indemnification in General.
(a)
Covered Persons. The corporation
may indemnify, and may advance Expenses, to each Covered Person who is, was or
is threatened to be made a party or otherwise involved in any Proceeding, as
provided in this Article and to the fullest extent permitted by applicable
law in effect on the date hereof and to such greater extent as applicable law
may hereafter from time to time permit.
The
indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
Proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Covered Person.
(b)
Employees and Agents. The corporation
may, to the extent authorized from time to time by the board of directors,
grant indemnification and the advancement of Expenses to any employee or agent
of the corporation to the fullest extent of the provisions of this Article with
respect to the indemnification and advancement of Expenses of Covered Persons.
Section 7.3
Proceedings Other Than Proceedings by or in the Right of the Corporation. Each Covered Person may be entitled to the
rights of indemnification provided in this Section 7.3 if, by reason of
such Covered Person’s Corporate Status, such Covered Person is, was or is
threatened to be made, a party to or is otherwise involved in any Proceeding,
other than a Proceeding by or in the right of the corporation. Each Covered
Person may be indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlements, actually and reasonably incurred by such Covered
Person or on such Covered Person’s behalf in connection with such Proceeding or
any claim, issue or matter therein, if such Covered Person acted in Good Faith
and such Covered Person has not been adjudged during the course of such
proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding.
17
Section 7.4
Proceedings by or in the Right of the Corporation. Each Covered Person may be entitled to the
rights of indemnification provided in this Section 7.4 if, by reason of
such Covered Person’s Corporate Status, such Covered Person is, or is threatened
to be made, a party to or is otherwise involved in any Proceeding brought by or
in the right of the corporation to procure a judgment in its favor. Such
Covered Person may be indemnified against Expenses, judgments, penalties, and
amounts paid in settlement, actually and reasonably incurred by such Covered
Person or on such Covered Person’s behalf in connection with such Proceeding if
such Covered Person acted in Good Faith and such Covered Person has not been
adjudged during the course of such proceeding to have derived an Improper
Personal Benefit from the transaction or occurrence forming the basis of such
Proceeding. Notwithstanding the foregoing, no such indemnification shall be
made in respect of any claim, issue or matter in such Proceeding as to which
such Covered Person shall have been adjudged to be liable to the corporation if
applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification shall nevertheless be made by the
corporation in such event if and only to the extent that the Court which is
considering the matter shall so determine.
Section 7.5
Indemnification of a Party Who is Wholly or Partly Successful. Notwithstanding any provision of this Article to
the contrary, to the extent that a Covered Person is, by reason of such Covered
Person’s Corporate Status, a party to or is otherwise involved in and is
successful, on the merits or otherwise, in any Proceeding, such Covered Person
shall be indemnified to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines, and amounts paid in settlement, actually
and reasonably incurred by such Covered Person or on such Covered Person’s
behalf in connection therewith. If such Covered Person is not wholly successful
in such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
corporation shall indemnify such Covered Person to the maximum extent permitted
by law, against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such
Covered Person’s behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7.5 and without limitation,
the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim, issue or matter.
Section 7.6
Indemnification for Expenses of a Witness. Notwithstanding any provision of this Article to
the contrary, to the extent that a Covered Person is, by reason of such Covered
Person’s Corporate Status, a witness in any Proceeding, such Covered Person
shall be indemnified against all Expenses actually and reasonably incurred by
such Covered Person or on such Covered Person’s behalf in connection therewith.
Section 7.7
Advancement of Expenses. Notwithstanding any provision of this Article to
the contrary, the corporation may advance all reasonable Expenses which, by
reason of a Covered Person’s Corporate Status, were incurred by or on behalf of
such Covered Person in connection with any Proceeding, within thirty (30) days
after the receipt by the corporation of a statement or statements from such
Covered Person requesting such advance or advances, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by the Covered
18
Person and shall include or
be preceded or accompanied by an undertaking by or on behalf of the Covered
Person to repay any Expenses if such Covered Person shall be adjudged to be not
entitled to be indemnified against such Expenses. Any advance and undertaking
to repay pursuant to this Section 7.7 may be unsecured interest free, as
the corporation sees fit. Advancement of Expenses pursuant to this Section 7.7
shall not require approval of the board of directors or the stockholders of the
corporation, or of any other person or body. The secretary of the corporation
shall promptly advise the Board in writing of the request for advancement of
Expenses, of the amount and other details of the request and of the undertaking
to make repayment provided pursuant to this Section 7.7.
Section 7.8
Notification and Defense of Claim. Promptly after receipt by a Covered Person of
notice of the commencement of any Proceeding, such Covered Person shall, if a
claim is to be made against the corporation under this Article, notify the
corporation of the commencement of the Proceeding. The failure to notify the
corporation will not relieve the corporation from any liability which it may
have to such Covered Person otherwise than under this Article. With respect to
any such Proceedings to which such Covered Person notifies the corporation:
(a)
The corporation will be entitled to participate in the defense at its own
expense.
(b) Except as otherwise provided below in this
subparagraph (b), the corporation (jointly with any other indemnifying party
similarly notified) will be entitled to assume the defense with counsel
reasonably satisfactory to the Covered Person. After notice from the
corporation to the Covered Person of its election to assume the defense of a
suit, the corporation will not be liable to the Covered Person under this Article for
any legal or other expenses subsequently incurred by the Covered Person in
connection with the defense of the Proceeding other than reasonable costs of
investigation or as otherwise provided below in this subparagraph (b). The
Covered Person shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the corporation of its assumption of the defense shall be at the expense of the
Covered Person except as provided in this paragraph. The fees and expenses of
counsel shall be at the expense of the corporation if (i) the employment
of counsel by the Covered Person has been authorized by the corporation, (ii) the
Covered Person shall have concluded reasonably that there may be a conflict of
interest between the corporation and the Covered Person in the conduct of the
defense of such action and such conclusion is confirmed in writing by the
corporation’s outside counsel regularly employed by it in connection with
corporate matters, or (iii) the corporation shall not in fact have
employed counsel to assume the defense of such Proceeding. The corporation
shall be entitled to participate in, but shall not be entitled to assume the
defense of any Proceeding brought by or in the right of the corporation or as
to which the Covered Person shall have made the conclusion provided for in (ii) above
and such conclusion shall have been so confirmed by the corporation’s said
outside counsel.
(c)
Notwithstanding any provision of this Article to the contrary, the
corporation shall not be obligated to indemnify the Covered Person under this Article for
any amounts paid in settlement of any Proceeding effected without its written
consent. The corporation shall not settle any Proceeding or claim in any manner
which would impose any penalty, limitation or disqualification of the Covered
Person for any purpose without such Covered
19
Person’s written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d)
If it is determined that the Covered Person is entitled to indemnification
other than as afforded under subparagraph (b) above, payment to the Covered
Person of the additional amounts for which he is to be indemnified shall be
made within ten (10) days after such determination.
Section 7.9
Procedures.
(a)
Method of Determination. A
determination (as provided for by this Article or if required by
applicable law in the specific case) with respect to a Covered Person’s
entitlement to indemnification shall be made either (i) by the board of
directors by a majority vote of a quorum consisting of Disinterested directors,
or (ii) in the event that a quorum of the board of directors consisting of
Disinterested directors is not obtainable or, even if obtainable, such quorum
of Disinterested directors so directs, by Independent Counsel in a written
determination to the board of directors, a copy of which shall be delivered to
the Covered Person seeking indemnification, (iii) by a special litigation
committee of the board of directors appointed by the board, or (iv) by the
vote of the holders of a majority of the corporation’s capital stock
outstanding at the time entitled to vote thereon.
(b)
Initiating Request. A Covered
Person who seeks indemnification under this Article shall submit a Request
for Indemnification, including such documentation and information as is
reasonably available to such Covered Person and is reasonably necessary to
determine whether and to what extent such Covered Person is entitled to
indemnification.
(c)
Presumptions. In making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall not presume that
the Covered Person is or is not entitled to indemnification under this Article.
(d)
Burden of Proof. Each Covered
Person shall bear the burden of going forward and demonstrating sufficient
facts to support his claim for entitlement to indemnification under this
Article. That burden shall be deemed satisfied by the submission of an initial
Request for Indemnification pursuant to Section 7.9(b) above.
(e)
Effect of Other Proceedings. The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of guilty or of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Article) of itself adversely affect the right of a Covered Person to
indemnification or create a presumption that a Covered Person did not act in
Good Faith.
(f)
Actions of Others. The knowledge,
actions, or failure to act, of any director, officer, employee, agent, trustee
or fiduciary of the enterprise whose daily activities the Covered Person was
actually responsible may be imputed to a Covered Person for purposes of
determining the right to indemnification under this Article.
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Section 7.10
Action by the Corporation. Any action, payment, advance determination
other than a determination made pursuant to Section 7.9(a) above,
authorization, requirement, grant of indemnification or other action taken by
the Corporation pursuant to this Article shall be effected exclusively
through any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11
Non-Exclusivity. The rights of indemnification and to receive
advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these By-Laws,
any agreement, a vote of stockholders or a resolution of the board of
directors, or otherwise. No amendment, alteration, rescission or replacement of
this Article or any provision hereof shall be effective as to an Covered
Person with respect to any action taken or omitted by such Covered Person in
such Covered Person’s Corporate Status or with respect to any state of facts
then or previously existing or any Proceeding previously or thereafter brought
or threatened based in whole or to the extent based in part upon any such state
of facts existing prior to such amendment, alteration, rescission or
replacement.
Section 7.12
Insurance. The
corporation may maintain, at its expense, an insurance policy or policies to
protect itself and any Covered Person, officer, employee or agent of the
corporation or another enterprise against liability arising out of this Article or
otherwise, whether or not the corporation would have the power to indemnify any
such person against such liability under the Delaware General Corporation Law.
Section 7.13 No
Duplicative Payment. The
corporation shall not be liable under this Article to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that a Covered
Person has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
Section 7.14
Expenses of Adjudication. In the event that any Covered Person seeks a
judicial adjudication, or an award in arbitration, to enforce such Covered
Person’s rights under, or to recover damages for breach of, this Article, the
Covered Person shall be entitled to recover from the corporation, and shall be
indemnified by the corporation against, any and all expenses (of the types
described in the definition of Expenses in Section 7.1 of this Article)
actually and reasonably incurred by such Covered Person in seeking such
adjudication or arbitration, but only if such Covered Person prevails therein.
If it shall be determined in such adjudication or arbitration that the Covered
Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection
with such adjudication or arbitration shall be appropriately prorated.
Section 7.15
Severability. If
any provision or provisions of this Article shall be held to be invalid,
illegal or unenforceable for any reason whatsoever:
(a)
the validity, legality and enforceability of the remaining provisions of this Article (including
without limitation, each portion of any Section of this Article containing
any such
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provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b)
to the fullest extent possible, the provisions of this Article (including,
without limitation, each portion of any Section of this Article containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 8.2
Fiscal Year.
Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall end on December 31st of each year.
Section 8.3
Corporate Seal. The
board of directors shall have the power to adopt and alter the seal of the
corporation.
Section 8.4
Execution of Instruments. All deeds, leases, transfers, contracts,
bonds, notes, and other obligations authorized to be executed by an officer of
the corporation on its behalf shall be signed by the president or the treasurer
except as the board of directors may generally or in particular cases otherwise
determine.
Section 8.5
Voting of Securities. Unless the board of directors otherwise
provides, the president or the treasurer may waive notice of and act on behalf
of this corporation, or appoint another person or persons to act as proxy or
attorney in fact for this corporation with or without discretionary power
and/or power of substitution, at any meeting of stockholders or shareholders of
any other corporation or organization, any of whose securities are held by this
corporation.
Section 8.6
Evidence of Authority. A certificate by the secretary or any
assistant secretary as to any action taken by the stockholders, directors or
any officer or representative of the corporation shall, as to all persons who
rely thereon in good faith, be conclusive evidence of such action. The exercise of any power which by law, by
the Certificate of Incorporation, or by these by-laws, or under any vote of the
stockholders or the board of directors, may be exercised by an officer of the
corporation only in the event of absence of another officer or any other
contingency shall bind the corporation in favor of anyone relying thereon in
good faith, whether or not such absence or contingency existed.
Section 8.7
Corporate Records. Any books or records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or by means of, or be in
the form of, any information storage device or method; provided, however,
that the books and records so kept can be converted into clearly legible paper
form within a reasonable time. The
Corporation shall so
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convert any books or records
so kept upon the request of any person entitled to inspect such records
pursuant to the Certificate of Incorporation, these by-laws, or the provisions
of the DGCL.
Section 8.8
Charitable Contributions. The board of directors from time to time may
authorize contributions to be made by the corporation in such amounts as it may
determine to be reasonable to corporations, trusts, funds or foundations
organized and operated exclusively for charitable, scientific or educational
purposes, no part of the net earning of which inures to the private benefit of
any stockholder or individual.
Section 8.9
Communications of Notices. Any notice required to be given under these
by-laws may be given by (i) delivery in person, (ii) mailing it,
postage prepaid, first class, (iii) mailing it by nationally or
internationally recognized second day or faster courier service, or (iv) electronic
transmission, in each case, to the addressee; provided however that facsimile
transmission or electronic transmission may only be used if the addressee has
consented to such means.
Section 8.10
Electronic Transmissions. Notwithstanding any reference in these
by-laws to written instruments, all notices, meetings, consents and other
communications contemplated by these by-laws may be conducted by means of an
electronic transmission, to the extent permitted by law, if specifically
authorized by the board of directors of the corporation.
ARTICLE IX.
Amendments
Section 9.1
Amendment by Stockholders. Prior to the issuance of stock, these by-laws
may be amended, altered or repealed by the incorporator(s) by majority
vote. After stock has been issued, these by-laws may be amended altered or
repealed by the stockholders at any annual or special meeting by vote of a
majority of all shares outstanding and entitled to vote, except that where the
effect of the amendment would be to reduce any voting requirement otherwise
required by law, the Certificate of Incorporation or another provision of these
by-laws, such amendment shall require the vote that would have been required by
law, the Certificate of Incorporation or these by-laws or such other provision
of these by-laws. Notice and a copy of any proposal to amend these by-laws must
be included in the notice of meeting of stockholders at which action is taken
upon such amendment.
Section 9.2
Amendment by Board of Directors. These by-laws may be amended or altered by
the board of directors at a meeting duly called for the purpose by majority
vote of the directors then in office, except that directors shall not amend the
by-laws in a manner which:
(a) changes the stockholder voting
requirements for any action;
(b) alters or abolishes any preferential
right or right of redemption applicable to a class or series of stock with shares
already outstanding;
(c) alters the provisions of Article IX
hereof; or
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(d) permits the board of directors to
take any action which under law, the Certificate of Incorporation, or these
by-laws is required to be taken by the stockholders.
Any
amendment of these by-laws by the board of directors may be altered or repealed
by the stockholders at any annual or special meeting of stockholders.
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Dates Referenced Herein and Documents Incorporated by Reference