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 Form S-1/A - Athenahealth, Inc. HTML 1.59M
9: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 66K
2: EX-3.1 EX-3.1 - Fifth Amended & Restated Certificate of HTML 97K
Incorporation
3: EX-3.2 EX-3.2 - Sixth Amended & Restated Certificate of HTML 24K
Incorporation
4: EX-3.3 EX-3.3 - Amended & Restated Bylaws HTML 71K
7: EX-10.21 EX-10.21 - Loan & Security Agreement 42 177K
5: EX-10.4 EX-10.4 - 2007 Stock and Incentive Plan HTML 172K
6: EX-10.5 EX-10.5 2007 Employee Stock Purchase Plan HTML 30K
8: EX-23.1 EX-23.1 - Consent of Deloitte & Touche LLP HTML 7K
SECTION 1. Annual Meeting. The annual meeting of stockholders (any such meeting being
referred to in these By-laws as an “Annual Meeting”) shall be held at the hour, date and place
within or without the United States which is fixed by the Board of Directors, which time, date and
place may subsequently be changed at any time by vote of the Board of Directors. If no Annual
Meeting has been held for a period of thirteen months after the Corporation’s last Annual Meeting,
a special meeting in lieu thereof may be held, and such special meeting shall have, for the
purposes of these By-laws or otherwise, all the force and effect of an Annual Meeting. Any and all
references hereafter in these By-laws to an Annual Meeting or Annual Meetings also shall be deemed
to refer to any special meeting(s) in lieu thereof.
SECTION 2. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business to be considered by the stockholders may be made at an Annual
Meeting (a) pursuant to the Corporation’s notice of meeting, (b) by or at the direction of
the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this By-law, who is entitled to vote
at the meeting, who is present (in person or by proxy) at the meeting and who complies with
the notice procedures set forth in this By-law. In addition to the other requirements set
forth in this By-law, for any proposal of business to be considered at an Annual Meeting, it
must be a proper subject for action by stockholders of the Corporation under Delaware law.
(2) For nominations or other business to be properly brought before an Annual Meeting
by a stockholder pursuant to clause (c) of paragraph (a)(1) of this By-law, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation. 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 90th day
nor earlier than the close of business on the 120th 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 advanced by more than 30 days before or delayed
by more than 60 days after such anniversary date, notice by the stockholder to be timely
must be so delivered earlier than the close of business on the 120th day prior to such
Annual Meeting and not later than the close of business on the later of the 90th day prior
to such Annual Meeting or the 10th day following the day on which public announcement of the
date of such meeting is first made. Notwithstanding anything to the contrary provided
herein, for the first Annual Meeting following the initial public offering of common stock
of the Corporation, a stockholder’s notice shall be timely if delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of business on
the later of the 90th day prior to the scheduled date of such Annual Meeting or the 10th day
following the day on which public announcement of the date of such Annual Meeting is first
made or sent by the Corporation. Such stockholder’s notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (including such 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 reasons for conducting such
business at the meeting, any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made, and the names and addresses
of other stockholders known by the stockholder proposing such business to support such
proposal, and the class and number of shares of the Corporation’s capital stock beneficially
owned by such other stockholders; 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, and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner and (iii) a
description of all arrangements or understanding 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.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this By-law
to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public announcement naming all of
the nominees for director or specifying the size of the increased Board of Directors made by
the Corporation at least 85 days prior to the first anniversary of the preceding year’s
Annual Meeting, a stockholder’s notice required by this By-law shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
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(b) General.
(1) Only such persons who are nominated in accordance with the provisions of this
By-law shall be eligible for election and to serve as directors and only such business shall
be conducted at an Annual Meeting as shall have been brought before the meeting in
accordance with the provisions of this By-law. The Board of Directors or a designated
committee thereof shall have the power to determine whether a nomination or any business
proposed to be brought before the meeting was made in accordance with the provisions of this
By-law. If neither the Board of Directors nor such designated committee makes a
determination as to whether any stockholder proposal or nomination was made in accordance
with the provisions of this By-law, the presiding officer of the Annual Meeting shall have
the power and duty to determine whether the stockholder proposal or nomination was made in
accordance with the provisions of this By-law. If the Board of Directors or a designated
committee thereof or the presiding officer, as applicable, determines that any stockholder
proposal or nomination was not made in accordance with the provisions of this By-law, such
proposal or nomination shall be disregarded and shall not be presented for action at the
Annual Meeting.
(2) For purposes of this By-law, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-law. Nothing in this By-law
shall be deemed to affect any rights of (i) stockholders to request inclusion of proposals
in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii)
the holders of any series of Undesignated Preferred Stock to elect directors under specified
circumstances.
SECTION 3. Special Meetings. Except as otherwise required by statute and subject to
the rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings
of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant
to a resolution approved by the affirmative vote of a majority of the Directors then in office.
Only those matters set forth in the notice of the special meeting may be considered or acted upon
at a special meeting of stockholders of the Corporation.
SECTION 4. Notice of Meetings; Adjournments. A notice of each Annual Meeting stating
the hour, date and place, if any, of such Annual Meeting shall be given not less than ten (10) days
nor more than sixty (60) days before the Annual Meeting, to each stockholder entitled to vote
thereat by delivering such notice to such stockholder or by mailing it, postage prepaid, addressed
to such stockholder at the address of such stockholder as it appears on the Corporation’s stock
transfer books.
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Notice of all special meetings of stockholders shall be given in the same manner as provided
for Annual Meetings, except that the notice of all special meetings shall state the purpose or
purposes for which the meeting has been called.
Notice of an Annual Meeting or special meeting of stockholders need not be given to a
stockholder if a waiver of notice is executed before or after such meeting by such stockholder or
if such stockholder attends such meeting, unless such attendance is for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened.
The Board of Directors may postpone and reschedule any previously scheduled Annual Meeting or
special meeting of stockholders and any record date with respect thereto, regardless of whether any
notice or public disclosure with respect to any such meeting has been sent or made pursuant to
Section 2 of this Article I of these By-laws or otherwise. In no event shall the public
announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of
stockholders commence a new time period for the giving of a stockholder’s notice under Section 2 of
this Article I of these By-laws.
When any meeting is convened, the presiding officer may adjourn the meeting if (a) no quorum
is present for the transaction of business, (b) the Board of Directors determines that adjournment
is necessary or appropriate to enable the stockholders to consider fully information which the
Board of Directors determines has not been made sufficiently or timely available to stockholders,
or (c) the Board of Directors determines that adjournment is otherwise in the best interests of the
Corporation. When any Annual Meeting or special meeting of stockholders is adjourned to another
hour, date or place, notice need not be given of the adjourned meeting other than an announcement
at the meeting at which the adjournment is taken of the hour, date and place, if any, to which the
meeting is adjourned 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 adjourned meeting; provided,
however, that if the adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, notice of the adjourned 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 adjourned meeting shall be given to each stockholder of record entitled to
vote thereat and each stockholder who, by law or under the Certificate of Incorporation of the
Corporation (as the same may hereafter be amended and/or restated, the “Certificate”) or these
By-laws, is entitled to such notice.
SECTION 5. Quorum. A majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum at any meeting of stockholders. If less than a
quorum is present at a meeting, the holders of voting stock representing a majority of the voting
power present at the meeting or the presiding officer may adjourn the meeting from time to time,
and the meeting may be held as adjourned without further notice, except as provided in Section 4 of
this Article I. At such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally noticed. The stockholders
present at a duly constituted meeting may continue to transact business until
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adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 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 stock ledger of the Corporation,
unless otherwise provided by law or by the Certificate. Stockholders may vote either (i) in
person, (ii) by written proxy or (iii) by a transmission permitted by §212(c) of the Delaware
General Corporation Law (“DGCL”). Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission permitted by §212(c) of the DGCL may be substituted for
or used in lieu of the original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission. Proxies shall be filed in accordance with the procedures established for
the meeting of stockholders. Except as otherwise limited therein or as otherwise provided by law,
proxies authorizing a person to vote at a specific meeting shall entitle the persons authorized
thereby to vote at any adjournment of such meeting, but they shall not be valid after final
adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons
shall be valid if executed by or on behalf of any one of them unless at or prior to the exercise of
the proxy the Corporation receives a specific written notice to the contrary from any one of them.
SECTION 7. Action at Meeting. When a quorum is present at any meeting of
stockholders, any matter before any such meeting (other than an election of a director or
directors) shall be decided by a majority of the votes properly cast for and against such matter,
except where a larger vote is required by law, by the Certificate or by these By-laws. Any
election of directors by stockholders shall be determined by a plurality of the votes properly cast
on the election of directors. The Corporation shall not directly or indirectly vote any shares of
its own stock; provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
SECTION 8. Stockholder Lists. The Secretary or an Assistant Secretary (or the
Corporation’s transfer agent or other person authorized by these By-laws or by law) shall prepare
and make, at least 10 days before every Annual Meeting or special 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 a period of at
least ten (10) days prior to the meeting in the manner provided by law. The list shall also be
open to the examination of any stockholder during the whole time of the meeting as provided by law.
SECTION 9. Presiding Officer. The Chairman of the Board, if one is elected, or if not
elected or in his or her absence, the President, shall preside at all Annual Meetings or special
meetings of stockholders and shall have the power, among other things, to adjourn such meeting at
any time and from time to time, subject to Sections 5 and 6 of this Article I. The order of
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business and all other matters of procedure at any meeting of the stockholders shall be
determined by the presiding officer.
SECTION 10. Inspectors of Elections. The Corporation shall, in advance of any meeting
of stockholders, appoint one or more inspectors to act at the meeting and make a written report
thereof. The Corporation may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting.
Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each
inspector, before entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall perform such duties as are required by the DGCL,
including the counting of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of the inspectors.
The presiding officer may review all determinations made by the inspectors, and in so doing the
presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or
she shall not be bound by any determinations made by the inspectors. All determinations by the
inspectors and, if applicable, the presiding officer, shall be subject to further review by any
court of competent jurisdiction.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors except as otherwise provided by the Certificate or
required by law.
SECTION 2. Number and Terms. The number of directors of the Corporation shall be
fixed solely and exclusively by resolution duly adopted from time to time by the Board of
Directors. The directors shall hold office in the manner provided in the Certificate.
SECTION 3. Qualification. No director need be a stockholder of the Corporation.
SECTION 4. Vacancies. Vacancies in the Board of Directors shall be filled in the
manner provided in the Certificate.
SECTION 5. Removal. Directors may be removed from office only in the manner provided
in the Certificate.
SECTION 6. Resignation. A director may resign at any time by giving written notice to
the Chairman of the Board, if one is elected, the President or the Secretary. A resignation shall
be effective upon receipt, unless the resignation otherwise provides.
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SECTION 7. Regular Meetings. The regular annual meeting of the Board of Directors
shall be held, without notice other than this Section 7, on the same date and at the same place as
the Annual Meeting following the close of such meeting of stockholders. Other regular meetings of
the Board of Directors may be held at such hour, date and place as the Board of Directors may by
resolution from time to time determine and publicize by means of reasonable notice given to any
director who is not present at the meeting at which such resolution is adopted.
SECTION 8. Special Meetings. Special meetings of the Board of Directors may be
called, orally or in writing, by or at the request of a majority of the directors, the Chairman of
the Board, if one is elected, or the President. The person calling any such special meeting of the
Board of Directors may fix the hour, date and place thereof.
SECTION 9. Notice of Meetings. Notice of the hour, date and place of all special
meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant
Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairman
of the Board, if one is elected, or the President or such other officer designated by the Chairman
of the Board, if one is elected, or the President. Notice of any special meeting of the Board of
Directors shall be given to each director in person, by telephone, or by facsimile, electronic mail
or other form of electronic communication, sent to his or her business or home address, at least 24
hours in advance of the meeting, or by written notice mailed to his or her business or home
address, at least 48 hours in advance of the meeting. Such notice shall be deemed to be delivered
when hand delivered to such address, read to such director by telephone, deposited in the mail so
addressed, with postage thereon prepaid if mailed, dispatched or transmitted if faxed, telexed or
telecopied, or sent by electronic mail or other form of electronic communication, or when delivered
to the telegraph company if sent by telegram.
A written waiver of notice signed before or after a meeting by a director and filed with the
records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of any business because such meeting is not lawfully called or convened. Except as
otherwise required by law, by the Certificate or by these By-laws, neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 10. Quorum. At any meeting of the Board of Directors, a majority of the total
number of directors in office shall constitute a quorum for the transaction of business, but if
less than a quorum is present at a meeting, a majority of the directors present may adjourn the
meeting from time to time, and the meeting may be held as adjourned without further notice. Any
business which might have been transacted at the meeting as originally noticed may be transacted at
such adjourned meeting at which a quorum is present. For purposes of this section, the total
number of directors includes any unfilled vacancies on the Board of Directors.
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SECTION 11. Action at Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of the directors present shall constitute action by the
Board of Directors, unless otherwise required by law, by the Certificate or by these By-laws.
SECTION 12. Action by Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if all members of the Board of
Directors consent thereto in writing or by electronic transmission and the writing or writings or
electronic transmission or transmissions are filed with the records of the meetings of the Board of
Directors. Such filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form. Such consent shall
be treated as a resolution of the Board of Directors for all purposes.
SECTION 13. Manner of Participation. Directors may participate in meetings of the
Board of Directors by means of conference telephone or other communications equipment by means of
which all directors participating in the meeting can hear each other, and participation in a
meeting in accordance herewith shall constitute presence in person at such meeting for purposes of
these By-laws.
SECTION 14. Committees. The Board of Directors, by vote of a majority of the
directors then in office, may elect one or more committees, including, without limitation, a
Compensation Committee, a Nominating and Corporate Governance Committee and an Audit Committee, and
may delegate thereto some or all of its powers except those which by law, by the Certificate or by
these By-laws may not be delegated. Except as the Board of Directors may otherwise determine, any
such committee may make rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as possible in the same
manner as is provided by these By-laws for the Board of Directors. All members of such committees
shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may
abolish any such committee at any time. Any committee to which the Board of Directors delegates
any of its powers or duties shall keep records of its meetings and shall report its action to the
Board of Directors.
SECTION 15. Compensation of Directors. Directors shall receive such compensation for
their services as shall be determined by a majority of the Board of Directors, or a designated
committee thereof, provided that directors who are serving the Corporation as employees and who
receive compensation for their services as such, shall not receive any salary or other compensation
for their services as directors of the Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist of a President,
a Treasurer, a Secretary and such other officers, including, without limitation, a Chairman of the
Board of Directors, a Chief Executive Officer and one or more Vice Presidents (including
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Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant
Treasurers and Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board of Directors
following the Annual Meeting, the Board of Directors shall elect the President, the Treasurer and
the Secretary. Other officers may be elected by the Board of Directors at such regular annual
meeting of the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a director. Any person
may occupy more than one office of the Corporation at any time.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by these
By-laws, each of the officers of the Corporation shall hold office until the regular annual meeting
of the Board of Directors following the next Annual Meeting and until his or her successor is
elected and qualified or until his or her earlier resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her written
resignation to the Corporation addressed to the President or the Secretary, 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 other event.
SECTION 6. Removal. Except as otherwise provided by law, the Board of Directors may
remove any officer with or without cause by the affirmative vote of a majority of the directors
then in office.
SECTION 7. Absence or Disability. In the event of the absence or disability of any
officer, the Board of Directors may designate another officer to act temporarily in place of such
absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
SECTION 9. President. The President shall, subject to the direction of the Board of
Directors, have such powers and shall perform such duties as the Board of Directors may from time
to time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is elected,
shall preside, when present, at all meetings of the stockholders and of the Board of Directors.
The Chairman of the Board shall have such other powers and shall perform such other duties as the
Board of Directors may from time to time designate.
SECTION 11. Chief Executive Officer. The Chief Executive Officer, if one is elected,
shall have such powers and shall perform such duties as the Board of Directors may from time to
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time designate. If there is no Chairman of the Board or if he or she is absent, the Chief
Executive Officer shall preside, when present, at all meetings of stockholders and of the Board of
Directors.
SECTION 12. Vice Presidents and Assistant Vice Presidents. Any Vice President
(including any Executive Vice President or Senior Vice President) and any Assistant Vice President
shall have such powers and shall perform such duties as the Board of Directors or the Chief
Executive Officer may from time to time designate.
SECTION 13. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the
direction of the Board of Directors and except as the Board of Directors or the Chief Executive
Officer may otherwise provide, have general charge of the financial affairs of the Corporation and
shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such other duties and
powers as may be designated from time to time by the Board of Directors or the Chief Executive
Officer. Any Assistant Treasurer shall have such powers and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time designate.
Any Assistant Treasurer shall have such powers and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time designate.
SECTION 14. Secretary and Assistant Secretaries. The Secretary shall record all the
proceedings of the meetings of the stockholders and the Board of Directors (including committees of
the Board) in books kept for that purpose. In his or her absence from any such meeting, a
temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary
shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent
of the Corporation). The Secretary shall have custody of the seal of the Corporation, and the
Secretary, or an Assistant Secretary, shall have authority to affix it to any instrument requiring
it, and, when so affixed, the seal may be attested by his or her signature or that of an Assistant
Secretary. The Secretary shall have such other duties and powers as may be designated from time to
time by the Board of Directors or the Chief Executive Officer. In the absence of the Secretary,
any Assistant Secretary may perform his or her duties and responsibilities. Any Assistant
Secretary shall have such powers and perform such duties as the Board of Directors or the Chief
Executive Officer may from time to time designate.
SECTION 15. 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 or the Chief
Executive Officer.
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ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to a certificate
of the capital stock of the Corporation in such form as may from time to time be prescribed by the
Board of Directors. Such certificate shall be signed by the Chairman of the Board of Directors,
the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary. The Corporation seal and the signatures by the Corporation’s officers,
the transfer agent or the registrar may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed on such certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the time of its issue. Every certificate for shares of stock which are
subject to any restriction on transfer and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such legend with respect
thereto as is required by law. Notwithstanding anything to the contrary provided in these By-laws,
the Board of Directors of the Corporation may provide by resolution or resolutions that some or all
of any or all classes or series of its stock shall be uncertificated shares (except that the
foregoing shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation), and by the approval and adoption of these By-laws the Board of
Directors has determined that all classes or series of the Corporation’s stock may be
uncertificated, whether upon original issuance, re-issuance, or subsequent transfer.
SECTION 2. Transfers. Subject to any restrictions on transfer and unless otherwise
provided by the Board of Directors, shares of stock may be transferred only on the books of the
Corporation by the surrender to the Corporation or its transfer agent of the certificate
theretofore properly endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of
signature as the Corporation or its transfer agent may reasonably require.
SECTION 3. Record Holders. Except as may otherwise be required by law, by the
Certificate 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.
SECTION 4. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date: (a) in the case of determination of stockholders
entitled to vote at any meeting of stockholders, shall, unless otherwise required by law, not be
more than sixty nor less than ten days before the date of such meeting and (b) in the case of any
other action, shall not be more than sixty days prior to such other action. If no record date is
fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
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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; and (ii) the record date for determining
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 thereto.
SECTION 5. Replacement of Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock, a duplicate certificate may be issued in place thereof, upon
such terms as the Board of Directors may prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a
Director of the Corporation, (ii) as an Officer of the Corporation, or (iii) as a director,
partner, trustee, officer, employee or agent of any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan, foundation, association,
organization or other legal entity which such person is or was serving at the request of the
Corporation. For purposes of this Section 1(a), an Officer or Director of the Corporation who is
serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary
shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing,
“Corporate Status” shall not include the status of a person who is serving or has served as a
director, officer, employee or agent of a constituent corporation absorbed in a merger or
consolidation transaction with the Corporation with respect to such person’s activities prior to
said transaction, unless specifically authorized by the Board of Directors or the stockholders of
the Corporation;
(b) “Director” means any person who serves or has served the Corporation as a director on the
Board of Directors of the Corporation;
(c) “Disinterested Director” means, with respect to each Proceeding in respect of which
indemnification is sought hereunder, a Director of the Corporation who is not and was not a party
to such Proceeding;
(d) “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of
expert witnesses, private investigators and professional advisors (including, without limitation,
accountants and investment bankers), travel expenses, duplicating costs, printing and binding
costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and
devices, costs incurred in connection with document review, organization, imaging and
computerization, telephone charges, postage, delivery service fees, and all other disbursements,
costs or expenses of the type customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or
otherwise participating in, a Proceeding;
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(e) “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f) “Non-Officer Employee” means any person who serves or has served as an employee or agent
of the Corporation, but who is not or was not a Director or Officer;
(g) “Officer” means any person who serves or has served the Corporation as an officer of the
Corporation appointed by the Board of Directors of the Corporation.
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other
proceeding, whether civil, criminal, administrative, arbitrative or investigative; and
(i) “Subsidiary” shall mean any corporation, partnership, limited liability company, joint
venture, trust or other entity of which the Corporation owns (either directly or through or
together with another Subsidiary of the Corporation) either (i) a general partner, managing member
or other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity
interests of such corporation, partnership, limited liability company, joint venture or other
entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests
of such corporation, partnership, limited liability company, joint venture or other entity.
SECTION 2. Indemnification of Directors and Officers. Subject to the operation of
Section 4 of this Article V of these By-laws, each Director and Officer shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment) against any and all Expenses and Liabilities
that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in
connection with any threatened, pending or completed Proceeding or any claim, issue or matter
therein, which such Director or Officer is, or is threatened to be made, a party to or participant
in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in
good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The rights of indemnification
provided by this Section 2 shall continue as to a Director or Officer after he or she has ceased to
be a Director or Officer and shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives. Notwithstanding the foregoing, the Corporation shall
indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated
by such Director or Officer only if such Proceeding was authorized in advance by the Board of
Directors of the Corporation, unless such Proceeding was brought to enforce an Officer or
Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under
these By-laws in accordance with the provisions set forth herein.
SECTION 3. Indemnification of Non-Officer Employees. Subject to the operation of
Section 4 of this Article V of these By-laws, each Non-Officer Employee may, in the discretion
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of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all
Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer
Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim,
issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party
to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer
Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of
indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she
has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs,
personal representatives, executors and administrators. Notwithstanding the foregoing, the
Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a
Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance
by the Board of Directors of the Corporation.
SECTION 4. Good Faith. Unless ordered by a court, no indemnification shall be
provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee
unless a determination shall have been made that such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of the Corporation
and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or
her conduct was unlawful. Such determination shall be made by (a) a majority vote of the
Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a committee
comprised of Disinterested Directors, such committee having been designated by a majority vote of
the Disinterested Directors (even though less than a quorum), (c) if there are no such
Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent
legal counsel in a written opinion, or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition.
(a) The Corporation shall advance all Expenses incurred by or on behalf of any Director in
connection with any Proceeding in which such Director is involved by reason of such Director’s
Corporate Status within thirty (30) days after the receipt by the Corporation of a written
statement from such Director requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably
evidence the Expenses incurred by such Director and shall be preceded or accompanied by an
undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall
ultimately be determined that such Director is not entitled to be indemnified against such
Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or
on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding
initiated by such Director only if such Proceeding was (i) authorized by the Board of Directors of
the Corporation, or (ii) brought to enforce Director’s rights to indemnification or advancement of
Expenses under these By-laws.
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(b) If a claim for advancement of Expenses hereunder by a Director is not paid in full by the
Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses
and the required undertaking, such Director may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such
Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of
the Corporation (including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) to make a determination concerning the permissibility of such advancement
of Expenses under this Article V shall not be a defense to the action and shall not create a
presumption that such advancement is not permissible. The burden of proving that a Director is not
entitled to an advancement of expenses shall be on the Corporation.
(c) In any suit brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the Director has not met any applicable standard for indemnification set
forth in the DGCL.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final
Disposition.
(a) The Corporation may, at the discretion of the Board of Directors of the Corporation,
advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in
connection with any Proceeding in which such is involved by reason of the Corporate Status of such
Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements
from such Officer or Non-Officer Employee requesting such advance or advances from time to time,
whether prior to or after final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by such Officer and Non-Officer Employee and shall be
preceded or accompanied by an undertaking by or on behalf of such to repay any Expenses so advanced
if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to
be indemnified against such Expenses.
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for
indemnification set forth in the DGCL.
SECTION 7. Contractual Nature of Rights.
(a) The foregoing provisions of this Article V shall be deemed to be a contract between the
Corporation and each Director and Officer entitled to the benefits hereof at any time while this
Article V is in effect, and any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then or theretofore existing or any
Proceeding theretofore or thereafter brought based in whole or in part upon any such state of
facts.
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(b) If a claim for indemnification hereunder by a Director or Officer is not paid in full by
the Corporation within 60 days after receipt by the Corporation of a written claim for
indemnification, such Director or Officer may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such
Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The
failure of the Corporation (including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to make a determination concerning the permissibility of such
indemnification under this Article V shall not be a defense to the action and shall not create a
presumption that such indemnification is not permissible. The burden of proving that a Director or
Officer is not entitled to indemnification shall be on the Corporation.
(c) In any suit brought by a Director or Officer to enforce a right to indemnification
hereunder, it shall be a defense that such Director or Officer has not met any applicable standard
for indemnification set forth in the DGCL.
SECTION 8. Non-Exclusivity of Rights. The rights to indemnification and to
advancement of Expenses set forth in this Article V shall not be exclusive of any other right which
any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute,
provision of the Certificate or these By-laws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
SECTION 9. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer or Non-Officer Employee against any liability of any
character asserted against or incurred by the Corporation or any such Director, Officer or
Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the
Corporation would have the power to indemnify such person against such liability under the DGCL or
the provisions of this Article V.
SECTION 10. Other Indemnification. The Corporation’s obligation, if any, to indemnify
any person under this Article V as a result of such person serving, at the request of the
Corporation, as a director, partner, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by
any amount such person may collect as indemnification from such other corporation, partnership,
joint venture, trust, employee benefit plan or enterprise.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. The fiscal year of the Corporation shall be determined by the
Board of Directors.
SECTION 2. Seal. The Board of Directors shall have power to adopt and alter the seal
of the Corporation.
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SECTION 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds,
notes and other obligations to be entered into by the Corporation in the ordinary course of its
business without director action may be executed on behalf of the Corporation by the Chairman of
the Board, if one is elected, the President or the Treasurer or any other officer, employee or
agent of the Corporation as the Board of Directors or Executive Committee may authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors otherwise provides,
the Chairman of the Board, if one is elected, 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 5. Resident Agent. The Board of Directors may appoint a resident agent upon
whom legal process may be served in any action or proceeding against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the Certificate,
By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors
and the stock transfer books, which shall contain the names of all stockholders, their record
addresses and the amount of stock held by each, may be kept outside the State of Delaware and shall
be kept at the principal office of the Corporation, at the office of its counsel or at an office of
its transfer agent or at such other place or places as may be designated from time to time by the
Board of Directors.
SECTION 7. Certificate. All references in these By-laws to the Certificate shall be
deemed to refer to the Restated Certificate of Incorporation of the Corporation, as amended and in
effect from time to time.
(a) Amendment by Directors. Except as provided otherwise by law, these By-laws may be
amended or repealed by the Board of Directors by the affirmative vote of a majority of the
directors then in office.
(b) Amendment by Stockholders. These By-laws may be amended or repealed at any Annual
Meeting, or special meeting of stockholders called for such purpose, by the affirmative vote of at
least 75% of the outstanding shares entitled to vote on such amendment or repeal, voting together
as a single class; provided, however, that if the Board of Directors recommends that stockholders
approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall
only require the affirmative vote of the majority of the outstanding shares entitled to vote on
such amendment or repeal, voting together as a single class. Notwithstanding the foregoing,
stockholder approval shall not be required unless mandated by the Certificate, these By-laws, or
other applicable law.
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SECTION 9. Notices. If mailed, notice to stockholders shall be deemed given when
deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address
as it appears on the records of the Corporation. Without limiting the manner by which notice
otherwise may be given to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the DGCL.
SECTION 10. Waivers. A written waiver of any notice, signed by a stockholder or
director, or waiver by electronic transmission by such person, whether given before or after the
time of the event for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such person. Neither the business nor the purpose of any meeting need be
specified in such a waiver.