THIRD AMENDED AND RESTATED
BYLAWS
OF
EXPRESS SCRIPTS, INC.
Adopted November 21, 2000
(as amended)
1. MEETINGS OF STOCKHOLDERS.
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1.1 Annual Meeting. The annual meeting of stockholders shall be held on
the date and at the time fixed from time to time by the board of directors (the
"Board"), provided, that each successive annual meeting shall be held on the
fourth Wednesday in May of each year if not a legal holiday, and if a legal
holiday then on the next succeeding day not a legal holiday, or on such other
date or time and at such place as may be determined from time to time by
resolutions adopted by the Board.
1.2 Special Meetings. Subject to the rights of the holders of any
series of preferred stock under the Certificate of Incorporation, as amended, of
the corporation (the "Certificate of Incorporation"), special meetings of the
stockholders may be called by the chairman of the Board or the chief executive
officer or by resolution of the Board. Only business related to the purposes set
forth in the notice of the meeting may be transacted at a special meeting.
1.3 Place and Time of Meetings. Meetings of the stockholders may be
held in or outside Delaware at the place and time specified by the Board;
provided that the Board may, in its sole discretion, determine that the meeting
shall not be held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the General
Corporation Law of the State of Delaware (the "General Corporation Law of
Delaware").
1.4 Notice of Meeting; Waiver of Notice. (a) Written or printed notice
of each meeting of stockholders shall be given by or at the direction of the
secretary or the chief executive officer of the corporation to each stockholder
entitled to vote at the meeting, except that (a) it shall not be necessary to
give notice to any stockholder who properly waives notice before or after the
meeting, whether in writing or by electronic transmission or otherwise, and (b)
no notice of an adjourned meeting need be given except when required under
Section 1.6 of these Bylaws or by law. Each notice of a meeting shall be given,
personally or by mail or, as provided below, by means of electronic
transmission, not less than ten (10) nor more than sixty (60) days before the
meeting and shall state the time and place of the meeting, or if held by remote
communications, the means of remote communication by which stockholders and
proxy holders may be deemed to be present in person and vote at such meeting,
and unless it is the annual meeting, shall state at whose direction or request
the meeting is called and the purposes for which it is called. The attendance of
any stockholder at a meeting, without protesting at the beginning of the meeting
that the meeting is not lawfully called or convened, shall constitute a waiver
of notice by him or her. Any previously scheduled meeting of stockholders may be
postponed, and (unless the Certificate of Incorporation otherwise provides) any
special meeting of stockholders may be canceled, by resolution of the Board upon
public disclosure (as defined in Section 1.13(a)) given on or prior to the date
previously scheduled for such meeting of stockholders.
(b) Without limiting the manner by which notice otherwise may be
given effectively to stockholders, any notice to a stockholder may be given by a
form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the stockholder by
written notice to the corporation. Any such consent shall be deemed revoked (1)
if the corporation is unable to deliver by electronic transmission two
consecutive notices given by the corporation in accordance with such consent and
(2) such inability becomes known to the secretary or an assistant secretary of
the corporation or to the transfer agent, or other person responsible for the
giving of notice; provided, however, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action. For
purposes of these Bylaws, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
(c) Notice shall be deemed given, if mailed, when deposited in the
United States mail with postage prepaid, if addressed to a stockholder at his or
her address on the corporation's records. Notice given by electronic
transmission shall be deemed given: (1) if by facsimile, when directed to a
number at which the stockholder has consented to receive notice; (2) if by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (3) if by posting on an electronic
network together with separate notice to the stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (4) by any other form of electronic transmission, when directed to
the stockholder.
(d) An affidavit of the secretary or an assistant secretary or of
the transfer agent or other agent of the corporation that the notice has been
given, whether by a form of electronic transmission or otherwise, shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
1.5 Quorum; Voting; Validation of Meeting. (a) The holders of a
majority in voting power of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the Certificate of Incorporation.
If, however, such quorum is not present or represented at any meeting of the
stockholders, then either (i) the person presiding over the meeting or (ii) the
stockholders by the vote of the holders of a majority of the stock, present in
person or represented by proxy shall have power to adjourn the meeting in
accordance with Section 1.6 of these Bylaws.
(b) When a quorum is present at any meeting, a plurality of the
votes present in person or represented by proxy and entitled to vote on the
election of a director shall be sufficient to elect directors, subject to the
rights of the holders of preferred stock to elect directors under specified
circumstances pursuant to the Certificate of Incorporation. On all other
matters, the vote of the holders of a majority of the stock having voting power
on such matter present in person or represented by proxy shall decide any
question brought before such meetings, unless the question is one upon which, by
express provision of the laws of the State of Delaware or of the Certificate of
Incorporation or these Bylaws, a vote of a greater number or voting by classes
is required, in which case such express provision shall govern and control the
decision of the question.
(c) If a quorum is initially present, the stockholders may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum, if any action taken is
approved by a majority of the stockholders initially constituting the quorum.
(d) The transactions of any meeting of stockholders, either annual
or special, however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call and notice,
if a quorum is present either in person or by proxy.
1.6 Adjourned Meeting; Notice. (a) Any stockholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of the majority of the voting power of the shares represented at
that meeting, either in person or by proxy. In the absence of a quorum, no other
business may be transacted at that meeting except as provided in Section 1.5 of
these Bylaws.
(b) When any meeting of stockholders, either annual or special, is
adjourned to another time or place or means of remote communication, notice need
not be given of the adjourned meeting if the time and place, if any, thereof,
and the means of remote communication, 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.
However, if a new record date for the adjourned meeting is fixed or if the
adjournment is for more than thirty (30) days from the date set for the original
meeting, then notice of the adjourned meeting shall be given. Notice of any such
adjourned meeting shall be given to each stockholder of record entitled to vote
at the adjourned meeting in accordance with the provisions of Section 1.4 of
these Bylaws. At any adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting.
1.7 Voting. (a) The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
1.8 of these Bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners, and to voting trusts and other voting agreements).
(b) Except as may be otherwise provided in the Certificate of
Incorporation, by these Bylaws or as required by law, each stockholder shall be
entitled to one vote for each share of capital stock held by such stockholder
which has voting power upon the matter in question.
(c) Any stockholder entitled to vote on any matter may vote part
of the shares in favor of the proposal and refrain from voting the remaining
shares or, except when the matter is the election of directors, may vote the
remaining shares against the proposal; but if the stockholder fails to specify
the number of shares which the stockholder is voting affirmatively or otherwise
indicates how the number of shares to be voted affirmatively is to be
determined, it will be conclusively presumed that the stockholder's approving
vote is with respect to all shares which the stockholder is entitled to vote.
(d) Voting need not be by ballot unless requested by a stockholder
at the meeting or ordered by the chairman of the meeting; however, all elections
of directors shall be by written ballot, unless otherwise provided in the
Certificate of Incorporation; provided, that if authorized by the Board, a
written ballot may be submitted by electronic transmission, provided that any
such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was
authorized by the stockholder or proxyholder.
1.8 Record Date for Stockholder Notice. (a) For purposes of determining
the stockholders entitled to notice of any meeting or to vote thereat, the Board
may fix, in advance, a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which record
date shall not be more than sixty (60) days nor less than ten (10) days before
the date of any such meeting, and in such event only stockholders of record on
the date so fixed are entitled to notice and to vote, notwithstanding any
transfer of any shares on the books of the corporation after the record date,
except as otherwise provided in the Certificate of Incorporation, by these
Bylaws, by agreement or by applicable law.
(b) If the Board does not so fix a record date, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the 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.
(c) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting unless the Board fixes a new record date for the adjourned meeting, but
the Board shall fix a new record date if the meeting is adjourned for more than
thirty (30) days from the date set for the original meeting.
(d) The record date for any other lawful purpose shall be as
provided in Section 5.8 of these Bylaws.
1.9 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 filed with the secretary of the
corporation. A written proxy may be in the form of a telegram, cablegram, or
other means of electronic transmission which sets forth or is submitted with
information from which it can be determined that the telegram, cablegram, or
other means of electronic transmission was authorized by the person. 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 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.
The revocability of a proxy that states on its face that it is irrevocable shall
be governed by the provisions of Section 212(e) of the General Corporation Law
of Delaware. 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 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 secretary of the corporation.
1.10 List of Stockholders. Not less than 10 days prior to the date of
any meeting of stockholders, the secretary of the corporation shall prepare a
complete list of stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of such stockholder; provided, that the
corporation shall not be required to include electronic mail addresses or other
electronic contact information on such list. For a period of not less than 10
days prior to the meeting, the list shall be available during ordinary business
hours for inspection by any stockholder for any purpose germane to the meeting.
During this period, the list shall be kept either (1) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting or (2) during ordinary
business hours, at the principal place of business of the corporation. If the
corporation determines to make the list available on an electronic network, the
corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is to be held
at a place, then the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. 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.
1.11 Notice of Stockholder Nominee. Only persons who are nominated in
accordance with the procedures set forth in this paragraph shall be eligible for
election by the stockholders as directors of the corporation. Nominations of
persons for election to the Board may be made at a meeting of stockholders (a)
by or at the direction of the Board, or (b) provided that the Board has
determined that directors shall be elected at such meeting, by any stockholder
of the corporation entitled to vote for the election of directors at such
meeting who complies with the procedures set forth in this paragraph. Such
nominations by any stockholder shall be made pursuant to timely notice in proper
written form to the secretary of the corporation in accordance with this
paragraph. To be timely, a stockholder's notice must be delivered to or mailed
to and received by the secretary at the principal executive offices of the
corporation not less than 90 days nor more than 120 days in advance of the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that (i) no annual meeting was held in the previous year or (ii) the
date of the annual meeting has been changed by more than 30 days from the date
of the previous year's meeting, or in the event of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth day following the day on which notice of the date
of the meeting was mailed or public disclosure of the date of the meeting was
made, whichever occurs first. In no event shall the public disclosure of an
adjournment or postponement of a stockholders meeting commence a new time period
for the giving of a stockholders notice as described above. To be in proper
written form, such stockholders' notice to the secretary shall set forth in
writing (a) as to each person whom such stockholder proposes to nominate for
election or re-election as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (or any successor thereto)
(the "Exchange Act"), including, without limitation, such person's written
consent to being named in the proxy statement as a nominee and to serving as
director if elected as well as (i) such person's name, age, business address and
residence address, (ii) his or her principal occupation or employment, (iii) the
class and number of shares of the corporation that are beneficially owned by
such person, and (iv) a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nominations are to be made by the
stockholder; and (b) as to such stockholder (i) the name and address, as they
appear on the corporation's books, of such stockholder and the beneficial owner,
if any, on whose behalf the nomination is made, and (ii) the class and number of
shares of the corporation which are beneficially owned by such stockholder and
the beneficial owner, if any, on whose behalf the nomination is made, and any
material interest of such stockholder and owner. At the request of the Board,
any person nominated by the Board for election as a director shall furnish to
the secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election by the stockholders as a director unless
nominated in accordance with the procedures set forth in the Bylaws of the
corporation. The chairman of the meeting shall, if the facts warrant, determine
and declare at the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws of the corporation, and if he or she shall
so determine, he or she shall so declare at the meeting that the defective
nomination shall be disregarded.
1.12 Stockholder Proposals. At any special meeting of the stockholders,
only such business shall be conducted as shall have been brought before the
meeting by or at the direction of the Board. At any annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, (b) otherwise properly
brought before the meeting by or at the direction of the Board, or (c) by any
stockholder who complies with the procedures set forth in this paragraph. For
business properly to be brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in proper written form to the
secretary of the corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice must be
delivered to or mailed to and received by the secretary at the principal
executive offices of the corporation not less than 90 days nor more than 120
days in advance of the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that (i) no annual meeting was held in the
previous year or (ii) the date of the annual meeting has been changed by more
than 30 days from the date of the previous year's meeting, not later than the
close of business on the tenth day following the day on which notice of the date
of the meeting was mailed or public disclosure of the date of the meeting was
made, whichever occurs first. In no event shall the public disclosure of an
adjournment or postponement of a stockholders meeting commence a new time period
for the giving of a stockholders notice as described above. To be in proper
written form, such stockholder's notice to the secretary shall set forth in
writing as to each matter such stockholder proposed to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
meeting, (b) the name and address, as they appear on the corporation's books, of
the stockholder proposing such business, and the beneficial owner, if any, on
whose behalf the nomination or proposal is made, (c) 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) and the reasons for
conducting such business at the meeting, (d) the class and number of shares of
the corporation which are owned beneficially by such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made, (e) any material
interest in such business of the stockholder or the beneficial owner, if any, on
whose behalf the proposal is made, (f) any other information that is required to
be provided by the stockholder pursuant to Regulation 14A under the Exchange Act
in such stockholder's capacity as a proponent of a stockholder proposal, (g) 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, and (h) a representation
whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends (i) 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 (ii) otherwise to solicit
proxies from stockholders in support of such proposal. 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. Notwithstanding anything in the Bylaws
to the contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this paragraph. The chairman of an
annual meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this paragraph, and, if he or she should so determine, he or she
shall so declare at the meeting that any such business not properly brought
before the meeting shall not be transacted.
1.13 Public Disclosure; Conduct of Nominations and Proposals by
Stockholders. (a) For purposes of Sections 1.4(a), 1.11 and 1.12 hereof, "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press, Reuters 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.
(b) Notwithstanding the foregoing provisions of these Sections
1.11 and 1.12, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual meeting of stockholders of the
corporation to present a nomination or business, such nomination shall be
disregarded and such proposed business shall not be transacted, notwithstanding
that proxies in respect of such vote may have been received by the corporation.
(c) Notwithstanding the foregoing provisions of Sections 1.11 and
1.12, 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 Sections 1.11 and 1.12. Nothing in these Sections 1.11 and
1.12 shall be deemed to affect any rights (i) of stockholders to request
inclusion of proposals in the corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act or (ii) of the holders of any series of preferred
stock to elect directors under specified circumstances pursuant to the
Certificate of Incorporation.
1.14 Meeting Required. Whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action, such vote may only be taken at an annual or special meeting
with prior notice, except as provided in the Certificate of Incorporation.
1.15 Organization. (a) Meetings of stockholders shall be presided over
by the chairman of the Board, if any, or in his or her absence by the vice
chairman of the Board, if any, or in his or her absence, by the chief executive
officer, if any, or in his or her absence by a chairman of the meeting, which
chairman must be an officer or director of the corporation and must be
designated as chairman of the meeting by the Board. The secretary, or in his or
her absence an assistant secretary, or in his or her absence a person whom the
person presiding over the meeting shall appoint, shall act as secretary of the
meeting and keep a record of the proceedings thereof.
(b) The Board shall be entitled to make such rules or regulations
for the conduct of meetings of stockholders as it shall deem appropriate.
Subject to such rules and regulations of the Board, if any, the person presiding
over the meeting shall have the right and authority to convene and adjourn the
meeting, to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of the person presiding over the meeting, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business for
the meeting, rules and procedures for maintaining order at the meeting and the
safety of those present, limitations on participation in such meeting to
stockholders of record of the corporation and their duly authorized and
constituted proxies and such other persons as the person presiding over the
meeting 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. The person
presiding over the meeting, in addition to making any other determinations that
may be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if the person presiding over the meeting should
so determine and declare, any such matter or business shall not be transacted or
considered. Unless and to the extent determined by the Board or the person
presiding over the meeting, meetings of stockholders shall not be required to be
held in accordance with rules of parliamentary procedure.
1.16 Inspectors of Election. Before any meeting of stockholders, the
Board may, and shall if required by law, appoint one or more inspectors of
election, who may be employees of the corporation, to act at the meeting or its
adjournment and to make a written report thereof. If any person appointed as
inspector fails to appear or fails or refuses to act, then the person presiding
over the meeting may, and upon the request of any stockholder or a stockholder's
proxy, shall appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting,
the existence of a quorum, and the authenticity, validity, and
effect of proxies and ballots;
(b) receive votes and ballots, including, if applicable, votes
and ballots submitted by means of electronic transmission;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) determine when the polls shall close;
(e) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspector or inspectors;
(f) certify their determination of the number of shares of the
corporation represented at the meeting and such inspectors' count
of all votes and ballots, which certification and report shall
specify such other information as may be required by law; and
(g) do any other acts that may be proper to conduct the election
or vote with fairness to all stockholders.
Each inspector of election shall perform his or her duties impartially,
in good faith, to the best of his or her ability and as expeditiously as is
practical, and before entering upon the discharge of his or her duties, shall
take and sign an oath to execute faithfully the duties of inspector of election
with strict impartiality and according to the best of his or her ability. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the corporation, the inspectors may consider such information
as is permitted by applicable law. If there are three (3) or more inspectors of
election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. Any report or certificate
made by the inspectors of election is prima facie evidence of the facts stated
therein.
1.17 Election Out of Section 203. Pursuant to the corporation's
original Certificate of Incorporation, the corporation has expressly elected not
to be governed by Section 203 of the General Corporation Law of Delaware.
2. BOARD OF DIRECTORS.
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2.1 Number, Qualification, Election and Term of Directors. Subject to
the provisions of the General Corporation Law of Delaware and to any limitations
in the Certificate of Incorporation, the business and affairs of the corporation
shall be managed by or under the direction of the Board. Subject to the rights
of the holders of any series of preferred stock, the number of directors may be
fixed or changed from time to time by resolution of a majority of the entire
Board; provided the number shall be no less than seven (7) and no more than
fifteen (15), or, if the number is not fixed, the number shall be ten (10), but
no decrease may shorten the term of any incumbent director. Directors shall be
elected at each annual meeting of stockholders, as provided in Section 1.5(b),
and shall hold office until the next annual meeting of stockholders and until
the election and qualification of their respective successors, subject to the
provisions of Section 2.9. As used in these Bylaws, the term "entire Board"
means the total number of directors which the corporation would have if there
were no vacancies on the Board.
2.2 Quorum and Manner of Acting. (a) A majority of the entire Board
shall constitute a quorum for the transaction of business at any meeting, except
as provided in Section 2.10 of these Bylaws. In the absence of a quorum a
majority of the directors present may adjourn any meeting from time to time
until a quorum is present. Every act or decision done or made by a majority of
the directors present at a duly held meeting at which a quorum is present shall
be regarded as the act of the Board, subject to the provisions of the
Certificate of Incorporation and applicable law.
(b) A meeting at which a quorum is initially present may continue
to transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
2.3 Place of Meetings. Meetings of the Board may be held in or
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outside Delaware.
2.4 Annual and Regular Meetings. Annual meetings of the Board for the
election of officers and consideration of other matters shall be held either (a)
without notice immediately after the annual meeting of stockholders and at the
same place, or (b) as soon as practicable after the annual meeting of
stockholders, on notice as provided in Section 2.6 of these Bylaws. Regular
meetings of the Board may be held without notice and, unless otherwise specified
by the Board, shall be held in accordance with a schedule and at such locations
as determined from time to time by the Board, provided no less than five (5)
such meetings shall beheld each year. If the day fixed for a regular meeting is
a legal holiday, the meeting shall be held on the next business day.
2.5 Special Meetings. Special meetings of the Board may be called
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by the chairman of the board, the chief executive officeror by a majority of
the directors in office.
2.6 Notice of Meetings; Waiver of Notice. Notice of the time and place
of each special meeting of the Board, and of each annual meeting not held
immediately after the annual meeting of stockholders and at the same place,
shall be given to each director in advance of the time set for such meeting as
provided herein; provided, that if the meeting is to be held at the principal
executive offices of the corporation, the notice need not specify the place of
the meeting. Except for amendments to the Bylaws, as provided under Section 6.9,
notice of a special meeting need not state the purpose or purposes for which the
meeting is called and, unless indicated in the notice thereof, any and all
business may be transacted at a special meeting. Notice need not be given to any
director who submits a signed waiver of notice before or after the meeting or
who attends the meeting without protesting at the beginning of the meeting the
transaction of any business because the meeting was not lawfully called or
convened. Notice of any adjourned meeting need not be given, other than by
announcement at the meeting at which the adjournment is taken unless the meeting
is adjourned for more than twenty-four (24) hours. If the meeting is adjourned
for more than twenty-four (24) hours, then notice of the time and place of the
adjourned meeting shall be given before the adjourned meeting takes place, in
the manner specified herein to the directors who were not present at the time of
adjournment. Notice of a special meeting may be given by any one or more of the
following methods and the method used need not be the same for each director
being notified:
(a) Written notice sent by mail at least three (3) days prior to
the meeting;
(b) Personal service at least twenty-four (24) hours prior to the
time of the meeting;
(c) Telegraphic notice at least twenty-four (24) hours prior to
the time of the meeting, said notice to be sent as a straight
full-rate telegram;
(d) Telephonic notice at least twenty-four (24) hours prior to
the time of the meeting; or
(e) Facsimile or other means of electronic transmission at least
twenty-four (24) hours prior to the time of the meeting.
Any oral notice given personally or by telephone may be communicated
either to the director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly communicate it to
the director.
2.7 Board or Committee Action Without a Meeting. Any action required or
permitted to be taken by the Board or by any committee of the Board may be taken
without a meeting if all of the members of the Board or of the committee
individually or collectively consent in writing or by electronic transmission to
the adoption of a resolution authorizing the action. Such action by written
consent shall have the same force and affect as a unanimous vote of the Board.
The resolution and the written consents or electronic transmission or
transmissions by the members of the Board or the committee shall be filed with
the minutes of the proceeding of the Board or of the 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.
2.8 Participation in Board or Committee Meetings by Conference
Telephone. Any or all members of the Board or of any committee of the Board may
participate in a meeting of the Board or of the committee by means of a
conference telephone or other communications equipment allowing all persons
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at the meeting.
2.9 Resignation and Removal of Directors. Any director may resign at
any time by delivering his or her resignation in writing, including by means of
electronic transmission, to the president or secretary of the corporation, to
take effect at the time specified in the resignation; the acceptance of a
resignation, unless required by its terms, shall not be necessary to make it
effective. Subject to applicable law and the rights of the holders of any series
of preferred stock with respect to such series of preferred stock, any or all of
the directors may be removed at any time, either with or without cause, by vote
of the holders of a majority of the stock having voting power and entitled to
vote thereon.
2.10 Vacancies. Subject to applicable law and the rights of the holders
of any series of preferred stock with respect to such series of preferred stock,
any vacancy in the Board, including one created by an increase in the authorized
number of directors, may be filled for the unexpired term by a majority vote of
the remaining directors, although less than a quorum.
2.11 Compensation. Directors and members of committees shall receive
such compensation as the Board determines, together with reimbursement of their
reasonable expenses in connection with the performance of their duties. A
director may also be paid for serving the corporation, its affiliates or
subsidiaries in other capacities.
2.12 Notice to Members of the Board of Directors. Each member of the
Board shall file with the secretary of the corporation an address to which mail
or telegraphic notices shall be sent, a telephone number to which a telephonic
or facsimile notice may be transmitted and, at the sole discretion of a
director, such electronic address to which other electronic transmissions may be
sent. A notice mailed, telegraphed, telephoned or transmitted by facsimile or
other means of electronic transmission in accordance with the instructions
provided by the director shall be deemed sufficient notice. Such address or
telephone number may be changed at any time and from time to time by a director
by giving written notice of such change to the secretary. Failure on the part of
any director to keep an address and telephone number on file with the secretary
(but not including an address for other electronic transmissions) shall
automatically constitute a waiver of notice of any regular or special meeting of
the Board which might be held during the period of time that such address and
telephone number are not on file with the Secretary. A notice shall be deemed to
be mailed when deposited in the United States mail, postage prepaid. A notice
shall be deemed to be telegraphed when the notice is delivered to the
transmitter of the telegram and either payment or provision for payment is made
by the corporation. Notice shall be deemed to be given by telephone if the
notice is transmitted over the telephone to some person (whether or not such
person is the director) or message recording device answering the telephone at
the number which the director has placed on file with the Secretary. Notice
shall be deemed to be given by facsimile or other means of electronic
transmission when sent to the telephone number or other address which the
director has placed on file with the secretary.
2.13 Organization. Meetings of the Board shall be presided over by the
chairman of the Board, if any, or in his or her absence by the vice chairman of
the Board, if any, or in his or her absence by the chief executive officer, if
any, or in his or her absence by the president, if any. In the absence of all
such directors, a president pro tem chosen by a majority of the directors
present shall preside at the meeting. The secretary shall act as secretary of
the meeting, but in his or her absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
3. COMMITTEES.
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3.1 Audit Committee. The Board by resolution shall designate an Audit
Committee consisting of three directors or such other number as may be specified
by the Board, which shall review the internal financial controls of the
corporation, and the integrity of its financial reporting, and have such other
powers and duties as the Board determines. The Board shall adopt a charter,
which may be amended from time to time, setting for the powers and duties of the
Audit Committee. The members of the Audit Committee shall serve at the pleasure
of the Board. All action of the Audit Committee shall be reported to the Board
at its next meeting.
3.2 Compensation Committee. The Board by resolution shall designate a
Compensation Committee consisting of three directors or such other number as may
be specified by the Board, which shall administer the corporation's compensation
plans and have such other powers and duties as the Board determines. The members
of the Compensation Committee shall serve at the pleasure of the Board. All
action of the Compensation Committee shall be reported to the Board at its next
meeting. The Board shall adopt a charter, which may be amended from time to
time, setting forth the powers and duties of the Compensation Committee.
3.3 Corporate Governance Committee. The Board by resolution shall
designate a Corporate Governance Committee consisting of three directors or such
other number as may be specified by the Board, which shall nominate candidates
for election to the Board and have such other powers and duties as the Board
determines. The members of the Corporate Governance Committee shall serve at the
pleasure of the Board. All action of the Corporate Governance Committee shall be
reported to the Board at its next meeting. The Board shall adopt a Charter,
which may be amended from time to time, setting forth the powers and duties of
the Corporate Governance Committee.
3.4 Other Committees. The Board, by resolution adopted by a majority of
the entire Board, may designate other committees of directors of one or more
directors, which shall serve at the Board's pleasure and have such powers and
duties as the Board determines.
3.5 Meetings and Action of Committees. (a) The Board may designate one
or more directors as alternate members of any committee (other than the Audit
Committee), who may replace any absent or disqualified member at any meeting of
the committee. Each committee shall keep regular minutes of its meetings and
report the same to the Board at its next meeting. Each committee may adopt rules
of procedure and shall meet as provided by those rules or by resolutions of the
Board.
(b) Meetings and actions of committees shall be governed by, and
held and taken in accordance with, the provisions of Article 2 of these Bylaws,
including Section 2.2 (quorum and manner of acting), Section 2.3 (place of
meetings), Section 2.4 (annual and regular meetings), Section 2.5 (special
meetings), 2.6 (notice of meetings and waiver of notice), Section 2.7 (board or
committee action without a meeting), Section 2.8 (participation in board or
committee meetings by conference telephone), Section 2.12 (notice to members of
the board of directors), and Section 2.13 (organization), with such changes in
the context of those Bylaws as are necessary to substitute the committee and its
members for the board of directors and its members; provided, however, (i) that
the time of regular meetings of committees may be determined either by
resolution of the Board or by resolution of the committee, (ii) that special
meetings of committees may also be called by resolution of the Board, (iii) that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee; (iv)
that a majority of the members of a committee shall constitute a quorum for the
transaction of business at any meeting; and (v) that the affirmative vote of a
majority of the members of a committee shall be required to take action in
respect of any matter presented to or requiring the approval of the committee.
3.6 Election Pursuant to Section 141(c)(2). By resolution of the Board,
the corporation has elected pursuant to Section 141(c) of the General
Corporation Law of Delaware to be governed by paragraph (2) of Section 141(c) in
respect of committees of the Board.
4. OFFICERS.
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4.1 Number; Security. The executive officers of the corporation shall
consist of a chief executive officer, a president, one or more vice presidents
(including executive vice president(s) and senior vice president(s) if the Board
so determines), a secretary and a treasurer and a chief financial officer who
shall be chosen by the Board and such other officers, including but not limited
to a chairman of the Board, a vice chairman of the Board, as the Board shall
deem expedient, who shall be chosen in such manner and hold their offices for
such terms as the Board may prescribe. Any two or more offices may be held by
the same person. Either the chairman of the Board or the president, as the Board
may designate from time to time, shall be the chief executive officer of the
corporation. The Board may from time to time designate the president or any
executive vice president as the chief operating officer of the corporation. Any
vice president, treasurer or assistant treasurer, or assistant secretary,
respectively, may exercise any of the powers of the president, the chief
financial officer, or the secretary, respectively, as directed by the Board and
shall perform such other duties as are imposed upon such officer by the Bylaws
or the Board. The Board may require any officer, agent or employee to give
security for the faithful performance of his duties.
4.2 Election; Term of Office; Salaries. The term of office and salary
of each 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 and may be
altered by said Board from time to time at its pleasure, subject to the rights,
if any, of said officers under any contract of employment; provided, that the
Board may designate such responsibilities to the Compensation Committee and may
also authorize the chief executive officer or the president to establish the
salaries of officers appointed pursuant to Section 4.3.
4.3 Subordinate Officers. The Board may appoint subordinate officers
(including assistant secretaries and assistant treasurers), agents or employees,
each of whom shall hold office for such period and have such powers and duties
as the Board determines. The Board may delegate to any executive officer or to
any committee the power to appoint and define the powers and duties of any
subordinate officers, agents or employees.
4.4 Resignation and Removal of Officers. Any officer may resign at any
time by delivering his resignation in writing to the chief executive officer,
president or secretary of the corporation, to take effect at the time specified
in the resignation; the acceptance of a resignation, unless required by its
terms, shall not be necessary to make it effective. Any officer elected or
appointed by the Board or appointed by an executive officer or by a committee
may be removed by the Board either with or without cause, and in the case of an
officer appointed by an executive officer or by a committee, by the officer or
committee who appointed him or her or by the president.
4.5 Vacancies. A vacancy in any office may be filled for the unexpired
term in the manner prescribed in Sections 4.2 and 4.3 of these Bylaws for
election or appointment to the office.
4.6 Chairman of the Board. The chairman of the Board, if such an
officer shall be chosen, shall have general supervision, direction and control
of the corporation's business and its officers, and, if present, preside at
meetings of the stockholders and the Board and exercise and perform such other
powers and duties as may from time to time be assigned to him by the Board or as
may be prescribed by these Bylaws. The chairman of the Board shall report to the
Board.
4.7 Vice Chairman of the Board. The vice chairman of the Board, if
there shall be one, shall, in the case of the absence, disability or death of
the chairman of the Board, exercise all the powers and perform all the duties of
the chairman of the Board. The vice chairman shall have such other powers and
perform such other duties as may be granted or prescribed by the Board.
4.8 Chief Executive Officer. Subject to the control of the Board, the
chief executive officer of the corporation shall have general supervision over
the business of the corporation; the powers and duties of the chief executive
officer shall be:
(a) To affix the signature of the corporation to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates and other
papers and instruments in writing which have been authorized by the Board or
which, in the judgment of the chief executive officer, should be executed on
behalf of the corporation, and to sign certificates for shares of capital stock
of the corporation.
(b) To have such other powers and be subject to such other duties
as the Board may from time to time prescribe.
4.9 President. The powers and duties of the president are:
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(a)To affix the signature of the corporation to all deeds,
conveyances, mortgages, leases, obligations, bonds, certificates and other
papers and instruments in writing which have been authorized by the Board or
which, in the judgment of the president, should be executed on behalf of the
corporation, and to sign certificates for shares of capital stock of the
corporation.
(b) To have such other powers and be subject to such other duties
as the Board may from time to time prescribe.
4.10 Vice President. In case of the absence, disability or death of the
president, the elected vice president, or one of the elected vice presidents,
shall exercise all the powers and perform all the duties of the president. If
there is more than one elected vice president, the order in which the elected
vice presidents shall succeed to the powers and duties of the president shall be
as fixed by the Board. The elected vice president or elected vice presidents
shall have such other powers and perform such other duties as may be granted or
prescribed by the Board.
Vice presidents appointed pursuant to Section 4.3 shall have such
powers and duties as may be fixed by the chairman of the Board or president,
except that such appointed vice presidents may not exercise the powers and
duties of the president. Each vice president shall have such powers and duties
as the Board or the president assigns to him or her.
4.11 Secretary. The powers and duties of the secretary are:
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(a) To keep a book of minutes at the principal office of the
corporation, or such other place as the Board may order, of all meetings of its
directors and stockholders with the time and place of holding, whether regular
or special, and, if special, how authorized, the notice thereof given, the names
of those present at directors' meetings, the number of shares present or
represented at stockholders' meetings and the proceedings thereof.
(b) To keep the seal of the corporation, if any, and affix the
same, if any, to all instruments which may require it.
(c) To keep or cause to be kept at the principal office of the
corporation, or at the office of the transfer agent or agents, a share register,
or duplicate share registers, showing the names of the stockholders and their
addresses, the number of and classes of shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
(d) To keep a supply of certificates for shares of the
corporation, to fill in all certificates issued, and to make a proper record of
each such issuance; provided, that so long as the corporation shall have one or
more duly appointed and acting transfer agents of the shares, or any class or
series of shares, of the corporation, such duties with respect to such shares
shall be performed by such transfer agent or transfer agents.
(e) To transfer upon the share books of the corporation any and
all shares of the corporation; provided, that so long as the corporation shall
have one or more duly appointed and acting transfer agents of the shares, or any
class or series of shares, of the corporation, such duties with respect to such
shares shall be performed by such transfer agent or transfer agents, and the
method of transfer of each certificate shall be subject to the reasonable
regulations of the transfer agent to which the certificate is presented for
transfer, and also, if the corporation then has one or more duly appointed and
acting registrars, to the reasonable regulations of the registrar to which the
new certificate is presented for registration; and provided, further that no
certificate for shares of stock shall be issued or delivered or, if issued or
delivered, shall have any validity whatsoever until and unless it has been
signed or authenticated in the manner provided in Section 5.1 hereof.
(f) To make service and publication of all notices that may be
necessary or proper, and without command or direction from anyone. In case of
the absence, disability, refusal, or neglect of the secretary to make service or
publication of any notices, then such notices may be served and/or published by
the president or a vice president, or by any person thereunto authorized by
either of them or by the board of directors or by the holders of a majority of
the outstanding shares of the corporation.
(g) To sign certificates for shares of capital stock of the
corporation.
(h) Generally to do and perform all such duties as pertain to the
office of secretary and as may be required by the Board.
4.12 Treasurer. The treasurer shall be or shall be under the direction
of the chief financial officer of the corporation, and shall be in charge of the
corporation's books and accounts. Subject to the control of the Board, he or she
shall have such other powers and duties as the Board or the president assigns to
him or her.
4.13 Chief Financial Officer. The powers and duties of the chief
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financial officer are:
(a) To supervise the corporate-wide treasury functions and
financial reporting to external bodies.
(b) To have the custody of all funds, securities, evidence of
indebtedness and other valuable documents of the corporation and, at the chief
financial officer's discretion, to cause any or all thereof to be deposited for
account of the corporation at such depositary as may be designated from time to
time by the Board.
(c) To receive or cause to be received, and to give or cause to be
given, receipts and acquittances for monies paid in for the account of the
corporation.
(d) To disburse, or cause to be disbursed, all funds of the
corporation as may be directed by the Board, taking proper vouchers for such
disbursements.
(e) To render to the chief executive officer and president, and to
the Board, whenever they may require, accounts of all transactions and of the
financial condition of the corporation.
(f) Generally to do and perform all such duties as pertain to the
office of chief financial officer and as may be required by the Board.
5. SHARES.
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5.1 Shares of the Corporation. The shares of the corporation shall be
represented by certificates, provided that the Board may provide by resolution
or resolutions that some or all of any or all classes or series of its 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. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairman or vice chairman of
the board of directors or by the president or a vice-president, and by the
secretary or an assistant secretary, or the treasurer or an assistant treasurer,
representing the number of shares registered in certificate form. The signatures
of any such officers thereon may be facsimiles. The seal of the corporation
shall be impressed, by original or by facsimile, printed or engraved, on all
such certificates. The certificate shall also be signed by the transfer agent
and a registrar and the signature of either the transfer agent or the registrar
may also be facsimile, engraved or printed. In case any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon
any such certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may nevertheless
be issued by the corporation with the same effect as if such officer, transfer
agent, or registrar had not ceased to be such officer, transfer agent, or
registrar at the date of its issue.
5.2 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 or each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate that the corporation shall issue to represent such class or
series of stock; provided, however, that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
5.3 Lost, Stolen, Destroyed and Mutilated Certificates. The owner of
any stock of the corporation shall immediately notify the corporation of any
loss, theft, destruction or mutilation of any certificate therefor, and the
corporation may issue uncertificated shares or a new certificate for stock in
the place of any certificate theretofore issued by it and alleged to have been
lost, stolen or destroyed, and the Board may, in its discretion, require the
owner of the lost, stolen or destroyed certificate or his or her legal
representatives to give the corporation a bond in such sum, limited or
unlimited, and in such form and with such surety or sureties, as the Board shall
in its uncontrolled discretion determine, to indemnify the corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate, or the issuance of any such new certificate
or uncertificated shares. The Board may, however, in its discretion refuse to
issue any such new certificate or uncertificated shares except pursuant to legal
proceedings under the laws of the State of Delaware in such case made and
provided.
5.4 Stock Records. The corporation or a transfer agent shall keep stock
books in which shall be recorded the number of shares issued, the names of the
owners of the shares, the number owned by them respectively, whether such shares
are represented by certificates or are uncertificated, and the transfer of such
shares with the date of transfer.
5.5 Transfers. Transfers of stock shall be made only on the stock
transfer record of the corporation upon surrender of the certificate or
certificates being transferred which certificate shall be properly endorsed for
transfer or accompanied by a duly executed stock power, except in the case of
uncertificated shares, for which the transfer shall be made only upon receipt of
transfer documentation reasonably acceptable to the corporation. Whenever a
certificate is endorsed by or accompanied by a stock power executed by someone
other than the person or persons named in the certificate, or the transfer
documentation for the uncertificated shares is executed by someone other than
the holder of record thereof, evidence of authority to transfer same shall also
be submitted with the certificate or transfer documentation. All certificates
surrendered to the corporation for transfer shall be canceled.
5.6 Regulations Governing Issuance and Transfers of Shares. The Board
shall have the power and authority to make all such rules and regulations as it
shall deem expedient concerning the issue, transfer and registration of shares
of stock of the corporation.
5.7 Transfer Agents and Registrars. The Board may appoint, or
--------------------------------
authorize one or more officers to appoint, one or more transfer agents and
one or more registrars.
5.8 Record Date for Purposes Other than Notice and Voting. For purposes
of determining the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any other lawful action, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted and which shall not be more than
sixty (60) days before any such action. In that case, only stockholders of
record at the close of business on the date so fixed are entitled to receive the
dividend, distribution or allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise provided in the
Certificate of Incorporation, by these Bylaws, by agreement or by law. If the
Board does not so fix a record date, then the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board adopts the applicable resolution.
6. MISCELLANEOUS.
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6.1 Seal. The Board shall adopt a corporate seal, which shall be in the
form of a circle and shall bear the corporation's name and the year and state in
which is was incorporated.
6.2 Fiscal Year. The Board may determine the corporation's fiscal
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year. Until changed by the Board, the corporation's fiscal year shall be
the calendar year.
6.3 Voting of Shares in Other Corporations. Shares in other
corporations which are held by the corporation may be represented and voted by
the president or a vice president of this corporation or by proxy or proxies
appointed by one of them. The Board may, however, appoint some other person to
vote the shares.
6.4 Checks; Drafts; Evidences of Indebtedness. From time to time, the
Board shall determine by resolution which person or persons may sign or endorse
all checks, drafts, other orders for payment of money, notes or other evidences
of indebtedness that are issued in the name of or payable to the corporation,
and only the persons so authorized shall sign or endorse those instruments.
6.5 Corporate Contracts and Instruments; How Executed. The Board,
except as otherwise provided in these Bylaws, may authorize any officer or
officers, or agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation; such authority may
be general or confined to specific instances. Unless so authorized or ratified
by the Board 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.
6.6 Construction; Definitions. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the General
Corporation Law of Delaware shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, the term "person" includes
both a corporation and a natural person, and the masculine gender includes the
feminine gender and vice versa.
6.7 Provisions Additional to Provisions of Law. All restrictions,
limitations, requirements and other provisions of these Bylaws shall be
construed, insofar as possible, as supplemental and additional to all provisions
of law applicable to the subject matter thereof and shall be fully complied with
in addition to the said provisions of law unless such compliance shall be
illegal.
6.8 Provisions Contrary to Provisions of Law. Any article, section,
subsection, subdivision, sentence, clause or phrase of these Bylaws which upon
being construed in the manner provided in Section 6.7 hereof, shall be contrary
to or inconsistent with any applicable provisions of law, shall not apply so
long as said provisions of law shall remain in effect, but such result shall not
affect the validity or applicability of any other portions of these Bylaws, it
being hereby declared that these Bylaws would have been adopted and each
article, section, subsection, subdivision, sentence, clause or phrase thereof,
irrespective of the fact that any one or more articles, sections, subsections,
subdivisions, sentences, clauses or phrases is or are illegal.
6.9 Amendments.1 Bylaws may be amended, repealed or adopted by a
majority of the entire Board, provided that written notice of any such proposed
action shall have been given to each director prior to such meeting, or that
notice of such addition, amendment, alteration or report shall have been given
at the preceding meeting of the Board. The Bylaws may also be amended, repealed
or adopted by the affirmative vote of the holders of a majority of the voting
power of the stock issued and outstanding and entitled to vote thereon;
provided, however, that any proposed alteration or repeal of, or the adoption of
any Bylaw inconsistent with, Section 1.2, 1.3, 1.4, 1.5, 1.11, 1.12, 1.13 or
1.17 of Article 1 of the Bylaws or Section 2.1, 2.2, 2.9 or 2.10 of Article 2 of
the Bylaws or Section 6.10 of the Bylaws or this sentence, by the stockholders
shall require the affirmative vote of the holders of at least 66 2/3% of the
voting power of all stock then issued and outstanding and entitled to vote
thereon, voting together as a single class; and, provided, further, however,
that in the case of any such stockholder action at a special meeting of
stockholders, notice of the proposed alteration, repeal or adoption of the new
Bylaw or Bylaws must be contained in the notice of such special meeting. The
fact that the power to amend these Bylaws has been so conferred upon the
directors shall not divest the stockholders of the power, nor limit their power
to amend, adopt or repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or the filing of the operative written consent(s) shall be
stated in said book.
6.10 Indemnification and Insurance. 1
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(a) Generally.
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(1) The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was or has agreed to
serve at the request of the corporation as a director or officer of the
corporation, or is or was serving or has agreed to serve at the request of the
corporation as a director or officer (which, for purposes hereof, shall include
a trustee or similar capacity)of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity.
(2) The corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was or has agreed to
serve at the request of the corporation as an employee or agent of the
corporation, or is or was serving or has agreed to serve at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity.
(3) The indemnification provided by this subsection (a) shall
be from and against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the indemnitee or
on his or her behalf in connection with such action, suit or proceeding and any
appeal therefrom, but shall only be provided if the indemnitee acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action,
suit or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
(4) Notwithstanding the foregoing provisions of this
subsection (a), in the case of an action or suit by or in the right of the
corporation to procure a judgment in its favor (i) the indemnification provided
by this subsection (a) shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit, and (ii) no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless, and only to the extent that, the Delaware
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper.
(5) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(b) Successful Defense. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in subsection
(a) hereof or in defense of any claim, issue or matter therein, he or she shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith. If a director or
officer is not wholly successful, on the merits or otherwise, in any action,
suit or proceeding but is successful, on the merits or otherwise, as to any
claim, issue or matter in such action, suit or proceeding, the corporation shall
indemnify such person against all expenses (including attorneys' fees) actually
and reasonably incurred by such person or on his or her behalf relating to each
successfully resolved claim, issue or matter. For purposes of this Section 6.10
and without limitation, the termination of a claim, issue or matter in an
action, suit or proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
(c) Determination That Indemnification Is Proper. Any
indemnification of a person entitled to indemnity under subsection (a)(1) hereof
shall (unless otherwise ordered by a court) be made by the corporation unless a
determination is made that indemnification of such person is not proper in the
circumstances because he or she has not met the applicable standard of conduct
set forth in subsection (a)(3) hereof. Any indemnification of a person entitled
to indemnity under subsection (a)(2) hereof may (unless otherwise ordered by a
court) be made by the corporation upon a determination that indemnification of
such person is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in subsection (a)(3) hereof. Any such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even if less than a quorum, or (ii)
if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
(d) Advance Payment of Expenses; Notification and Defense of Claim.
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(i) Expenses (including attorneys' fees) incurred by a
director or officer in defending a threatened or pending civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the corporation as authorized in this
Section. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
(ii) Promptly after receipt by a director, officer, employee
or agent of notice of the commencement of any action, suit or proceeding, such
person shall, if a claim thereof is to be made against the corporation
hereunder, notify the corporation of the commencement thereof. The failure to
promptly notify the corporation will not relieve the corporation from any
liability that it may have to such person hereunder, except to the extent the
corporation is prejudiced in its defense of such action, suit or proceeding as a
result of such failure.
(iii) The Board of Directors may authorize the corporation's
counsel to represent a director, officer, employee or agent in any action, suit
or proceeding, whether or not the corporation is a party to such action, suit or
proceeding. In the event the corporation shall be obligated to pay the expenses
of any person with respect to an action, suit or proceeding, as provided in this
Section 6.10, the corporation, if appropriate, shall be entitled to assume the
defense of such action, suit or proceeding, with counsel reasonably acceptable
to such person, upon the delivery to such person of written notice of its
election to do so. After delivery of such notice, approval of such counsel by
such person and the retention of such counsel by the corporation, the
corporation will not be liable to such person under this Section 6.10 for any
fees of counsel subsequently incurred by such person with respect to the same
action, suit or proceeding, provided that (i) the director, officer, employee or
agent shall have the right to employ his or her counsel in such action, suit or
proceeding at such person's expense and (b) if (i) the employment of counsel by
such person has been previously authorized in writing by the corporation, (ii)
counsel to the director, officer, employee or agent shall have reasonably
concluded that there may be a conflict of interest or position on any
significant issue between the corporation and such person in the conduct of any
such defense or (iii) the corporation shall not, in fact, have employed counsel
to assume the defense of such action, suit or proceeding, then the fees and
expenses of such person's counsel shall be at the expense of the corporation.
(iv) Notwithstanding any other provision of this Section 6.10
to the contrary, to the extent that any director or officer is, by reason of his
or her corporate status, a witness or otherwise participates in any action, suit
or proceeding at a time when such person is not a party in the action, suit or
proceeding, the corporation shall indemnify such person against all expenses
(including attorneys' fees) actually and reasonably incurred by such person or
on his or her behalf in connection therewith.
(e) Procedure for Indemnification of Required Indemnitees. Any
indem-nification of a person the corporation is required to indemnify under
subsection (a) hereof, or advance of costs, charges and expenses of a person the
corporation is required to pay under subsection (d) hereof, shall be made
promptly, and in any event within 60 days, upon the written request of such
person. If the corporation fails to respond within 60 days, then the request for
indemnification shall be deemed to be approved. The right to indemnification or
advances as granted by this Section 6.10 shall be enforceable by the person the
corporation is required to indemnify under subsection (a) hereof in any court of
competent jurisdiction if the corporation denies such request, in whole or in
part. Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses under subsection (d) hereof where the
required undertaking, if any, has been received by the corporation) that the
claimant has not met the standard of conduct set forth in subsection (a) hereof,
but the burden of proving such defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in subsection (a) hereof, nor the fact that there has been an actual
determination by the corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
A director or officer shall be presumed to be entitled to
indemnification under this Section 6.10 upon submission of a request for
indemnification pursuant to this subsection (e), and the corporation shall have
the burden of proof in overcoming that presumption in reaching a determination
contrary to that presumption. Such presumption shall be used as a basis for a
determination of entitlement to indemnification unless the corporation provides
information sufficient to overcome such presumption by clear and convincing
evidence.
(f) Survival; Preservation of Other Rights. The provisions of this
Section 6.10 shall be deemed to be a contract between the corporation and each
director, officer, employee and agent who serves in such capacity at any time
while these provisions as well as the relevant provisions of the General
Corporation Law of the State of Delaware are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit,
or proceeding previously or thereafter brought or threatened based in whole or
in part upon any such state of facts. Such a "contract right" may not be
modified retroactively without the consent of such director, officer, employee
or agent. The indemnification provided by this Section 6.10 shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g) Indemnification Agreements. Without limiting the provisions of
this Section 6.10, the corporation is authorized from time to time, without
further action by the stockholders of the corporation, to enter into agreements
with any director, officer, employee or agent of the corporation providing such
rights of indemnification as the corporation may deem appropriate, up to the
maximum extent permitted by law. Any agreement entered into by the corporation
with a director may be authorized by the other directors, and such authorization
shall not be invalid on the basis that similar agreements may have been or may
thereafter be entered into with other directors.
(h) Insurance and Subrogation
(i) The corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to serve at the request of the
corporation as a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against, and incurred by, him or her or on his or her behalf in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of this Section 6.10.
(ii) In the event of any payment by the corporation under this
Section 6.10, the corporation shall be subrogated to the extent of such payment
to all of the rights of recovery of such person, who shall execute all papers
required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the corporation to bring
suit to enforce such rights in accordance with the terms of such insurance
policy.
(iii) The corporation shall not be liable under this Section
6.10 to make any payment of amounts otherwise indemnifiable hereunder
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) if and to the extent that such person
has otherwise actually received such payment under the Certificate of
Incorporation or these Bylaws or any insurance policy, contract, agreement or
otherwise.
(i) Certain Definitions. For purposes of this Section 6.10,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Section 6.10 with respect to the resulting
or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued. For purposes of
this Section 6.10, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the corporation"
as referred to in this Section 6.10.
(j) Limitation on Indemnification. Notwithstanding any other
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provision herein to the contrary, the corporation shall not be obligated
pursuant to these Bylaws:
(a) To indemnify or advance expenses to a director, officer,
employee or agent with respect to proceedings (or part thereof)
initiated by such person, except with respect to proceedings brought to
establish or enforce a right to indemnification (which shall be
governed by the provisions of this Section 6.10), unless such
proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the corporation.
(b) To indemnify a director, officer, employee or agent for
any expenses incurred by such person with respect to any proceeding
instituted by such person to enforce or interpret these Bylaws, if a
court of competent jurisdiction determines that each of the material
assertions made by such person in such proceedings was not made in good
faith or was frivolous;
(c) To indemnify a director, officer, employee or agent for
expenses or the payment of profits arising from the purchases and sale
by such person of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
(k) Certain Settlement Provisions. The corporation shall have no
obligation to indemnify any director, officer, employee or agent under this
Section 6.10 for amounts paid in settlement of any action, suit or proceeding
without the corporation's prior written consent, which shall not be unreasonably
withheld. The corporation shall not settle any action, suit or proceeding in any
manner that would impose any fine or other obligation on any director or officer
or employee or agent without such person's prior written consent.
(l) Savings Clause. If this Section 6.10 or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the corporation, to the full extent permitted by any applicable portion
of this Section 6.10 that shall not have been invalidated and to the full extent
permitted by applicable law.
(m) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for herein
is held by a court of competent jurisdiction to be unavailable to a director or
officer in whole or in part, it is agreed that, in such event, the corporation
shall contribute to the payment of such director's or officer's costs, charges
and expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, but not including an action by or in
the right of the corporation, in an amount that is just and equitable in the
circumstances, taking into account, among other things, contributions by other
directors and officers of the corporation or others pursuant to indemnification
agreements or otherwise; provided, that, without limiting the generality of the
foregoing, such contribution shall not be required where such holding by the
court is due to (i) the failure of such director or officer to meet the standard
of conduct set forth in subsection (a) hereof, or (ii) any limitation on
indemnification set forth in subsection (h)(iii), (j) or (k) hereof.
(n) Form and Delivery of Communications. Any notice, request or
other communication required or permitted to be given to the corporation under
this Section 6.10 shall be in writing and either delivered in person or sent
by telecopy, telex, telegram, overnight mail or courier service, or certified
or registered mail, postage prepaid, return receipt requested, to the General
Counsel or Secretary of the corporation at its principal executive offices.
(o) Subsequent Legislation. If the General Corporation Law of
Delaware is amended after adoption of this Section 6.10 to expand further the
indemnification permitted to directors or officers, then the corporation shall
indemnify such persons to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended.
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[FN]
1 As Amended February 6, 2001
</FN>