Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Pre-Effective Amendment to Registration Statement 34 142K
for Securities Offered Pursuant to a
Transaction
2: EX-3.4 Articles of Incorporation/Organization or By-Laws 24 106K
3: EX-10.14 Material Contract 2 9K
4: EX-23.1 Consent of Experts or Counsel 1 7K
5: EX-23.2 Consent of Experts or Counsel 1 7K
6: EX-23.3 Consent of Experts or Counsel 1 7K
7: EX-23.4 Consent of Experts or Counsel 1 7K
8: EX-24.2 Power of Attorney 1 8K
EX-3.4 — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.4
AMENDED AND RESTATED
BYLAWS
OF
HEWLETT-PACKARD COMPANY
(A DELAWARE CORPORATION)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE. The registered office of the corporation shall be
fixed in the Certificate of Incorporation of the corporation.
1.2 OTHER OFFICES. The board of directors may at any time establish branch
or subordinate offices at any place or places where the corporation is qualified
to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at any place
within or outside the State of Delaware designated by the board of directors. In
the absence of any such designation, stockholders' meetings shall be held at the
registered office of the corporation.
2.2 ANNUAL MEETING.
(a) The annual meeting of stockholders shall be held each year on a
date and at a time designated by the board of directors. At the meeting,
directors shall be elected, and any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (i) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the board of directors, (ii) otherwise properly brought before the meeting by
or at the direction of the board of directors, or (iii) otherwise properly
brought before the meeting by a stockholder of record at the time of giving
notice provided for in these Bylaws, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 2.2. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the secretary of
the corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the corporation (A)
not later than the close of business on the ninetieth (90th) day nor earlier
than the close of business on the one hundred twentieth (120th) day prior to the
first anniversary of the preceding year's meeting, or (B) not less than the
later of the close of business on
the forty-fifth (45th) day nor earlier than the close of business on the
seventy-fifth (75th) day prior to the first anniversary of the date on which the
corporation first sent or gave its proxy statement to stockholders for the
preceding year's annual meeting, whichever period described in clause (A) or (B)
of this sentence first occurs; provided, however, that in the event that no
annual meeting was held in the previous year or the date of the annual meeting
is more than thirty (30) days before or more than sixty (60) days after the
anniversary date of the previous year's meeting, notice by the stockholder to be
timely must be so received not earlier than the close of business on the one
hundred twentieth (120th) day prior to such meeting and not later than the close
of business on the later of (x) the ninetieth (90th) day prior to such meeting
and (y) the tenth (10) day following the date on which public announcement of
the date of such meeting is first made. For purposes of this Section 2.2, a
"public announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or a comparable national news service
or in a document publicly filed by the corporation with the Securities and
Exchange Commission. In no event shall the public announcement of an adjournment
of a stockholders meeting commence a new time period for the giving of a
stockholder's notice as described above. A 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 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, (3) the class and number of
shares of the corporation which are beneficially owned by the stockholder, (4)
any material interest of the stockholder in such business, and (5) any other
information that is required to be provided by the stockholder pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the "1934
Act"), in his capacity as a proponent to a stockholder proposal. Notwithstanding
the foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder's meeting,
stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. In addition, with respect to a stockholder proposal, if the
stockholder has provided the corporation a notice as described above, the
stockholder must have delivered a proxy statement and form of proxy to holders
of a sufficient number of shares to carry such proposal in order for such
proposal to be properly presented. Notwithstanding anything in these Bylaws to
the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this paragraph (b). The chairman of
the annual meeting shall, if the facts warrant, determine and declare at the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this paragraph (b), and, if he or she should
so determine, he or she shall so declare at the meeting that any such business
not properly brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election as directors.
Nominations of persons for election to the board of directors of the corporation
may be made at a meeting of stockholders by or at the direction of the board of
directors or by any stockholder of record of the corporation at the time of
giving notice provided for in these Bylaws, who is entitled to vote in the
election of directors at the meeting and who complies with the notice procedures
set forth in this paragraph (c). Such nominations, other than those made by or
at the direction of the board of directors, shall be made pursuant to timely
notice in writing to the secretary of the corporation in accordance with the
provisions of paragraph (b) of this Section 2.2. Such stockholder's notice shall
set forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a director:
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(A) the name, age, business address and residence address of such person, (B)
the principal occupation or employment of such person, (C) the class and number
of shares of the corporation which are beneficially owned by such person, (D) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the stockholder, and (E) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for elections of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the 1934 Act (including without
limitation such person's written consent to being named in the proxy statement,
if any, as a nominee and to serving as a director if elected); (ii) as to such
stockholder giving notice, the information required to be provided pursuant to
paragraph (b) of this Section 2.2; and (iii) a written statement executed by
such nominee acknowledging that, as a director of such corporation, such person
will owe a fiduciary duty, under the General Corporation Law of the State of
Delaware, exclusively to the corporation and its stockholders. In addition, if
the stockholder has provided the corporation a notice as described above, the
stockholder must have delivered a proxy statement and form of proxy to holders
of a sufficient number of shares to elect such nominee in order for the proposal
to be properly nominated. At the request of the board of directors or the
chairman of the board, any person nominated by a stockholder for election as a
director shall furnish to the secretary of the corporation that information
required to be set forth in the stockholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a director
of the corporation unless nominated in accordance with the procedures set forth
in this paragraph (c). The chairman of the meeting shall, if the facts warrants,
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he or she
should so determine, he or she shall so declare at the meeting, and the
defective nomination shall be disregarded.
2.3 SPECIAL MEETING. A special meeting of the stockholders may be called at
any time by the board of directors, or by any of the following persons with the
concurrence of a majority of the board of directors: the chairman of the board
of directors, the chairman of the executive committee, or the chief executive
officer, but such special meetings may not be called by any other person or
persons except as provided in Section 3.4 below. Only such business shall be
considered at a special meeting of stockholders as shall have been stated in the
notice for such meeting.
2.4 ORGANIZATION. Meetings of stockholders shall be presided over by the
chairman of the board of directors, if any, or in his or her absence by a person
designated by the board of directors, or, in the absence of a person so
designated by the board of directors, by the chief financial officer, if any, or
in his or her absence by the secretary, if any, or in his or her absence by a
chairman chosen at the meeting by the vote of a majority in interest of the
stockholders present in person or represented by proxy and entitled to vote
thereat. The secretary, or in his or her absence, an assistant secretary, or, in
the absence of the secretary and all assistant secretaries, a person whom the
chairman of the meeting shall appoint shall act as secretary of the meeting and
keep a record of the proceedings thereof.
The board of directors of the corporation shall be entitled to make such
rules or regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and regulations
of the board of directors, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all
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such acts as, in the judgment of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting and matters which are to be voted on by ballot.
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 rules of parliamentary procedure.
2.5 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with Section 2.6 of
these Bylaws not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall specify the place, date, and hour of the
meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted (no business other than that specified in the notice
may be transacted) or (ii) in the case of the annual meeting, those matters
which the board of directors, at the time of giving the notice, intends to
present for action by the stockholders (but any proper matter may be presented
at the meeting for such action). The notice of any meeting at which directors
are to be elected shall include the name of any nominee or nominees who, at the
time of the notice, the board of directors intends to present for election. Any
previously scheduled meeting of the stockholders may be postponed, and (unless
the Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be cancelled, by resolution of the board of directors upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of
stockholders shall be given either personally or by mail, telecopy, telegram or
other electronic or wireless means. Notices not personally delivered shall be
sent postage or charges prepaid and shall be addressed to the stockholder at the
address of that stockholder appearing on the books of the corporation or given
by the stockholder to the corporation for the purpose of notice. Notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by telecopy, telegram or other electronic or wireless means.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice or report.
2.7 QUORUM. The holders of a majority in voting power of the 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 except as otherwise provided by
statute or the Certificate of Incorporation. If, however, such quorum is not
present or represented at any meeting of the stockholders, then either (i)
the chairman of the meeting or (ii) the stockholders by the vote of the
holders of a majority of the stock present in person or represented by proxy
at the meeting, shall have power to adjourn the meeting from time to time in
accordance with Section 2.8, each without notice other than announcement at
the meeting, until a quorum is present
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or represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws of the State of Delaware or
of the Certificate of Incorporation or these Bylaws, a vote of a greater number
or voting by classes is required, in which case such express provision shall
govern and control the decision of the question.
If a quorum be initially present, the stockholders may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 ADJOURNED MEETING; NOTICE. Any meeting of stockholders, annual or
special, whether or not a quorum is present, may be adjourned for any reason
from time to time by either (i) the chairman of the meeting or (ii) the
stockholders by the vote of the holders of a majority of the stock
represented at the meeting, either in person or by proxy. In the absence of a
quorum, no other business may be transacted at that meeting except as
provided in Section 2.7 of these Bylaws.
When any meeting of stockholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place are announced at the meeting at which the adjournment is taken.
However, if a new record date for the adjourned meeting is fixed or if the
adjournment is for more than thirty (30) days from the date set for the original
meeting, then notice of the adjourned meeting shall be given. Notice of any such
adjourned meeting shall be given to each stockholder of record entitled to vote
at the adjourned meeting in accordance with the provisions of Sections 2.5 and
2.6 of these Bylaws. At any adjourned meeting the corporation may transact any
business which might have been transacted at the original meeting.
2.9 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.12 of these Bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgers and joint owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the Certificate of Incorporation, by
these Bylaws or required by law, each stockholder shall be entitled to one vote
for each share of capital stock held by such stockholder.
Any stockholder entitled to vote on any matter may vote part of the shares
in favor of the proposal and refrain from voting the remaining shares or, except
when the matter is the election of directors, may vote them against the
proposal; but if the stockholder fails to specify the number of shares which the
stockholder is voting affirmatively, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares which the stockholder
is entitled to vote.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT. The transactions of
any meeting of stockholders, either annual or special, however called and
noticed,
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and wherever held, shall be as valid as though they had been taken at a meeting
duly held after regular call and notice, if a quorum be present either in person
or by proxy.
Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.11 ACTION BY WRITTEN CONSENT. Subject to the rights of the holders of the
shares of any series of Preferred Stock or any other class of stock or series
thereof having a preference over the Common Stock as to dividends or upon
liquidation, any action required or permitted to be taken by the stockholders of
the corporation must be effected at a duly called annual or special meeting of
stockholders of the corporation and may not be effected by any consent in
writing by such stockholders.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS. For
purposes of determining the stockholders entitled to notice of any meeting or to
vote thereat, the board of directors may fix, in advance, a record date, which
shall not be more than sixty (60) days nor less than ten (10) days before the
date of any such meeting, and in such event only stockholders of record on the
date so fixed are entitled to notice and to vote, notwithstanding any transfer
of any shares on the books of the corporation after the record date, except as
otherwise provided in the Certificate of Incorporation, by these Bylaws, by
agreement or by applicable law.
If the board of directors does not so fix a record date, 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 business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
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
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section 8.1
of these Bylaws.
2.13 PROXIES. Every person entitled to vote for directors, or on any other
matter, shall have the right to do so either in person or by one or more agents
authorized by a written proxy, which may be in the form of a telegram,
cablegram, or other means of electronic transmission, signed by the person and
filed with the secretary of the corporation, but no such proxy shall be voted or
acted upon after three (3) years from its date, unless the proxy provides for a
longer period. A proxy shall be deemed signed if the stockholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the stockholder or the stockholder's
attorney-in-fact. A duly executed proxy shall be irrevocable if it states that
it is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in
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person or by filing an instrument in writing revoking the proxy or by filing
another duly executed proxy bearing a later date with the secretary of the
corporation.
A proxy is not revoked by the death or incapacity of the maker unless,
before the vote is counted, written notice of such death or incapacity is
received by the corporation.
2.14 INSPECTORS OF ELECTION. Before any meeting of stockholders, the board
of directors shall appoint an inspector or inspectors of election to act at the
meeting or its adjournment. The number of inspectors shall be either one (1) or
three (3). If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairman of the meeting may, and upon the request of
any stockholder or a stockholder's proxy shall, appoint a person to fill that
vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of
each, the number of shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three (3) inspectors of election, the decision, act or certificate of
a majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima facie
evidence of the facts stated therein.
ARTICLE III
DIRECTORS
3.1 POWERS. Subject to the provisions of the General Corporation Law of
Delaware and to any limitations in the Certificate of Incorporation or these
Bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and shall be exercised by or under the direction of the board of directors. In
addition to the powers and authorities these Bylaws expressly confer upon them,
the
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board of directors may exercise all such powers of the corporation and do all
such lawful acts and things as are not by the General Corporation Law of
Delaware or by the Certificate of Incorporation or by these Bylaws required to
be exercised or done by the stockholders.
3.2 NUMBER AND TERM OF OFFICE. The authorized number of directors shall be
not less than eight (8) nor more than seventeen (17). Within such limits, the
exact number of directors shall be twelve (12).
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS. Except as provided in Section
3.4 of these Bylaws, at each annual meeting of stockholders, directors elected
to succeed those directors whose terms then expire shall be elected for a term
of office to expire at the succeeding annual meeting of stockholders after their
election, with each director to hold office until such director's successor
shall have been duly elected and qualified.
Directors need not be stockholders unless so required by the Certificate of
Incorporation or by these Bylaws, wherein other qualifications for directors may
be prescribed. Each director, including a director elected to fill a vacancy,
shall hold office until his successor is elected and qualified or until his
earlier resignation or removal.
Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot, and, a plurality of the votes
cast thereat shall elect directors.
3.4 RESIGNATION AND VACANCIES. Any director may resign effective on giving
written notice to the chairman of the board of directors, the secretary or the
entire board of directors, unless the notice specifies a later time for that
resignation to become effective. If the resignation of a director is effective
at a future time, the board of directors may elect a successor to take office
when the resignation becomes effective.
Unless otherwise provided in the Certificate of Incorporation or by these
Bylaws, vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the voting power of shares represented and voting at a duly held
meeting at which a quorum is present (which shares voting affirmatively also
constitute a majority of the required quorum). Each director so elected shall
hold office until the next annual meeting of the stockholders and until a
successor has been elected and qualified.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
Certificate of Incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a
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majority of the directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected.
Any directors chosen pursuant to this Section 3.4 shall hold office for a
term expiring at the next annual meeting of stockholders and until such
director's successor shall have been duly elected and qualified.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created directorship,
the directors then in office constitute less than a majority of the whole board
of directors (as constituted immediately prior to any such increase), then the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the then outstanding
shares having the right to vote for such directors, summarily order an election
to be held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 REMOVAL. Unless otherwise restricted by statute, by the Certificate of
Incorporation or by these Bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors; provided, however,
that, if and so long as stockholders of the corporation are entitled to
cumulative voting, if less than the entire board of directors is to be removed,
no director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an election of
the entire board of directors.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. Regular meetings of the board
of directors may be held at any place within or outside the State of Delaware
that has been designated from time to time by resolution of the board of
directors. In the absence of such a designation, regular meetings shall be held
at the principal executive office of the corporation. Special meetings of the
board of directors may be held at any place within or outside the State of
Delaware that has been designated in the notice of the meeting or, if not stated
in the notice or if there is no notice, at the principal executive office of the
corporation.
Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.
3.7 REGULAR MEETINGS. Regular meetings of the board of directors may be
held without notice if the times of such meetings are fixed by the board of
directors.
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3.8 SPECIAL MEETINGS; NOTICE. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board of directors, the chairman of the executive committee, the chief executive
officer, the secretary or a majority of the members of the board of directors
then in office.
The person or persons authorized to call special meetings of the board of
directors may fix the place and time of the meetings. The secretary or any
assistant secretary shall give notice of any special meeting to each director
personally or by telephone to each director or sent by first-class mail, courier
service or telegram, telecopy or other electronic or wireless means, postage or
charges prepaid, addressed to each director at that director's address as it is
shown on the records of the corporation or if the address is not readily
ascertainable, notice shall be addressed to the director at the city or place in
which the meetings of directors are regularly held. If the notice is by mail,
such notice shall be deposited in the United States mail at least four (4) days
prior to the time set for such meeting. If the notice is by telegram, overnight
mail or courier service, such notice shall be deemed adequately delivered when
the telegram is delivered to the telegram company or the notice is delivered to
the overnight mail or courier service company at least twenty-four (24) hours
prior to the time set for such meeting. If the notice is by facsimile
transmission or other electronic means, such notice shall be deemed adequately
delivered when the notice is transmitted at least twenty-four (24) hours prior
to the time set for such meeting. If the notice is by telephone or by hand
delivery, such notice shall be deemed adequately delivered when the notice is
given at least twenty-four (24) hours prior to the time set for such meeting.
Any oral notice given personally or by telephone may be communicated either to
the director or to a person at the office of the director who the person giving
the notice has reason to believe will promptly communicate it to the director.
If the meeting is to be held at the principal executive office of the
corporation, the notice need not specify the purpose or the place of the
meeting. Moreover, a notice of special meeting need not state the purpose of
such meeting, and, unless indicated in the notice thereof, any and all business
may be transacted at a special meeting.
3.9 QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to fill vacancies in
the board of directors as provided in Section 3.4 and to adjourn as provided in
Section 3.11 of these Bylaws. Every act or decision done or made by a majority
of the directors present at a duly held meeting at which a quorum is present
shall be regarded as the act of the board of directors, subject to the
provisions of the Certificate of Incorporation and applicable law.
A meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of enough directors to leave less than
a quorum, upon resolution of at least a majority of the required quorum for that
meeting prior to the loss of such quorum.
3.10 WAIVER OF NOTICE. Notice of a meeting need not be given to any
director (i) who signs a waiver of notice or a consent to holding the meeting or
an approval of the minutes thereof, whether before or after the meeting, or (ii)
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such directors. The transactions of any
meeting of the board of directors, however called and noticed or wherever held,
are as valid as though had at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice. All such waivers shall
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be filed with the corporate records or made part of the minutes of the meeting.
A waiver of notice need not specify the purpose of any regular or special
meeting of the board of directors.
3.11 ADJOURNMENT. A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
3.12 NOTICE OF ADJOURNMENT. Notice of the time and place of holding an
adjourned meeting need not be given if announced unless the meeting is adjourned
for more than twenty-four (24) hours. If the meeting is adjourned for more than
twenty-four (24) hours, then notice of the time and place of the adjourned
meeting shall be given before the adjourned meeting takes place, in the manner
specified in Section 3.8 of these Bylaws, to the directors who were not present
at the time of the adjournment.
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action required
or permitted to be taken by the board of directors may be taken without a
meeting, provided that all members of the board of directors individually or
collectively consent in writing to that action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board of directors.
3.14 ORGANIZATION. Meetings of the board of directors shall be presided
over by the chairman of the board of directors, if any. In his or her absence, a
majority of the directors present at the meeting, assuming a quorum, shall
designate a president pro tem of the meeting who, if any such person be present,
shall be a chairman of a committee of the board of directors and who shall
preside at the meeting. The secretary shall act as secretary of the meeting, but
in his or her absence the chairman of the meeting may appoint any person to act
as secretary of the meeting.
3.15 FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
board of directors. This Section 3.15 shall not be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee or otherwise and receiving compensation for those services.
3.16 EXECUTIVE SESSION. It is the intent of the board of directors that the
members of the board of directors who are not employees of the corporation shall
confer in executive session at least annually. Such independent directors may
confer in additional executive sessions from time to time throughout the year,
as determined by a majority of such independent directors.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS. The board of directors may designate one (1)
or more committees, each consisting of two or more directors, to serve at the
pleasure of the board of directors. The board of directors may designate one (1)
or more directors as alternate members of any committee, who may replace any
absent member at any meeting of the committee. Any
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committee, to the extent provided in the resolution of the board of directors,
shall have all the authority of the board of directors, but no such committee
shall have the power or authority to (i) approve or adopt or recommend to the
stockholders any action or matter that requires the approval of the stockholders
or (ii) adopt, amend or repeal any Bylaw of the corporation.
4.2 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of
Article III of these Bylaws, Section 3.6 (place of meetings), Section 3.7
(regular meetings), Section 3.8 (special meetings and notice), Section 3.9
(quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment), Section
3.12 (notice of adjournment), and Section 3.13 (action without meeting), with
such changes in the context of those Bylaws as are necessary to substitute the
committee and its members for the board of directors and its members; provided,
however, that the time of regular meetings of committees may be determined
either by resolution of the board of directors or by resolution of the
committee, that special meetings of committees may also be called by resolution
of the board of directors, and that notice of special meetings of committees
shall also be given to all alternate members, who shall have the right to attend
all meetings of the committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions of these
Bylaws.
4.3 EXECUTIVE COMMITTEE. In the event that the board of directors appoints
an executive committee, such executive committee, in all cases in which specific
directions to the contrary shall not have been given by the board of directors,
shall have and may exercise, during the intervals between the meetings of the
board of directors, all the powers and authority of the board of directors in
the management of the business and affairs of the corporation (except as
provided in Section 4.1 hereof) in such manner as the executive committee may
deem in the best interests of the corporation.
ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of the corporation shall consist of a chief
executive officer, a president, one or more vice presidents, a secretary and a
chief financial officer who shall be elected by the board of directors and such
other officers, including but not limited to a chairman of the board of
directors, a chairman of the executive committee and a treasurer, as the board
of directors shall deem expedient, who shall be elected in such manner and hold
their offices for such terms as the board of directors may prescribe. Any two or
more of such offices may be held by the same person. The board of directors may
designate one or more elected vice presidents as executive vice presidents or
senior vice presidents. The board of directors may from time to time designate
the chief executive officer, president or any executive vice president as the
chief operating officer of the corporation.
5.2 ELECTION OF OFFICERS. In addition to officers elected by the board
of directors in accordance with Sections 5.1 and 5.3, the corporation may
have one or more appointed non-corporate vice presidents, who may not be
executive officers for purposes of Section 16 of the 1934 Act ("non-corporate
vice presidents"). Such non-corporate vice presidents may be appointed by the
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board of directors, the chairman of the board of directors or the chief
executive officer and shall have such duties as may be established by the board
of directors, the chairman of the board of directors or the chief executive
officer. The board of directors may designate one or more appointed
non-corporate vice presidents as executive vice presidents or senior vice
presidents. Non-corporate vice presidents appointed pursuant to this Section 5.2
may be removed in accordance with Section 5.4.
5.3 TERMS OF OFFICE AND COMPENSATION. The term of office and salary of each
of said officers and the manner and time of the payment of such salaries shall
be fixed and determined by the board of directors and may be altered by said
board of directors from time to time at its pleasure, subject to the rights, if
any, of said officers under any contract of employment.
5.4 REMOVAL; RESIGNATION OF OFFICERS AND VACANCIES. Any officer of the
corporation may be removed at the pleasure of the board of directors at any
meeting or at the pleasure of any officer who may be granted such power by a
resolution of the board of directors. Any officer may resign at any time upon
written notice to the corporation without prejudice to the rights, if any, of
the corporation under any contract to which the officer is a party. If any
vacancy occurs in any office of the corporation, the board of directors may
elect a successor to fill such vacancy for the remainder of the unexpired term
and until a successor is duly chosen and qualified.
5.5 CHAIRMAN OF THE BOARD. The chairman of the board of directors, if such
an officer be elected, shall, if present, preside at meetings of the board of
directors and stockholders; and may call meetings of the stockholders and also
of the board of directors to be held, subject to the limitations prescribed by
law or by these Bylaws, at such times and at such places as the chairman of the
board of directors may deem proper. The chairman of the board of directors shall
have the power to sign certificates for shares of stock of the corporation and
shall exercise and perform such other duties as may from time to time be agreed
to by the board of directors. The chairman of the board of directors shall
report to the board of directors.
5.6 INTENTIONALLY OMITTED.
5.7 CHAIRMAN OF EXECUTIVE COMMITTEE. The chairman of the executive
committee, if there be one, shall have the power to call meetings of the
stockholders and also of the board of directors to be held subject to the
limitations prescribed by law or by these Bylaws, at such times and at such
places as the chairman of the executive committee shall deem proper. The
chairman of the executive committee shall have such other powers and be subject
to such other duties as the board of directors may from time to time prescribe.
5.8 CHIEF EXECUTIVE OFFICER. The powers and duties of the chief executive
officer are:
(a) To have and provide general supervision, direction and control of
the corporation's business and its officers;
(b) To call meetings of the board of directors to be held, subject to
the limitations prescribed by law or by these Bylaws, at such times and at such
places as the chief executive officer shall deem proper;
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(c) To affix the signature of the corporation to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates and other
papers and instruments in writing ("Contracts") which have been authorized by
the board of directors or which, in the judgment of the chief executive officer,
should be executed on behalf of the corporation;
(d) In the event that the chairman of the board has not otherwise
signed certificates for shares of stock of the corporation, to sign such
certificates;
(e) To delegate the power to affix the signature of the corporation to
Contracts to other officers of the corporation; and
(f) To have such other powers and be subject to such other duties as
the board of directors may from time to time prescribe.
In case of the disability or death of the chief executive officer, the
board of directors shall meet promptly to confer the powers of the chief
executive officer on another elected officer. Until the board of directors takes
such action, the chief financial officer shall exercise all the power and
perform all the duties of the chief executive officer.
5.9 PRESIDENT. Subject to the supervisory powers of the chief executive
officer, the president shall act in a general executive capacity and shall
assist the chief executive officer in the administration and operation of the
corporation's business and general supervision of its policies and affairs. The
president shall have the power to affix the signature of the corporation to all
Contracts which have been authorized by the board of directors or the chief
executive officer. The president shall have such other powers and be subject to
such other duties as the board of directors or the chairman of the board or the
chief executive officer may from time to time prescribe.
5.10 VICE PRESIDENTS. In case of the absence, disability or death of the
chief executive officer and president, the elected vice president, or one of the
elected vice presidents, shall exercise all the powers and perform all the
duties of the president. If there is more than one elected vice president, the
order in which the elected vice presidents shall succeed to the powers and
duties of the president shall be as fixed by the board of directors. The elected
vice president or elected vice presidents shall have such other powers and
perform such other duties as may be granted or prescribed by the board of
directors.
Vice presidents appointed pursuant to Section 5.2 shall have such powers
and duties as may be fixed by the chairman of the board of directors, except
that such appointed vice presidents may not exercise the powers and duties of
the chief executive officer or president.
5.11 SECRETARY. The powers and duties of the secretary are:
(a) To keep a book of minutes at the principal office of the
corporation, or such other place as the board of directors may order, of all
meetings of its directors and stockholders with the time and place of holding,
whether regular or special, and, if special, how authorized, the notice thereof
given, the names of those present at directors' meetings, the number of shares
present or represented at stockholders' meetings and the proceedings thereof.
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(b) To keep the seal of the corporation and affix the same to all
instruments which may require it.
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a share register,
or duplicate share registers, showing the names of the stockholders and their
addresses, the number of and classes of shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the corporation, to
fill in all certificates issued, and to make a proper record of each such
issuance; provided, that so long as the corporation shall have one or more duly
appointed and acting transfer agents of the shares, or any class or series of
shares, of the corporation, such duties with respect to such shares shall be
performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the corporation any and all
shares of the corporation; provided, that so long as the corporation shall have
one or more duly appointed and acting transfer agents of the shares, or any
class or series of shares, of the corporation, such duties with respect to such
shares shall be performed by such transfer agent or transfer agents, and the
method of transfer of each certificate shall be subject to the reasonable
regulations of the transfer agent to which the certificate is presented for
transfer, and also, if the corporation then has one or more duly appointed and
acting registrars, to the reasonable regulations of the registrar to which the
new certificate is presented for registration; and provided, further that no
certificate for shares of stock shall be issued or delivered or, if issued or
delivered, shall have any validity whatsoever until and unless it has been
signed or authenticated in the manner provided in Section 8.5 hereof.
(f) To make service and publication of all notices that may be
necessary or proper, and without command or direction from anyone. In case of
the absence, disability, refusal, or neglect of the secretary to make service or
publication of any notices, then such notices may be served and/or published by
the chief executive officer, the president or a vice president, or by any person
thereunto authorized by any of them or by the board of directors or by the
holders of a majority of the outstanding shares of the corporation.
(g) Generally to do and perform all such duties as pertain to the
office of secretary and as may be required by the board of directors.
5.12 CHIEF FINANCIAL OFFICER. The powers and duties of the chief financial
officer are:
(a) To supervise the corporate-wide treasury functions and financial
reporting to external bodies.
(b) To have the custody of all funds, securities, evidence of
indebtedness and other valuable documents of the corporation and, at the chief
financial officer's discretion, to cause any or all thereof to be deposited for
account of the corporation at such depositary as may be designated from time to
time by the board of directors or the chairman of the board or the chief
executive officer.
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(c) To receive or cause to be received, and to give or cause to be
given, receipts and acceptances for monies paid in for the account of the
corporation.
(d) To disburse, or cause to be disbursed, all funds of the
corporation as may be directed by the board of directors, the chairman of the
board or the chief executive officer, taking proper vouchers for such
disbursements.
(e) To render to the chief executive officer and to the board of
directors, whenever they may require, accounts of all transactions and of the
financial condition of the corporation.
(f) Generally to do and perform all such duties as pertain to the
office of chief financial officer and as may be required by the board of
directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the corporation (or any predecessor) or is or was serving at the
request of the corporation (or any predecessor) as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise (or any predecessor of any of such entities), including service
with respect to employee benefit plans maintained or sponsored by the
corporation (or any predecessor), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than said law permitted the corporation
to provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit or his or her heirs, executors and administrators;
provided, however, that except as provided in the third paragraph of this Bylaw,
the corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the board of directors. The
right to indemnification conferred in this Bylaw shall be a contract right and
shall include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the corporation within twenty (20) days after the receipt by the
corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a
16
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the corporation of an undertaking by or on behalf of such
director or officer to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Bylaw or otherwise.
To obtain indemnification under this Bylaw, a claimant shall submit to the
corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for indemnification pursuant
to the preceding sentence, a determination, if required by applicable law, with
respect to the claimant's entitlement thereto shall be made as follows: (i) if
requested by the claimant, by Independent Counsel (as hereinafter defined), or
(ii) if no request is made by the claimant for a determination by Independent
Counsel, (A) by the board of directors by a majority vote of a quorum consisting
of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the
board of directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the board of directors, a copy of
which shall be delivered to the claimant, or (C) if a quorum of Disinterested
Directors so directs, by the stockholders of the corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the board of directors unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceeding
for which indemnification is claimed a "Change of Control" as defined below, in
which case the Independent Counsel shall be selected by the claimant unless the
claimant shall request that such selection be made by the board of directors. If
it is so determined that the claimant is entitled to indemnification, payment to
the claimant shall be made within ten (10) days after such determination.
If a claim for the indemnification under this Bylaw is not paid in full by
the corporation within thirty (30) days after a written claim pursuant to the
preceding paragraph of this Bylaw has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its board of directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the corporation (including its board of directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
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If a determination shall have been made pursuant to this Bylaw that the
claimant is entitled to indemnification, the corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to the proceeding
paragraph of this Bylaw. The corporation shall be precluded from asserting in
any judicial proceeding commenced pursuant to the third paragraph of this Bylaw
that the procedures and presumptions of this Bylaw are not valid, binding and
enforceable and shall stipulate in such proceeding that the corporation is bound
by all the provisions of this Bylaw. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Bylaw shall not be exclusive or any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise. No repeal or modification of this Bylaw
shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
If any provision or provisions of this Bylaw shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality
and enforceability of the remaining provisions of this Bylaw (including, without
limitation, each portion of any paragraph of this Bylaw containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent possible, the provisions of
this Bylaw (including, without limitation, each such portion of any paragraph of
this Bylaw containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
For the purpose of this Bylaw, a "Change of Control" shall mean:
(1) the acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the 1934 Act (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
20% or more of either (i) the then outstanding shares of common stock of the
corporation (the "Outstanding Corporation Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the corporation
entitled to vote generally in the election of directors (the "Outstanding
Corporation Voting Securities"); provided, however, that for purposes of this
part (1), the following acquisitions shall not constitute a Change of Control:
(i) any acquisition directly from the corporation or any acquisition from other
stockholders where (A) such acquisition was approved in advance by the board of
directors of the corporation, and (B) such acquisition would not constitute a
Change of Control under part (1) of this definition, (ii) any acquisition by the
corporation, (iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the corporation or any corporation controlled
by the corporation, or (iv) any acquisition by any corporation pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of part (1) of this
definition; or
(2) individuals who, as of the date hereof, constitute the board of
directors (the "Incumbent Board") cease for any reason to constitute at least a
majority of the board of directors; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the stockholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be considered as
though such
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individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies of
consents by or on behalf of a Person other than the board of directors; or
(3) consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the corporation
(a "Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the corporation or all or
substantially all of the corporation's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the case may be,
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the corporation
or such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the board of directors, providing for
such Business Combination; or
(4) approval by the stockholders of a complete liquidation or dissolution
of the corporation.
For purposes of this Bylaw:
"DISINTERESTED DIRECTOR" shall mean a director of the corporation who is
not and was not a party to the matter in respect of which indemnification is
sought by the claimant.
"INDEPENDENT COUNSEL" shall mean a law firm, a member of a law firm, or an
independent practitioner, that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the corporation or the claimant in an action to determine the claimant's
rights under this Bylaw.
Any notice, request or other communication required or permitted to be
given to the corporation under this Bylaw shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage or charges
19
prepaid, return copy requested, to the secretary of the corporation and shall be
effective only upon receipt by the secretary.
6.2 INDEMNIFICATION OF OTHERS. The corporation shall have the power, to the
maximum extent and in the manner permitted by the General Corporation Law of
Delaware, to indemnify each of its employees and agents (other than directors
and officers) against expenses (including attorneys' fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 6.2, an "employee" or
"agent" of the corporation (other than a director or officer) includes any
person (i) who is or was an employee or agent of the corporation, (ii) who is or
was serving at the request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was an employee or agent of a corporation which was a predecessor corporation of
the corporation or of another enterprise at the request of such predecessor
corporation.
6.3 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 or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of the General
Corporation Law of Delaware.
6.4 EXPENSES. The corporation shall advance to 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, by reason of the fact that he or she is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
this Bylaw or otherwise; provided, however, that the corporation shall not be
required to advance expenses to any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless the proceeding was
authorized in advance by the board of directors of the corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 6.5, no advance shall be made by the corporation to an officer of the
corporation (except by reason of the fact that such officer is or was a director
of the corporation in which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made (i) by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in
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a manner that such person did not believe to be in or not opposed to the best
interests of the corporation.
6.5 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
Bylaw shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the General Corporation Law of Delaware.
6.6 SURVIVAL OF RIGHTS. The rights conferred on any person by this Bylaw
shall continue as to a person who has ceased to be a director, officer, employee
or other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
6.7 AMENDMENTS. Any repeal or modification of this Bylaw shall only be
prospective and shall not affect the rights under this Bylaw in effect at the
time of the alleged occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS. The corporation shall, either at
its principal executive office or at such place or places as designated by the
board of directors, keep a record of its stockholders listing their names and
addresses and the number and class of shares held by each stockholder, a copy of
these Bylaws as amended to date, accounting books and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTORS. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders and its
other books and records for a purpose reasonably related to his or her
position as a director. The Court of Chancery is hereby vested with the
exclusive jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the corporation to permit
the director to inspect any and all books and
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records, the stock ledger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any limitations or
conditions with reference to the inspection, or award such other and further
relief as the Court may deem just and proper.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chief executive
officer or any other officer of this corporation authorized by the board of
directors or the chief executive officer is authorized to vote, represent, and
exercise on behalf of this corporation all rights incident to any and all shares
of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of
determining the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
(60) days before any such action. In that case, only stockholders of record at
the close of business on the date so fixed are entitled to receive the dividend,
distribution or allotment of rights, or to exercise such rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date so fixed, except as otherwise provided in the Certificate
of Incorporation, by these Bylaws, by agreement or by law.
If the board of directors does not so fix a record date, then the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the board of directors adopts the applicable
resolution or the sixtieth (60th) day before the date of that action, whichever
is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS. From time to time, the board
of directors shall determine by resolution which person or persons may sign or
endorse all checks, drafts, other orders for payment of money, notes or other
evidences of indebtedness that are issued in the name of or payable to the
corporation, and only the persons so authorized shall sign or endorse those
instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The board of
directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation; such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the board of directors or within the agency power of an officer, 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 for any purpose or for any amount.
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8.4 FISCAL YEAR. The fiscal year of this corporation shall begin on the
first day of November of each year and end on the last day of October of the
following year.
8.5 STOCK CERTIFICATES. There shall be issued to each holder of fully paid
shares of the capital stock of the corporation a certificate or certificates for
such shares. Pursuant to the General Corporation Law of the State of Delaware,
every holder of shares of the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by, the chairman of the
board of directors, or the chief executive officer, and by the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation representing the number of shares registered in certificate form.
Any or all of the signatures 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 has ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
8.6 SPECIAL DESIGNATION ON CERTIFICATES. If the corporation is authorized
to issue more than one class of stock or more than one series of any class, then
the powers, the designations, the preferences, and the 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 shall be set forth in full or summarized on the face or back of the
certificate that the corporation shall issue to represent such class or series
of stock; provided, however, that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the 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.
8.7 LOST CERTIFICATES. The corporation may issue a new share certificate or
new certificate for any other security in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the corporation may require the owner of the lost, stolen or destroyed
certificate or the owner's legal representative to give the corporation a bond
(or other adequate security) sufficient to indemnify it against any claim that
may be made against it (including any expense or liability) on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate. The board of directors may adopt such other provisions and
restrictions with reference to lost certificates, not inconsistent with
applicable law, as it shall in its discretion deem appropriate.
8.8 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the General
Corporation Law of Delaware shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
8.9 PROVISIONS ADDITIONAL TO PROVISIONS OF LAW. All restrictions,
limitations, requirements and other provisions of these Bylaws shall be
construed, insofar as
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possible, as supplemental and additional to all provisions of law applicable to
the subject matter thereof and shall be fully complied with in addition to the
said provisions of law unless such compliance shall be illegal.
8.10 PROVISIONS CONTRARY TO PROVISIONS OF LAW. Any article, section,
subsection, subdivision, sentence, clause or phrase of these Bylaws which upon
being construed in the manner provided in Section 8.9 hereof, shall be contrary
to or inconsistent with any applicable provisions of law, shall not apply so
long as said provisions of law shall remain in effect, but such result shall not
affect the validity or applicability of any other portions of these Bylaws, it
being hereby declared that these Bylaws would have been adopted and each
article, section, subsection, subdivision, sentence, clause or phrase thereof,
irrespective of the fact that any one or more articles, sections, subsections,
subdivisions, sentences, clauses or phrases is or are illegal.
8.11 NOTICES. Any reference in these Bylaws to the time a notice is given
or sent means, unless otherwise expressly provided, the time a written notice by
mail is deposited in the United States mails, postage prepaid; or the time any
other written notice is personally delivered to the recipient or is delivered to
a common carrier for transmission, or actually transmitted by the person giving
the notice by electronic means, to the recipient; or the time any oral notice is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
ARTICLE IX
AMENDMENTS
Subject to Section 6.7 hereof, the original or other bylaws of the
corporation may be adopted, amended or repealed by the stockholders entitled to
vote; provided, however, that the corporation may, in its Certificate of
Incorporation, confer the power to adopt, amend or repeal bylaws upon the
directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws. Notwithstanding the foregoing, amendment or deletion of
all or any portion of Article II hereof, Section 3.2 hereof, Section 3.3 hereof,
Section 3.4 hereof, Section 6.1 hereof or this Article IX by the stockholders of
the corporation shall require the affirmative vote of sixty-six and two-thirds
percent (66 2/3%) of the outstanding shares entitled to vote thereon.
Whenever an amendment or new bylaw is adopted, it shall be copied in the
book of bylaws with the original bylaws, in the appropriate place. If any bylaw
is repealed, the fact of repeal with the date of the meeting at which the repeal
was enacted or the filing of the operative written consent(s) shall be stated in
said book.
Amended and restated effective May 3, 2002.
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Dates Referenced Herein and Documents Incorporated by Reference
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