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AMENDED AND RESTATED
BYLAWS
OF
TOM BROWN, INC.
A Delaware Corporation
Date of Adoption
May 10, 2001
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<TABLE>
<S> <C>
ARTICLE I Offices.......................................................................................1
Section 1. Registered Office.........................................................................1
Section 2. Other Offices.............................................................................1
ARTICLE II Stockholders.................................................................................1
Section 1. Place of Meetings.........................................................................1
Section 2. Quorum; Adjournment of Meetings...........................................................1
Section 3. Annual Meetings...........................................................................2
Section 4. Special Meetings..........................................................................2
Section 5. Record Date...............................................................................3
Section 6. Notice of Meetings........................................................................3
Section 7. Stockholder List..........................................................................3
Section 8. Proxies...................................................................................4
Section 9. Voting; Elections; Inspectors.............................................................4
Section 10. Conduct of Meetings......................................................................5
Section 11. Treasury Stock...........................................................................6
Section 12. Notice of Stockholder Business and Nominations...........................................6
Section 13. Action Without Meeting...................................................................9
ARTICLE III Board of Directors.........................................................................12
Section 1. Power; Number; Term of Office............................................................12
Section 2. Quorum; Voting...........................................................................12
Section 4. First Meeting............................................................................12
Section 5. Regular Meetings.........................................................................12
Section 6. Special Meetings.........................................................................13
Section 7. Compensation.............................................................................13
Section 8. Action Without a Meeting; Telephone Conference Meetings..................................13
ARTICLE IV Committees..................................................................................14
Section 1. Executive Committee......................................................................14
Section 2. Audit Committee..........................................................................14
Section 3. Compensation Committee...................................................................14
Section 4. Nominating Committee.....................................................................14
Section 5. Other Committees.........................................................................14
Section 6. Procedure; Meetings; Quorum..............................................................14
Section 7. Substitution and Removal of Members; Vacancies...........................................15
Section 8. Limitation on Power and Authority of Committees..........................................15
ARTICLE V Officers.....................................................................................15
Section 1. Number, Titles and Term of Office........................................................15
Section 2. Removal..................................................................................15
Section 3. Removal..................................................................................16
Section 4. Powers and Duties of the Chairman of the Board...........................................16
Section 5. Powers and Duties of the Chief Executive Officer.........................................16
Section 6. Powers and Duties of the President.......................................................16
Section 7. Vice Presidents..........................................................................16
Section 8. Treasurer................................................................................17
Section 9 Secretary................................................................................17
Section 10. Assistant Treasurers.....................................................................17
Section 11. Assistant Secretaries...................................................................17
</TABLE>
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BYLAWS
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<TABLE>
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Section 12. Action with Respect to Securities of Other Entity.......................................17
Section 13. Delegation..............................................................................18
ARTICLE VI Indemnification.............................................................................18
Section 1 Right to Indemnification..............................................................18
Section 2 Right to Advancement of Expenses......................................................18
Section 3 Right of Indemnitee to Bring Suit.....................................................19
Section 4 Non-Exclusivity of Rights.............................................................19
Section 5 Insurance.............................................................................19
Section 6 Indemnification of Employees and Agents of the Corporation............................20
Section 7 Nature of Rights......................................................................20
ARTICLE VII Capital Stock..............................................................................20
Section 1. Certificates of Stock....................................................................20
Section 2. Transfer of Shares.......................................................................21
Section 3. Ownership of Shares......................................................................21
Section 4. Regulations Regarding Certificates.......................................................21
Section 5. Lost or Destroyed Certificates...........................................................21
ARTICLE VIII Miscellaneous Provisions..................................................................21
Section 1. Fiscal Year..............................................................................21
Section 2. Corporate Seal...........................................................................21
Section 3. Notice and Waiver of Notice..............................................................22
Section 4. Facsimile Signatures.....................................................................22
Section 5. Reliance upon Books, Reports and Records.................................................22
Section 6. Application of Bylaws....................................................................22
ARTICLE IX Amendments..................................................................................23
Section 1. Power of Directors.......................................................................23
Section 2. Power of Stockholders.....................................................................23
</TABLE>
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TOM BROWN, INC.
BYLAWS
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AMENDED AND RESTATED BYLAWS
OF
TOM BROWN.
A Delaware Corporation
ARTICLE I
Offices
Section 1. Registered Office . The registered office of the Corporation
required by the state of incorporation of the Corporation to be maintained in
the state of incorporation of the Corporation shall be the registered office
named in the original charter documents of the Corporation, or such other office
as may be designated from time to time by the Board of Directors in the manner
provided by law.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the state of incorporation of the
Corporation as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. All meetings of the stockholders shall be
held at the principal office of the Corporation, or at such other place within
or without the state of incorporation of the Corporation as shall be specified
or fixed in the notices or waivers of notice thereof.
Section 2. Quorum; Adjournment of Meetings. Unless otherwise required
by law, the rules or regulations of any stock exchange applicable to the
Corporation or any regulation applicable to the Corporation or its securities or
provided in the charter documents of the Corporation or these Bylaws, (i) the
holders of a majority of the voting power attributable to the stock issued and
outstanding and entitled to vote thereat, present in person or by remote
communication (if authorized by the Board of Directors), or represented by
proxy, shall constitute a quorum at any meeting of stockholders for the
transaction of business, (ii) in all matters other than election of directors,
the affirmative vote of the holders of a majority of the voting power
attributable to such stock so present or represented at any meeting of
stockholders at which a quorum is present shall constitute the act of the
stockholders, and (iii) where a separate vote by a class or classes is required,
a majority of the voting power attributable to the outstanding shares of such
class or classes, present in person or by remote communication (if authorized by
the Board of Directors), or represented by proxy shall constitute a quorum
entitled to take action with respect to that vote on that matter and the
affirmative vote of the majority of
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the voting power attributable to the shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class.
Directors shall be elected by a plurality of the votes cast at the
meeting.
Notwithstanding the other provisions of the charter documents of the
Corporation or these Bylaws, the chairman of the meeting or the holders of a
majority of the voting power attributable to the issued and outstanding stock,
present in person or by remote communication, (if authorized by the Board of
Directors), or represented by proxy and entitled to vote, at any meeting of
stockholders, whether or not a quorum is present, shall have the power to
adjourn such meeting from time to time, without any notice other than
announcement at the meeting of the time and place of the holding of the
adjourned meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at such meeting. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the meeting as originally called.
Section 3. Annual Meetings. An annual meeting of the 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 (within or without the state of incorporation of the
Corporation), or, if so determined by the Board of Directors in its sole
discretion, at no place (but rather by means of remote communication), on such
date, and at such time as the Board of Directors shall fix and set forth in the
notice of the meeting.
Section 4. Special Meetings. Unless otherwise provided in the charter
documents of the Corporation, special meetings of the stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board, by
the President or by a majority of the Board of Directors, or by a majority of
any committee of the Board of Directors that has been duly designated by the
Board of Directors and whose power and authority as provided in a resolution of
the Board of Directors or in these Bylaws include the power to call such
meetings, and shall be called by the Chairman of the Board, by the President or
by the Secretary upon written request signed by stockholders of record of at
least 20% of the issued and outstanding shares of stock entitled to vote at such
meeting. Upon receipt by the Secretary of a written request by any stockholder
or stockholders entitled to have a special meeting called pursuant to this Bylaw
stating the purpose or purposes of such special meeting, the Board of Directors
shall determine a date, time and place (within or without the state of
incorporation of the Corporation) or, if so determined by the Board of Directors
in its sole discretion, at no place (but rather by means of remote
communication), for such special meeting, which date shall not be less than
ninety days nor more than one-hundred fifty days after receipt and determination
of the validity of such request, and a record date for determination of
stockholders entitled to vote at such special meeting in accordance with Section
5 below. Following such receipt and determination, it shall be the duty of the
Secretary to cause notice of such special meeting to be given to the
stockholders entitled to vote at such special meeting in the manner set
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forth in Section 6 below. Business transacted at a special meeting shall be
confined to the purpose(s) stated in the notice of such meeting.
Section 5. Record Date. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors of the Corporation may fix a date as
the record date for any such determination of stockholders, which record date
shall not precede the date on which the resolutions fixing the record date are
adopted and which record date, in the case of a meeting of stockholders, shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting of stockholders, nor, in the case of any other action, more than
sixty (60) days prior to any such action.
If the Board of Directors does not fix a record date for any meeting of
the stockholders, the record date for determining stockholders entitled to
notice of or to vote at such meeting 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. If the Board of Directors does not fix the record date for determining
stockholders for any other purpose, the record date shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Notice of Meetings. Notice of the place, if any, date, hour
of and the means of remote communications (if authorized by the Board of
Directors), by which stockholders and proxy holders may be deemed to be present
and vote at such meeting, and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given by or at the direction
of the Chairman of the Board, the President or the Secretary to each stockholder
entitled to vote thereat not less than ten (10) nor more than sixty (60) days
before the date of the meeting. If mailed, such notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation. Without
limiting the manner by which notice may otherwise be given effectively to
stockholders, any notice to stockholders may be given by electronic transmission
in the manner provided in Section 232 of the General Corporation Law of the
State of Delaware.
Section 7. Stockholder List. A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in the name of such stockholder, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, for a
period of at least ten (10) days prior to the meeting, in the manner provided by
law. The stockholder list shall also be open to the
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examination of any stockholder during the whole time of the meeting as provided
by law. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 7 or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to a corporate action in writing without a
meeting may authorize another person or persons to act for such stockholder by
proxy in the manner provided by law. Proxies for use at any meeting of
stockholders shall be filed with the Secretary, or such other officer as the
Board of Directors may from time to time determine by resolution, before or at
the time of the meeting. All proxies shall be received and taken charge of and
all ballots shall be received and canvassed by the secretary of the meeting, who
shall decide all questions touching upon the qualification of voters, the
validity of the proxies, and the acceptance or rejection of votes, unless an
inspector or inspectors shall have been duly appointed as provided in Section 9
of Article II hereof, in which event such inspector or inspectors shall decide
all such questions.
No proxy shall be valid after three (3) years from its date, unless the
proxy provides for a longer period. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and only for so 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 delivering a proxy in accordance with applicable law bearing a later
date to the Secretary, or such other officer as the Board of Directors may from
time to time determine by resolution.
Should a proxy designate two or more persons to act as proxies, unless
such instrument shall provide the contrary, a majority of such persons present
at any meeting at which their powers thereunder are to be exercised shall have
and may exercise all the powers of voting or giving consents thereby conferred,
or if only one be present, then such powers may be exercised by that one; or, if
an even number attend and a majority do not agree on any particular issue, each
person designated to act as proxy and so attending shall be entitled to exercise
such powers in respect of such portion of the shares as is equal to the
reciprocal of the fraction equal to the number of persons designated to act as
proxies and in attendance divided by the total number of shares represented by
such proxies.
Section 9. Voting; Elections; Inspectors. Unless otherwise required by
law or provided in the charter documents of the Corporation, each stockholder
shall on each matter submitted to a vote at a meeting of stockholders have one
vote for each of the shares of stock entitled to vote upon the matter in
question which is registered in his name on the record date for the meeting.
Shares registered in the name of another corporation, domestic or foreign, or
other legal entity may be voted by such officer, agent or proxy as the bylaws
(or comparable instrument) of such corporation or other legal entity may
prescribe, or in the absence of such provisions, as the Board of Directors (or
comparable body) of such corporation or other legal entity may determine. Shares
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registered in the name of a deceased person may be voted by the executor or
administrator of such person's estate, either in person or by proxy.
All voting, except as required by the charter documents of the
Corporation or where otherwise required by law, may be by a voice vote;
provided, however, upon request of the chairman of the meeting or upon demand
therefor by stockholders holding a majority of the issued and outstanding stock
present in person or by remote communication (if authorized by the Board of
Directors), or by proxy at any meeting, a stock vote shall be taken. Every stock
vote shall be taken by written ballots, each of which shall state the name of
the stockholder or proxy voting and such other information as may be required
under the procedure established for the meeting. All elections of directors
shall be by written ballots, unless otherwise provided in the charter documents
of the Corporation.
In advance of any meeting of stockholders, the Chairman of the Board,
the President or the Board of Directors shall appoint one or more inspectors,
each of whom shall subscribe an oath or affirmation to execute faithfully the
duties of inspector at such meeting with strict impartiality and according to
the best of such inspector's ability. Such inspector(s) shall ascertain the
number of shares outstanding and the voting power of each, determine the shares
represented at a meeting and the validity of proxies and ballots, count all
votes and ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting,
and their count of all votes and ballots. The inspectors shall take such further
action as may be required by law. The Chairman of the Board, the President or
the Board of Directors may appoint any person to serve as inspector, except no
candidate for the office of director shall be appointed as an inspector. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting.
Unless otherwise provided in the charter documents of the Corporation,
cumulative voting for the election of directors shall be prohibited.
Section 10. Conduct of Meetings. The meetings of the stockholders shall
be presided over by the Chairman of the Board, or if the Chairman of the Board
is not present, by the President, or if neither the Chairman of the Board nor
the President is present, by a chairman elected at the meeting. The Secretary of
the Corporation, if present, shall act as secretary of such meetings, or if the
Secretary is not present, an Assistant Secretary shall so act; or if neither the
Secretary nor the Assistant Secretary is present, then a secretary shall be
appointed by the chairman of the meeting. The date and time of the opening and
the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted
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by the Board of Directors, the person presiding over any meeting of stockholders
shall have the right and authority to convene and to adjourn the meeting, to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the presiding officer of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order
of business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants. Unless and to the
extent determined by the Board of Directors or the person presiding over the
meeting, meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
Section 11. Treasury Stock. The Corporation shall not vote, directly or
indirectly, shares of its own stock owned by it, and such shares shall not be
counted for quorum purposes. No other corporation of which the Corporation owns
a majority of the shares entitled to vote in the election of directors of such
other corporation shall vote, directly or indirectly, shares of the
Corporation's stock owned by such other corporation, and such shares shall not
be counted for quorum purposes. Nothing in this Section 11 shall be construed as
limiting the right of the Corporation to vote stock, including but not limited
to its own stock, held by it in a fiduciary capacity.
Section 12. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business 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 (c) by any stockholder of the Corporation who was a stockholder of
record of the Corporation at the time the notice provided for in this Section 12
is delivered to the Secretary of the Corporation, who is entitled to vote for
the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 12.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 12, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and any such proposed business
other than the nominations of persons for election to the Board of Directors
must constitute a proper matter for stockholder action. To be timely in the case
of an annual meeting, a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than the close
of business on the ninetieth day nor earlier than the close of business on the
one hundred fiftieth day prior to the first anniversary of the preceding year's
annual
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meeting (provided, however, that in the event that the date of the annual
meeting is more than thirty days before or more than seventy days after such
anniversary date, notice by the stockholder must be so delivered not earlier
than the close of business on the one hundred fiftieth day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
day prior to such annual meeting or the tenth day following the day on which
public disclosure of the date of such meeting is first made by the Corporation).
In no event shall the public disclosure 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 as a director (i) 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (ii) such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected; (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 material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, (ii)
the class and number of shares of capital stock of the Corporation which are
owned beneficially and of record by such stockholder and such beneficial owner,
(iii) a representation that the stockholder is a holder of record of stock of
the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to propose such business or nomination, and (iv) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (a) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation's outstanding
capital stock required to approve or adopt the proposal or elect the nominee
and/or (b) otherwise to solicit proxies from stockholders in support of such
proposal or nomination. The foregoing notice requirements shall be deemed
satisfied by a stockholder if the stockholder has notified the Corporation of
his or her intention to present a proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act
and such stockholder's proposal has been included in a proxy statement that has
been prepared by the Corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 12 to the contrary, in the event that the
number of directors to be
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elected to the Board of Directors of the Corporation at an annual meeting is
increased and there is no public disclosure naming the nominees for the
additional directorships or specifying the size of the increased Board of
Directors by the Corporation at least one hundred days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 12 shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public disclosure is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the 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 (1) by or at the direction of the Board of Directors or (2)
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 12 is
delivered to the 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 12. 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 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
stockholder's notice required by paragraph (A)(2) of this Section 12 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred fiftieth day prior to
such special meeting and not later than the close of business on the later of
the ninetieth day prior to such special meeting or the tenth day following the
day on which public disclosure is first made of the date of the special meeting
and of the number of directors proposed by the Board of Directors to be elected
at such meeting. In no event shall the public disclosure 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. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 12 shall be eligible to be elected or
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 12. Except as otherwise provided by
law, the chairman of the meeting shall have the power and duty (a) 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 12 (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
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support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause (A)(2)(c)(iv) of this Section
12) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 12, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 12, 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
business, such nomination may be disregarded and such proposed business need not
be transacted, notwithstanding that proxies in respect of such vote may have
been received by the Corporation.
(2) For purposes of this Section 12, "public disclosure" shall
include disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
12, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 12. Nothing in this Section 12 shall be deemed
to affect any rights (a) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (b) of the holders of any series of Preferred Stock to elect directors
pursuant to any express applicable provisions of the certificate of
incorporation.
Section 13. Action Without Meeting. (a) Unless otherwise provided in
the charter documents of the Corporation, any action required by the Delaware
General Corporation Law to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or special meeting
of the stockholders, may be taken without a meeting, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders (acting for themselves or through a proxy) of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which the holders of all shares
entitled to vote thereon were present and voted and such consent or consents
shall be delivered to the Corporation in accordance with Section 228(c) of the
Delaware General Corporation Law. Every written consent of stockholders shall
bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the earliest dated consent delivered in the
manner required by this Section 13(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are delivered to the
Corporation. The Corporation shall give prompt notice of the taking of corporate
action without a meeting by less than unanimous written consent to all
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such
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meeting had been the date that written consents signed by a sufficient number of
stockholders to take the action were delivered to the Corporation in the manner
provided in Section 228(c) of the Delaware General Corporation Law.
(b) For so long as the Corporation's stock shall be listed on the
NASDAQ National Market or any exchange, the rights of stockholders to authorize
or take corporate action by written consent shall be subject to compliance with
all applicable requirements of, and approval by (if required), the NASDAQ
National Market or such exchange and the Corporation may require such prior
advance notice from any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent as is reasonably necessary
to enable the Corporation to comply with the rules of the NASDAQ National Market
or such exchange regarding the use of consents.
(c) Subject to Section 13(b) above, in order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the Board of Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record
date. The Board of Directors shall promptly, but in all events within ten days
after the date on which such a request is received, adopt a resolution fixing
the record date. If no record date has been fixed by the Board of Directors
within ten days of the date on which such a request is received, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its principal place of business, to the attention of
the Secretary of the Corporation. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking such prior action.
(d) Within three business days after receipt of the first consent
delivered to the Corporation in the manner provided in Section 228(c) of the
Delaware General Corporation Law or the determination by the Board of Directors
of the Corporation that the Corporation should seek corporate action by written
consent, as the case may be, the Secretary shall engage nationally recognized
independent inspectors of elections for the purpose of performing a ministerial
review of the validity of the consents and revocations. The cost of retaining
inspectors of election shall be borne by the Corporation.
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Consents and revocations shall be delivered to the inspectors upon
receipt by the Corporation, the soliciting stockholders or their proxy
solicitors or other designated agents. As soon as consents and revocations are
received, the inspectors shall review the consents and revocations and shall
maintain a count of the number of valid and unrevoked consents. The inspectors
shall keep such count confidential and shall not reveal the count to the
Corporation, the soliciting stockholder or their representatives or any other
entity. As soon as practicable after the earlier of (i) sixty (60) days after
the date of the earliest dated consent delivered to the Corporation in the
manner provided in Section 228(c) of the Delaware General Corporation Law or
(ii) a written request therefor by the Corporation or the soliciting
stockholders (whichever is soliciting consents), notice of which request shall
be given to the party opposing the solicitation of consents, if any, which
request shall state that the Corporation or soliciting stockholders, as the case
may be, have a good faith belief that the requisite number of valid and
unrevoked consents to authorize or take the action specified in the consents has
been received in accordance with these By-laws, the inspectors shall issue a
preliminary report to the Corporation and the soliciting stockholders stating:
(i) the number of valid consents; (ii) the number of valid revocations; (iii)
the number of valid and unrevoked consents; (iv) the number of invalid consents;
(v) the number of invalid revocations; (vi) whether, based on their preliminary
count, the requisite number of valid and unrevoked consents has been obtained to
authorize or take the action specified in the consents.
Unless the Corporation and the soliciting stockholders shall agree to a
shorter or longer period, the Corporation and the soliciting stockholders shall
have 48 hours to review the consents and revocations and to advise the
inspectors and the opposing party in writing as to whether they intend to
challenge the preliminary report of the inspectors. If no written notice of an
intention to challenge the preliminary report is received within 48 hours after
the inspectors' issuance of the preliminary report, the inspectors shall issue
to the Corporation and the soliciting stockholders their final report containing
the information from the inspectors' determination with respect to whether the
requisite number of valid and unrevoked consents was obtained to authorize and
take the action specified in the consents. If the Corporation or the soliciting
stockholders issue written notice of an intention to challenge the inspectors'
preliminary report within 48 hours after the issuance of that report, a
challenge session shall be scheduled by the inspectors as promptly as
practicable. Following completion of the challenge session, the inspectors shall
as promptly as practicable issue their final report to the soliciting
stockholders and the Corporation, which report shall contain the information
included in the preliminary report, plus all changes in the vote totals as a
result of the challenge and a certification of whether the requisite number of
valid and unrevoked consents was obtained to authorize or take the action
specified in the consents. A copy of the final report of the inspectors shall be
included in the book in which the proceedings of meetings of stockholders are
recorded.
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ARTICLE III
Board of Directors
Section 1. Power; Number; Term of Office. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors, and subject to the restrictions imposed by law or the charter
documents of the Corporation, the Board of Directors may exercise all the powers
of the Corporation.
The number of directors that shall constitute the whole Board of
Directors shall be determined from time to time by the Board of Directors
(provided that no decrease in the number of directors which would have the
effect of shortening the term of an incumbent director may be made by the Board
of Directors). If the Board of Directors makes no such determination, the number
of directors shall be three.
Unless otherwise provided in the charter documents of the Corporation,
directors shall hold office for the term for which such director is elected, and
until such director's successor shall have been elected and qualified or until
his earlier death, resignation or removal. Directors need not be stockholders
nor residents of the state of incorporation of the Corporation.
Section 2. Quorum; Voting. Unless otherwise provided in the charter
documents of the Corporation, a majority of the total number of directors shall
constitute a quorum for the transaction of business of the Board of Directors
and the vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 3. Place of Meetings; Order of Business. The directors may hold
their meetings and may have an office and keep the books of the Corporation,
except as otherwise provided by law, in such place or places, within or without
the state of incorporation of the Corporation, as the Board of Directors may
from time to time determine. At all meetings of the Board of Directors business
shall be transacted in such order as shall from time to time be determined by
the Chairman of the Board, or in the Chairman of the Board's absence by the
President (should the President be a director), or by the Board of Directors.
Section 4. First Meeting. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the stockholders. Notice of such meeting shall not be
required. At the first meeting of the Board of Directors in each year at which a
quorum shall be present, held next after the annual meeting of stockholders, the
Board of Directors shall elect the officers of the Corporation.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places as shall be designated from time to time
by the Chairman
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of the Board or, in the absence of the Chairman of the Board, by the President
(should the President be a director), or by the Board of Directors. Notice of
such regular meetings shall not be required.
Section 6. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President (should the President
be a director) or, on the written request of any two directors, by the
Secretary, in each case on at least twenty-four (24) hours personal, written,
telegraphic, cable, wireless, electronic or other lawfully permissible notice to
each director. Such notice, or any waiver thereof pursuant to Article VII,
Section 3 hereof, need not state the purpose or purposes of such meeting, except
as may otherwise be required by law or provided for in the charter documents of
the Corporation or these Bylaws. Meetings may be held at any time without notice
if all the directors are present or if those not present waive notice of the
meeting in writing or by electronic transmission.
Section 7. Compensation. Directors and members of standing committees
may receive such compensation as the Board of Directors from time to time shall
determine to be appropriate, and shall be reimbursed for all reasonable expenses
incurred in attending and returning from meetings of the Board of Directors and
its committees.
Section 8. Action Without a Meeting; Telephone Conference Meetings.
Unless otherwise restricted by the charter documents of the Corporation, any
action required or permitted to be taken at any meeting of the Board of
Directors, or any committee designated by the Board of Directors, may be taken
without a meeting if all members of the Board of Directors or committee, as the
case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board of Directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form. Such
consent shall have the same force and effect as a unanimous vote at a meeting
and may be stated as such in any document or instrument filed with the Secretary
of State of the state of incorporation of the Corporation.
Unless otherwise restricted by the charter documents of the
Corporation, subject to the requirement for notice of meetings, members of the
Board of Directors or members of any committee designated by the Board of
Directors may participate in a meeting of such Board of Directors or committee,
as the case may be, by means of a conference telephone connection or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
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ARTICLE IV
Committees
Section 1. Executive Committee. The Board of Directors may designate an
Executive Committee consisting of one or more of the directors of the
Corporation, one of whom shall be designated chairman of the Executive
Committee. During the intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise such powers of the Board
of Directors as have been delegated to the Executive Committee, except as
provided in Section 8 of this Article IV.
Section 2. Audit Committee. The Board of Directors may designate an
Audit Committee consisting of one or more of the directors of the Corporation,
one of whom shall be designated chairman of the Audit Committee. The Audit
Committee shall have and may exercise such powers and authority as provided in
the resolution creating it and as determined from time to time by the Board of
Directors, except as provided in Section 8 of this Article IV.
Section 3. Compensation Committee. The Board of Directors may designate
an Compensation Committee consisting of one or more of the directors of the
Corporation, one of whom shall be designated chairman of the Compensation
Committee. During the intervals between the meetings of the Board of Directors,
the Compensation Committee shall possess and may exercise such powers of the
Board of Directors as have been delegated to the Compensation Committee, except
as provided in Section 8 of this Article IV.
Section 4. Nominating Committee. The Board of Directors may designate a
Nominating Committee consisting of one or more of the directors of the
Corporation, one of whom shall be designated chairman of the Nominating
Committee. During the intervals between the meetings of the Board of Directors,
the Nominating Committee shall possess and may exercise such powers of the Board
of Directors as have been delegated to the Nominating Committee, except as
provided in Section 8 of this Article IV.
Section 5. Other Committees. The Board of Directors may designate such
other committees as it shall see fit consisting of one or more of the directors
of the Corporation, one of whom shall be designated chairman of each such
committee. Any such committee shall have and may exercise such powers and
authority as provided in the resolution creating it and as determined from time
to time by the Board of Directors, except as provided in Section 8 of this
Article IV.
Section 6. Procedure; Meetings; Quorum. Any committee designated
pursuant to this Article IV shall keep regular minutes of its actions and
proceedings in a book provided for that purpose if the minutes are maintained in
paper form and shall keep regular minutes in an electronic file if the minutes
are maintained in electronic form and report the same to the Board of Directors
at its meeting next succeeding such action, shall
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fix its own rules or procedures, and shall meet at such times and at such place
or places as may be provided by such rules, or by such committee or the Board of
Directors. Should a committee fail to fix its own rules, the provisions of these
Bylaws, pertaining to the calling of meetings and conduct of business by the
Board of Directors, shall apply as nearly as practicable. At every meeting of
any such committee, the presence of a majority of all the members thereof shall
constitute a quorum, except as provided in Section 7 of this Article IV, and the
affirmative vote of a majority of the members present shall be necessary for the
adoption by it of any resolution.
Section 7. Substitution and Removal of Members; Vacancies. The Board of
Directors may designate one or more directors as alternate members of any
committee who may replace any absent or disqualified member at any meeting of
such 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 constituting a quorum, may unanimously appoint another member of
the Board of Directors who has been designated as an alternate member of that
committee to act at the meeting in the place of the absent or disqualified
member. The Board of Directors shall have the power at any time to remove any
member(s) of a committee and to appoint other directors in lieu of the person(s)
so removed and shall also have the power to fill vacancies in a committee.
Section 8. Limitation on Power and Authority of Committees. No
committee of the Board of Directors shall have the power or authority of the
Board of Directors in reference to (i) approving or adopting, or recommending to
the stockholders, any action or matter expressly required by the General
Corporation Law of the State of Delaware to be submitted to stockholders for
approval or (ii) adopting, amending or repealing any Bylaw.
ARTICLE V
Officers
Section 1. Number, Titles and Term of Office. The officers of the
Corporation shall be such officers as the Board of Directors may from time to
time elect or appoint, including, but not limited to, a Chairman of the Board, a
Chief Executive Officer, a President, one or more Vice Presidents (any one or
more of whom may be designated Executive Vice President or Senior Vice
President), a Treasurer, a Secretary and one or more Assistant Treasurers and
one or more Assistant Secretaries. Each officer shall hold office until such
officer's successor shall be duly elected and shall qualify or until such
officer's death or until such officer shall resign or shall have been removed.
Any number of offices may be held by the same person, unless the charter
documents of the Corporation provide otherwise. Except for the Chairman of the
Board, no officer need be a director.
Section 2. Removal. Any officer elected or appointed by the Board of
Directors may be removed, either with or without cause, by the Board of
Directors whenever in its
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judgment the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer shall not of itself create
contract rights.
Section 3. Vacancies. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
Section 4. Powers and Duties of the Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the stockholders and of the Board
of Directors; and he shall have such other powers and duties as designated in
these Bylaws and as from time to time may be assigned to him by the Board of
Directors.
Section 5. Powers and Duties of the Chief Executive Officer. The
President shall be the Chief Executive Officer of the Corporation unless the
Board of Directors designates the Chairman of the Board (if any) or other
officer as Chief Executive Officer. Subject to the control of the Board of
Directors, the Chief Executive Officer shall have general executive charge,
management and control of the properties, business and operations of the
Corporation with all such powers as may be reasonably incident to such
responsibilities; he or she may agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation
and may sign all certificates for shares of capital stock of the Corporation;
and he or she shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be assigned to him by
the Board of Directors.
Section 6. Powers and Duties of the President. Unless the Board of
Directors otherwise determines, the President shall have the authority to agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation; and, unless the Board of Directors
otherwise determines, he or she shall, in the absence of the Chairman of the
Board or if there be no Chairman of the Board, preside at all meetings of the
stockholders and (should he or she be a director) of the Board of Directors; and
the President shall have such other powers and duties as designated in
accordance with these Bylaws and as from time to time may be assigned to him by
the Board of Directors.
Section 7. Vice Presidents. The Vice President(s), if any, shall
perform such duties and have such powers as the Board of Directors may from time
to time prescribe. In addition, in the absence of the Chairman of the Board (if
any) or President, or in the event of their inability or refusal to act, (i) a
Vice President designated by the Board of Directors or (ii) in the absence of
such designation, the Vice President who is present and who is senior in terms
of length of service as a Vice President of the Corporation, shall perform the
duties of the Chairman of the Board (if any), or the President, as the case may
be, and when so acting shall have all the powers of and be subject to all the
restrictions upon the Chairman of the Board (if any), or the President; provided
that he shall not preside at meetings of the Board of Directors unless he is a
director.
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Section 8. Treasurer. The Treasurer, if any, shall have responsibility
for the custody and control of all the funds and securities of the Corporation,
and he or she shall have such other powers and duties as designated in these
Bylaws and as from time to time may be assigned to him by the Board of
Directors. He or she shall perform all acts incident to the position of
Treasurer subject to the control of the Chief Executive Officer and the Board of
Directors; and the Treasurer shall, if required by the Board of Directors, give
such bond for the faithful discharge of his or her duties in such form as the
Board of Directors may require.
Section 9. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors, and the minutes of all meetings of the
stockholders, in books provided for that purpose; he or she shall attend to the
giving and serving of all notices; he or she may in the name of the Corporation
affix the seal (if any) of the Corporation to all contracts of the Corporation
and attest thereto; he or she may sign with the other appointed officers all
certificates for shares of capital stock of the Corporation; he or she shall
have charge of the certificate books, transfer books and stock ledgers, and such
other books and papers as the Board of Directors may direct; he or she shall
have such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to him by the Chief Executive Officer or the Board of
Directors; and he or she shall in general perform all duties incident to the
office of Secretary, subject to the control of the Chief Executive Officer and
the Board of Directors.
Section 10. Assistant Treasurers. Each Assistant Treasurer, if any,
shall have the usual powers and duties pertaining to his or her office, together
with such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to him or her by the Chief Executive Officer or the
Board of Directors or the Treasurer. The Assistant Treasurers shall exercise the
powers of the Treasurer during that officer's absence or inability or refusal to
act.
Section 11. Assistant Secretaries. Each Assistant Secretary, if any,
shall have the usual powers and duties pertaining to his or her office, together
with such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to him or her by the Chief Executive Officer or the
Board of Directors or the Secretary. The Assistant Secretaries shall exercise
the powers of the Secretary during that officer's absence or inability or
refusal to act.
Section 12. Action with Respect to Securities of Other Entity. Unless
otherwise directed by the Board of Directors, each of the Chief Executive
Officer , any Vice President, the Treasurer (if any), the Secretary (if any), or
any of them, shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of security holders of or
with respect to any action of security holders of any other entity in which this
Corporation may hold securities and otherwise to exercise any and all rights and
powers which this Corporation may possess by reason of its ownership of
securities in such other entity.
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Section 13. Delegation. For any reason that the Board of Directors may
deem sufficient, the Board of Directors may, except where otherwise provided by
statute, delegate the powers or duties of any officer to any other person, and
may authorize any officer to delegate specified duties of such officer to any
other person. Any such delegation or authorization by the Board of Directors
shall be effected from time to time by resolution of the Board of Directors.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise 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 for whom he or she is the legal representative, 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 or agent or trustee of another corporation or of a
partnership, joint venture, trust or other enterprise, including without
limitation service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or trustee or in any other capacity
while serving as a director, officer or trustee, 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 that
such law permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including without limitation attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 3 of this
Article VI 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) was authorized by the Board of Directors of the Corporation.
Section 2. Right to Advancement of Expenses. In addition to the right
to indemnification conferred in Section 1 of this Article VI, an indemnitee
shall 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, if the General Corporation Law of the State of Delaware requires, an
advancement of expenses incurred by an indemnitee 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 indemnitee, including, without limitation, service to an
employee benefit plan) 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
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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 2 or otherwise.
Section 3. Right of Indemnitee to Bring Suit. If a claim under Section
1 or 2 of this Article VI is not paid in full by the Corporation within sixty
(60) days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim. 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 (i) 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 expense) it shall be a
defense that, and (ii) 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 for indemnification set forth in
the General Corporation Law of the State of Delaware. 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 General
Corporation Law of the State of Delaware, 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 or proving that the indemnitee is not entitled to be
indemnified, or to the recovery of such advancement of expense, under this
Article VI or otherwise shall be on the Corporation.
Section 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 statue, the charter documents of the Corporation, Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 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
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indemnify such person against such expenses, liability or loss under the General
Corporation Law of the State of Delaware.
Section 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may to the extent authorized by the Board of Directors
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 7. Nature of Rights. The rights conferred upon indemnitees in
this Article VI shall be contract rights 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 or repeal.
ARTICLE VII
Capital Stock
Section 1. Certificates of Stock. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the charter documents of the Corporation, as shall be
approved by the Board of Directors. 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 of the Board (if any), the Chief Executive
Officer (if any), the President (if any) or a Vice President (if any) and the
Treasurer (if any) or an Assistant Treasurer (if any) or the Secretary (if any)
or an Assistant Secretary (if any) of the Corporation representing the number of
shares (and, if the stock of the Corporation shall be divided into classes or
series, certifying the class and series of such shares) owned by such
stockholder which are registered in certified form; provided, however, that any
of or all the signatures on the certificate may be facsimile. The stock record
books and the blank stock certificate books shall be kept by the Secretary, or
at the office of such transfer agent or transfer agents as the Board of
Directors may from time to time determine. In case any officer, transfer agent
or registrar who shall have signed or whose facsimile signature or signatures
shall have been placed upon any such certificate or certificates shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued by the Corporation, such certificate may nevertheless 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. The stock certificates shall be
consecutively numbered and shall be entered in the books of the Corporation as
they are issued and shall exhibit the holder's name and number of shares.
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Section 2. Transfer of Shares. The shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal representatives
upon surrender and cancellation of certificates for a like number of shares.
Upon surrender to the Corporation or a transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 3. Ownership of Shares. The Corporation shall be entitled to
treat the holder of record of any share or shares of capital stock of the
Corporation as the holder in fact thereof and, accordingly, 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 the laws of the state of
incorporation of the Corporation.
Section 4. Regulations Regarding Certificates. The Board of Directors
shall have the power and authority to make all such rules and regulations as
they may deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
Section 5. Lost or Destroyed Certificates. The Board of Directors may
determine the conditions upon which the Corporation may issue a new certificate
of stock in place of a certificate theretofore issued by it which is alleged to
have been lost, stolen or destroyed and may require the owner of such
certificate or such owner's legal representative to give bond, with surety
sufficient to indemnify the Corporation and each transfer agent and registrar
against any and all losses or claims which may arise by reason of the alleged
loss, theft or destruction of any such certificate or the issuance of such new
certificate in the place of the one so lost, stolen or destroyed.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation shall end on
the last day of December of each year.
Section 2. Corporate Seal. The corporate seal shall be circular in form
and shall have inscribed thereon the name of the Corporation and the state of
its incorporation, which seal shall be in the charge of the Secretary and shall
be affixed to certificates of stock, debentures, bonds, and other documents, in
accordance with the direction of the Board of Directors, and as may be required
by law; however, the Secretary may, if the Secretary deems it expedient, have a
facsimile of the corporate seal inscribed on any such certificates of stock,
debentures, bonds, contracts or other documents. Duplicates of the seal may be
kept for use by the Secretary or any Assistant Secretary.
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Section 3. Notice and Waiver of Notice. Whenever any notice is required
to be given by law, the charter documents of the Corporation or under the
provisions of these Bylaws, said notice shall be deemed to be sufficient if
given (i) by electronic, telegraphic, cable or wireless transmission (including
by telecopy, facsimile transmission or electronic transmission in the manner
provided in Section 232 of the General Corporation Law of the State of Delaware)
or (ii) by deposit of the same in a post office box or by delivery to an
overnight courier service company in a sealed prepaid wrapper addressed to the
person entitled thereto at such person's post office address, as it appears on
the records of the Corporation, and such notice shall be deemed to have been
given on the day of such transmission or mailing or delivery to courier, as the
case may be.
Whenever notice is required to be given by law, the charter documents
of the Corporation or under any of the provisions of these Bylaws, a written
waiver thereof, signed by the person entitled to notice, or waiver by electronic
transmission by such person, whether given before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person, including
without limitation a director, at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any waiver of notice unless so required by the charter documents of
the Corporation or these Bylaws.
Section 4. Facsimile Signatures. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
Section 5. Reliance upon Books, Reports and Records. A member of the
Board of Directors, or a member of any committee designated by the Board of
Directors, shall, in the performance of such person's duties, be fully protected
in relying in good faith upon the records of the Corporation and upon such
information, opinion, reports or statements presented to the Corporation by any
of the Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the 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 6. Application of Bylaws. In the event that any provision of
these Bylaws is or may be in conflict with any law of the United States, of the
state of incorporation of the Corporation or of any other governmental body or
power having jurisdiction over this Corporation, or over the subject matter to
which such provision of these Bylaws applies, or may apply, such provision of
these Bylaws shall be inoperative
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to the extent only that the operation thereof unavoidably conflicts with such
law and shall in all other respects be in full force and effect.
ARTICLE IX
Amendments
Section 1. Power of Directors. Subject to the right of the stockholders
as provided in Section 2 below to amend or repeal Bylaws, the Board of Directors
shall have the power to adopt, alter, amend and repeal from time to time Bylaws
of the Corporation provided, however, that any Bylaw amendment adopted by the
Board of Directors increasing or reducing the authorized number of directors or
amending Sections 4, 12 and 13 of Article II or this Article IX shall require a
resolution adopted by the affirmative vote of not less than a majority of the
directors.
Section 2. Power of Stockholders. These Bylaws may be altered, amended
or repealed or new Bylaws may be adopted by the stockholders of the Corporation
at any regular meeting of the stockholders or at any special meeting of the
stockholders; provided, however, that the affirmative vote of the holders of at
least two-thirds of the outstanding shares of capital stock of the Corporation
entitled to vote thereon shall be required to alter, amend or repeal Sections 4,
12 and 13 of Article II, Section 1 of Article III or this Article IX or to adopt
new Bylaws which have the effect of altering such provisions.
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