Current Report — Form 8-K Filing Table of Contents
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1: 8-K Current Report HTML 24K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 21K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 89K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
Section 1.1 Registered Office. The registered office of Dole Food Company, Inc. (the
“Corporation”) shall be fixed in the Certificate of Incorporation of the Corporation.
Section 1.2 Other Offices. The Corporation may also have an office or offices, and
keep the books and records of the Corporation, except as may otherwise be required by law, at such
other place or places, either within or without the State of Delaware, as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting of stockholders, for the election of
directors to succeed those whose terms expire and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, if any, on such date, and at such
time as may be determined by the Board of Directors.
Section 2.2 Special Meeting. A special meeting of the stockholders may be called at
any time only by the Board of Directors or by the Chairman of the Board of Directors or the Chief
Executive Officer.
Section 2.3 Notice of Stockholders’ Meetings.
(a) Notice of the place, if any, date, and time of all meetings of the stockholders, the
record date for determining the stockholders entitled to vote at the meeting (if such date is
different from the record date for determining the stockholders entitled to notice of the meeting)
and the means of remote communications, if any, by which stockholders and proxyholders may be
deemed to be present in person and vote at such meeting, shall be given, not less than ten (10) nor
more than sixty (60) days before the date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting as of the record date for determining the stockholders entitled to
notice of the meeting, except as otherwise provided herein or required by law. In the case of a
special meeting, the purpose or purposes for which the meeting is called also shall be set forth in
the notice. Notice may be given personally, by mail or by electronic transmission in accordance
with Section 232 of the General Corporation Law of the State of Delaware (the “DGCL”). If mailed,
such notice shall be deemed given when deposited in the United States mail, postage prepaid,
directed to each stockholder at such stockholder’s
address appearing on the books of the Corporation or given by the stockholder for such
purpose. Notice by electronic transmission shall be deemed given as provided in Section 232 of the
DGCL. An affidavit of the mailing or other means of giving any notice of any stockholders’
meeting, executed by the Corporate 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. Notice shall be deemed to have been given to all stockholders of record who share an
address if notice is given in accordance with the “householding” rules set forth in Rule 14a-3(e)
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 233 of the
DGCL.
(b) When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the place, if any, date and time thereof, and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting are announced at the meeting at which the adjournment is
taken; provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally called, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If
after the adjournment a new record date for stockholders entitled to vote is fixed for the
adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned
meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to
vote at such adjourned meeting as of the record date for notice of such adjourned meeting.
(c) Notice of any meeting of stockholders may be waived in writing, either before or after the
meeting, and to the extent permitted by law, will be waived by any stockholder by attendance
thereat, in person or by proxy, 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.
Section 2.4 Organization.
(a) 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 a Chairman chosen at the meeting by
the holders of a majority in voting power of the stock entitled to vote thereat, present in person
or represented by proxy. The Corporate Secretary, or in his or her absence, an Assistant
Secretary, or in the absence of the Corporate 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.
(b) The Board of Directors 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 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
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meeting and the safety of those present, limitations on participation in the meeting to
stockholders of record of the Corporation, 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.
Section 2.5 List of Stockholders. The officer who has charge of the stock ledger
shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, provided, however, that
if the record date for determining the stockholders entitled to vote is less than ten (10) days
before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the
tenth (10th) day before the meeting date. Such list shall be arranged in alphabetical order and
shall show 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 at least ten (10) days prior to the meeting (a) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided
with the notice of meeting or (b) during ordinary business hours at the principal place of business
of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled
to vote at the meeting shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be examined by any stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic
network, and the information required to access such list shall be provided with the notice of the
meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the list of stockholders required by this Section 2.5
or to vote in person or by proxy at any meeting of stockholders.
Section 2.6 Quorum. At any meeting of stockholders, the holders of a majority in
voting power of all issued and outstanding stock entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for the transaction of business; provided
that where a separate vote by a class or series is required, the holders of a majority in voting
power of all issued and outstanding stock of such class or series entitled to vote on such matter,
present in person or represented by proxy, shall constitute a quorum entitled to take action with
respect to such matter. If a quorum is not present or represented at any meeting of stockholders,
then the Chairman of the meeting or the holders of a majority in voting power of the stock entitled
to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting
from time to time in accordance with Section 2.7, without notice other than announcement at the
meeting and except as provided in Section 2.3(b), until a quorum is present or represented. If a
quorum initially is present at any meeting of stockholders, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum, but if a quorum is not present at least initially, no business other than
adjournment may be transacted.
Section 2.7 Adjourned Meeting. Any annual or special meeting of stockholders, whether
or not a quorum is present, may be adjourned for any reason from time to time by either the
Chairman of the meeting or the holders of a majority in voting power of the stock entitled to
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vote thereat, present in person or represented by proxy. At any such adjourned meeting at
which a quorum may be present, any business may be transacted that might have been transacted at
the meeting as originally called.
Section 2.8 Voting.
(a) Except as otherwise provided by law or the Certificate of Incorporation, each holder of
stock of the Corporation entitled to vote at any meeting of stockholders shall be entitled to one
(1) vote for each share of such stock held of record by such holder on all matters submitted to a
vote of stockholders of the Corporation.
(b) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at
each meeting of stockholders at which a quorum is present, all corporate actions to be taken by
vote of the stockholders shall be authorized by the affirmative vote of the holders of a majority
in voting power of the stock entitled to vote thereat, present in person or represented by proxy,
and where a separate vote by class or series is required, if a quorum of such class or series is
present, such act shall be authorized by the affirmative vote of the holders of a majority in
voting power of the stock of such class or series entitled to vote thereat, present in person or
represented by proxy.
Section 2.9 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 Corporate 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 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 person or by filing an instrument
in writing revoking the proxy or by filing another duly executed proxy bearing a later date with
the Corporate 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.
Section 2.10 Notice of Stockholder Business and Nominations.
(a) Annual Meeting.
(i) Nominations of persons for election to the Board of Directors of the Corporation
and the proposal of business other than nominations to be considered by the stockholders may
be made at an annual meeting of stockholders only (A) pursuant to the Corporation’s notice
of meeting (or any supplement thereto), (B) by or at the direction of the Board of Directors
(or any committee thereof) or (C) by any stockholder of the Corporation who is a stockholder
of record at the time the notice provided for in this Section 2.10(a) is delivered to the
Corporate Secretary of the Corporation, who is entitled
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to vote at the meeting and who complies with the notice procedures set forth in this
Section 2.10(a).
(ii) For nominations or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (C) of the foregoing paragraph, the stockholder must
have given timely notice thereof in writing to the Corporate Secretary of the Corporation
and such business must be a proper subject for stockholder action. To be timely, a
stockholder’s notice must be delivered to the Corporate Secretary at the principal executive
offices of the Corporation 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 annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty (30) days before
or more than seventy (70) days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the one hundred
twentieth (120th) day prior to such annual meeting and not later than the close of business
on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th)
day following the date on which public announcement (as defined below) of the date of such
meeting is first made by the Corporation. In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time period (or extend any
time period) for the giving of a stockholder’s notice as described above. Such
stockholder’s notice shall set forth:
(A) as to each person whom the stockholder proposes to nominate for election or
re-election as a director (1) all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to and in
accordance with Regulation 14A under the Exchange Act, (2) such person’s written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected and (3) such other information as the Corporation may reasonably
require to determine the eligibility of such proposed nominee to serve as a director
of the Corporation, including information relevant to a determination whether such
proposed nominee can be considered an independent director;
(B) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a proposal
to amend the Bylaws of the Corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any substantial interest
(within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such
business of such stockholder and the beneficial owner (within the meaning of
Section 13(d) of the Exchange Act), if any, on whose behalf the proposal is made;
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(C) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination is made or the business is proposed:
(1) the name and address of such stockholder, as they appear on the
Corporation’s books, and the name and address of such beneficial owner,
(2) the class and number of shares of capital stock of the Corporation
which are owned of record by such stockholder and such beneficial owner as
of the date of the notice, and a representation that the stockholder will
notify the Corporation in writing within five (5) business days after the
record date for such meeting of the class and number of shares of capital
stock of the Corporation owned of record by the stockholder and such
beneficial owner as of the record date for the meeting (except as otherwise
provided in Section 2.10(a)(iii) below), and
(3) a representation that the stockholder intends to appear in person
or by proxy at the meeting to propose such nomination or business;
(D) as to the stockholder giving the notice or, if the notice is given on
behalf of a beneficial owner on whose behalf the nomination is made or the business
is proposed, as to such beneficial owner:
(1) the class and number of shares of capital stock of the Corporation
which are beneficially owned (as defined below) by such stockholder or
beneficial owner as of the date of the notice, and a representation that the
stockholder will notify the Corporation in writing within five (5) business
days after the record date for such meeting of the class and number of
shares of capital stock of the Corporation beneficially owned by such
stockholder or beneficial owner as of the record date for the meeting
(except as otherwise provided in Section 2.10(a)(iii) below),
(2) a description of any agreement, arrangement or understanding with
respect to the nomination or other business between or among such
stockholder or beneficial owner and any other person, including without
limitation any agreements that would be required to be disclosed pursuant to
Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the
requirement to file a Schedule 13D is applicable to the stockholder or
beneficial owner) and a representation that the stockholder will notify the
Corporation in writing within five (5) business days after the record date
for such meeting of any such agreement, arrangement or understanding in
effect as of the record date for the meeting (except as otherwise provided
in Section 2.10(a)(iii) below),
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(3) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
hedging transactions, and borrowed or loaned shares) that has been entered
into as of the date of the stockholder’s notice by, or on behalf of, such
stockholder or beneficial owner, the effect or intent of which is to
mitigate loss, manage risk or benefit from changes in the share price of any
class of the Corporation’s capital stock, or maintain, increase or decrease
the voting power of the stockholder or beneficial owner with respect to shares of stock of the Corporation, and a representation that the
stockholder will notify the Corporation in writing within five (5) business
days after the record date for such meeting of any such agreement,
arrangement or understanding in effect as of the record date for the meeting
(except as otherwise provided in Section 2.10(a)(iii) below), and
(4) a representation whether the stockholder or the beneficial owner,
if any, will engage in a solicitation with respect to the nomination or
business and, if so, the name of each participant (as defined in Item 4 of
Schedule 14A under the Exchange Act) in such solicitation and whether such
person intends or is part of a group which intends to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve or adopt the
business to be proposed (in person or by proxy) by the stockholder.
(iii) The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation including information
relevant to a determination whether such proposed nominee can be considered an independent
director. Notwithstanding anything in Section 2.10(a)(ii) above to the contrary, if the
record date for determining the stockholders entitled to vote at any meeting of stockholders
is different from the record date for determining the stockholders entitled to notice of the
meeting, a stockholder’s notice required by this Section 2.10(a) shall set forth a
representation that the stockholder will notify the Corporation in writing within five (5)
business days after the record date for determining the stockholders entitled to vote at the
meeting, or by the opening of business on the date of the meeting (whichever is earlier), of
the information required under clauses (a)(ii)(C)(2) and (a)(ii)(D)(1)-(3) of this Section
2.10, and such information when provided to the Corporation shall be current as of the
record date for determining the stockholders entitled to vote at the meeting.
(iv) This Section 2.10(a) shall not apply to a proposal or nomination proposed to be
made by a stockholder if the stockholder has notified the Corporation of his or her
intention to present the proposal or nomination at an annual or special meeting only
pursuant to and in compliance with Rule 14a-8 under the Exchange Act or any other rule
promulgated under Section 14 of the Exchange Act and such proposal or nominee has been
included in a proxy statement that has been prepared by the Corporation to solicit proxies
for such meeting.
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(b) Special Meeting. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of
meeting. Nominations of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice
of meeting (i) by or at the direction of the Board of Directors (or any committee thereof) or
(ii) provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this Section 2.10(b) is delivered to the Corporate Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and who complies with
the notice procedures set forth in this Section 2.10. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as specified in the
Corporation’s notice of meeting, if the notice required by paragraph (a)(ii) of this Section 2.10
shall be delivered to the Corporate Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth (120th) day prior to such
special meeting and not later than the close of business on the later of the ninetieth (90th) day
prior to such special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described above.
(c) General.
(i) Except as otherwise provided by law, only such persons who are nominated in
accordance with the procedures set forth in this Section 2.10 shall be eligible to be
elected at any meeting of stockholders of the Corporation to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section 2.10. The
Board of Directors shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the case may be,
in accordance with the procedures set forth in this Section 2.10 (including whether the
stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the case may be,
proxies in compliance with such stockholder’s representation as required by
clause (a)(ii)(D)(4) of this Section 2.10). If any proposed nomination or business was not
made or proposed in compliance with this Section 2.10, then except as otherwise provided by
law, the Chairman of the meeting shall have the power and duty to declare that such
nomination shall be disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.10, unless otherwise required by
law, if the stockholder does not provide the information required under
clauses (a)(ii)(C)(2) and (a)(ii)(D)(1)-(3) of this Section 2.10 to the Corporation within
the times frames specified herein, or if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business
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shall not be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Corporation. For purposes of this Section 2.10, to be considered a
qualified representative of the stockholder, a person must be a duly authorized officer,
manager or partner of such stockholder or authorized by a writing executed by such
stockholder (or a reliable reproduction or electronic transmission of the writing) delivered
to the Corporation prior to the making of such nomination or proposal at such meeting by
such stockholder stating that such person is authorized to act for such stockholder as proxy
at the meeting of stockholders.
(ii) For purposes of this Section 2.10, 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 pursuant to Sections 13, 14 or 15(d) of the Exchange Act. For
purposes of clause (a)(ii)(D)(1) of this Section 2.10, shares shall be treated as
“beneficially owned” by a person if the person beneficially owns such shares, directly or
indirectly, for purposes of Section 13(d) of the Exchange Act and Regulations 13D and 13G
thereunder or has or shares pursuant to any agreement, arrangement or understanding (whether
or not in writing): (A) the right to acquire such shares (whether such right is exercisable
immediately or only after the passage of time or the fulfillment of a condition or both),
(B) the right to vote such shares, alone or in concert with others and/or (C) investment
power with respect to such shares, including the power to dispose of, or to direct the
disposition of, such shares.
(iii) Nothing in this Section 2.10 shall be deemed to affect any rights of the holders
of any series of Preferred Stock to elect directors pursuant to any applicable provisions of
the Certificate of Incorporation.
Section 2.11 No Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly held meeting of
stockholders of the Corporation at which a quorum is present or represented, and may not be
effected by any consent in writing by such stockholders.
Section 2.12 Inspectors of Election. Before any meeting of stockholders, the Board of
Directors shall appoint one or more inspectors of election to act at the meeting or its
adjournment. 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. Inspectors need not be stockholders. No director or
nominee for the office of director shall be appointed such an inspector.
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;
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(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. Any report or certificate made by the
inspectors of election shall be prima facie evidence of the facts stated therein.
Section 2.13 Meetings by Remote Communications. The Board of Directors may, in its
sole discretion, determine that a meeting of stockholders shall not be held at any place, but may
instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the
DGCL. If authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders not
physically present at a meeting of stockholders may, by means of remote communication
(a) participate in a meeting of stockholders and (b) be deemed present in person and vote at a
meeting of stockholders whether such meeting is to be held at a designated place or solely by means
of remote communication, provided that (i) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder; (ii) the Corporation shall implement
reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders, including an
opportunity to read or hear the proceedings of the meeting substantially concurrently with such
proceedings; and (iii) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be maintained by the
Corporation.
ARTICLE III
DIRECTORS
Section 3.1 Powers. Subject to the provisions of the DGCL and to any limitations in
the Certificate of Incorporation or these Bylaws relating to action required to be approved by the
stockholders, 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 Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the Certificate of
Incorporation or these Bylaws required to be exercised or done by the stockholders.
Section 3.2 Number, Term of Office and Election. The Board of Directors shall consist
of a number of directors consistent with the Certificate of Incorporation, the exact number to be
determined from time to time by resolution of the Board of Directors. Except as
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provided in Section 3.3, directors shall be elected by a plurality of the shares present and
entitled to vote at the stockholders’ annual meeting in each year. Directors need not be
stockholders unless so required by the Certificate of Incorporation or these Bylaws, wherein other
qualifications for directors may be prescribed.
Section 3.3 Vacancies. Subject to the rights of the holders of any one or more series
of Preferred Stock then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause shall, unless
otherwise provided by law or by resolution of the Board of Directors, be filled solely by the
affirmative vote of a majority of the remaining directors then in office, though less than a
quorum, and directors so chosen shall hold office until the expiration of the term of office of the
director whom he or she has replaced or until his or her successor shall be elected and qualified.
No decrease in the authorized number of directors shall shorten the term of any incumbent director.
Section 3.4 Resignations and Removal. Any director may resign at any time upon notice
given in writing or by electronic transmission to the Board of Directors, the Chairman of the Board
of Directors or the Corporate Secretary. Such resignation shall take effect at the time specified
in such notice or, if the time be not specified, upon receipt thereof by the Board of Directors,
the Chairman of the Board of Directors or the Corporate Secretary, as the case may be. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 3.5 Regular Meetings. Regular meetings of the Board of Directors shall be
held at such place or places, on such date or dates and at such time or times, as shall have been
established by the Board of Directors and publicized among all directors; provided that no
fewer than one regular meeting per year shall be held. A notice of each regular meeting shall not
be required.
Section 3.6 Special Meetings. 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 Chief
Executive Officer or a majority 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 such
meetings. Notice of each such meeting shall be given to each director, if by mail, addressed to
such director as his or her residence or usual place of business, at least five (5) days before the
day on which such meeting is to be held, or shall be sent to such director at such place by
telecopy, telegraph, electronic transmission or other form of recorded communication, or be
delivered personally or by telephone, in each case at least twenty-four (24) hours prior to the
time set for such meeting. Notice of any meeting need not be given to a director who shall, either
before or after the meeting, submit a waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to such director. 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.
Section 3.7 Participation in Meetings by Conference Telephone. Members of the Board
of Directors, or of any committee thereof, may participate in a meeting of such Board of
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Directors or committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other, and such participation
shall constitute presence in person at such meeting.
Section 3.8 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, a majority of the authorized number of directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors, and the vote of 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. The Chairman of the meeting or a majority of the
directors present may adjourn the meeting to another time and place whether or not a quorum is
present. At any adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called. If a quorum initially is
present at any meeting of directors, the directors 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.
Section 3.9 Board of Directors 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 consent in writing or by electronic
transmission to such action, and the writing or writings or electronic transmission or
transmissions are filed with the minutes or proceedings of the Board of Directors. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form. Such action by written consent shall have the
same force and effect as a unanimous vote of the Board of Directors.
Section 3.10 Chairman of the Board. The Chairman of the Board shall preside at
meetings of stockholders and directors and shall perform such other duties as the Board of
Directors may from time to time determine. If the Chairman of the Board is not present at a
meeting of the Board of Directors, another director chosen by the Board shall preside.
Section 3.11 Rules and Regulations. The Board of Directors shall adopt such rules and
regulations not inconsistent with the provisions of law, the Certificate of Incorporation or these
Bylaws for the conduct of its meetings and management of the affairs of the Corporation as the
Board of Directors shall deem proper.
Section 3.12 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 3.12 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.
Section 3.13 Emergency Bylaws. In the event of any emergency, disaster or
catastrophe, as referred to in Section 110 of the DGCL, or other similar emergency condition, as a
result of which a quorum of the Board of Directors or a standing committee of the Board of
Directors cannot readily be convened for action, then the director or directors in attendance at
the meeting shall constitute a quorum. Such director or directors in attendance may further take
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action to appoint one or more of themselves or other directors to membership on any standing
or temporary committees of the Board of Directors as they shall deem necessary and appropriate.
ARTICLE IV
COMMITTEES
Section 4.1 Committees of the Board of Directors. The Board of Directors may, by
resolution, designate one or more committees, including but not limited to an Executive Committee,
an Audit Committee, a Corporate Compensation and Benefits Committee and a Nominating and Corporate
Governance Committee, each such 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 to replace any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members present at any
meeting and not disqualified from voting, whether or not he, she 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 such committee, to the extent provided in the
resolution of the Board of Directors 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, and may authorize the seal of the Corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in reference to the
following matters: (a) approving or adopting, or recommending to the stockholders, any action or
matter (other than the election or removal of directors) expressly required by the DGCL to be
submitted to stockholders for approval or (b) adopting, amending or repealing any bylaw of the
Corporation. All committees of the Board of Directors shall keep minutes of their meetings and
shall report their proceedings to the Board of Directors when requested or required by the Board of
Directors.
Section 4.2 Meetings and Action of Committees. Any committee of the Board may adopt
such rules and regulations not inconsistent with the provisions of law, the Certificate of
Incorporation or these Bylaws for the conduct of its meetings as such committee may deem proper.
ARTICLE V
OFFICERS
Section 5.1 Officers. The officers of the Corporation shall consist of a Chairman of
the Board of Directors, a Chief Executive Officer, a President, one or more Vice Presidents, a
Chief Financial Officer, a General Counsel, a Corporate Secretary, a Treasurer, a Controller and
such other officers as the Board of Directors may from time to time determine, each of whom shall
be elected by the Board of Directors, each to have such authority, functions or duties as set forth
in these Bylaws or as determined by the Board of Directors. Each officer shall be chosen by the
Board of Directors and shall hold office for such term as may be prescribed by the Board of
Directors and until such person’s successor shall have been duly chosen and qualified, or until
such person’s earlier death, disqualification, resignation or removal. Any two of such offices may
be held by the same person; provided, however, that no officer shall execute,
acknowledge or verify any instrument in more than one capacity if such instrument is required by
law, the
Section 5.2 Compensation. The salaries of the officers of the Corporation 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 the Board of Directors from time to time as it deems appropriate,
subject to the rights, if any, of such officers under any contract of employment.
Section 5.3 Removal, Resignation and Vacancies. Any officer of the Corporation may be
removed, with or without cause, by the Board of Directors, without prejudice to the rights, if any,
of such officer under any contract to which it is a party. 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 such 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 shall have been duly chosen and qualified.
Section 5.4 Chairman of the Board. The Chairman of the Board of Directors shall be
deemed an officer of the Corporation subject to the control of the Board of Directors, and shall
report directly to the Board of Directors. The Chairman shall preside at meetings of stockholders
and directors and shall perform such other duties as the Board of Directors may from time to time
determine. If the Chairman of the Board is not present at a meeting of the Board of Directors,
another director chosen by the Board shall preside.
Section 5.5 Chief Executive Officer. The Chief Executive Officer shall have general
supervision and direction of the business and affairs of the Corporation, shall be responsible for
corporate policy and strategy, and shall report directly to the Chairman of the Board of Directors.
Unless otherwise provided in these Bylaws, all other officers of the Corporation shall report
directly to the Chief Executive Officer or as otherwise determined by the Chief Executive Officer.
The Chief Executive Officer shall, if present and in the absence of the Chairman of the Board of
Directors, preside at meetings of the stockholders and of the Board of Directors.
Section 5.6 President. The President shall be the chief operating officer of the
Corporation, with general responsibility for the management and control of the operations of the
Corporation. The President shall have the power to affix the signature of the Corporation to all
contracts that have been authorized by the Board of Directors or the Chief Executive Officer. The
President shall counsel with and advise the other officers of the Corporation and shall perform
such other duties as such officer may agree with the Chief Executive Officer or as the Board of
Directors may from time to time determine.
Section 5.7 Chief Financial Officer. The Chief Financial Officer shall exercise all
the powers and perform the duties of the office of the chief financial officer and in general have
overall supervision of the financial operations of the Corporation. The Chief Financial Officer
shall counsel with and advise the other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer or as the Board of Directors may
from time to time determine.
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Section 5.8 General Counsel. The General Counsel shall exercise all the powers and perform
the duties of the office of the general counsel as chief legal officer of the Corporation and in
general have overall supervision of the legal affairs of the Corporation. The General Counsel
shall counsel with and advise the other officers of the Corporation and shall perform such other
duties as such officer may agree with the Chief Executive Officer or as the Board of Directors may
from time to time determine.
Section 5.9 Vice Presidents. The Vice President shall have such powers and duties as
shall be prescribed by his or her superior officer or the Chief Executive Officer. A Vice
President shall, when requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as such officer may agree with the Chief Executive Officer or as
the Board of Directors may from time to time determine.
Section 5.10 Corporate Secretary. The powers and duties of the Corporate Secretary
are: (i) to act as Secretary at all meetings of the Board of Directors, of the committees of the
Board of Directors and of the stockholders and to record the proceedings of such meetings in a book
or books to be kept for that purpose; (ii) to see that all notices required to be given by the
Corporation are duly given and served; (iii) to act as custodian of the seal of the Corporation and
affix the seal or cause it to be affixed to all certificates of stock of the Corporation and to all
documents, the execution of which on behalf of the Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws; (iv) to have charge of the books, records and
papers of the Corporation and see that the reports, statements and other documents required by law
to be kept and filed are properly kept and filed; and (v) to perform all of the duties incident to
the office of Corporate Secretary. The Corporate Secretary shall, when requested, counsel with and
advise the other officers of the Corporation and shall perform such other duties as such officer
may agree with the Chief Executive Officer or as the Board of Directors may from time to time
determine.
Section 5.11 Treasurer. The Treasurer shall supervise and be responsible for all the
funds and securities of the Corporation, the deposit of all moneys and other valuables to the
credit of the Corporation in depositories of the Corporation, borrowings and compliance with the
provisions of all indentures, agreements and instruments governing such borrowings to which the
Corporation is a party, the disbursement of funds of the Corporation and the investment of its
funds, and in general shall perform all of the duties incident to the office of the Treasurer. The
Treasurer shall, when requested, counsel with and advise the other officers of the Corporation and
shall perform such other duties as such officer may agree with the Chief Executive Officer or as
the Board of Directors may from time to time determine.
Section 5.12 Controller. The Controller shall be the chief accounting officer of the
Corporation. The Controller shall, when requested, counsel with any advise the other officers of
the Corporation and shall perform such other duties as such officer may agree with the Chief
Executive Officer or the Chief Financial Officer or as the Board of Directors may from time to time
determine.
Section 5.13 Additional Matters. The Chief Executive Officer of the Corporation shall
have the authority to designate employees of the Corporation to have the title of Vice President,
Assistant Vice President, Assistant Treasurer or Assistant Corporate Secretary. Any employee
15
so designated shall have the powers and duties determined by the officer making such
designation. The persons upon whom such titles are conferred shall not be deemed officers of the
Corporation unless elected by the Board of Directors.
Section 5.14 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, bonds, debentures or other evidences of
indebtedness that are issued in the name of or payable by the Corporation, and only the persons so
authorized shall sign or endorse such instruments.
Section 5.15 Corporate Contracts and Instruments; How Executed. Except as otherwise
provided in these Bylaws, the Board of Directors 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.
Section 5.16 Action with Respect to Securities of Other Corporations. The Chief
Executive Officer or any other officer of the Corporation authorized by the Board of Directors or
the Chief Executive Officer is authorized to vote, represent, and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation or corporations
standing in the name of the 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 the person having such authority.
ARTICLE VI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 Right to Indemnification. Each person who was or is a party or is
threatened to be made a party to, or was or is otherwise involved in, any action, suit,
arbitration, alternative dispute mechanism, inquiry, judicial, administrative or legislative
hearing, investigation or any other threatened, pending or completed proceeding, whether brought by
or in the right of the Corporation or otherwise, including any and all appeals, whether of a civil,
criminal, administrative, legislative, investigative or other nature (hereinafter a “proceeding”),
by reason of the fact that he or she is or was a director or an officer of the Corporation or while
a director or officer of the Corporation is or was serving at the request of the Corporation as a
director, officer, employee, agent or trustee of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an employee benefit plan
(hereinafter an “indemnitee”), or by reason of anything done or not done by him or her in any such
capacity, whether the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee, agent or trustee or in any other capacity while serving as a director,
officer, employee, agent or trustee, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in
the case of amendment, only to the extent that such amendment permits the Corporation to provide
broader rights than said law permitted the Corporation to provide prior to such amendment), against
all
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expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid in settlement by or on behalf of the indemnitee) actually and
reasonably incurred by such indemnitee in connection therewith; provided, however,
that, except as provided in Section 6.3 with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such proceeding, or part thereof
(including claims and counterclaims), was authorized or ratified by the Board of Directors of the
Corporation.
Section 6.2 Right to Advancement of Expenses. In addition to the right to
indemnification conferred in Section 6.1, an indemnitee shall, to the fullest extent not prohibited
by law, also have the right to be paid by the Corporation the expenses (including attorneys’ fees)
incurred in defending any such proceeding in advance of its final disposition (hereinafter an
“advancement of expenses”); provided, however, that an advancement of expenses
shall be made only upon delivery to the Corporation of an undertaking (hereinafter an
“undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision of a court of competent jurisdiction from which
there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is
not entitled to be indemnified for such expenses under this Section 6.2 or otherwise.
Section 6.3 Right of Indemnitee to Bring Suit. If a request for indemnification under
Section 6.1 of this Article VI is not paid in full by the Corporation within sixty (60) days, or if
a request for an advancement of expenses under Section 6.2 of this Article VI is not paid in full
by the Corporation within twenty (20) days, after a written request has been received by the
Corporation, the indemnitee may at any time thereafter bring suit against the Corporation in a
court of competent jurisdiction in the State of Delaware seeking an adjudication of entitlement to
such indemnification or advancement of expenses. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that the indemnitee has not met any applicable
standard of conduct for indemnification set forth in the DGCL. Further, in any suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard of conduct for indemnification set forth in the
DGCL. Neither the failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the Corporation (including its directors who are
not parties to such action, a committee of such directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or
brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is
17
not entitled to be indemnified, or to such advancement of expenses, under this Article VI or
otherwise shall be on the Corporation.
Section 6.4 Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article VI shall not be exclusive of any other right
which any person may have or hereafter acquire under any law, agreement, vote of stockholders or
directors, provisions of the Certificate of Incorporation or these Bylaws or otherwise.
Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL.
Section 6.6 Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article VI with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
Section 6.7 Nature of Rights. The rights conferred upon indemnitees in this
Article VI shall be contract rights that shall vest at the time an individual becomes a director or
officer of the Corporation and such rights shall continue as to an indemnitee who has ceased to be
a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors
and administrators. Any amendment, alteration or repeal of this Article VI that adversely affects
any right of an indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment, alteration or
repeal.
Section 6.8 Settlement of Claims. The Corporation shall not be liable to indemnify
any indemnitee under this Article VI for any amounts paid in settlement of any proceeding effected
without the Corporation’s written consent, which consent shall not be unreasonably withheld, or for
any judicial award if the Corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such proceeding.
Section 6.9 Subrogation. In the event of payment under this Article VI, the
Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of
the indemnitee, who shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to enable the
Corporation effectively to bring suit to enforce such rights.
Section 6.10 Severability. If any provision or provisions of this Article VI shall be
held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality
and enforceability of the remaining provisions of this Article VI (including, without limitation,
all portions of any paragraph of this Article VI containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions
of
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this Article VI (including, without limitation, all portions of any paragraph of this
Article VI containing any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
of the parties that the Corporation provide protection to the indemnitee to the fullest enforceable
extent.
ARTICLE VII
CAPITAL STOCK
Section 7.1 Certificates of Stock. The shares of the Corporation shall be represented
by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Every holder of stock represented by certificates
shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman
or the Chief Executive Officer or the President or a Vice President, and by the Corporate Secretary
or the Treasurer or an Assistant Treasurer or an Assistant Secretary, of the Corporation certifying
the number of shares owned by such holder in the Corporation. Any or all such signatures may be
facsimiles. 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 such person were such officer, transfer agent or registrar at the date of issue.
Section 7.2 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 DGCL,
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. Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates pursuant to this
Section 7.2 or Section 156, 202(a) or 218(a) of the DGCL or with respect to this Section 7.2 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. Except as otherwise expressly provided by law, the
rights and obligations of the holders of uncertificated stock and the rights and obligations of the
holders of certificates representing stock of the same class and series shall be identical.
Section 7.3 Transfers of Stock. Transfers of shares of stock of the Corporation shall
be made only on the books of the Corporation upon authorization by the registered holder thereof
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or by such holder’s attorney thereunto authorized by a power of attorney duly executed and
filed with the Corporate Secretary or a transfer agent for such stock, and if such shares are
represented by a certificate, upon surrender of the certificate or certificates for such shares
properly endorsed or accompanied by a duly executed stock transfer power and the payment of any
taxes thereon; provided, however, that the Corporation shall be entitled to
recognize and enforce any lawful restriction on transfer.
Section 7.4 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.
Section 7.5 Addresses of Stockholders. Each stockholder shall designate to the
Corporate Secretary an address at which notices of meetings and all other corporate notices may be
served or mailed to such stockholder and, if any stockholder shall fail to so designate such an
address, corporate notices may be served upon such stockholder by mail directed to the mailing
address, if any, as the same appears in the stock ledger of the Corporation or at the last known
mailing address of such stockholder.
Section 7.6 Registered Stockholders. 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 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.
Section 7.7 Record Date for Determining Stockholders.
(a) In order that the Corporation may determine the stockholders entitled to notice of any
meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall, unless otherwise required by law,
not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the
Board of Directors so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time
it fixes such record date, that a later date on or before the date of the meeting shall be the date
for making such determination. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of and to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding the day on which the
meeting is held. 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 may fix a new record date for determination of stockholders
20
entitled to vote at the adjourned meeting, and in such case shall also fix as the record date
for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that
fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such other action. If no such record date is fixed, 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 resolution relating thereto.
Section 7.8 Regulations. The Board of Directors may make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and registration of shares of
stock of the Corporation.
ARTICLE VIII
GENERAL MATTERS
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be determined from
time to time by resolution of the Board of Directors
Section 8.2 Corporate Seal. The Board of Directors may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the Corporate
Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of
the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 8.3 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.
Section 8.4 Reliance Upon Books, Reports and Records. Each director and each member
of any committee designated by the Board of Directors shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the books of account or other records of
the Corporation and upon such information, opinions, reports or statements presented to the
Corporation by any of its officers or employees, or committees of the Board of Directors so
designated, or by any other person as to matters which such director or committee member reasonably
believes are within such other person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
Section 9.1 Amendments. In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt,
amend or repeal these Bylaws. In addition to any requirements of law and any other provision of
these Bylaws or the Certificate of Incorporation, and notwithstanding any other provision of these
Bylaws, the Certificate of Incorporation or any provision of law which might otherwise permit a
lesser vote or no vote, the affirmative vote of the holders of at least 662/3% in voting power of the
issued and outstanding stock entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to amend or repeal, or adopt any
provision inconsistent with, any provision of these Bylaws.
The foregoing Bylaws were adopted by the Board of Directors, effective as of October 28, 2009.
22
Dates Referenced Herein and Documents Incorporated by Reference
