Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Pre-Effective Amendment to Registration Statement HTML 1.60M
(General Form)
2: EX-1.1 Underwriting Agreement HTML 343K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 46K
4: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 80K
5: EX-5.1 Opinion re: Legality HTML 17K
6: EX-10.21 Material Contract HTML 60K
7: EX-23.1 Consent of Experts or Counsel HTML 8K
EX-3.4 — Articles of Incorporation/Organization or By-Laws
1.1 Place
of Meetings. All meetings of
stockholders shall be held at such place as may be designated from time to time
by the Board of Directors, the Chairman of the Board or the Chief Executive
Officer or, if not so designated, at the principal office of the corporation.
1.2 Annual
Meeting. The annual meeting of
stockholders for the election of directors and for the transaction of such
other business as may properly be brought before the meeting shall be held on a
date and at a time designated by the Board of Directors, the Chairman of the
Board or the Chief Executive Officer (which date shall not be a legal holiday
in the place where the meeting is to be held). If no annual meeting is held in accordance
with the foregoing provisions, a special meeting may be held in lieu of the
annual meeting, and any action taken at that special meeting shall have the
same effect as if it had been taken at the annual meeting, and in such case all
references in these Bylaws to the annual meeting of the stockholders shall be
deemed to refer to such special meeting.
1.3 Special
Meetings.
(a) Special
meetings of stockholders for any purpose or purposes for which meetings may be
lawfully called, may be called at any time by the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or by one or more
stockholders holding shares in the aggregate entitled to cast not less than
fifty percent (50%) of the votes at that meeting. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
(b) If a
special meeting is called by anyone other than the Board of Directors, the Chairman
of the Board or the Chief Executive Officer, then the request shall be in
writing, specifying the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by
other written communication, including by electronic transmission, to the
Chairman of the Board, the Chief Executive Officer, any Vice President or the
Secretary of the corporation. Upon receipt of a written request of any person
or persons who have duly called a special meeting, it shall be the duty of the
Secretary of the corporation to fix the date of the meeting to be held at such
date and time as the Secretary may fix, not less than ten (10) nor more
than sixty (60) days after the receipt of the request, and to give due notice
thereof in accordance with the provisions of Section 1.4 of these Bylaws. If
the notice is not given within twenty (20) days after receipt of the request,
then the person or persons requesting the meeting may give the notice. Nothing
contained in this Section 1.3(b) shall be construed as limiting,
fixing or affecting the time when a meeting of stockholders called by action of
the Board of Directors may be held.
1.4 Notice
of Meetings. Except as otherwise
provided by law, notice of each meeting of stockholders, whether annual or
special, shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. Without limiting the manner by which notice
otherwise may be given to stockholders, any notice shall be effective if given
by a form of electronic transmission consented to (in a manner consistent with
Delaware law) by
the stockholder to whom the notice is given.
The notices of all meetings shall state the place, date and time of the
meeting and the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
meeting. The notice of a special meeting
shall state, in addition, the purpose or purposes for which the meeting is
called. If notice is given by mail, such
notice shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the corporation.
If notice is given by electronic transmission, such notice shall be
deemed given at the time specified in Section 232 of the General
Corporation Law of the State of Delaware.
1.5 Voting
List. The Secretary shall prepare,
at least 10 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, for a period of at least 10 days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with notice of
the meeting, or (ii) during ordinary business hours, at the principal
place of business of the corporation.
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.
1.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the holders of a majority of the
shares of the capital stock of the corporation issued and outstanding and
entitled to vote at the meeting, present in person, present by means of remote
communication in a manner, if any, authorized by the Board of Directors in its
sole discretion, or represented by proxy, shall constitute a quorum for the
transaction of business. A quorum, once
established at a meeting, shall not be broken by the withdrawal of enough votes
to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned
from time to time to any other time and to any other place at which a meeting
of stockholders may be held under these Bylaws by the stockholders present or
represented at the meeting and entitled to vote, although less than a quorum,
or, if no stockholder is present, by any officer entitled to preside at or to
act as secretary of such meeting. It
shall not be necessary to notify any stockholder of any adjournment of less
than 30 days if the time and place of the adjourned meeting, and the means
of remote communication, if any, by which stockholders and proxyholders may be
deemed to be present in person and vote at such adjourned meeting, are
announced at the meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the original meeting.
1.8 Voting
and Proxies. Each stockholder shall
have one vote for each share of stock entitled to vote held of record by such
stockholder and a proportionate vote for each fractional share so held, unless
otherwise provided by law or the Certificate of Incorporation. Each stockholder of record entitled to vote
at a meeting of stockholders may vote in person (including by means of remote
communications, if any, by which stockholders may be deemed to be present in
person and vote at such meeting) or may authorize another person or persons to
vote for such
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stockholder by a
proxy executed or transmitted in a manner permitted by Delaware law by the
stockholder or such stockholder’s authorized agent and delivered (including by
electronic transmission) to the Secretary of the corporation. No such proxy shall be voted upon after three
years from the date of its execution, unless the proxy expressly provides for a
longer period.
1.9 Action
at Meeting. When a quorum is present
at any meeting, any matter other than the election of directors to be voted
upon by the stockholders at such meeting shall be decided by the affirmative
vote of the holders of shares of stock having a majority of the votes cast by
the holders of all of the shares of stock present or represented and voting on
such matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, the holders of a
majority of the stock of that class present or represented and voting on such
matter), except when a different vote is required by law, the Certificate of
Incorporation or these Bylaws. When a
quorum is present at any meeting, any election by stockholders of directors
shall be determined by a plurality of the votes cast by the stockholders
entitled to vote on the election.
1.10 Nomination
of Directors.
(a) Except for
(i) any directors entitled to be elected by the holders of preferred
stock, (ii) any directors elected in accordance with Section 2.8
hereof by the Board of Directors to fill a vacancy or newly-created
directorships, or (iii) as otherwise required by applicable law or stock
market regulation, only persons who are nominated in accordance with the
procedures in this Section 1.10 shall be eligible for election as
directors. Nomination for election to
the Board of Directors of the corporation at a meeting of stockholders may be
made (i) by or at the direction of the Board of Directors or (ii) by
any stockholder of the corporation who (x) complies with the notice procedures
set forth in Section 1.10(b) and (y) is a stockholder of record on
the date of the giving of such notice and on the record date for the
determination of stockholders entitled to vote at such meeting.
(b) To be
timely, a stockholder’s notice must be received in writing by the Secretary at
the principal executive offices of the corporation as follows: (x) in the case
of an election of directors at an annual meeting of stockholders, not less than
90 days nor more than 120 days 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 advanced by more than 20 days, or delayed by more than 60 days, from
the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice must be so received not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of (A) the
90th day prior to such annual meeting and (B) the tenth day following the
day on which notice of the date of such annual meeting was mailed or public
disclosure of the date of such annual meeting was made, whichever first occurs;
or (y) in the case of an election of directors at a special meeting of
stockholders, not earlier than the 120th day prior to such special meeting and
not later than the close of business on the later of (A) the 90th day
prior to such special meeting and (B) the tenth day following the day on
which notice of the date of such special meeting was mailed or public
disclosure of the date of such special meeting was made, whichever first
occurs.
The stockholder’s notice to the Secretary shall set
forth: (x) as to each proposed nominee (i) such person’s name, age,
business address and, if known, residence address, (ii) such person’s
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principal occupation or employment, (iii) the
class and number of shares of stock of the corporation which are beneficially
owned by such person, and (iv) any other information concerning such
person that must be disclosed as to nominees in proxy solicitations pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); (y) as to the
stockholder giving the notice (i) such stockholder’s name and address, as
they appear on the corporation’s books, (ii) the class and number of
shares of stock of the corporation which are owned, beneficially and of record,
by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the person(s) named in its notice and (v) a representation whether the
stockholder 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 elect the nominee
and/or (B) otherwise to solicit proxies from stockholders in support of
such nomination; and (z) as to the beneficial owner, if any, on whose behalf
the nomination is being made (i) such beneficial owner’s name and address,
(ii) the class and number of shares of stock of the corporation which are
beneficially owned by such beneficial owner, (iii) a description of all
arrangements or understandings between such beneficial owner and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made and (iv) a representation whether
the beneficial owner 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 requirement to elect
the nominee and/or (B) otherwise to solicit proxies from stockholders in
support of such nomination. In addition,
to be effective, the stockholder’s notice must be accompanied by the written
consent of the proposed nominee to serve as a director if elected. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required to
determine the eligibility of such proposed nominee to serve as a director of
the corporation. A stockholder shall not
have complied with this Section 1.10(b) if the stockholder or
beneficial owner, if any, on whose behalf the nomination 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 in compliance with the
representations with respect thereto required by this Section 1.10.
(c) The
chairman of any meeting shall, if the facts warrant, determine that a
nomination was not made in accordance with the provisions of this Section 1.10
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination 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 in compliance with the representations with respect thereto required by
this Section 1.10).
(d) Except as
otherwise required by law, nothing in this Section 1.10 shall obligate the
corporation or the Board of Directors to include in any proxy statement or
other stockholder communication distributed on behalf of the corporation or the
Board of Directors information with respect to any nominee for director
submitted by a stockholder.
(e) Notwithstanding
the foregoing provisions of this Section 1.10, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual or
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special meeting of
stockholders of the corporation to present a nomination, such nomination shall
be disregarded, notwithstanding that proxies in respect of such vote may have
been received by the corporation.
(f) For
purposes of this Section 1.10, “public disclosure” shall include
disclosure in a press release reported by the Dow Jones New Service, Associated
Press or comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
1.11 Notice
of Business at Annual Meetings.
(a) At any
annual meeting of the stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought before an annual
meeting, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (iii) properly brought before the meeting by a
stockholder. For business to be properly
brought before an annual meeting by a stockholder, (x) if such business relates
to the nomination of a person for election as a director of the corporation,
the procedures in Section 1.10 must be complied with and (y) if such
business relates to any other matter, the stockholder must (A) have given
timely notice thereof in writing to the Secretary in accordance with the
procedures set forth in Section 1.11(b) and (B) be a stockholder
of record on the date of the giving of such notice and on the record date for
the determination of stockholders entitled to vote at such annual meeting.
(b) To be
timely, a stockholder’s notice must be received in writing by the Secretary at
the principal executive offices of the corporation not less than 90 days nor
more than 120 days 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 advanced by more than
20 days, or delayed by more than 60 days, from the first anniversary of the
preceding year’s annual meeting, a stockholder’s notice must be so received not
earlier than the 120th day prior to such annual meeting and not later than the
close of business on the later of (A) the 90th day prior to such annual
meeting and (B) the tenth day following the day on which notice of the
date of such annual meeting was mailed or public disclosure of the date of such
annual meeting was made, whichever first occurs.
The stockholder’s notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and address, as they appear on the
corporation’s books, of the stockholder proposing such business, and the name
and address of the beneficial owner, if any, on whose behalf the proposal is
made, (iii) the class and number of shares of stock of the corporation
which are owned, of record and beneficially, by the stockholder and beneficial
owner, if any, (iv) a description of all arrangements or understandings
between such stockholder or such beneficial owner, if any, and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of the stockholder or
such beneficial owner, if any, in such business, (v) a representation that
such stockholder intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting
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and (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 and/or (B) otherwise to solicit proxies from
stockholders in support of such proposal.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at any annual meeting of stockholders except in accordance
with the procedures set forth in this Section 1.11; provided,
that any stockholder proposal which complies with Rule 14a-8 of the proxy rules (or
any successor provision) promulgated under the Securities Exchange Act of 1934,
as amended, and is to be included in the corporation’s proxy statement for an
annual meeting of stockholders shall be deemed to comply with the requirements
of this Section 1.11. A stockholder
shall not have complied with this Section 1.11(b) if the stockholder
or beneficial owner, if any, on whose behalf the nomination 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 in compliance with the
representations with respect thereto required by this Section 1.11.
(c) The
chairman of any meeting shall, if the facts warrant, determine that business
was not properly brought before the meeting in accordance with the provisions
of this Section 1.11 (including whether the stockholder or beneficial
owner, if any, on whose behalf the 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 proposal in compliance with the representation
with respect thereto required by this Section 1.11), and if the chairman
should so determine, the chairman shall so declare to the meeting and such
business shall not be brought before the meeting.
(d) Notwithstanding
the foregoing provisions of this Section 1.11, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual
meeting of stockholders of the corporation to present business, such business
shall not be transacted, notwithstanding that proxies in respect of such vote
may have been received by the corporation.
(e) For
purposes of this Section 1.11, “public disclosure” shall include
disclosure in a press release reported by the Dow Jones New Service, Associated
Press or comparable national news service or in a document publicly filed by
the corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
1.12 Conduct
of Meetings.
(a) Meetings
of stockholders shall be presided over by the Chairman of the Board, if any, or
in the Chairman’s absence by the Vice Chairman of the Board, if any, or in the
Vice Chairman’s absence by the Chief Executive Officer, or in the Chief
Executive Officer’s absence by the President, or in the President’s absence by
a Vice President, or in the absence of all of the foregoing persons by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen by vote of the stockholders at the meeting. The Secretary shall act as secretary of the
meeting, but in the Secretary’s absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
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(b) The Board
of Directors of the corporation may adopt by resolution such rules, regulations
and procedures for the conduct of any meeting of stockholders of the
corporation as it shall deem appropriate including, without limitation, such
guidelines and procedures as it may deem appropriate regarding the
participation by means of remote communication of stockholders and proxyholders
not physically present at a meeting.
Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as shall be determined; (iv) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants. Unless and to the extent determined by the
Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of
parliamentary procedure.
(c) The
chairman of the meeting shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be opened and closed. If no announcement is made, the polls shall
be deemed to have opened when the meeting is convened and closed upon the final
adjournment of the meeting. After the
polls close, no ballots, proxies or votes or any revocations or changes thereto
may be accepted.
(d) In advance
of any meeting of stockholders, the Board of Directors, the Chairman of the
Board or the Chief Executive Officer shall appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more other persons may be designated
as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is present,
ready and willing to act at a meeting of stockholders, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors
may be officers, employees or agents of the corporation. Each inspector, before entering upon the
discharge of such inspector’s duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of such inspector’s ability. The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote in completed, shall make a certificate of the result
of the vote taken and of such other facts as may be required by law.
1.13 No
Action by Consent in Lieu of a Meeting.
Stockholders of the corporation may not take any action by written
consent in lieu of a meeting.
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ARTICLE II
DIRECTORS
2.1 General
Powers. The business and affairs of
the corporation shall be managed by or under the direction of a Board of
Directors, who may exercise all of the powers of the corporation except as
otherwise provided by law or the Certificate of Incorporation.
2.2 Number,
Election and Qualification. Subject
to the rights of holders of any series of Preferred Stock to elect directors,
the number of directors of the Corporation shall be established from time to
time by the Board of Directors. Election
of directors need not be by written ballot.
Directors need not be stockholders of the corporation.
2.3 Classes
of Directors. Subject to the rights
of holders of any series of Preferred Stock to elect directors, the Board of
Directors shall be and is divided into three classes: Class I, Class II and Class III.
2.4 Terms
of Office. Subject to the rights of
holders of any series of Preferred Stock to elect directors, each director
shall serve for a term ending on the date of the third annual meeting following
the annual meeting at which such director was elected; provided,
that each director initially appointed to Class I shall serve for a term
expiring at the corporation’s annual meeting of stockholders held in2006; each director initially appointed to Class II
shall serve for a term expiring at the corporation’s annual meeting of
stockholders held in2007; and each
director initially appointed to Class III shall serve for a term expiring
at the corporation’s annual meeting of stockholders held in2008;
provided, further,
that the term of each director shall continue until the election and
qualification of a successor and be subject to such director’s earlier death,
resignation or removal.
2.5 Quorum. A majority of the directors at any time in
office shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors
there shall be less than such a quorum, a majority of the directors present may
adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present.
2.6 Action
at Meeting. Every act or decision
done or made by a majority of the directors present at a meeting duly held at
which a quorum is present shall be regarded as the act of the Board of
Directors unless a greater number is required by law or by the Certificate of
Incorporation.
2.7 Removal. Subject to the rights of holder of any series
of Preferred Stock, directors of the corporation may be removed only for cause
and only by the affirmative vote of the holders of at least seventy-five
percent (75%) of the votes which all the stockholders would be entitled to cast
in any annual election of directors or class of directors.
2.8 Vacancies. Subject to the rights of holder of any series
of Preferred Stock, any vacancy or newly-created directorships in the Board of
Directors, however occurring shall be filled only by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director and shall not be filled by the stockholders. A director elected to fill a vacancy shall
hold office until the next election of the class for which such director shall
have been chosen, subject to the election and qualification of a successor and
to such director’s earlier death, resignation or removal.
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2.9 Resignation. Any director may resign by delivering a
resignation in writing or by electronic transmission to the corporation at its
principal office or to the Chairman of the Board, the Chief Executive Officer
or the Secretary. Such resignation shall
be effective upon receipt unless it is specified to be effective at some later
time or upon the happening of some later event.
2.10 Regular
Meetings. Regular meetings of the
Board of Directors may be held without notice at such time and place as shall
be determined from time to time by the Board of Directors; provided,
that any director who is absent when such a determination is made shall be
given notice of the determination. A
regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of stockholders.
2.11 Special
Meetings. Special meetings of the
Board of Directors may be held at any time and place designated in a call by
the Chairman of the Board, the Chief Executive Officer, two or more directors,
or by one director in the event that there is only a single director in office.
2.12 Notice
of Special Meetings. Notice of any
special meeting of directors shall be given to each director by the Secretary
or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) in
person or by telephone or electronic mail at least 24 hours in advance of
the meeting, (ii) by sending a telegram or telecopy or delivering written
notice by hand, to such director’s last known business or home address at least
48 hours in advance of the meeting, or (iii) by sending written
notice, via first-class mail or reputable overnight courier, to such director’s
last known business or home address at least 72 hours in advance of the
meeting. A notice or waiver of notice of
a meeting of the Board of Directors need not specify the purposes of the
meeting.
2.13 Meetings
by Conference Communications Equipment.
Directors may participate in meetings of the Board of Directors or any
committee thereof by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation by such means shall constitute presence in person
at such meeting.
2.14 Action
by Consent. 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 to the action in writing
or by electronic transmission, and the written consents or electronic
transmissions are filed with the minutes of proceedings of the Board of
Directors or committee.
2.15 Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of the
corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members of the committee present at any
meeting and not disqualified from voting, whether or not such member or members
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 and subject to the
provisions of law, shall have and may exercise all the powers and authority of
the Board of Directors in the
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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. Each such committee shall keep minutes and
make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these Bylaws for the Board of Directors.
2.16 Compensation
of Directors. Directors may be paid
such compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE III
OFFICERS
3.1 Titles. The officers of the corporation shall consist
of a Chief Executive Officer, a President, a Secretary, a Treasurer and such
other officers with such other titles as the Board of Directors may from time
to time determine, including a Chairman of the Board, a Vice Chairman of the
Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant
Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2 Election. The Chief Executive Officer, President,
Treasurer and Secretary shall be elected annually by the Board of Directors at
its first meeting following the annual meeting of stockholders. Other officers may be appointed by the Board
of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be held by the
same person.
3.4 Tenure. Except as otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws, each officer shall hold office
until such officer’s successor is elected and qualified, unless a different
term is specified in the resolution electing or appointing such officer, or
until such officer’s earlier death, resignation or removal.
3.5 Resignation
and Removal. Any officer may resign
by delivering a written resignation to the corporation at its principal office
or to the Chief Executive Officer or the Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some later time or upon the
happening of some later event.
Any officer may be removed at any time, with or
without cause, by vote of a majority of the entire number of directors then in
office.
Except as the Board of Directors may otherwise
determine, no officer who resigns or is removed shall have any right to any
compensation as an officer for any period following such officer’s resignation
or removal, or any right to damages on account of such removal, whether
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such
officer’s compensation be by the month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written agreement with
the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy
occurring in any office for any reason and may, in its discretion, leave
unfilled for such period as it may determine any offices other than those of
Chief Executive Officer, Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of such officer’s predecessor and until a successor is elected
and qualified, or until such officer’s earlier death, resignation or removal.
3.7 Chairman
of the Board. The Board of Directors
may appoint from its members a Chairman of the Board, who need not be an
employee or officer of the corporation.
If the Board of Directors appoints a Chairman of the Board, such
Chairman shall perform such duties and possess such powers as are assigned by
the Board of Directors and, if the Chairman of the Board is also designated as
the corporation’s Chief Executive Officer, shall have the powers and duties of
the Chief Executive Officer prescribed in Section 3.8 of these
Bylaws. Unless otherwise provided by the
Board of Directors, the Chairman of the Board shall preside at all meetings of
the Board of Directors and stockholders.
3.8 Chief
Executive Officer. The Chief
Executive Officer shall have general charge and supervision of the business of
the Corporation subject to the direction of the Board of Directors.
3.9 President. The President shall perform such other duties
and shall have such other powers as the Board of Directors and the Chief
Executive Officer (if the Chairman of the Board or another person is serving in
such position) may from time to time prescribe.
3.10 Vice
Presidents. Any Vice President shall
perform such duties and possess such powers as the Board of Directors or the
Chief Executive Officer may from time to time prescribe. In the event of the absence, inability or refusal
to act of the Chief Executive Officer or the President, the Vice President (or
if there shall be more than one, the Vice Presidents in the order determined by
the Board of Directors) shall perform the duties of the Chief Executive Officer
and when so performing shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer.
The Board of Directors may assign to any Vice President the title of
Executive Vice President, Senior Vice President or any other title selected by
the Board of Directors.
3.11 Secretary
and Assistant Secretaries. The
Secretary shall perform such duties and shall have such powers as the Board of
Directors or the Chief Executive Officer may from time to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the secretary,
including without limitation the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
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Any Assistant Secretary shall perform such duties and
possess such powers as the Board of Directors, the Chief Executive Officer or
the Secretary may from time to time prescribe.
In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant
Secretary at any meeting of stockholders or directors, the chairman of the
meeting shall designate a temporary secretary to keep a record of the meeting.
3.12 Treasurer
and Assistant Treasurers. The
Treasurer shall perform such duties and shall have such powers as may from time
to time be assigned by the Board of Directors or the Chief Executive
Officer. In addition, the Treasurer
shall perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds
of the corporation in depositories selected in accordance with these Bylaws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the Chief Executive Officer or
the Treasurer may from time to time prescribe.
In the event of the absence, inability or refusal to act of the Treasurer,
the Assistant Treasurer (or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors) shall perform the
duties and exercise the powers of the Treasurer.
3.13 Salaries. Officers of the corporation shall be entitled
to such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance
of Stock. Unless otherwise voted by
the stockholders and subject to the provisions of the Certificate of
Incorporation, the whole or any part of any unissued balance of the authorized
capital stock of the corporation or the whole or any part of any shares of the
authorized capital stock of the corporation held in the corporation’s treasury
may be issued, sold, transferred or otherwise disposed of by vote of the Board
of Directors in such manner, for such lawful consideration and on such terms as
the Board of Directors may determine.
4.2 Certificates
of Stock. Every holder of stock of
the corporation shall be entitled to have a certificate, in such form as may be
prescribed by law and by the Board of Directors, certifying the number and
class of shares owned by such holder in the corporation. Each such certificate shall be signed by, or
in the name of the corporation by, the Chairman or Vice Chairman, if any, of
the Board of Directors, or the President or a Vice President, and the
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Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the
signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject
to any restriction on transfer pursuant to the Certificate of Incorporation,
these Bylaws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
There shall be set forth on the face or back of each
certificate representing shares of such class or series of stock of the
corporation a statement that the corporation will furnish without charge to
each stockholder who so requests a copy of the full text of the powers,
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
4.3 Transfers. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as
may be otherwise required by law, by the Certificate of Incorporation or by
these Bylaws, 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 to such
stock, 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 Bylaws.
4.4 Lost,
Stolen or Destroyed Certificates.
The corporation may issue a new certificate of stock in place of any
previously issued certificate alleged to have been lost, stolen, or destroyed,
upon such terms and conditions as the Board of Directors may prescribe,
including the presentation of reasonable evidence of such loss, theft or
destruction and the giving of such indemnity as the Board of Directors may
require for the protection of the corporation or any transfer agent or
registrar.
4.5 Record
Date. The Board of Directors may fix
in advance a date as a record date for the determination of the stockholders
entitled to notice of or to vote at any meeting of stockholders, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action. Such
record date shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action to which such
record date relates.
If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. If no record date is fixed, the record date
for determining
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stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating to such purpose.
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.
ARTICLE V
GENERAL PROVISIONS
5.1 Fiscal
Year. Except as from time to time
otherwise designated by the Board of Directors, the fiscal year of the
corporation shall begin on the first day of January of each year and end
on the last day of December in each year.
5.2 Corporate
Seal. The corporate seal shall be in
such form as shall be approved by the Board of Directors.
5.3 Waiver
of Notice. Whenever notice is
required to be given by law, by the Certificate of Incorporation or by these
Bylaws, a written waiver signed by the person entitled to notice, or a waiver
by electronic transmission by the person entitled to notice, whether before, at
or after the time stated in such notice, shall be deemed equivalent to
notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
5.4 Voting
of Securities. Except as the Board
of Directors may otherwise designate, the Chief Executive Officer or the
Treasurer may waive notice of, and act as, or appoint any person or persons to
act as, proxy or attorney-in-fact for this corporation (with or without power
of substitution) at any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held by this
corporation.
5.5 Evidence
of Authority. A certificate by the
Secretary, or an Assistant Secretary, or a temporary Secretary, as to any
action taken by the stockholders, directors, a committee or any officer or
representative of the corporation shall as to all persons who rely on the
certificate in good faith be conclusive evidence of such action.
5.7 Severability. Any determination that any provision of these
Bylaws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these Bylaws.
5.8 Pronouns. All pronouns used in these Bylaws shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or persons may require.
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ARTICLE VI
AMENDMENTS
These Bylaws may be altered, amended or repealed, in
whole or in part, or new Bylaws may be adopted by the Board of Directors or by
the stockholders as provided in the Certificate of Incorporation.