Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Cynosure, Inc. Form S-1 HTML 1.11M
18: COVER ¶ Comment-Response or Cover Letter to the SEC HTML 5K
2: EX-3.1 EX-3.1 Certificate of Incorporation of the 21 58K
Registrant, as Amended
3: EX-3.2 EX-3.2 Form of Restated Certificate of 19 77K
Incorporation of the Registrant
4: EX-3.3 EX-3.3 Bylaws of the Registrant 16 53K
5: EX-3.4 EX-3.4 Form of Amended and Restated Bylaws of the 21 100K
Registrant
6: EX-10.1 EX-10.1 1992 Stock Option Plan 12 43K
15: EX-10.10 EX-10.10 Lease, Dated January 31, 2005 46 244K
7: EX-10.2 EX-10.2 2004 Stock Option Plan, as Amended 11 56K
8: EX-10.3 EX-10.3 2005 Stock Incentive Plan 13 65K
9: EX-10.4 EX-10.4 Employment Agreement, Dated September 2003 11 40K
10: EX-10.5 EX-10.5 Employment Agreement, Dated January 1, 9 38K
2003
11: EX-10.6 EX-10.6 Employment Agreement, Dated September 2003 10 38K
12: EX-10.7 EX-10.7 Exclusive Distribution Agreement 14 46K
13: EX-10.8 EX-10.8 Exclusive Distribution Agreement 16 50K
14: EX-10.9 EX-10.9 Promissory Note, Dated October 1, 2004 3 20K
16: EX-21.1 EX-21.1 Subsidiaries of the Registrant 1 6K
17: EX-23.1 EX-23.1 Consent of Ernst & Young LLP 1 7K
‘EX-3.4’ — EX-3.4 Form of Amended and Restated Bylaws of the Registrant
Exhibit Table of Contents
EXHIBIT 3.4
AMENDED AND RESTATED BY-LAWS
OF
CYNOSURE, INC.
(Effective as of _________________, 2005)
TABLE OF CONTENTS
[Enlarge/Download Table]
Page
----
ARTICLE I STOCKHOLDERS ........................................................ 1
1.1 Place of Meetings ................................................... 1
1.2 Annual Meeting ...................................................... 1
1.3 Special Meetings .................................................... 1
1.4 Notice of Meetings .................................................. 1
1.5 Voting List ......................................................... 1
1.6 Quorum .............................................................. 2
1.7 Adjournments ........................................................ 2
1.8 Voting and Proxies .................................................. 2
1.9 Action at Meeting ................................................... 3
1.10 Nomination of Directors ............................................. 3
1.11 Notice of Business at Annual Meetings ............................... 5
1.12 Conduct of Meetings ................................................. 7
1.13 No Action by Consent in Lieu of a Meeting; Consent of Solicitation .. 8
ARTICLE II DIRECTORS ........................................................... 10
2.1 General Powers ...................................................... 10
2.2 Number, Election and Qualification .................................. 10
2.3 Classes of Directors ................................................ 10
2.4 Terms of Office ..................................................... 10
2.5 Quorum .............................................................. 11
2.6 Action at Meeting ................................................... 11
2.7 Removal ............................................................. 11
2.8 Newly Created Directorships and Vacancies ........................... 11
2.9 Resignation ......................................................... 11
2.10 Regular Meetings .................................................... 11
2.11 Special Meetings .................................................... 12
2.12 Notice of Special Meetings .......................................... 12
2.13 Meetings by Conference Communications Equipment ..................... 12
2.14 Action by Consent ................................................... 12
2.15 Committees .......................................................... 12
2.16 Compensation of Directors ........................................... 13
ARTICLE III OFFICERS ............................................................ 13
3.1 Titles .............................................................. 13
3.2 Election ............................................................ 13
3.3 Qualification ....................................................... 13
3.4 Tenure .............................................................. 13
3.5 Resignation and Removal ............................................. 13
3.6 Vacancies ........................................................... 14
3.7 Chairman of the Board ............................................... 14
3.8 President; Chief Executive Officer .................................. 14
3.9 Vice Presidents ..................................................... 14
i
[Download Table]
3.10 Secretary and Assistant Secretaries ................................. 14
3.11 Treasurer and Assistant Treasurers .................................. 15
3.12 Salaries ............................................................ 15
3.13 Delegation of Authority ............................................. 15
ARTICLE IV CAPITAL STOCK ....................................................... 15
4.1 Issuance of Stock ................................................... 15
4.2 Certificates of Stock ............................................... 16
4.3 Transfers ........................................................... 16
4.4 Lost, Stolen or Destroyed Certificates .............................. 16
4.5 Record Date ......................................................... 16
ARTICLE V GENERAL PROVISIONS .................................................. 17
5.1 Fiscal Year ......................................................... 17
5.2 Corporate Seal ...................................................... 17
5.3 Waiver of Notice .................................................... 17
5.4 Voting of Securities ................................................ 17
5.5 Evidence of Authority ............................................... 17
5.6 Certificate of Incorporation ........................................ 17
5.7 Severability ........................................................ 18
5.8 Pronouns ............................................................ 18
5.9 Reliance Upon Books, Reports And Records ............................ 18
ARTICLE VI AMENDMENTS .......................................................... 18
ii
ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place, if any, as may be designated from time to time by the Board of Directors
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 to succeed those whose terms expire 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 (which date shall not be
a legal holiday in the place, if any, 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.
1.3 Special Meetings. Special meetings of stockholders for any purpose or
purposes may be called at any time only by the Board of Directors, as provided
in Article ELEVENTH of the Certificate of Incorporation. The Board of Directors
may postpone or reschedule any previously scheduled special 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.
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
the General Corporation Law of the State of Delaware) by the stockholder to whom
the notice is given. The notices of all meetings shall state the place, if any,
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 and class 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: (a) 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 (b) during ordinary business hours, at the principal place of
business of the corporation. If the meeting is to be held at a place, then 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. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during
the whole time of the meeting on a reasonably accessible electronic network, and
the information required to access such list shall be provided with the notice
of the meeting. The list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the holders of a majority in voting power 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; provided, however, that where a separate vote by a
class or classes or series of capital stock is required by law or the
Certificate of Incorporation, the holders of a majority in voting power of such
class or classes or series of the capital stock of the corporation issued and
outstanding and entitled to vote on such matter, 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 entitled to take action with respect to the vote on such matter. 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 By-laws by the chairman of the meeting. It
shall not be necessary to notify any stockholder of any adjournment of less than
30 days if the time and place, if any, 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 stockholder by a proxy executed or transmitted in a manner
permitted by the General Corporation Law of the State of Delaware by the
stockholder or such stockholder's authorized agent and delivered (including by
electronic transmission) to the Secretary of the corporation. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. No such proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period.
2
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 a
majority in voting power of the shares of stock present or represented at the
meeting and voting affirmatively or negatively on such matter (or if there are
two or more classes or series of stock entitled to vote as separate classes,
then in the case of each such class or series, the holders of a majority in
voting power of the shares of stock of that class present or represented and
voting affirmatively or negatively on such matter), except when a different vote
is required by law, the Certificate of Incorporation or these By-laws. 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 (1) any directors entitled to be elected by the
holders of preferred stock, (2) any Class B Directors (as defined in the
Certificate of Incorporation), (3) any directors elected in accordance with
Section 2.8 hereof by the Board of Directors to fill a vacancy or newly-created
directorship or (4) 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 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 who is entitled to vote for the
election of such nominee 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. For the avoidance of doubt, only holders of Class B Common Stock may
nominate an individual for election as a Class B Director (as defined in the
Certificate of Incorporation), however, holders of either Class A Common Stock
or Class B Common Stock or holders of any class of preferred stock entitled to
vote in the election of Classified Directors, may nominate an individual for
election as a Classified Director (as defined in the Certificate of
Incorporation).
(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: (i) 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 (x)
in the case of the annual meeting of stockholders of the corporation to be held
in 2006 or (y) in the event that the date of the annual meeting in any other
year 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 (ii) in the case of
an election of directors at a special meeting of stockholders, provided that the
Board of Directors has determined that directors shall be elected at such
meeting, not earlier than the 120th day prior to such special meeting and not
later than the close of business on the later of (1) the 90th day prior to such
special meeting and (2) 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.
3
In no event shall the adjournment or postponement of an annual meeting (or the
public announcement thereof) commence a new time period (or extend any time
period) for the giving of a stockholder's notice.
Notwithstanding anything in the preceding paragraph of this Section
1.10(b) of Article I to the contrary, in the event that the number of directors
to be elected to the Board of Directors 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 100 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 1.10 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 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: (A) as to each
proposed nominee (1) such person's name, age, business address and, if known,
residence address, (2) such person's principal occupation or employment, (3) the
class and number of shares of stock of the corporation which are beneficially
owned by such person, and (4) 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");
(B) as to the stockholder giving the notice (1) such stockholder's name and
address, as they appear on the corporation's books, (2) the class and number of
shares of stock of the corporation which are owned, beneficially and of record,
by such stockholder, (3) 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, (4) 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 (5) a representation whether the stockholder intends or is part
of a group which intends (x) to deliver a proxy statement and/or form of proxy
to holders of at least the percentage of the corporation's outstanding capital
stock reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee and/or (y) otherwise to solicit proxies from
stockholders in support of such nomination, and must, in either case, have
included such representation in such proxy statement or solicitation materials;
and (C) as to the beneficial owner, if any, on whose behalf the nomination is
being made (1) such beneficial owner's name and address, (2) the class and
number of shares of stock of the corporation which are beneficially owned by
such beneficial owner, (3) 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 (4) a representation whether the beneficial owner intends or is part of
a group which intends (x) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the corporation's outstanding capital
stock reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee and/or (y) 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
4
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) solicits or
does not solicit, as the case may be, proxies in support of such stockholder's
nominee in contravention of the representations with respect thereto required by
this Section 1.10.
(c) The chairman of any meeting shall have the power and duty to
determine whether a nomination was 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), and if the chairman should
determine that a nomination was not made in accordance with the provisions of
this Section 1.10, the chairman shall so declare to the meeting and such
nomination shall be disregarded.
(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 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. For
purposes of this Section 1.10, to be considered a qualified representative of
the stockholder, a person must be authorized by a written instrument executed by
such stockholder or an electronic transmission delivered by such stockholder to
act for such stockholder as proxy at the meeting of stockholders and such person
must produce such written instrument or electronic transmission, or a reliable
reproduction of the written instrument or electronic transmission, at the
meeting of stockholders.
(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 (1) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (2) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (3) properly brought before the
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, (i) 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 (ii) if such business relates to any other
matter, the business must constitute a proper matter under Delaware law for
stockholder action and the stockholder must (x) have given timely notice
5
thereof in writing to the Secretary in accordance with the procedures set forth
in Section 1.11(b) and (y) 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 (x) in the case of the
annual meeting of stockholders of the corporation to be held in 2006 or (y) in
the event that the date of the annual meeting in any other year 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. In no event shall the
adjournment or postponement of an annual meeting (or the public announcement
thereof) commence a new time period (or extend any time period) for the giving
of a stockholder's notice.
The stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (1) a brief
description of the business desired to be brought before the annual meeting, the
text relating to the business (including the text of any resolutions proposed
for consideration and in the event that such business includes a proposal to
amend the By-laws, the language of the proposed amendment), and the reasons for
conducting such business at the annual meeting, (2) 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, (3) 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, (4) 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, (5) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting and (6) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) 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 (y) otherwise to
solicit proxies from stockholders in support of such proposal, and must, in
either case, have included such representation in such proxy statement or
solicitation materials. Notwithstanding anything in these By-laws 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) solicits or does not solicit, as
the case
6
may be, proxies in support of such stockholder's proposal in contravention of
the representations with respect thereto required by this Section 1.11.
(c) The chairman of any meeting shall have the power and duty to
determine whether business was 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 determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 1.11, 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 considered, notwithstanding that proxies in
respect of such vote may have been received by the corporation. For purposes of
this Section 1.11, to be considered a qualified representative of the
stockholder, a person must be authorized by a written instrument executed by the
such stockholder or an electronic transmission delivered by such stockholder to
act for such stockholder as a proxy at the meeting of stockholders and such
person must produce such written instrument or electronic transmission, or a
reliable reproduction of the written instrument or electronic transmission, at
the meeting of stockholders.
(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. 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.
(b) The Board of Directors 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
7
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. 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, the Chief Executive Officer or the
President 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
is completed, shall make a certificate of the result of the vote taken and of
such other facts as may be required by law. Every vote taken by ballots shall be
counted by a duly appointed inspector or inspectors.
1.13 Action by Consent in Lieu of a Meeting; Consent Solicitation.
(a) Except for actions taken by written consent by the holders of
Class B Common Stock consenting separately as a class, stockholders of the
corporation may not take any action by written consent in lieu of a meeting.
(b) In order that the corporation may determine the holders of Class
B Common Stock entitled to consent to corporate action in writing without a
meeting, 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 date shall not be more than 10 days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. Any holder of Class B Common Stock of record seeking to have
the holders of Class B Common Stock authorize or take corporate action by
written consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date (unless a record date has previously
been fixed by the Board of Directors pursuant to the first sentence of this
Section 1.13(b)). If no
8
record date has been fixed by the Board of Directors pursuant to the first
sentence of this Section 1.13(b) or otherwise within 10 days of the date on
which such a written request is received, the record date for determining
holders of Class B Common Stock entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
required by applicable law, shall be the first date after the expiration of such
10-day time period on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business or
any officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining holders of Class B Common Stock entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
(c) In the event of the delivery, in the manner provided by this
Section 1.13 and applicable law, to the corporation of a written consent or
consents of holders of Class B Common Stock purporting to authorize or take
corporate action and/or related revocations (such written consent or consents
together with any related revocations is referred to in this section as a
"Consent"), the Secretary shall provide for the safekeeping of such Consent and
shall immediately appoint duly qualified and independent inspectors to: (i)
conduct promptly such reasonable ministerial review as such inspectors deem
necessary or appropriate for the purpose of ascertaining the sufficiency and
validity of such Consent and all matters incident thereto, including whether
holders of Class B Common Stock having the requisite voting power to authorize
or take the action specified in the Consent have given consent; and (ii) deliver
to the Secretary a written report regarding the foregoing. For the purpose of
permitting the inspector or inspectors to perform such review, no action by
written consent and without a meeting by holders of Class B Common Stock shall
be effective until such inspector or inspectors have completed their review,
determined that the requisite number of valid and unrevoked consents delivered
to the corporation in accordance with this Section 1.13 and applicable law have
been obtained to authorize or take the action specified in the consents, and
certified such determination for entry in the records of the corporation kept
for the purpose of recording the proceedings of meetings of stockholders. If
after such investigation and report the Secretary shall determine that the
Consent is valid and that holders of Class B Common Stock having the requisite
voting power to authorize or take the action specified in the Consent have given
consent, that fact shall be certified on the records of the corporation kept for
the purpose of recording the proceedings of meetings of stockholders, and the
Consent shall be filed in such records, at which time the Consent shall become
effective as action by holders of Class B Common Stock. Nothing contained in
this Section 1.13 shall in any way be construed to suggest or imply that the
Board of Directors or any stockholder shall not be entitled to contest the
validity of any consent or revocation thereof, whether before or after such
certification by the independent inspector or inspectors, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
9
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. Except as otherwise provided by
the Certificate of Incorporation and 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 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. Except as otherwise provided by the Certificate
of Incorporation and subject to the rights of holders of any series of Preferred
Stock to elect directors, the Classified Directors (as defined in the
Certificate of Incorporation) shall be and are divided into three classes: Class
I, Class II and Class III. Except as otherwise provided by the Certificate of
Incorporation, the allocation of Classified Directors among classes shall be
determined by resolution of the Board of Directors.
2.4 Terms of Office.
(a) Except as otherwise set forth in the Certificate of
Incorporation or these By-laws, each Class B Director shall serve for a term
ending on the date of the first annual meeting following the annual meeting at
which such Class B Director was elected. Each Classified Director shall serve
for a term ending on the date of the third annual meeting following the annual
meeting at which such Classified Director was elected; provided, that each
Classified Director initially appointed to Class I shall serve for a term
expiring at the corporation's annual meeting of stockholders held in 2006; each
Classified Director initially appointed to Class II shall serve for a term
expiring at the corporation's annual meeting of stockholders held in 2007; and
each Classified Director initially appointed to Class III shall serve for a term
expiring at the corporation's annual meeting of stockholders held in 2008.
Notwithstanding the foregoing, but subject to Section 2.4(b) below, the term of
each Class B Director and each Classified Director shall continue until the
election and qualification of his successor and be subject to his earlier death,
resignation, retirement or removal.
(b) Pursuant to Section 5(b) of Article NINTH of the Certificate of
Incorporation, on the Operative Date (as defined in the Certificate of
Incorporation), the term of each Class B Director shall end and the number of
authorized directors serving on the Board of Directors shall be reduced by the
number of such Class B Directors. Notwithstanding the foregoing, the Board of
Directors shall retain full authority provided by Section 2 of Article NINTH of
the Certificate of Incorporation to increase the number of authorized directors
following the reduction of authorized directors provided for in the previous
sentence of this Section 2.4(b).
10
2.5 Quorum. The greater of (a) a majority of the directors at any time in
office and (b) one-third of the number of directors fixed in accordance with
Section 2 of Article NINTH of the Certificate of Incorporation shall constitute
a quorum. 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 holders 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 75% of the votes which all the
stockholders would be entitled to cast in the election of directors; provided,
however, that the Class B Directors may be removed at any time without cause by
the affirmative vote of holders of at least a majority of the voting power of
the Class B Common Stock then outstanding.
2.8 Newly Created Directorships and Vacancies.
(a) Until the Operative Date, and unless otherwise required by law
or by resolution adopted by the affirmative vote of a majority of the Class B
Directors then in office, any vacancy among the Class B Directors, however
occurring, including a vacancy resulting from an enlargement of the Board of
Directors, shall be filled only by a vote of a majority of the Class B Directors
then in office, although less than a quorum or, if there are none, by a vote or
action of the holders of Class B Common Stock, voting as a separate class.
(b) Subject to the rights of holders of any series of Preferred
Stock, and unless otherwise required by law or by resolution adopted by the
affirmative vote of a majority of the Classified Directors then in office, any
vacancy among the Classified Directors, however occurring, including a vacancy
resulting from an enlargement of the Board of Directors, shall be filled only by
vote of a majority of the Classified Directors then in office, although less
than a quorum, or if there are none, by a vote of the holders of the capital
stock entitled to vote in the election of such Classified Directors, voting
together as a single class. A Classified Director elected to fill a vacancy
shall hold office for a term expiring at the next annual meeting at which the
term of office of the class to which such Classified Director shall have been
chosen expires or until such Classified Director's successor shall have been
duly elected and qualified.
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, the President 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
11
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, the President, 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 the date, place, if any, and
time 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 (a) in person or by telephone at least 24
hours in advance of the meeting, (b) by sending written notice via reputable
overnight courier, telecopy, facsimile, or electronic transmission, or
delivering written notice by hand, to such director's last known business, home
or electronic transmission address at least 48 hours in advance of the meeting,
or (c) by sending written notice via first-class mail 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. 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.
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 with such lawfully delegable powers and duties as the Board of
Directors thereby confers, to serve at the pleasure of the Board of Directors.
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 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. Adequate
12
provision shall be made for notice to members of all meetings; one-third (1/3)
of the members shall constitute a quorum unless the committee shall consist of
one (1) or two (2) members, in which event one (1) member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. 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 By-laws for the Board of Directors. Except as otherwise
provided in the Certificate of Incorporation, these Bylaws, or the resolution of
the Board of Directors designating the committee, a committee may create one or
more subcommittees, each subcommittee to consist of one or more members of the
committee, and delegate to a subcommittee any or all of the powers and authority
of the committee.
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 entities 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 shall 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 By-laws, 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 be removed at any time, with
or without cause, by vote of a majority of the 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
13
such officer's compensation be by the month or by the year or otherwise, unless
such compensation is expressly provided for 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, President, 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 By-laws. 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 President; Chief Executive Officer. Unless the Board of Directors has
designated the Chairman of the Board or another person as the corporation's
Chief Executive Officer, the President shall be the Chief Executive Officer of
the corporation. 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, and shall perform all duties and have all powers which are
commonly incident to the office of chief executive or which are delegated to him
or her by the Board of Directors. The President shall perform such other duties
and shall have such other powers as the Board of Directors or the Chief
Executive Officer (if the President is not 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 (if the President is not the
Chief Executive Officer), 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
such duties shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer.
3.9 Vice Presidents. Each 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. 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.
3.10 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
14
custodian of corporate records and the corporate seal and to affix and attest to
the same on documents.
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.
3.11 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 By-laws, 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.
3.12 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.
3.13 Delegation of Authority. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officer or agent,
notwithstanding any provision hereof.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. 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.
15
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 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 By-laws,
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 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
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 By-laws.
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 and
posting of such bond as the Board of Directors may require for the protection of
the corporation or any transfer agent or registrar.
4.5 Record Date. Except as otherwise required by law, 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 precede the date on which the resolution fixing the record date
is adopted and shall not be more than 60 nor less
16
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
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 By-laws, a written waiver signed by
the person entitled to notice, or a waiver by electronic transmission by the
person entitled to notice, whether given before, at or after the time of the
event for which notice is to be given, shall be deemed equivalent to notice
required to be given to such person. 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. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
5.4 Voting of Securities. Except as the Board of Directors may otherwise
designate, the Chief Executive Officer, the President 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 securityholders of any other entity, 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.
5.6 Certificate of Incorporation. All references in these By-laws to the
Certificate of Incorporation shall be deemed to refer to the Restated
Certificate of Incorporation of the
17
corporation, as amended and in effect from time to time, including any Preferred
Stock Designation (as defined in the Certificate of Incorporation).
5.7 Severability. Any determination that any provision of these By-laws is
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-laws.
5.8 Pronouns. All pronouns used in these By-laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
5.9 Reliance Upon Books, Reports And Records. Each director, each member
of any committee designated by the Board of Directors, and each officer of the
corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
corporation and upon such information, opinions, reports or statements presented
to the corporation by any of its officers or employees, or committees of the
Board of Directors so designated, or by any other person as to matters which
such director or committee member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the corporation.
ARTICLE VI
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or
new By-laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
18
1 Subsequent Filing that References this Filing
↑Top
Filing Submission 0000950135-05-004681 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., Apr. 17, 6:17:48.2pm ET