Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Amendment No. 6 to Form S-1 HTML 54K
2: EX-1.1 Ex-1.1: Form of Underwriting Agreement HTML 149K
3: EX-3.1 Ex-3.1: Amended and Restated Certificate of HTML 60K
Incorporation
4: EX-3.2 Ex-3.2: Amendment to the Amended and Restated HTML 11K
Certifcate of Incorporation
5: EX-3.3 Ex-3.3: Second Amendment to the Amended and HTML 12K
Restated Certificate of Incorporation
6: EX-3.4 Ex-3.4: Third Amendment to the Amended and HTML 14K
Restated Certificte of Incorporation
7: EX-3.5 Ex-3.5: Fourth Amendment to the Amended and HTML 13K
Restated Certificate of Incorporation
8: EX-3.6 Ex-3.6: Form of Second Amended and Restated HTML 24K
Certificate of Incorporation
9: EX-3.7 Ex-3.7: By-Laws HTML 61K
10: EX-3.8 Ex-3.8: Amendment to the By-Laws HTML 10K
11: EX-3.9 Ex-3.9: Form of Amended and Restated By-Laws HTML 76K
12: EX-4.1 Ex-4.1: Form of Common Stock Certificate HTML 11K
13: EX-5.1 Ex-5.1: Opinion of Weil, Gotshal & Manges LLP HTML 14K
14: EX-10.17 Ex-10.17: 2009 Equity Incentive Plan HTML 70K
15: EX-10.18 Ex-10.18: Form of Employment Agreement HTML 74K
16: EX-10.19 Ex-10.19: Form of Employment Agreement HTML 74K
17: EX-10.20 Ex-10.20: Form of Employment Agreement HTML 72K
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Dover, County of Kent, State of Delaware.
Section 2.
Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of Directors may from time
to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Delaware as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.
Annual Meetings. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect
by a plurality vote a Board of Directors, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten nor more than sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be
called by the board of directors and shall be called at the request in writing of stockholders
owning a majority of the capital stock of the Corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or
purposes of the proposed meeting. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten nor more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting.
Section 4.
Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
Section 5.
Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be
decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one
vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy but no proxy shall be voted on or after three years from
its date, unless such proxy provides for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6.
Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required or permitted to be taken at any Annual or
Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of the outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which all shares
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entitled to vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its principal place of business, or an officer or agent of the Corporation having
custody of its book in which proceedings of meetings are recorded.
Every written consent shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action referred to therein
unless, within sixty days of the earliest dated consent, written consents signed by a sufficient
number of holders to take action are delivered to the Corporation by delivery to its principal
place of business, of an officer or agent of the Corporation having custody of its book in which
proceedings of meetings of stockholders are recorded.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in writing.
Section 7. List of Stockholders Entitled to Vote. The
officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten days (but not more than sixty (60) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten days prior to
the meeting, 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. 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 of the Corporation who is
present.
Section 8. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 7 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
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Section 1. Number and Election of Directors. The
Board of Directors shall consist of between three (3) and seven (7) members. Any increase in the
number of members of the Board of Directors in excess of seven (7) members must be approved by the
Board of Directors and shareholders.
a. Except as provided in Section 2 of this Article, directors shall be elected by a
plurality of the votes cast at Annual Meetings of Stockholders, and each director so elected
shall hold office until the next Annual Meeting and until his successor is duly elected and
qualified, or until his earlier resignation or removal.
b. Nominations for the election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Such nominations shall be made by
notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than fourteen (14) days nor more than fifty (50) days prior
to any meeting of the stockholders called for the election of directors; provided, however, that if
less than twenty-one (21) days’ notice of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the
close of the seventh day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by
the Chairman, or the President if there is no Chairman appointed, on behalf of the Board.
c. Each notice under subsection (b) shall set forth (i) the name, age, business address and,
if known, residence address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
d. The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
e. Any director may resign at any time upon notice to the corporation. Directors need not be
stockholders.
Section 2. Vacancies. Subject to Section 1, vacancies and newly created
directorships resulting from any increase in
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the authorized number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly elected and qualified, or
until their earlier resignation or removal.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate
of Incorporation or by these By-Laws directed or required to be exercised or done by the
stockholders. Notwithstanding the foregoing, the Board of Directors shall not have the power to (a)
issue securities of the Company for other than cash, (b) to incur long term unsecured debt in
excess of Two Million Dollars ($2,000,000) without a vote of the stockholders or (c) authorize more
than five percent (5%) of the shares to be reserved for or issued to employees of the Company as
part of an approved stock option plan or authorize more than two (2%) percent at an option price of
less than two ($2.00) Dollars per share, without a vote of the stockholders.
Section 4. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice at such—time and
at such place as may from time to time be determined by the Board of Directors. Special meetings
of the Board of Directors may be called by the Chairman, if there is one, the President, or any
director. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or facsimile on twenty-four (24) hours’ notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these By-Laws, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board
of Directors, the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
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Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these By-Laws, 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 and the writing or
writings shall be filed with the minutes of proceedings of the Board of Directors or committee.
Section
7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this Section 7 shall constitute presence in
person at such meeting.
Section 8. Committees. The Board of Directors may, designate one or more
committees, each committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting are not disqualified from voting, whether or not he or they
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 committee, to the extent
allowed by law and provided in the resolution establishing such committee, 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, provided, however, that no committee shall have the authority of
the Board of Directors to (i) approve, adopt or recommend to the stockholders, any action or matter
expressly required by law to be submitted to stockholders for approval or (ii) adopt, amend or
repeal any by-law of the Corporation. No executive committee shall have the authority of the board
of directors to (i) issue shares of stock, (ii) incur debt beyond $500,000, (iii) declare
dividends, (iv) or issue stock options. Each committee shall keep regular minutes and report to
the Board of Directors when required.
Section 9. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance
at
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each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract or other transaction between
the Corporation and one or more of its directors or any other Corporation, firm, association, or
entity in which one or more of its directors are directors or officers or are financially
interested, shall be either void or voidable because of such
relationship or interest or because of
such director or directors are present at the meeting of the Board of Directors or a committee
thereof which authorizes, approves, or ratifies such contract or transaction or because his or
their votes are counted for such purpose, if:
a. the fact of such relationship or interest is disclosed or known to the Board of Directors
or committee which authorizes, approves, or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes or consents of such interested
directors; or
b. the fact of such relationship or interest is disclosed or known to the shareholders
entitled to vote and they authorize, approve, or ratify such contract or transaction by vote or by
written consent; or
c. the contract or transaction is fair and reasonable to the Corporation at the time of the
contract or transaction is authorized, approved or ratified, in light of the circumstances known to
those entitled to vote at that time.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President and a Secretary. The Board of Directors, in its
discretion, may also choose a Chairman the Board of Directors (who must be a director) and one or
more Vice Presidents, Assistant Secretaries, a Treasurer, Assistant Treasurers and other officers,
including, without limitation, a Chief Executive Officer, Chief Financial Officer, and Chief
Operating Officer. Any number of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these By-Laws. The officers of the
Corporation need not be
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stockholders of the Corporation nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the Corporation.
Section 2.
Election. The Board of Directors at its first meeting held after
each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be
removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The
Chairman of the Board of Directors, if there is one, shall preside at all meetings of the
stockholders and of the Board of Directors. During the absence or disability of the President, the
Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of
the President. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these By-Laws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors and, if there is one, the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and
other
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instruments of the Corporation requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except that the other officers
of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of
Directors or the President. In the absence or disability of the Chairman of the Board of
Directors, or if there is no Chairman, the President shall preside at all meetings of the
stockholders and the Board of Directors. If there is no Chairman of the Board of Directors, the
President shall be the Chief Executive Officer of the Corporation. The President shall also
perform such other duties and may exercise such other powers as from time to time may be
assigned to him by these By-Laws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President, under whose supervision he
shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors or the President may choose another officer
to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation
and the Secretary or any Assistant Secretary, if there is one, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may
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be attested by the signature of the Secretary or by the signature of any such Assistant Secretary.
The Board of Directors may give general authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by law to be kept or
filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer, or in his absence or in the event there
is no Treasurer, the President, shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires, an account of all
his transactions as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the
restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if any, shall perform such duties and shall have such powers
as from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there is one, or the Secretary, and in the absence of the Secretary or in the event
of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there is one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the
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Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such
powers as from time to time may be
assigned to them by the Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman
of the Board of Directors, the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the
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owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise
the same in such manner as the Board of Directors shall require and/or to give the Corporation
either (a) a bond in such sum as it may direct as indemnity or (b) an indemnity, against any
claim that may be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate
or by his attorney
lawfully constituted in writing and upon the surrender of the certificate therefor, which
shall be canceled before a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. 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.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall not be
bound to recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is
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required by law, the Certificate of Incorporation or these By-Laws to be given to any director,
member of a committee or stockholder, such notice may be given by mail, addressed to such director,
member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Written notice may also be given
personally or by facsimile.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these By-Laws to be given to any director, member of a
committee or stockholder, 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 VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares
of the capital stock. Before payment of any dividend, there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words “Corporate Seal Delaware”.
The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
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ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other than those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative [ILLEGIBLE] by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any
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claim, issue or matter as to which such person shall have been adjudged to be liable for negligence
or misconduct in the performance of his duty to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the
specific case upon a determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable if a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director, officer,
employee or agent of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection therewith,
without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term “another enterprise” as used in this Section 4 shall mean any other corporation or any
partnership, joint venture, trust or other enterprise of which such person is or was serving
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at the request of the Corporation as a director, officer, employee or agent. The provisions of
this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1
or 2 of this Article VIII, as the case may be.
Section 5.
Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director, officer, employee or agent may apply to any
court of competent jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under. Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he has met the
applicable standards of conduct set forth in Sections 1 or 2 of this Article VIII, as the case may
be. Notice of any application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred in defending or
investigating a threatened or pending action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article VIII.
Section 7. Non-exclusivity and Survival of Indemnification. The
indemnification provided by this Article VIII shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article
VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the
General Corporation Law of
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the State of Delaware, or otherwise. The indemnification provided by this Article VIII 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 person.
Section 8.
Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII.
Section 9. Meaning of “Corporation” for Purposes of Article VIII. For
purposes of this Article VIII, references to
“The Corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, and employees, so that any person who is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed, in whole or in part, or
new By-Laws may be adopted by the stockholders or by the Board of Directors. All such amendments
must be approved by either the holders of a majority of the outstanding capital stock entitled to
vote thereon or by a majority of the entire Board of Directors then in office.
Section 2.Entire Board of Directors. As used in this Article IX and in
these By-Laws generally, the term “entire Board of Directors” means the total number of directors
which the Corporation would have if there were no vacancies.