Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1 Registration Statement (General Form) HTML 2.08M
2: EX-3.1.1 Articles of Incorporation/Organization or By-Laws HTML 110K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 65K
4: EX-4.2 Instrument Defining the Rights of Security Holders HTML 81K
5: EX-4.3 Instrument Defining the Rights of Security Holders HTML 83K
6: EX-4.4 Instrument Defining the Rights of Security Holders HTML 51K
7: EX-4.5 Instrument Defining the Rights of Security Holders HTML 47K
8: EX-4.6 Instrument Defining the Rights of Security Holders HTML 52K
9: EX-10.1.1 Material Contract HTML 58K
10: EX-10.1.2 Material Contract HTML 57K
11: EX-10.1.3 Material Contract HTML 52K
15: EX-10.13 Material Contract HTML 13K
16: EX-10.15 Material Contract HTML 231K
12: EX-10.3 Material Contract HTML 242K
13: EX-10.4 Material Contract HTML 248K
14: EX-10.5 Material Contract HTML 15K
17: EX-21.1 Subsidiaries of the Registrant HTML 7K
18: EX-23.1 Consent of Experts or Counsel HTML 8K
EX-3.3 — Articles of Incorporation/Organization or By-Laws
SECTION 1.01 Registered Office. The registered office of Aspen Merger Sub, Inc.,
(the “Corporation”) in the State of Delaware shall be at c/o Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, Delaware19808. The name of the resident agent at such
address is Corporation Service Company.
SECTION 1.02 Other Offices. The Corporation may also have an office at such other
place or places either within or without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01 Place of Meetings. All meetings of the Stockholders of the Corporation
shall be held at such place either within or without the State of Delaware as shall be fixed by the
Board of Directors and specified in the respective notices or waivers of notice of said meetings.
SECTION 2.02 Annual Meetings. (a) The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may come before the meeting
shall be held at the principal office of the Corporation in the State of Delaware, or such place as
shall be fixed by the Board of Directors, at two o’clock in the afternoon, local time, on the
second Tuesday in February in each year, if not a legal holiday at the place where such meeting is
to be held, and if a legal holiday, then on the next succeeding business day not a legal holiday at
the same hour. (b) In respect of the annual meeting for any particular year the Board
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of Directors may, by resolution fix a different day, time or place (either within or without
the State of Delaware) for the annual meeting. (c) If the election of directors shall not be held
on the day designated herein or the day fixed by the Board, as the case may be, for any annual
meeting, or on the day of any adjourned session thereof, the Board of Directors shall cause the
election to be held at a special meeting as soon thereafter as conveniently may be. At such
special meeting the stockholders may elect the directors and transact other business with the same
force and effect as at an annual meeting duly called and held.
SECTION 2.03 Special Meetings. A special meeting of the stockholders for any purpose
or purposes may be called at any time by the President or Chairman, if any, or by order of the
Board of Directors and must be called by the Secretary upon the request in writing of any
stockholder holding of record at least twenty-five percent of the outstanding shares of stock of
the Corporation entitled to vote at such meeting.
SECTION 2.04 Notice of Meetings. (a) Except as otherwise required by statute, notice
of each annual or special meeting of the stockholders shall be given to each stockholder of record
entitled to vote at such meeting not less than ten days nor more then fifty days before the day on
which the meeting is to be held by delivering written notice thereof to him personally or by
mailing such notice, postage prepaid, addressed to him at his post-office address last shown in the
records of the Corporation or by transmitting notice thereof to him at such address by facsimile,
electronic mail or any other available method. Every such notice shall state the time and place of
the meeting and, in case of a special meeting, shall state briefly the purposes thereof. (b) Notice
of any meeting of stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy or who shall in person or by attorney thereunto
authorized, waive such notice in writing or by facsimile, electronic mail, or
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any other available method either before or after such meeting. Notice of any adjourned
meeting of the stockholders shall not be required to be given except when expressly required by
law.
SECTION 2.05 Quorum. (a) At each meeting of the stockholders, except where otherwise
provided by statute, the Certificate of Incorporation or these By-Laws, the holders of record of a
majority of the issued and outstanding shares of stock of the Corporation entitled to vote at such
meeting, present in person or represented by proxy, shall constitute a quorum for the transaction
of business. (b) In the absence of a quorum a majority in interest of the stockholders of the
Corporation entitled to vote, present in person or represented by proxy or, in the absence of all
such stockholders, any officer entitled to preside at, or act as secretary of, such meeting, shall
have the power to adjourn the meeting from time to time, until stockholders holding the requisite
amount of stock shall be present or represented. At any such adjourned meeting at which a quorum
shall be present any business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.06 Organization. At each meeting of the stockholders the President, the
Chairman, if any, any Vice President, or any other officer designated by the Board of Directors,
shall act as chairman, and the Secretary or an Assistant Secretary of the Corporation, or in the
absence of the Secretary and all Assistant Secretaries, a person whom the chairman of such meeting
shall appoint shall act as secretary of the meeting and keep the minutes thereof.
SECTION 2.07 Voting. (a) Except as otherwise provided by law or by the Certificate
of Incorporation or these By-Laws, at every meeting of the stockholders each stockholder shall be
entitled to one vote, in person or by proxy, for each share of capital stock of the Corporation
registered in his name on the books of the Corporation:
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(i) on the date fixed pursuant to Section 9.03 of these By-Laws as the record date for
the determination of stockholders entitled to vote at such meeting; or
(ii) if no such record date shall have been fixed, then the record date shall be at the
close of business on the day next preceding the day on which notice of such meeting is
given.
(b) Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held. In
the case of stock held jointly by two or more executors, administrators, guardians, conservators,
trustees or other fiduciaries, such fiduciaries may designate in writing one or more of their
number to represent such stock and vote the shares so held, unless there is a provision to the
contrary in the instrument, if any, defining their powers and duties. (c) Persons whose stock is
pledged shall be entitled to vote thereon until such stock is transferred on the books of the
Corporation to the pledgee, and thereafter only the pledgee shall be entitled to vote. (d) Any
stockholder entitled to vote may do so in person or by his proxy appointed by an instrument in
writing subscribed by such stockholder or by his attorney thereunto authorized, or by facsimile,
electronic mail or any other available method delivered to the secretary of the meeting; provided,
however, that no proxy shall be voted after three years from its date, unless said proxy provides
for a longer period. (e) At all meetings of the stockholders, all matters (except where other
provision is made by law or by the Certificate of Incorporation or these By-Laws) shall be decided
by the vote of a majority in interest of the stockholders entitled to vote thereon, present in
person or by proxy, at such meeting, a quorum being present.
SECTION 2.08 Inspectors. The chairman of the meeting may at any time appoint one or
more inspectors to serve at a meeting of the stockholders. Such inspectors shall decide upon the
qualifications of voters, accept and count the votes for and against the questions presented,
report
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the results of such votes, and subscribe and deliver to the secretary of the meeting a
certificate stating the number of shares of stock issued and outstanding and entitled to vote
thereon and the number of shares voted for and against the questions presented. The inspectors
need not be stockholders of the Corporation, and any director or officer of the Corporation may be
an inspector on any question other than a vote for or against his election to any position with the
Corporation or on any other question in which he may be directly interested. Before acting as
herein provided each inspector shall subscribe an oath faithfully to execute the duties of an
inspector with strict impartiality and according to the best of his ability.
SECTION 2.09 List of Stockholders. (a) It shall be the duty of the Secretary or
other officer of the Corporation who shall have charge of its stock ledger to prepare and make, or
cause to be prepared and made, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered in the name of
stockholder. Such list shall be open during ordinary business hours to the examination of any
stockholder for any purpose germane to the meeting for a period of at least ten days prior to the
election, either at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the place where the meeting is
to be held. (b) Such list shall be produced and kept at the time and place of the meeting during
the whole time thereof and may be inspected by any stockholder who is present. (c) Upon the willful
neglect or refusal of the directors to produce such list at any meeting for the election of
directors they shall be ineligible for election to any office at such meeting. (d) The stock ledger
shall be conclusive evidence as to who are the stockholders entitled to examine the stock ledger
and the
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list of stockholders required by this Section 2.09 on the books of the Corporation or to vote
in person or by proxy at any meeting of stockholders.
ARTICLE 3
BOARD OF DIRECTORS
SECTION 3.01 General Powers. The business, property and affairs of the Corporation
shall be managed by the Board of Directors.
SECTION 3.02 Number, Qualifications and Term of Office. (a) The number of directors
of the Corporation which shall constitute the whole Board of Directors shall be such number, not
less than the minimum number allowed under the laws of the State of Delaware nor more than seven
(7) as from time to time shall be fixed by the Board of Directors; (b) a director need not be a
stockholder. Each director shall hold office until the annual meeting of the stockholders next
following his election and until his successor shall have been elected and shall qualify, or until
his death, or until he shall resign, or until he shall have been removed in the manner hereinafter
provided.
SECTION 3.03 Election of Directors. At each meeting of the stockholders for the
election of directors at which a quorum is present, the persons, not exceeding the authorized
number of directors, receiving the greatest number of votes of the stockholders entitled to vote
thereon, present in person or by proxy, shall be the directors. In the case of any increases in
the number of directors, the additional director or directors may be elected either at the meeting
of the Board of Directors or of the stockholders at which such increase is voted, or at any
subsequent annual, regular or special meeting of the Board of Directors or stockholders.
SECTION 3.04 Quorum and Manner of Acting. (a) Except as otherwise provided by
statute, by the Certificate of Incorporation or by an agreement among the holders of at least a
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majority of the issued and outstanding stock of the Corporation, a majority of the directors
at the time in office shall constitute a quorum for the transaction of business at any meeting and
the affirmative action of a majority of the directors present at any meeting at which a quorum is
present shall be required for the taking of any action by the Board of Directors. (b) In the event
one or more of the directors shall be disqualified to vote at such meeting, then the required
quorum shall be reduced by one for each such director so disqualified; provided, however, that in
no event shall the quorum as adjusted be less than one third of the total number of directors. (c)
In the absence of a quorum at any meeting of the Board such meeting need not be held; or a majority
of the directors present thereat or, if no director be present, the Secretary may adjourn such
meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need
not be given, except as otherwise required by statute or by the Certificate of Incorporation.
SECTION 3.05 Offices, Place of Meeting and Records. The Board of Directors may hold
meetings, have an office or offices and keep the books and records of the Corporation at such place
or places within or without the State of Delaware as the Board may from time to time determine.
The place of meeting shall be specified or fixed in the respective notices or waivers of notice
thereof, except where otherwise provided by statute, by the Certificate of Incorporation or these
By-Laws.
SECTION 3.06 Annual Meeting. The Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, as soon as
practicable following each annual election of directors. Such meeting shall be called and held at
the place and time specified in the notice or waiver of notice thereof as in the case of a special
meeting of the Board of Directors.
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SECTION 3.07 Regular Meetings. Regular meetings of the Board of Directors shall be
held at such places and at such times as the Board shall from time to time by resolution determine.
If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is
to be held, then the meeting which would otherwise be held on that day shall be held at said place
at the same hour on the next succeeding business day. Notice of regular meetings need not be
given.
SECTION 3.08 Special Meetings; Notice. Special meetings of the Board of Directors
shall be held whenever called by the President or Chairman, if any, or by any two of the directors.
Notice of each such meeting shall be mailed to each director, addressed to him at his residence or
usual place of business, at least two days before the day on which the meeting is to be held, or
shall be sent to him at his residence or at such place of business by facsimile, electronic mail,
or other available means, or shall be delivered personally or by telephone, not later than one day
before the day on which the meeting is to be held. Each such notice shall state the time and place
of the meeting but need not state the purposes thereof except as otherwise herein expressly
provided. Notice of any such meeting need not be given to any director, however, if waived by him
in writing or by facsimile, electronic mail or otherwise, whether before or after such meeting
shall be held, or if he shall be present at such meeting.
SECTION 3.09 Organization. At each meeting of the Board of Directors the President
or Chairman, if any, or, in their absence, a director chosen by a majority of the directors present
shall act as chairman. The Secretary or, in his absence an Assistant Secretary or, in the absence
of the Secretary and all Assistant Secretaries, a person whom the chairman of such meeting shall
appoint shall act as secretary of such meeting and keep the minutes thereof.
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SECTION 3.10 Order of Business. At all meetings of the Board of Directors business
shall be transacted in the order determined by the Board.
SECTION 3.11 Removal of Directors. Except as otherwise provided in the Certificate
of Incorporation or in these By-Laws, any director may be removed, either with or without cause, at
any time, by the affirmative vote of the holders of record of a majority of the issued and
outstanding stock entitled to vote for the election of directors of the Corporation given at a
special meeting of the stockholders called and held for the purpose; and the vacancy in the Board
caused by any such removal may be filled by such stockholders at such meeting in the manner
hereinafter provided or, if the stockholders at such meeting shall fail to fill such vacancy, as in
these By-Laws provided.
SECTION 3.12 Resignation. Any director of the Corporation may resign at any time by
giving written notice of his resignation to the Board of Directors, the President, the Chairman, if
any, or the Secretary of the Corporation. Such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.13 Vacancies. Any vacancy in the Board of Directors caused by death,
resignation, removal, disqualification, an increase in the number of directors, or any other cause
may be filled by majority action of the remaining directors then in office, though less than a
quorum, or by the stockholders of the Corporation at the next annual meeting or any special meeting
called for the purpose, and each director so elected shall hold office until the next annual
election of directors and until his successor shall be duly elected and qualified or until his
death or until he shall resign or shall have been removed in the manner herein provided.
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SECTION 3.14 Compensation. Each director, in consideration of his serving as such,
shall be entitled to receive from the Corporation such amount per annum or such fees for attendance
at directors’ meetings, or both, as the Board of Directors shall from time to time determine,
together with reimbursement for the reasonable expenses incurred by him in connection with the
performance of his duties; provided that nothing herein contained shall be construed to preclude
any director from serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
ARTICLE 4
COMMITTEES
SECTION 4.01 Executive Committee. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, appoint an Executive Committee to consist of
not less than two members of the Board of Directors, including the President or Chairman, if any,
and shall designate one of the members as its chairman. Notwithstanding any limitation on the size
of the Executive Committee, the Committee may invite members of the Board to attend one at a time
at its meetings. For the purpose of the meeting he so attends, the invited director shall be
entitled to vote on matters considered at such meeting and shall receive the Executive Committee
fee for such attendance. At any time one additional director may be invited to an Executive
Committee meeting in addition to the rotational invitee and in such case such additional invitee
shall also be entitled to vote on matters considered at such meeting and shall receive the
Executive Committee fee for such attendance.
Each member of the Executive Committee shall hold office, so long as he shall remain a
director, until the first meeting of the Board of Directors held after the next annual meeting of
the Board of Directors held after the next annual election of directors and until his successor is
duly
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appointed and qualified. The chairman of the Executive Committee or, in his absence, a member
of the Committee chosen by a majority of the members present shall preside at meetings of the
Executive Committee and the Secretary or an Assistant Secretary of the Corporation, or such other
person as the Executive Committee shall from time to time determine, shall act as secretary of the
Executive Committee.
The Board of Directors, by action of the majority of the whole Board, shall fill vacancies in
the Executive Committee.
SECTION 4.02 Powers. During the intervals between the meetings of the Board of
Directors, the Executive Committee shall have and may exercise all of the powers of the Board of
Directors in all cases in which specific directions shall not have been given by the Board of
Directors.
SECTION 4.03 Procedure; Meetings; Quorum. The Executive Committee shall fix its own
rules of procedure subject to the approval of the Board of Directors, and shall meet at such times
and at such place or places as may be provided by such rules. At every meeting of the Executive
Committee the presence of a majority of all the members shall be necessary to constitute a quorum
and the affirmative vote of a majority of the members present shall be necessary for the adoption
by it of any resolution. In the absence of a quorum at any meeting of the Executive Committee such
meeting need not be held, or a majority of the members present thereat or, if no members be
present, the secretary of the meeting may adjourn such meeting from time to time until a quorum be
present.
SECTION 4.04 Compensation. Each member of the Executive Committee shall be entitled
to receive from the Corporation such fee, if any, as shall be fixed by the Board of
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Directors, together with reimbursement for the reasonable expenses incurred by him in
connection with the performance of his duties.
SECTION 4.05 Other Board Committees. The Board of Directors may from time to time,
by resolution passed by a majority of the whole Board, designate one or more committees in addition
to the Executive Committee, each committee to consist of two or more of the directors of the
Corporation. Any such committee, to the extent provided in the resolution or in the By-Laws of the
Corporation, shall have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation.
A majority of all the members of any such committee may determine its action and fix the time
and place of its meetings, unless the Board of Directors shall otherwise provide. The Board of
Directors shall have power to change the members of any committee at any time, to fill vacancies
and to discharge any such committee, either with or without cause, at any time.
SECTION 4.06 Alternates. The President or Chairman, if any, may designate one or
more directors as alternate members of any committee who may act in the place and stead of members
who temporarily cannot attend any such meeting.
SECTION 4.07 Additional Committees. The Board of Directors may from time to time
create such additional committees of directors, officers, employees or other persons designated by
it (or any combination of such persons) for the purpose of advising the Board, the Executive
Committee and the officers and employees of the Corporation in all such matters as the Board shall
deem advisable and with such functions and duties as the Board shall by resolutions prescribe.
A majority of all the members of any such committee may determine its action and fix the time
and place of its meetings, unless the Board of Directors shall otherwise provide. The
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Board of Directors shall have the power to change the members of any committee at any time, to
fill vacancies and to discharge any such committee, either with or without cause, at any time.
ARTICLE 5
ACTION BY CONSENT
SECTION 5.01 Consent by Directors. 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
prior to such action a written consent thereto is signed by all members of the Board or of such
committee, as the case may be, and such written consent is filed with the minutes of the
proceedings of the Board or such committee.
SECTION 5.02 Consent by Stockholders. Any action required or permitted to be taken
at any meeting of the stockholders may be taken without a meeting upon the written consent of the
holders of shares of stock entitled to vote who hold the number of shares which in the aggregate
are at least equal to the percentage of the total vote required by statute or the Certificate of
Incorporation or these By-Laws for the proposed corporate action.
ARTICLE 6
OFFICERS
SECTION 6.01 Number. The principal officers of the Corporation shall be a President,
a Vice President, a Treasurer and a Secretary. In addition, there may be such other or subordinate
officers, agents and employees as may be appointed in accordance with the provisions of Section
6.03. Any two or more offices may be held by the same person, except that if there are two or more
officers of the Corporation, the office of Secretary shall be held by a person other than the
person holding the office of President.
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SECTION 6.02 Election, Qualifications and Term of Office. Each officer of the
Corporation, except such officers as may be appointed in accordance with the provisions of Section
6.03, shall be elected annually by the Board of Directors and shall hold office until his successor
shall have been duly elected and qualified, or until his death, or until he shall have resigned or
shall have been removed in the manner herein provided.
SECTION 6.03 Other Officers. The Corporation may have such other officers, agents,
and employees as the Board of Directors may deem necessary, including a Chairman, a Chief Executive
Officer, a Chief Financial Officer, a Controller, one or more Assistant Controllers, one or more
Assistant Treasurers and one or more Assistant Secretaries, each of whom shall hold office for such
period, have such authority, and perform such duties as the Board of Directors, any committee of
the Board designated by it to so act, or the President or Chairman, if any, may from time to time
determine. The Board of Directors may delegate to any principal officer the power to appoint or
remove any such subordinate officers, agents or employees.
SECTION 6.04 Removal. Any officer may be removed, either with or without cause, by
the vote of a majority of the whole Board of Directors or, except in case of any officer elected by
the Board of Directors, by any committee of officers upon whom the power of removal may be
conferred by the Board of Directors.
SECTION 6.05 Resignation. Any officer may resign at any time by giving written
notice to the Board of Directors or the President or Chairman, if any, or the Secretary of the
Corporation. Any such resignation shall take effect at the date of receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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SECTION 6.06 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired portion of the term
in the manner prescribed in these By-Laws for regular election or appointment to such office.
SECTION 6.07 Chairman of the Board. The Chairman of the Board, if any, shall be a
director and shall preside at all meetings of the Board of Directors and shareholders. Subject to
determination by the Board of Directors, the Chairman, if any, shall have general executive powers
and such specific powers and duties as from time to time may be conferred or assigned by the Board
of Directors.
SECTION 6.08 President. Subject to definition by the Board of Directors, the
President shall have general executive powers and such specific powers and duties as from time to
time may be conferred upon or assigned to him by the Board of Directors or any committee of the
Board designated by it to so act. In the absence of the President, the Vice President shall
preside at all meetings of the stockholders.
SECTION 6.09 Vice President. Each Vice President, if any, shall have such powers and
perform such duties as from time to time may be conferred upon or assigned to him by the Board of
Directors or any committee of the Board designated by it to so act, or by the President or
Chairman, if any. In the absence of the President or Chairman, if any, a Vice President shall
preside at all meetings of the stockholders.
SECTION 6.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds and securities of the Corporation, and shall deposit all such funds to
the credit of the Corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of these By-Laws; he shall disburse the funds of the
Corporation as may be ordered by the Board of Directors or any committee of the Board
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designated by it so to act, or by the President or Chairman, if any, making proper vouchers
for such disbursements, and shall render to the Board of Directors or the stockholders, whenever
the Board may require him so to do, a statement of all his transactions as Treasurer and of the
financial condition of the Corporation; and, in general, he shall perform all the duties as from
time to time may be assigned to him by the Board of Directors or any committee of the Board
designated by it so to act, or by the President or Chairman, if any.
SECTION 6.11 Secretary. The Secretary shall record or cause to be recorded in books
provided for the purpose the minutes of the meetings of the stockholders, the Board of Directors,
and all committees of which a secretary shall not have been appointed; shall see that all notices
are duly given in accordance with the provisions of these By-Laws and as required by law; shall be
custodian of all corporate records (other than financial) and of the seal of the Corporation and
see that the seal is affixed to all documents the execution of which on behalf of the Corporation
under its seal is duly authorized in accordance with the provisions of these By-Laws; shall keep,
or cause to be kept, the list of stockholders as required by Section 2.09, which include the
post-office addresses of the stockholders and the number of shares held by them, respectively, and
shall make or cause to be made, all proper changes therein, shall see that the books, reports,
statements, certificates and all other documents and records required by law are properly kept and
filed; and, in general, shall perform all duties incident to the office of Secretary and such other
duties as may from time to time be assigned to him by the Board of Directors or any committee of
the Board designated by it so to act, or by the President or Chairman, if any.
SECTION 6.12 The Assistant Secretaries. At the request, or in absence or disability,
of the Secretary, the Assistant Secretary, if any, designated by the Secretary or the Board of
Directors shall perform all the duties of the Secretary and, when so acting, shall have all the
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powers of the Secretary. The Assistant Secretaries shall perform such other duties as from
time to time may be assigned to them by the Board of Directors or any committee of the Board
designated by it so to act, or by the President or Chairman, if any, or the Secretary.
SECTION 6.13 Salaries. The salaries of the principal officers of the Corporation
shall be fixed from time to time by the Board of Directors or a special committee thereof, and none
of such officers shall be prevented from receiving a salary by reason of the fact that he is a
director of the corporation.
ARTICLE 7
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who at any time is, or shall have been, a director or officer of the Corporation,
and is threatened to be or is made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he
is, or was, a director, officer, employee or agent of the Corporation, or is or has served at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be indemnified against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any such action, suit or proceeding to the full
extent permitted under subsections (a) through (e) of Section 145 of Title 8 of the Delaware Code,
as from time to time amended. The foregoing right of indemnification shall in no way be exclusive
of any other rights of indemnification to which such director, officer, employee or agent may be
entitled, under any by-law, agreement, vote of shareholders or disinterested directors or
otherwise, and shall continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
SECTION 8.01 Execution of Contracts. Unless the Board of Directors shall otherwise
determine, the President, the Chairman, if any, any Vice President, the Treasurer, the Secretary or
any Assistant Secretary, may enter into any contract or execute any contract or other instrument,
the execution of which is not otherwise specifically provided for, in the name and on behalf of the
Corporation. The Board of Directors, or any committee designated thereby with power so to act,
except as otherwise provided in these By-Laws, may authorize any other or additional officer or
officers or agent or agents of the Corporation, and such authority may be general or confined to
specific instances. Unless authorized so to do by these By-Laws or by the Board of Directors or by
any such committee, no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render it liable
pecuniarily for any purpose or to any amount.
SECTION 8.02 Loans. No loan shall be contracted on behalf of the Corporation, and no
evidence of indebtedness shall be issued, endorsed or accepted in its name, unless authorized by
the Board of Directors or any committee of the Board designated by it so to act. Such authority
may be general or confined to specific instances. When so authorized, the officer or officers
thereunto authorized may effect loans and advances at any time for the Corporation from any bank,
trust company or other institution, or from any firm, corporation or individual, and for such loans
and advances may make, execute and deliver promissory notes or other evidences of indebtedness of
the Corporation, and, when authorized as aforesaid, as security for the payment of any and all
loans, advances, indebtedness and liabilities of the Corporation, may mortgage, pledge, hypothecate
or transfer any real or personal property at any time owned or held by the
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Corporation, and to that end execute instruments of mortgage or pledge or otherwise transfer
such property.
SECTION 8.03 Checks, Drafts, etc. All checks, drafts, bills or exchange or other
orders for the payment of money, obligations, notes, or other evidence of indebtedness, bills of
lading, warehouse receipts and insurance certificates of the Corporation, shall be signed or
endorsed by such officer or officers, agent or agents, attorney or attorneys, employee or
employees, of the Corporation as shall from time to time be determined by resolution of the Board
of Directors or any committee of the Board designated by it so to act.
SECTION 8.04 Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks, trust companies or
other depositaries as the Board of Directors or any committee of the Board designated by it so to
act may from time to time designate, or as may be designated by any officer or officers or agent or
agents of the Corporation to whom such power may be delegated by the Board of Directors or any
committee of the Board designated by it so to act and, for the purpose of such deposit and for the
purposes of collection for the account of the Corporation may be endorsed, assigned and delivered
by any officer, agent or employee of the Corporation or in such other manner as may from time to
time be designated or determined by resolution of the Board of Directors or any committee of the
Board designated by it so to act.
SECTION 8.05 Proxies in Respect of Securities of Other Corporations. Unless
otherwise provided by resolution adopted by the Board of Directors or any committee of the Board
designated by it to so act, the President or Chairman, if any, or any Vice President may from time
to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on
behalf of the Corporation, to cast the votes which the Corporation may be entitled
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to cast as the holder of stock or other securities in any other corporation, association or
trust any of whose stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, association or trust, or to
consent in writing, in the name of the Corporation as such holder, to any action by such other
corporation, association or trust, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE 9
BOOKS AND RECORDS
SECTION 9.01 Place. The books and records of the Corporation may be kept at such
places within or without the State of Delaware as the Board of Directors may from time to time
determine. The stock record books and the blank stock certificate books shall be kept by the
Secretary or by any other officer or agent designated by the board of Directors.
SECTION 9.02 Addresses of Stockholders. Each stockholder shall furnish to the
Secretary of the Corporation or to the transfer agent of the Corporation an address at which
notices of meetings and all other corporate notices may be served upon or mailed to him, and if any
stockholder shall fail to designate such address, corporate notices may be served upon him by mail,
postage prepaid, to him at his post-office address last known to the Secretary or to the transfer
agent of the Corporation or by transmitting a notice thereof to him at such address by facsimile,
electronic mail or other available method.
SECTION 9.03 Record Dates. The Board of Directors may fix in advance a date, not
exceeding fifty days preceding the date of any meeting of stockholders, or the date for the payment
of any dividend, or the date for the allotment of any rights, or the date when any change
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or conversion or exchange of capital stock of the Corporation shall go into effect, or a date
in connection with obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting or any adjournment thereof, or
entitled to receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any change, conversion or exchange or capital stock of the
Corporation, or to give such consent, and in each such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be entitled to notice
of, or to vote at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
ARTICLE 10
SHARES AND THEIR TRANSFER
SECTION 10.01 Certificates of Stock. Every owner of stock of the Corporation shall
be entitled to have a certificate certifying the number of shares owned by him in the Corporation
and designating the class of stock to which such shares belong, which shall otherwise be in such
form as the Board of Directors shall prescribe. Every such certificate shall be signed by the
Chief Executive Officer, President or Chairman, if any, or a Vice President, and by the Treasurer
or any Assistant Treasurer or the Secretary or any Assistant Secretary of the Corporation;
provided, however, that where such certificate is signed or countersigned by a transfer agent or
registrar the signatures of such officers of the Corporation and the seal of the Corporation may be
in facsimile form. In case any officer or officers who shall have signed, or whose facsimile
signature or signatures shall have been used on, any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death, resignation or
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otherwise, before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued and delivered by the
Corporation as though the person or persons who signed such certificate or whose facsimile
signature or signatures shall have been used thereof had not ceased to be such officer or officers
of the Corporation.
SECTION 10.02 Record. A record shall be kept of the name of the person, firm or
corporation owning the stock represented by each certificate for stock of the Corporation issued,
the number of shares represented by each such certificate, and the date thereof, and, in case of
cancellation, the date of cancellation. The person in whose name shares of stock stand on the
books of the Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
SECTION 10.03 Transfer of Stock. Transfers of shares of the stock of the Corporation
shall be made only on the books of the Corporation by the registered holder thereof, or by his
attorney thereunto authorized, and on the surrender of the certificate or certificates for such
shares properly endorsed.
SECTION 10.04 Transfer Agent and Registrar; Regulations. The Corporation shall, if
and whenever the Board of Directors shall so determine, maintain one or more transfer offices or
agencies, each in charge of a transfer agent designated by the Board of Directors, where the shares
of the capital stock of the Corporation shall be directly transferable, and also if and whenever
the Board of Directors shall so determine, maintain one or more registrar offices designated by the
Board of Directors, where such shares of stock shall be registered. The Board of Directors may
make such rules and regulations as it may deem expedient, not inconsistent
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with these By-Laws, concerning the issue, transfer and registration of certificates for shares
of the capital stock of the Corporation.
SECTION 10.05 Lost, Destroyed or Mutilated Certificates. In case of the alleged loss
or destruction or the mutilation of a certificate representing capital stock of the Corporation, a
new certificate may be issued in place thereof, in the manner and upon such terms as the Board of
Directors may prescribe.
ARTICLE 11
SEAL
The Board of Directors shall provide a corporate seal, which shall be in the form of a circle
and shall bear the name of the Corporation and the words and figures “Incorporated 2008, Delaware.”
ARTICLE 12
FISCAL YEAR
The fiscal year of the Corporation shall commence on the first day of November, except as
otherwise provided from time to time by the Board of Directors.
ARTICLE 13
WAIVER OF NOTICE
Whenever any notice whatever is required to be given by statute, these By-Laws or the
Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE 14
AMENDMENTS
These By-Laws may be altered, amended or repealed, in whole or in part, and new By-Laws may be
adopted, in whole or in part, by the affirmative vote of a majority of the whole
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Board of Directors given at a special Board of Directors meeting called and held for the
purpose or by the affirmative vote of the holders of a majority of the issued and outstanding stock
entitled to vote for the amendment of these By-Laws at a special meeting of the stockholders called
and held for the purpose. Any such action by the Board of Directors may be changed by the
affirmative vote of the holders of such a majority of the stockholders. No amendment may be made
unless the By-Laws, as amended, are consistent with the requirements of law and of the Certificate
of Incorporation.
