EXHIBIT 3.5
DOVER SADDLERY, INC.
AMENDED AND RESTATED BY-LAWS
ARTICLE I. - GENERAL.
1.1. OFFICES. The registered office of Dover Saddlery, Inc. (the "Company")
shall be in the City of Wilmington, County of New Castle, State of Delaware. The
Company may also have offices at such other places both within and without the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Company may require.
1.2. SEAL. The seal, if any, of the Company shall be in the form of a
circle and shall have inscribed thereon the name of the Company, the year of its
organization and the words "Corporate Seal, Delaware."
1.3. FISCAL YEAR. The fiscal year of the Company shall be the period from
January 1 through December 31.
ARTICLE II. - STOCKHOLDERS.
2.1. PLACE OF MEETINGS. Each meeting of the stockholders shall be held upon
notice as hereinafter provided, at such place as the Board of Directors shall
have determined and as shall be stated in such notice.
2.2. ANNUAL MEETING. The annual meeting of the stockholders shall be held
each year on such date and at such time as the Board of Directors may determine.
At each annual meeting the stockholders entitled to vote shall elect such
members of the Board of Directors as are standing for election, by plurality
vote by ballot, and they may transact such other corporate business as may
properly be brought before the meeting. At the annual meeting any business may
be transacted, irrespective of whether the notice calling such meeting shall
have contained a reference thereto, except where notice is required by law, the
Company's Certificate of Incorporation, or these by-laws.
2.3. QUORUM. At all meetings of the stockholders 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 requisite for the
transaction of business except as otherwise provided by law, the Company's
Certificate of Incorporation, or these by-laws. Whether or not there is such a
quorum at any meeting, the chairman of the meeting or the stockholders entitled
to vote thereat, present in person or by proxy, by a majority vote, may adjourn
the meeting from time to time without notice other than announcement at the
meeting. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting, at which the requisite amount of
voting stock shall be represented, any business may be transacted that might
have been transacted if the meeting had been held as originally called. The
stockholders present in person or by proxy at a duly called meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
2.4. RIGHT TO VOTE; PROXIES. Subject to the provisions of the Company's
Certificate of Incorporation, each holder of a share or shares of capital stock
of the Company having the right to vote at any meeting shall be entitled to one
vote for each such share of stock held by him. Any stockholder entitled to vote
at any meeting of stockholders may vote either in person or by proxy, but no
proxy that is dated more than three years prior to the meeting at which it is
offered shall confer the right to vote thereat unless the proxy provides that it
shall be effective for a longer period. A proxy may be granted by a writing
executed by the stockholder or his authorized agent or by transmission or
authorization of transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization, or like agent
duly authorized by the person who will be the holder of the proxy to receive
such transmission, subject to the conditions set forth in Section 212 of the
Delaware General Corporation Law, as it may be amended from time to time (the
"DGCL").
2.5. VOTING. At all meetings of stockholders, except as otherwise expressly
provided for by statute, the Company's Certificate of Incorporation, or these
by-laws, (i) in all matters other than the election of directors, the
affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on such matter shall be the act of the
stockholders and (ii) directors shall be elected by a plurality of the votes of
the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors.
2.6. NOTICE OF ANNUAL MEETINGS. Written notice of the annual meeting of the
stockholders shall be mailed to each stockholder entitled to vote thereat at
such address as appears on the stock books of the Company at least ten (10) days
(and not more than sixty (60) days) prior to the meeting. The Board of Directors
may postpone any annual meeting of the stockholders at its discretion, even
after notice thereof has been mailed. It shall be the duty of every stockholder
to furnish to the Secretary of the Company or to the transfer agent, if any, of
the class of stock owned by him and his post-office address, and to notify the
Secretary of any change therein. Notice need not be given to any stockholder who
submits a
-2-
written waiver of notice signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends the
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.
2.7. STOCKHOLDERS' LIST. A complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order and showing
the address of each stockholder, and the number of shares registered in the name
of each stockholder, shall be prepared by the Secretary and shall be open to
examination of any stockholder, for any purpose germane to the meeting for a
period of at least ten days before such meeting (i) 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 (ii) during ordinary
business hours at the principal office of the corporation, and said list shall
be open to examination during the whole time of said meeting, at the place of
said meeting, or, if the meeting held is by remote communication, on a
reasonably accessible electronic network and the information required to access
such list shall be provided with the notice of the meeting.
2.8. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose
or purposes, unless otherwise provided by statute, may be called only by the
Chairman of the Board of Directors, the President, or a majority of the Board of
Directors. Any such person or persons may postpone any special meeting of the
stockholders at its or their discretion, even after notice thereof has been
mailed.
2.9. NOTICE OF SPECIAL MEETINGS. Written notice of a special meeting of
stockholders, stating the time and place and object thereof shall be mailed,
postage prepaid, not less than ten (10) nor more than sixty (60) days before
such meeting, to each stockholder entitled to vote thereat, at such address as
appears on the books of the Company. No business may be transacted at such
meeting except that referred to in said notice, or in a supplemental notice
given also in compliance with the provisions hereof, or such other business as
may be germane or supplementary to that stated in said notice or notices. Notice
need not be given to any stockholder who submits a written waiver of notice
signed by him before or after the time stated therein. Attendance of a
stockholder at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends the 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.
2.10. INSPECTORS.
1. One or more inspectors may be appointed by the Board of Directors
before or at any meeting of stockholders, or, if no such appointment shall
have been made, the presiding officer may make such appointment at the
meeting. At the
-3-
meeting for which the inspector or inspectors are appointed, he or they
shall open and close the polls, receive and take charge of the proxies and
ballots, and decide all questions touching on the qualifications of voters,
the validity of proxies, and the acceptance and rejection of votes. If any
inspector previously appointed shall fail to attend or refuse or be unable
to serve, the presiding officer shall appoint an inspector in his place.
2. At any time at which the Company has a class of voting stock that
is (i) listed on a national securities exchange, (ii) authorized for
quotation on an inter-dealer quotation system of a registered national
securities association, or (iii) held of record by more than 2,000
stockholders, the provisions of Section 231 of the DGCL with respect to
inspectors of election and voting procedures shall apply, in lieu of the
provisions of paragraph 1 of this Section 2.10.
2.11. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Unless otherwise provided
in the Company's Certificate of Incorporation, any action required to be taken
at any annual or special meeting of stockholders of the Company, or any action
that may be taken at any annual or special meeting of such stockholders, may be
taken only at such a meeting, and not by written consent of stockholders.
2.12. PROCEDURES. For nominations for the Board of Directors or for other
business to be properly brought by a stockholder before a meeting of
stockholders, the stockholder must first have given timely written notice
thereof to the Secretary of the Company. To be timely, a notice of nominations
or other business to be brought before an annual meeting of stockholders must be
delivered to the Secretary not less than 120 nor more than 150 days prior to the
first anniversary of the date of the Company's proxy statement delivered to
stockholders in connection with the preceding year's annual meeting, or if the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary, or if no proxy statement was delivered to stockholders
by the Company in connection with the preceding year's annual meeting, such
notice must be delivered not earlier than 90 days prior to such annual meeting
and not later than the later of (i) 60 days prior to the annual meeting or (ii)
10 days following the date on which public announcement of the date of such
annual meeting is first made by the Company. With respect to special meetings of
stockholders, such notice must be delivered to the Secretary not more than 90
days prior to such meeting and not later than the later of (i) 60 days prior to
such meeting or (ii) 10 days following the date on which public announcement of
the date of such meeting is first made by the Company. Such notice must contain
the name and address of the stockholder delivering the notice and a statement
with respect to the amount of the Company's stock beneficially and/or legally
owned by such stockholder, the nature of any such beneficial ownership of such
stock, the beneficial ownership of any such stock legally held by such
stockholder but beneficially owned by one or more others, and the length of time
for which all such stock has been beneficially and/or legally owned by such
stockholder, and information about each nominee for election as a director
substantially equivalent to that which would be required in a proxy statement
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Securities and Exchange Commission thereunder,
-4-
and/or a description of the proposed business to be brought before the meeting,
as the case may be.
ARTICLE III. - DIRECTORS.
3.1. NUMBER OF DIRECTORS.
(a) Except as otherwise provided by law, the Company's Certificate of
Incorporation, or these by-laws, the property and business of the Company shall
be managed by or under the direction of a board of directors. Directors need not
be stockholders, residents of Delaware, or citizens of the United States. The
use of the phrase "whole board" herein refers to the total number of directors
which the Company would have if there were no vacancies.
(b) The number of directors constituting the full Board of Directors shall
be as determined by the Board of Directors from time to time. The Board of
Directors shall be divided into three classes of directors, as determined by the
Board of Directors, such classes to be as nearly equal in number of directors as
possible, having staggered three-year terms of office, the term of office of the
directors of the first such class to expire as of the first annual meeting of
the Company's stockholders following the closing of the IPO, those of the second
class to expire as of the second annual meeting of the Company's stockholders
following such closing, and those of the third class as of the third annual
meeting of the Company's stockholders following such closing, such that at each
annual meeting of stockholders after such closing, nominees will stand for
election to succeed those directors whose terms are to expire as of such
meeting. Members of the Board of Directors shall hold office until the annual
meeting of stockholders at which their respective successors are elected and
qualified or until their earlier death, incapacity, resignation, or removal.
Except as the DGCL or the Company's Certificate of Incorporation may otherwise
require, in the interim between annual meetings of stockholders or special
meetings of stockholders called for the election of directors and/or for the
removal of one or more directors and for the filling of any vacancy in that
connection, any vacancies in the Board of Directors, including unfilled
vacancies resulting from the removal of directors for cause, may be filled by
the vote of a majority of the remaining directors then in office, although less
than a quorum, or by the sole remaining director.
(c) If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal, failure to elect, or otherwise, the
remaining directors, although more or less than a quorum, by a majority vote of
such remaining directors may elect a successor or successors who shall hold
office for the unexpired term.
3.2. RESIGNATION. Any director of the Company may resign at any time by
giving written notice to the Chairman of the Board, the President, or the
Secretary of the Company. Such resignation shall take effect at the time
specified therein, at the time of receipt if no time is specified therein and at
the time of acceptance if the effectiveness of such resignation is conditioned
upon its acceptance. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
-5-
3.3. REMOVAL. Except as may otherwise be provided by the DGCL or the
Company's Certificate of Incorporation, any director or the entire Board of
Directors may be removed only for cause and only by the vote of the holders of a
majority of the shares of the Company's stock entitled to vote for the election
of directors.
3.4. PLACE OF MEETINGS AND BOOKS. The Board of Directors may hold their
meetings and keep the books of the Company outside the State of Delaware, at
such places as they may from time to time determine.
3.5. GENERAL POWERS. In addition to the powers and authority expressly
conferred upon them by these by-laws, the board may exercise all such powers of
the Company and do all such lawful acts and things as are not by statute or by
the Company's Certificate of Incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
3.6. OTHER COMMITTEES. The Board of Directors may designate one or more
committees, by resolution or resolutions passed by a majority of the whole
board; such committee or committees shall consist of one or more directors of
the Company, and to the extent provided in the resolution or resolutions
designating them, shall have and may exercise specific powers of the Board of
Directors in the management of the business and affairs of the Company to the
extent permitted by statute and shall have power to authorize the seal of the
Company to be affixed to all papers that may require it. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board of Directors.
3.7. POWERS DENIED TO COMMITTEES. Committees of the Board of Directors
shall not, in any event, have any power or authority to amend the Company's
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
adopted by the Board of Directors as provided in Section 151(a) of the DGCL, fix
the designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the Company or
the conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or classes
of stock of the Company or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), adopt an
agreement of merger or consolidation, recommend to the stockholders the sale,
lease, or exchange of all or substantially all of the Company's property and
assets, recommend to the stockholders a dissolution of the Company or a
revocation of a dissolution, or to amend the by-laws of the Company. Further, no
committee of the Board of Directors shall have the power or authority to declare
a dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the DGCL, unless the resolution
or resolutions designating such committee expressly so provides.
3.8. SUBSTITUTE COMMITTEE MEMBER. In the absence or on the 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
-6-
appoint another member of the Board of Directors to act at the meeting in the
place of such absent or disqualified member. Any committee shall keep regular
minutes of its proceedings and report the same to the board as may be required
by the board.
3.9. COMPENSATION OF DIRECTORS. The Board of Directors shall have the power
to fix the compensation of directors and members of committees of the Board. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
3.10. REGULAR MEETINGS. No notice shall be required for regular meetings of
the Board of Directors for which the time and place have been fixed. Written,
oral, or any other mode of notice of the time and place shall be given for
special meetings in sufficient time for the convenient assembly of the directors
thereat. Notice need not be given to any director who submits a written waiver
of notice signed by him before or after the time stated therein. Attendance of
any such person at a meeting shall constitute a waiver of notice of such
meeting, except when he 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
directors need be specified in any written waiver of notice.
3.11. SPECIAL MEETINGS. Special meetings of the board may be called by the
Chairman of the Board, if any, or the President, on two (2) days notice to each
director, or such shorter period of time before the meeting as will nonetheless
be sufficient for the convenient assembly of the directors so notified; special
meetings shall be called by the Secretary in like manner and on like notice, on
the written request of two or more directors.
3.12. QUORUM. At all meetings of the Board of Directors, a majority of the
whole board shall be necessary and sufficient to 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 permitted or provided by
statute, or by the Company's Certificate of Incorporation, or by these by-laws.
If at any meeting of the board there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other than by
announcement at said meeting that shall be so adjourned.
3.13. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board of
Directors or any committee designated by such board may participate in a meeting
of the board or 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 participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
-7-
3.14. ACTION BY CONSENT. Unless otherwise restricted by the Company's
Certificate of Incorporation or these by-laws, 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 written consent thereto is signed by all
members of the board or of such committee as the case may be and such written
consent is filed with the minutes of proceedings of the board or committee.
ARTICLE IV. - OFFICERS.
4.1. SELECTION; STATUTORY OFFICERS. The officers of the Company shall be
chosen by the Board of Directors. There shall be a President, a Secretary, and a
Treasurer, and there may be a Chairman of the Board of Directors, one or more
Vice Chairmen, one or more Vice Presidents, one or more Assistant Secretaries,
and one or more Assistant Treasurers, as the Board of Directors may elect. Any
number of offices may be held by the same person, except that the offices of
President and Secretary shall not be held by the same person simultaneously.
4.2. TIME OF ELECTION. The officers above named shall be chosen by the
Board of Directors at its first meeting after each annual meeting of
stockholders. None of said officers need be a director.
4.3. ADDITIONAL OFFICERS. The board may appoint such other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
4.4. TERMS OF OFFICE. Each officer of the Company shall hold office until
his successor is chosen and qualified, or until his earlier resignation or
removal. Any officer elected or appointed by the Board of Directors may be
removed at any time by the Board of Directors.
4.5. COMPENSATION OF OFFICERS. The Board of Directors shall have power to
fix the compensation of all officers of the Company. It may authorize any
officer, upon whom the power of appointing subordinate officers may have been
conferred, to fix the compensation of such subordinate officers.
4.6. CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and directors, and shall have such
other duties as may be assigned to him from time to time by the Board of
Directors.
4.7. VICE-CHAIRMEN. The Vice-Chairmen shall perform such of the duties of
the Chairman of the Board on behalf of the Company as may be respectively
assigned to them from time to time by the Board of Directors or by the Chairman
of the Board.
4.8. PRESIDENT. Unless the Board of Directors otherwise determines, the
President shall be the chief executive officer and head of the Company. Unless
there is a Chairman of the Board, the President shall preside at all meetings of
directors and stockholders. Under
-8-
the supervision of the Board of Directors, the President shall have the general
control and management of its business and affairs, subject, however, to the
right of the Board of Directors to confer any specific power, except such as may
be by statute exclusively conferred on the President, upon any other officer or
officers of the Company. The President shall perform and do all acts and things
incident to the position of President and such other duties as may be assigned
to him from time to time by the Board of Directors.
4.9. VICE-PRESIDENTS. The Vice-Presidents shall perform such of the duties
of the President on behalf of the Company as may be respectively assigned to
them from time to time by the Board of Directors or by the President. The Board
of Directors may designate one of the Vice-Presidents as the Executive
Vice-President, and in the absence or inability of the President to act, such
Executive Vice-President shall have and possess all of the powers and discharge
all of the duties of the President, subject to the control of the Board of
Directors.
4.10. TREASURER. The Treasurer shall have the care and custody of all the
funds and securities of the Company that may come into his hands as Treasurer,
and the power and authority to endorse checks, drafts and other instruments for
the payment of money for deposit or collection when necessary or proper and to
deposit the same to the credit of the Company in such bank or banks or
depository as the Board of Directors, or the officers or agents to whom the
Board of Directors may delegate such authority, may designate, and he may
endorse all commercial documents requiring endorsements for or on behalf of the
Company. He may sign all receipts and vouchers for the payments made to the
Company. He shall render an account of his transactions to the Board of
Directors as often as the board or the committee shall require the same. He
shall enter regularly in the books to be kept by him for that purpose full and
adequate account of all moneys received and paid by him on account of the
Company. He shall perform all acts incident to the position of Treasurer,
subject to the control of the Board of Directors. He shall when requested,
pursuant to vote of the Board of Directors, give a bond to the Company
conditioned for the faithful performance of his duties, the expense of which
bond shall be borne by the Company.
4.11. SECRETARY. The Secretary shall keep the minutes of all meetings of
the Board of Directors and of the stockholders; he shall attend to the giving
and serving of all notices of the Company. Except as otherwise ordered by the
Board of Directors, he shall attest the seal of the Company upon all contracts
and instruments executed under such seal and shall affix the seal of the Company
thereto and to all certificates of shares of capital stock of the Company. He
shall have charge of the stock certificate book, transfer book and stock ledger,
and such other books and papers as the Board of Directors may direct. He shall,
in general, perform all the duties of Secretary, subject to the control of the
Board of Directors.
4.12. ASSISTANT SECRETARY. The Board of Directors or any two of the
officers of the Company acting jointly may appoint or remove one or more
Assistant Secretaries of the Company. Any Assistant Secretary upon his
appointment shall perform such duties of the Secretary, and also any and all
such other duties as the Board of Directors or the President or the Executive
Vice-President or the Treasurer or the Secretary may designate.
-9-
4.13. ASSISTANT TREASURER. The Board of Directors or any two of the
officers of the Company acting jointly may appoint or remove one or more
Assistant Treasurers of the Company. Any Assistant Treasurer upon his
appointment shall perform such of the duties of the Treasurer, and also any and
all such other duties as the Board of Directors or the President or the
Executive Vice-President or the Treasurer or the Secretary may designate.
4.14. SUBORDINATE OFFICERS. The Board of Directors may select such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
ARTICLE V. - STOCK.
5.1. STOCK. Each stockholder shall be entitled to a certificate or
certificates of stock of the Company in such form as the Board of Directors may
from time to time prescribe. The certificates of stock of the Company shall be
numbered and shall be entered in the books of the Company as they are issued.
They shall certify the holder's name and number and class of shares and shall be
signed by both of (i) any one of the Chairman of the Board, a Vice-Chairman, the
President or a Vice-President, and (ii) any one of the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and may be sealed with the
corporate seal of the Company. If such certificate is countersigned (l) by a
transfer agent other than the Company or its employee, or, (2) by a registrar
other than the Company or its employee, the signature of the officers of the
Company and the corporate seal may be facsimiles. In case any officer or
officers who shall have signed, or whose facsimile signature or signatures shall
have been used on, any such certificate or certificates shall cease to be such
officer or officers of the Company, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Company, such certificate or certificates may nevertheless be adopted by the
Company and be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature shall have been
used thereon had not ceased to be such officer or officers of the Company.
5.2. FRACTIONAL SHARE INTERESTS. The Company may, but shall not be required
to, issue fractions of a share. If the Company does not issue fractions of a
share, it shall (i) arrange for the disposition of fractional interests by those
entitled thereto, (ii) pay in cash the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined, or (iii)
issue scrip or warrants in registered or bearer form that shall entitle the
holder to receive a certificate for a full share upon the surrender of such
scrip or warrants aggregating a full share. A certificate for a fractional share
shall, but scrip or warrants shall not unless otherwise provided therein,
entitle the holder to exercise voting rights, to receive dividends thereon, and
to participate in any of the assets of the Company in the event of liquidation.
The Board of Directors may cause scrip or warrants to be issued subject to the
conditions that they shall become void if not exchanged for certificates
representing full shares before a specified date, or subject to the conditions
that the shares for which scrip or warrants are exchangeable may be sold by the
Company and the proceeds thereof distributed
-10-
to the holders of scrip or warrants, or subject to any other conditions that the
Board of Directors may impose.
5.3. TRANSFERS OF STOCK. Subject to any transfer restrictions then in
force, the shares of stock of the Company shall be transferable only upon its
books by the holders thereof in person or by their duly authorized attorneys or
legal representatives and upon such transfer the old certificates shall be
surrendered to the Company by the delivery thereof to the person in charge of
the stock and transfer books and ledgers or to such other person as the
directors may designate by whom they shall be canceled and new certificates
shall thereupon be issued. The Company shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person whether or not it shall
have express or other notice thereof save as expressly provided by the laws of
Delaware.
5.4. RECORD DATE. For the purpose of determining the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or the
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, that shall
not be more than sixty (60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any other action. If no
such record date is fixed by the Board of Directors, 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; 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
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 any 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.
5.5. TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint one
or more transfer agents or transfer clerks and one or more registrars and may
require all certificates of stock to bear the signature or signatures of any of
them.
5.6. DIVIDENDS.
1. Power to Declare. Dividends upon the capital stock of the Company,
subject to the provisions of the Company's Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock,
-11-
subject to the provisions of the Company's Certificate of Incorporation and
the laws of Delaware.
2. Reserves. Before payment of any dividend, there may be set aside
out of any funds of the Company available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Company, or
for such other purpose as the directors shall think conducive to the
interest of the Company, and the directors may modify or abolish any such
reserve in the manner in which it was created.
5.7. LOST, STOLEN, OR DESTROYED CERTIFICATES. No certificates for shares of
stock of the Company shall be issued in place of any certificate alleged to have
been lost, stolen, or destroyed, except upon production of such evidence of the
loss, theft, or destruction and upon indemnification of the Company and its
agents to such extent and in such manner as the Board of Directors may from time
to time prescribe.
5.8. INSPECTION OF BOOKS. The stockholders of the Company, by a majority
vote at any meeting of stockholders duly called, or in case the stockholders
shall fail to act, the Board of Directors shall have power from time to time to
determine whether and to what extent and at what times and places and under what
conditions and regulations the accounts and books of the Company (other than the
stock ledger) or any of them, shall be open to inspection of stockholders; and
no stockholder shall have any right to inspect any account or book or document
of the Company except as conferred by statute or authorized by the Board of
Directors or by a resolution of the stockholders.
ARTICLE VI. - MISCELLANEOUS MANAGEMENT PROVISIONS.
6.1. CHECKS, DRAFTS, AND NOTES. All checks, drafts, or orders for the
payment of money, and all notes and acceptances of the Company shall be signed
by such officer or officers, or such agent or agents, as the Board of Directors
may designate.
6.2. NOTICES.
1. Notices to directors may, and notices to stockholders shall, be in
writing and delivered personally or mailed to the directors or stockholders
at their addresses appearing on the books of the Company. Notice by mail
shall be deemed to be given at the time when the same shall be mailed.
Notice to directors may also be given by telegram, telecopy or orally, by
telephone or in person.
2. Whenever any notice is required to be given under the provisions of
any applicable statute or of the Company's Certificate of Incorporation or
of these by-laws, a written waiver of notice, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein or the meeting or action to which such notice relates, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when
-12-
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.
6.3. CONFLICT OF INTEREST. No contract or transaction between the Company
and one or more of its directors or officers, or between the Company and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board of or committee thereof that authorized the contract or transaction,
or solely because his or their votes are counted for such purpose, if: (i) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee and the board or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders of the
Company entitled to vote thereon, and the contract or transaction as
specifically approved in good faith by vote of such stockholders; or (iii) the
contract or transaction is fair as to the Company as of the time it is
authorized, approved, or ratified, by the Board of Directors, a committee or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes the contract or transaction.
-13-
6.4. VOTING OF SECURITIES OWNED BY THE COMPANY. Subject always to the
specific directions of the Board of Directors, (i) any shares or other
securities issued by any other corporation and owned or controlled by the
Company may be voted in person at any meeting of security holders of such other
corporation by the President of the Company if he is present at such meeting, or
in his absence by the Treasurer of the Company if he is present at such meeting,
and (ii) whenever, in the judgment of the President, it is desirable for the
Company to execute a proxy or written consent in respect to any shares or other
securities issued by any other corporation and owned by the Company, such proxy
or consent shall be executed in the name of the Company by the President,
without the necessity of any authorization by the Board of Directors, affixation
of corporate seal or countersignature or attestation by another officer,
provided that if the President is unable to execute such proxy or consent by
reason of sickness, absence from the United States or other similar cause, the
Treasurer may execute such proxy or consent. Any person or persons designated in
the manner above stated as the proxy or proxies of the Company shall have full
right, power and authority to vote the shares or other securities issued by such
other corporation and owned by the Company the same as such shares or other
securities might be voted by the Company.
ARTICLE VII. - INDEMNIFICATION.
7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
Company or serving or having served at the request of the Company as a director,
trustee, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (an "Indemnitee"), whether the basis of such proceeding is
alleged action or failure to act in an official capacity as a director, trustee,
officer, employee or agent or in any other capacity while serving as a director,
trustee, officer, employee or agent, shall be indemnified and held harmless by
the Company to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than permitted prior thereto) (as used in this Article 7,
the "Delaware Law"), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such Indemnitee in
connection therewith and such indemnification shall continue as to an Indemnitee
who has ceased to be a director, trustee, officer, employee, or agent and shall
inure to the benefit of the Indemnitee's heirs, executors, and administrators;
provided, however, that, except as provided in Section 7.2 hereof with respect
to Proceedings to enforce rights to indemnification, the Company shall indemnify
any such Indemnitee in connection with a Proceeding (or part thereof) initiated
by such Indemnitee only if such Proceeding (or part thereof) was authorized by
the Board of Directors of the Company. The right to indemnification conferred in
this Article 7 shall be a contract right and shall include the right to be paid
by the Company the expenses (including attorneys' fees) incurred in defending
any such Proceeding in advance of its final disposition (an "Advancement of
Expenses"); provided, however, that, if the Delaware Law so requires, an
Advancement of Expenses incurred by an Indemnitee shall be made only upon
delivery to
-14-
the Company of an undertaking (an "Undertaking"), by or on behalf of such
Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (a "Final Adjudication") that such Indemnitee is not entitled to be
indemnified for such expenses under this Article 7 or otherwise.
7.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 7.1 hereof
is not paid in full by the Company within sixty days after a written claim has
been received by the Company, except in the case of a claim for an Advancement
of Expenses, in which case the applicable period shall be twenty days, the
Indemnitee may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Company to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the Indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the Indemnitee to enforce a right to an Advancement of
Expenses) it shall be a defense that, and (ii) in any suit by the Company to
recover an Advancement of Expenses pursuant to the terms of an Undertaking the
Company shall be entitled to recover such expenses upon a Final Adjudication
that, the Indemnitee has not met the applicable standard of conduct set forth in
the Delaware Law. Neither the failure of the Company (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the Delaware Law, nor an actual
determination by the Company (including its Board of Directors, independent
legal counsel, or its stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the Indemnitee, be a defense to such suit. In any suit brought by the
Indemnitee to enforce a right to indemnification or to an Advancement of
Expenses hereunder, or by the Company to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such Advancement of
Expenses, under this Article 7 or otherwise shall be on the Company.
7.3. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
Advancement of Expenses conferred in this Article 7 shall not be exclusive of
any other right that any person may have or hereafter acquire under any statute,
the Company's Certificate or Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
7.4. INSURANCE. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss under
this Article 7 or under the Delaware Law.
7.5. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE COMPANY. The Company
may, to the extent authorized from time to time by the Board of Directors, grant
rights to
-15-
indemnification, and to the Advancement of Expenses, to any employee or agent of
the Company to the fullest extent of the provisions of this Article 7 with
respect to the indemnification and Advancement of Expenses of directors and
officers of the Company.
ARTICLE VIII. - AMENDMENTS.
8.1. Amendments. Subject always to any limitations imposed by the Company's
Certificate of Incorporation, these By-Laws may be altered, amended, or
repealed, or new By-Laws may be adopted, only by (i) the affirmative vote of the
holders of at least a majority of the outstanding voting stock of the Company,
provided, that the affirmative vote of the holders of at least 67% of the
outstanding voting stock of the Company shall be required for any such
alteration, amendment, repeal, or adoption that would affect or be inconsistent
with the provisions of Sections 2.11, 2.12, and this Section 8.1 (in each case,
in addition to any separate class vote that may be required pursuant to the
terms of any then outstanding preferred stock of the Company), or (ii) by
resolution of the Board of Directors duly adopted by not less than a majority of
the directors then constituting the full Board of Directors.
-16-