BYLAWS
OF
SELECTQUOTE, INC.
A DELAWARE CORPORATION
ADOPTED EFFECTIVE AS OF AUGUST 19, 1999
BYLAWS
OF
SELECTQUOTE, INC.
A DELAWARE CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE. The registered office of the Corporation shall
be: 1209 Orange Street, City of Wilmington, County of Newcastle, State of
Delaware. The name of the registered agent of the Corporation at such location
is The Corporate Trust Company.
1.2 OTHER OFFICES. The Board of Directors may at any time establish
other offices at any place or places where the Corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the registered office of the Corporation.
2.2 ANNUAL MEETINGS. The annual meeting of stockholders shall be held
each year on a date and at a time designated by the Board of Directors. At the
meeting, directors shall be elected and any other proper business may be
transacted. Notwithstanding the preceding sentence to the contrary, stockholders
may act by written consent to elect directors; provided, however, that, if such
consent is less than unanimous, such action by written consent may be in lieu of
holding an annual meeting only if all of the directorships to which directors
could be elected at an annual meeting held at the effective time of such action
are vacant and are filled by such action.
2.3 SPECIAL MEETINGS. Special meetings of stockholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors,
the Chairman of the Board of Directors, the Chief Executive Officer or any
individual holder of twenty five percent (25%) of the outstanding shares of
common stock of the Corporation.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
facsimile telecommunication to the Chairman of the Board, the President or the
Secretary of the Corporation. No business may be transacted at such special
meeting otherwise than specified in such notice. The officer receiving the
request shall cause notice to be promptly given to
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the stockholders entitled to vote, in accordance with the provisions of Sections
2.4 and 2.5 of this Article II, that a meeting will be held at the time
requested by the person or persons who called the meeting, not less than 60 nor
more than 90 days after the receipt of the request. If the notice is not given
within 20 days after the receipt of the request, the person or persons
requesting the meeting may give the notice. Nothing contained in this paragraph
of this Section 2.3 shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the Board of Directors
may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of
stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these Bylaws not less than 10 nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting. The notice shall specify the place, date, and hour of the meeting, and
in the case of a special meeting, the purpose or purposes for which the meeting
is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Written notice of any
meeting of stockholders, if mailed, is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation. Written notice may also be given by facsimile
telecommunication, in which case notice shall be deemed given upon the earlier
of receipt or 24 hours after transmission. Notice may also be given by such
other means as may be authorized from time to time under the General Corporation
Law of the State of Delaware. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein.
2.6 ITEMS OF BUSINESS AT MEETINGS. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
business. Items of business at all meetings of the stockholders shall be,
insofar as applicable, as follows:
- Call to order;
- Proof of notice of meeting or waiver thereof;
- Appointment of inspectors of election, if necessary;
- A quorum being present;
- Reports;
- Election of directors;
- Other business specified in the notice of the meeting;
- Voting; and
- Adjournment.
Any items of business not referred to in the foregoing may be taken up
at the meeting as the chairman of the meeting shall determine.
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No other business shall be transacted at any annual meeting of
stockholders, except such business as may be: (i) specified in the notice of
meeting (including stockholder proposals included in the Corporation's proxy
materials under Rule 14a-8 of Regulation 14A under the Securities Exchange Act
of 1934), (ii) otherwise brought before the meeting by or at the direction of
the Board of Directors, or (iii) a proper subject for the meeting which is
timely submitted by a stockholder of the Corporation entitled to vote at such
meeting who complies with the notice requirements set forth below. For business
to be properly submitted by a stockholder before any annual meeting under
section (iii) of the preceding sentence, a stockholder must give timely notice
in writing of such business to the Secretary of the Corporation. To be
considered timely with respect to an annual meeting, a stockholder's notice must
be received by the Secretary at the principal executive offices of the
Corporation not less than 120 calendar days nor more than 150 calendar days
before the date of the Corporation's proxy statement released to stockholders in
connection with the prior year's annual meeting. However, if no annual meeting
was held in the previous year, or if the date of the applicable annual meeting
has been changed by more than 30 days from the date contemplated at the time of
the previous year's proxy statement, a stockholder's notice must be received by
the Secretary not later than 60 days before the date the Corporation commences
mailing of its proxy materials in connection with the applicable annual meeting.
A stockholder's notice to the Secretary to submit business to an annual
meeting of stockholders shall set forth: (i) the name and address of the
stockholder, (ii) the number of shares of stock held of record and beneficially
by such stockholder, (iii) the name in which all such shares of stock are
registered on the stock transfer books of the Corporation, (iv) a representation
that the stockholder intends to appear at the meeting in person or by proxy to
submit the business specified in such notice, (v) a brief description of the
business desired to be submitted to the annual meeting, including the complete
text of any resolutions intended to be presented at the annual meeting, and the
reasons for conducting such business at the annual meeting, (vi) any personal or
other material interest of the stockholder in the business to be submitted, and
(vii) all other information relating to the proposed business which may be
required to be disclosed under applicable law. In addition, a stockholder
seeking to submit such business at the meeting shall promptly provide any other
information reasonably requested by the Corporation.
The chairman of the meeting shall determine all matters relating to the
efficient conduct of the meeting, including, but not limited to, the items of
business, as well as the maintenance of order and decorum. The chairman shall
determine and declare that any putative business was not properly brought before
the meeting in accordance with the procedures described by this Section 2.6, in
which case such business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.6, a
stockholder who seeks to have any proposal included in the Corporation's proxy
materials shall comply with the requirements of Rule 14a-8 under Regulation 14A
of the Securities Exchange Act of 1934, as amended.
2.7 QUORUM. The holders of a majority 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. If, however,
such quorum is not present or represented at any meeting of the stockholders,
then either (i) the chairman of the meeting or (ii) the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without
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notice other than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed.
2.8 ADJOURNED MEETING; NOTICE. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the Corporation may transact any business that might have
been transacted at the original meeting. If the adjournment is for more than 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 the meeting.
2.9 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.12 of these Bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements). Except as provided in the preceding sentence, each stockholder
shall be entitled to one vote for each share of capital stock held by such
stockholder.
2.10 WAIVER OF NOTICE. Whenever notice regarding a stockholder meeting
is required to be given under any provision of the General Corporation Law of
Delaware or of the Certificate of Incorporation or these Bylaws, a written
waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person 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 need be
specified in any written waiver of notice.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any
action required by this article to be taken at any annual or special meeting of
stockholders of the Corporation, or any action that may be taken at any annual
or special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the
action so taken, is signed by the holders 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 all shares entitled to vote thereon were
present and voted.
Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS. In
order that the Corporation may determine the stockholders entitled to notice of
or
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to vote at any meeting of stockholders or any adjournment thereof, or entitled
to express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than 60
nor less than 10 days before the date of such meeting.
If the Board of Directors does not so fix a record date:
(i) 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;
(ii) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is necessary, shall be the
day on which the first written consent is expressed; and
(iii) The record date for determining stockholders for any
other purpose 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.
2.13 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders (or to express consent or dissent to corporate action in writing
without a meeting) may authorize another person or persons to act for him by a
written proxy, signed by the stockholder and filed with the Secretary of the
Corporation, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A proxy shall be
deemed signed if the stockholder's name is placed on the proxy (whether by
manual signature, typewriting, facsimile telecommunication or other means) by
the stockholder or the stockholder's attorney-in-fact. Furthermore, the
Secretary of the Corporation may determine in the interests of the Corporation
to accept proxies granting authority by the methods approved by Section 212(c)
of the General Corporation Law of Delaware. 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.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where
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the meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. Such list shall presumptively determine the
identify of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
ARTICLE III
DIRECTORS
3.1 POWERS. Subject to the provisions of the General Corporation Law of
Delaware and any limitation in the Certificate of Incorporation or these Bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the Corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors.
3.2 NUMBER, ELECTION. The Board of Directors shall consist of not less
than three (3) nor more than seven (7) persons until changed by a proper
amendment of this section. The exact number of directors shall initially be
five, until changed by a resolution of the boards of directors or by an
amendment to this Bylaw. All of the directors shall be of legal age. Directors
need not be stockholders. Except as otherwise provided by statute or these
Bylaws, the directors shall be elected at the annual meeting of the stockholders
for the election of directors at which a quorum is present, and the persons
receiving a plurality of the votes cast at such election shall be elected. Each
director shall hold office until the next annual meeting of the stockholders and
until his successor shall have been duly elected and qualified or until his
death, or until he shall have resigned, or until he shall have been removed, as
hereinafter provided in these Bylaws, or as otherwise provided by statute or the
Certificate of Incorporation.
3.3 QUALIFICATION AND TERM OF OFFICE OF DIRECTORS. All of the directors
shall be of legal age. Directors need not be stockholders. Each director,
including a director elected to fill a vacancy, shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
3.4 RESIGNATION AND VACANCIES. Any director may resign at any time upon
written notice to the attention of the Secretary of the Corporation. When one or
more directors so resigns and the resignation is effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in this section in the filling
of other vacancies.
Vacancies and newly created directorships resulting from any increase
in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof
are entitled to elect one or more directors by the provisions of the Certificate
of Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors
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elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
Corporation should have no directors in office, then any officer or any
stockholder or any executor, administrator, trust or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the Certificate of Incorporation or these Bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least twenty-five percent (25%) of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office as aforesaid, which election shall be governed by the provisions of
Section 211 of the General Corporation Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. The Board of Directors of
the Corporation may hold meetings, both regular and special, either within or
outside the State of Delaware. Members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
3.7 SPECIAL MEETINGS; NOTICE. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by the Chairman
of the Board, the president or any two directors. Notice of the time and place
of special meetings shall be delivered personally or by telephone to each
director or sent by first-class mail or telecommunications facsimile, charges
prepaid, addressed to each director at that director's address as it is shown on
the records of the Corporation. If the notice is mailed, it shall be deposited
in the United States mail at least four days before the time of the holding of
the meeting. If the notice is delivered personally or by telephone or by
facsimile, it shall be delivered personally or by telephone or to the
telecommunications facsimile telephone number at least 48 hours before the time
of the holding 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. The notice need not specify the purpose or the
place of the meeting, if the meeting is to be held at the principal executive
office of the Corporation. Notice also may be given by any other means
authorized from time to time under the General Corporation Laws of Delaware.
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3.8 QUORUM. At all meetings of the Board of Directors, a majority of
the authorized number of directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum is not present at any meeting of the Board of
Directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present. 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.
3.9 WAIVER OF NOTICE. Whenever notice regarding a meeting of the Board
of Directors is required to be given under any provision of the General
Corporation Law of Delaware or of the Certificate of Incorporation or these
Bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person 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 other purpose of, any regular or special
meeting of the directors, or members of a committee of directors, need be
specified in any written waiver of notice.
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
board or committee, as the case may be, consent thereto in writing and the
writing or writings are filed with the minutes of proceedings of the board or
committee.
3.11 FEES AND COMPENSATION OF DIRECTORS. The Board of Directors shall
have the authority to fix the compensation of directors.
3.12 APPROVAL OF LOANS TO OFFICERS. The Corporation may lend money to,
or guarantee any obligation of, or otherwise assist any officer or other
employee of the Corporation or of its subsidiaries, including any officer or
employee who is a director of the Corporation or its subsidiaries, whenever, in
the judgment of the directors, such loan, guaranty or assistance may reasonably
be expected to benefit the Corporation. The loan, guaranty or other assistance
may be with or without interest and may be unsecured, or secured in such manner
as the Board of Directors shall approve, including, without limitation, a pledge
of shares of stock of the Corporation. Nothing contained in this section shall
be deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
3.13 REMOVAL OF DIRECTORS. Unless otherwise restricted by statute, any
director or the entire Board of Directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to elect such director.
ARTICLE IV
COMMITTEES
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4.1 COMMITTEES OF DIRECTORS. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more committees, with
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in the Bylaws of the Corporation, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it; but no such committee shall have the
power or authority to (i) approve or adopt, or recommend to the stockholders,
any action or matter expressly required by this chapter to be submitted to
stockholders for approval or (ii) adopt, amend or repeal any bylaw of the
corporation.
4.2 COMMITTEE MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these Bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and
Section 3.10 (action without a meeting), with such changes in the context of
those Bylaws as are necessary to substitute the committee and its members for
the Board of Directors and its members; provided, however, that the time of
regular meetings of committees may be determined either by resolution of the
Board of Directors or by resolution of the committee, that special meetings of
committees may also be called by resolution of the Board of Directors and that
notice of special meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the committee. The
Board of Directors may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of the Corporation shall be a Chief
Executive Officer, a President, a Secretary, and a Chief Financial Officer. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board, one or more Vice Presidents, one or more assistant vice
presidents, one or more assistant secretaries, and one or more Assistant
Treasurers, and any such other officers as may be appointed in accordance with
the provisions of Section 5.3 of these Bylaws. Any number of offices may be held
by the same person.
5.2 APPOINTMENT OF OFFICERS. The officers of the Corporation, except
such officers as may be appointed in accordance with the provisions of Sections
5.3 or 5.5 of these Bylaws, shall be appointed by the Board of Directors,
subject to the rights, if any, of an officer under any contract of employment.
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5.3 SUBORDINATE OFFICERS. The Board of Directors may appoint, or
empower the President to appoint, such other officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in these Bylaws or as
the Board of Directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
Board of Directors at any regular or special meeting of the board or, except in
the case of an officer chosen by the Board of Directors, by any officer upon
whom such power of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
5.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at meetings of the Board of
Directors and exercise and perform such other powers and duties as may from time
to time be assigned to him by the Board of Directors or as may be prescribed by
these Bylaws. If there is no President, then the Chairman of the Board shall
also be the chief executive officer of the Corporation and shall have the powers
and duties prescribed in Section 5.7 of these Bylaws.
5.7 CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the Board of Directors to the Chairman of the Board, if
there be such an officer, the Chief Executive Officer, or CEO, shall, subject to
the control of the Board of Directors, have general supervision, direction, and
control of the business and the officers of the Corporation. He shall preside at
all meetings of the stockholders and, in the absence or nonexistence of a
Chairman of the Board, at all meetings of the Board of Directors.
5.8 PRESIDENT. In the absence or disability of the CEO, the President
shall (a) act as the Chief Executive Officer of the corporation, subject to the
control of the Board of Directors, and have general supervision, direction and
control of the business and affairs of the corporation, (b) preside at all
meetings of the shareholders and, in the absence of the Chairman of the Board
and the Chief Executive Officer, at all meetings of the Board of Directors, and
(c) call meetings of the shareholders and also the Board of Directors to be
held, subject to limitations prescribed by law or by these Bylaws, at such times
and at such places as the President shall deem proper and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
Bylaws. The President shall also 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
of Directors or which, in the judgment of the President, are to be executed on
behalf of the Corporation, the signed certificates for shares of stock of the
Corporation and,
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subject to the direction of the Board of Directors, have general charge of the
property of the Corporation and to supervise and control all officers, agents
and employees of the Corporation.
5.9 VICE PRESIDENTS. In the absence or disability of the President, the
Vice Presidents, if any, in order of their rank as fixed by the Board of
Directors or, if not ranked, a Vice President designated by the Board of
Directors, shall perform all the duties of the President and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors, these Bylaws, the President or the Chairman of the Board.
5.10 SECRETARY. The Secretary shall keep or cause to be kept, at the
principal executive office of the Corporation or such other place as the Board
of Directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show the
time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required to be given by law or
by these Bylaws. He shall keep the seal of the Corporation, if one be adopted,
in safe custody and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or by these Bylaws.
5.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and
records of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the Chief Executive Officer, President and directors, whenever they
request it, an account of all his transactions as Chief Financial Officer and of
the financial condition of the Corporation, and shall have other powers and
perform such other duties as may be prescribed by the Board of Directors or
these Bylaws.
The Chief Financial Officer shall be the treasurer of the Corporation,
unless otherwise determined by the Board of Directors.
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5.12 ASSISTANT SECRETARY. The Assistant Secretary, or, if there is more
than one, the assistant secretaries in the order determined by the stockholders
or Board of Directors (or if there be no such determination, then in the order
of their election) shall, in the absence of the Secretary or in the event of his
or her inability or refusal to act, perform the duties and exercise the powers
of the Secretary and shall perform such other duties and have such other powers
as may be prescribed by the Board of Directors or these Bylaws.
5.13 ASSISTANT TREASURER. The Assistant Treasurer, or, if there is more
than one, the Assistant Treasurers, in the order determined by the stockholders
or Board of Directors (or if there be no such determination, then in the order
of their election), shall, in the absence of the Chief Financial Officer or in
the event of his or her inability or refusal to act, perform the duties and
exercise the powers of the Chief Financial Officer and shall perform such other
duties and have such other powers as may be prescribed by the Board of Directors
or these Bylaws.
5.14 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman of
the Board, the CEO, the President, any Vice President, the Chief Financial
Officer, the Secretary or Assistant Secretary of the Corporation, or any other
person authorized by the Board of Directors or the President or a Vice
President, is authorized to vote, represent, and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the Corporation. The authority granted
herein may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
5.15 AUTHORITY AND DUTIES OF OFFICERS. In addition to the foregoing
authority and duties, all officers of the Corporation shall respectively have
such authority and perform such duties in the management of the business of the
Corporation as may be designated from time to time by the Board of Directors or
the stockholders.
ARTICLE VI
INDEMNITY
6.1 THIRD PARTY ACTIONS. Subject to the provisions of this Article VI,
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
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement (if such settlement is approved in advance by the Corporation,
which approval shall not be unreasonably withheld) actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests
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of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. Subject to the
provisions of this Article VI, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer or employee of the Corporation, or is or was serving at the request of
the Corporation as a director, officer or employee of another Corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, except that no indemnification shall be made
in respect of any 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. Notwithstanding any other
provision of this Article VI, no person shall be indemnified hereunder for any
expenses or amounts paid in settlement with respect to any action to recover
short-swing profits under Section 16(b) of the Securities Exchange Act of 1934,
as amended.
6.3 SUCCESSFUL DEFENSE. To the extent that a director, officer or
employee of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 6.1 and 6.2,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
6.4 DETERMINATION OF CONDUCT. Any indemnification under Sections 6.1
and 6.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that the indemnification of
the director, officer or employee is proper in the circumstances because he has
met the applicable standard of conduct set forth in Sections 6.1 and 6.2. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding or (ii) if such quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. Notwithstanding the foregoing, a
director, officer or employee of the Corporation shall be entitled to contest
any determination that the director, officer or employee has not met the
applicable standard of conduct set forth in Sections 6.1 and 6.2 by petitioning
a court of competent jurisdiction.
6.5 PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred in defending a
civil or criminal action, suit or proceeding, by an individual who may be
entitled to indemnification pursuant to Section 6.1 or 6.2, 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,
officer or employee to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article VI.
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6.6 INDEMNITY NOT EXCLUSIVE; EFFECT OF INDEMNIFICATION AGREEMENTS. The
provisions of a written indemnification agreement between the Corporation and
any person subject to indemnity under this Article VI shall control over the
provisions of this Article VI, which shall not apply to the Corporation and the
person subject to indemnity under the written agreement. The indemnification and
advancement of expenses provided by or granted pursuant to the other sections of
this Article VI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
6.7 INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer or
employee of the Corporation, or is or was serving at the request of the
Corporation, as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article VI.
6.8 THE CORPORATION. For purposes of this Article VI, 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 and officers, so that
any person who is or was a director, officer or employee of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under and
subject to the provisions of this Article VI (including, without limitation, the
provisions of Section 6.4) with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
6.9 EMPLOYEE BENEFIT PLANS. For purposes of this Article VI, references
to "other enterprises" shall include employee benefit plans; 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 or employee of the
Corporation which imposes duties on, or involves services by, such director,
officer or employee with respect to an employee benefit plan, its participants,
or beneficiaries; and a person who acted in good faith and in a manner he
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 Article
VI.
6.10 INDEMNITY FUND. Upon resolution passed by the Board, the
Corporation may establish a trust or other designated account, grant a security
interest or use other means (including, without limitation, a letter of credit),
to ensure the payment of certain of its obligations arising under this Article
VI and/or agreements which may be entered into between the Corporation and its
officers and directors from time to time.
6.11 INDEMNIFICATION OF OTHER PERSONS. The provisions of this Article
VI shall not be deemed to preclude the indemnification of any person who is not
a director or officer of
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the Corporation or is not serving at the request of the Corporation as a
director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, but whom the Corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware or otherwise. The Corporation may, in its sole discretion,
indemnify an employee, trustee or other agent as permitted by the General
Corporation Law of the State of Delaware. The Corporation shall indemnify an
employee, trustee or other agent where required by law.
6.12 SAVINGS CLAUSE. If this Article VI or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each person entitled to indemnification
hereunder against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative, and whether internal
or external, including a grand jury proceeding and an action or suit brought by
or in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated, or by
any other applicable law.
6.13 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VI shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer or employee and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS. The Corporation shall,
either at its principal executive office or at such place or places as
designated by the Board of Directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these Bylaws as amended to date, accounting books, and
other records. A stockholder of record shall have such rights to inspect such
records of the Corporation as are provided by the General Corporation Law of the
State of Delaware, subject to such conditions and restrictions on inspection
rights as are provided by law.
7.2 INSPECTION BY DIRECTORS. Any director shall have the right to
examine the Corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the Corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
ARTICLE VIII
GENERAL MATTERS
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8.1 CHECKS. From time to time, the Board of Directors shall determine
by resolution which person or persons may sign or endorse all checks, drafts,
other orders for payment of money, notes or other evidences of indebtedness that
are issued in the name of or payable to the Corporation, and only the persons so
authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. The Board of
Directors, except as otherwise provided in these Bylaws, may authorize any
officer or officers, to enter into any contract or execute any instrument in the
name of and on behalf of the Corporation; such authority may be general or
confined to specific instances. Unless so authorized or ratified by the Board of
Directors or within the agency power of an officer, no officer 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.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES. The shares of the
Corporation shall be represented by certificates, provided that the Board of
Directors of the Corporation 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 the President or Vice President, and by the Chief Financial
Officer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of
the Corporation representing the number of shares registered in certificate
form. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the Corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the Corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES. If the Corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face of 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
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preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
8.5 LOST CERTIFICATES. Except as provided in this Section 8.5, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the Corporation and canceled at
the same time. The Corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify it
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 such new
certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the Delaware
General Corporation Law shall govern the construction of these Bylaws. Without
limiting the generality of this provision, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both a corporation and a natural person.
8.7 DIVIDENDS. The directors of the Corporation, subject to any
restrictions contained in the General Corporation Law of Delaware, may declare
and pay dividends upon the shares of its capital stock. Dividends may be paid in
cash, in property, or in shares of the Corporation's capital stock. The
directors of the Corporation may set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve. Such purposes shall include but not be limited
to equalizing dividends, repairing or maintaining any property of the
Corporation, and meeting contingencies.
8.8 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors and may be changed by the Board of
Directors.
8.9 SEAL. The Corporation may adopt a corporate seal, which shall be
adopted and which may be altered by the Board of Directors, and may use the same
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
8.10 TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation 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 in its books.
8.11 STOCK TRANSFER AGREEMENTS. The Corporation shall have power to
enter into and perform any agreement with any number of stockholders of any one
or more classes of stock of the Corporation to restrict the transfer of shares
of stock of the Corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the General Corporation Law of
Delaware.
8.12 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, shall be entitled to
hold liable for calls and assessments the
17
person registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of another person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
8.13 DEEMED CALIFORNIA CORPORATION. If Section 2115 of the California
General Corporation Law ("CGCL") applies to the Corporation, then the
Corporation and these Bylaws shall be governed by the CGCL to the extent (and
only to the extent) that Section 2115 applies and only until such time as
Section 2115 no longer applies to the Corporation.
ARTICLE IX
AMENDMENTS
The Bylaws of the Corporation may be adopted, amended or repealed by a
vote of [60%] of the Board of Directors or by an affirmative vote of the holders
of a majority of the outstanding shares of stock having voting rights, voting as
a single class.
* * *
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
SELECTQUOTE, INC.
A DELAWARE CORPORATION
Certificate by Secretary of Bylaws:
The undersigned hereby certifies that he is the duly elected,
qualified, and acting Secretary of SelectQuote, Inc., a Delaware corporation and
that the foregoing Bylaws were adopted as the Bylaws of the Corporation to be
effective as of August 19, 1999 by the stockholders of the Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand as of
August 19, 1999.
------------------------------------
Nancy Malik, Secretary
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