EXHIBIT 3.1
AMENDED AND RESTATED
BY-LAWS OF
NUVEEN INVESTMENTS, INC.
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place either within or
without the state of Delaware as may be designated by the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings. Special meetings of stockholders may be
called at any time by the Chairman of the Board, the President or a majority of
the Board of Directors, to be held at such date, time and place either within or
without the State of Delaware as may be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state 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. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation. Any previously scheduled annual
meeting of the stockholders may be postponed, and any special meeting of the
stockholders may be cancelled, by resolution of the Board of Directors upon
public notice given prior to the time previously scheduled for such meeting of
stockholders.
Section 1.4. Adjournments. Any meeting-of stockholders, annual or special,
may be adjourned from time to time, to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. The person presiding at a meeting of stockholders as provided under
Section 1.6 of these by-laws may adjourn any meeting of stockholders from time
to time, whether or not there is a quorum. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. No notice of the time and place of adjourned meetings need be
given except as required by law or these by-laws. If the adjournment is for more
than thirty 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.
Section 1.5. Quorum. At each meeting of stockholders, except where
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing: (i) where a separate vote by
class or classes is required or permitted for any matter, the holders of a
majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum to take action with respect
to that vote on that matter, and (ii) two or more classes or series of stock
shall be considered a single class if the holders thereof are entitled to vote
together as a single class at the meeting. In the absence of a quorum of the
holders of any class of stock entitled to vote on a matter, the holders of such
class so present or represented may, by majority vote, adjourn the meeting of
such class from time to time in the manner provided by Section 1.4 of these
by-laws until a quorum of such class shall be so present or represented. Shares
of its own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity. The stockholders present 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.
Section 1.6. Organization. Meetings of stockholders shall be presided over
by the Chairman of the Board, or in the absence of the Chairman of the Board by
the President, or in the absence of the President by a Vice President, or in the
absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary, or in the absence of the Secretary an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 1.7. Inspectors. Prior to any meeting of stockholders, the Board of
Directors or the President shall appoint one or more inspectors to act at such
meeting and make a written report thereof and may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at the meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in
the performance of their duties. The date and time of the opening and closing of
the polls during the meeting for each matter upon which the stockholders will
vote at a meeting shall be announced at
the meeting. No ballot, proxy or vote, nor any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls. In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
therewith, any information provided by a stockholder who submits a proxy by
telegram, cablegram or other electronic transmission from which it can be
determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.8. Voting; Proxies. Unless otherwise provided in the certificate
of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by such
stockholder which has voting power upon the matter in question. 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 such stockholder by proxy, 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 duly executed proxy must be submitted to the Corporation no
later than thirty minutes prior to any meeting for which it is to be voted. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power, regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with the
Secretary of the Corporation. Unless otherwise provided by law or by the
certificate of incorporation or these by-laws, the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders, except in the case of the election of directors, in which case the
affirmative vote of a plurality of the shares present in person or represented
by proxy at the meeting shall be the act of the stockholders. Where a separate
vote by class or classes is required or permitted, the affirmative vote of the
holders of a majority of the shares of such class or classes present in person
or represented by proxy at the meeting shall be the act of such class or
classes, except as otherwise provided by law or by the certificate of
incorporation or these by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of Record. In
order that the corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall not be more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders shall be at the close of business on the date next
preceding the day on which notice is given, or, if notice is waived, at the
closed of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 1.10. List of stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten 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, the number of
shares registered in the name of each stockholder and the number of shares
entitled to be voted. 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 ten 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 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.
Section 1.11. Advance Notice of stockholder Proposals.
(a) Annual Meetings. At any annual meeting of stockholders nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
a majority of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this by-law, who is entitled to vote at the meeting and who
complies with the procedures set forth in these by-laws. To be properly brought
before a meeting of stockholders, business must be of a proper subject for
action by stockholders under applicable law and must not, if implemented, cause
the Corporation to violate any state, federal or foreign law or regulation, each
as determined in good faith by the Board of Directors.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to these by-laws, the stockholder must have
given timely notice thereof in
writing to the Secretary and such other business must otherwise be a proper
matter for stockholder action. Notice shall be considered timely only if given
to the Secretary of the Corporation not less than 90 nor more than 120 days
prior to the first anniversary of the date of the preceding year's annual
meeting of stockholders; provided, however, that if the date of the annual
meeting is more than 30 days before or more than 60 days after such anniversary
date, any notice by the stockholder of business or the nomination of directors
for election or reelection to be brought before the annual meeting to be timely
must be so delivered not earlier than the close of business on the 120th day
prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting and the 10th day following
the day on which public announcement of the date of such meeting is first made.
Notwithstanding the foregoing, in the event that the number of directors to be
elected to the Board of Directors of the Corporation at the applicable annual
meeting is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased
Board of Directors at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this by-law
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
Any stockholder who gives notice of any such proposal shall deliver
therewith, in writing: the text of the proposal to be presented and a brief
statement of the reasons why such stockholder and the beneficial owner, if any,
on whose behalf the proposal is made favors the proposal; the name and address,
as they appear on the Corporation's books, of any such stockholder and
beneficial owner; the number and class of all shares of each class of stock of
the Corporation beneficially owned by such stockholder and any such beneficial
owner and evidence thereof reasonably satisfactory to the Secretary of the
Corporation; a description of any material interest in the proposal of such
stockholder and any such beneficial owner (other than any interest as a
stockholder) and of all arrangements or understandings between such stockholder
and any such beneficial owner and any other person or persons in connection with
the proposal of such business; and a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
Any stockholder desiring to nominate any person for election as a director
of the Corporation shall deliver with such notice a statement in writing setting
forth: the name of the person to be nominated; the number and class of all
shares of each class of stock of the Corporation beneficially owned by such
person; the information regarding such person required by paragraphs (d), (e)
and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange
Commission (or the corresponding provisions of any regulation subsequently
adopted by the Securities and Exchange Commission applicable to the
Corporation); all other information relating to such person that is required to
be disclosed in solicitations of proxies for directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended, and the rules
promulgated thereunder (the "Exchange Act") (including such person's signed
consent to serve as a director of the Corporation if elected); a certification
by each stockholder nominee that such nominee is as of the time of nomination
and will be as of the time of the applicable meeting eligible to serves as a
director in accordance with this Section 1.11 and (in both such person's
individual capacity and on behalf of any person or entity for whom such person
may be a representative) has complied and will comply
with all applicable corporate governance, conflicts, confidentiality and stock
ownership and trading policies of the Corporation; the name and address, as they
appear on the Corporation's books, of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made; the number and class of all shares
of each class of stock of the Corporation beneficially owned by such stockholder
or any such beneficial owner; and a description of all arrangements or
understandings between such stockholder or any such beneficial owner and each
nominee and any other or persons (including their names) pursuant to which the
nomination or nominations are to be made. The Corporation may require any
proposed nominee to furnish such other information as may be reasonably required
by the Corporation to determine the qualifications of such proposed nominee to
serve as a director of the Corporation. No person may be appointed, nominated or
elected a director of the Corporation unless such person, at the time such
person is nominated and appointed or elected, would then be able to serve as a
director without conflicting in any manner with any state, federal or foreign
law or regulation applicable to the Corporation, as determined in good faith by
the Board of Directors.
(b) Special Meetings. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting. Nominations of persons for election to
the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this by-law, who shall be entitled to vote at
the meeting and who complies with the notice procedures set forth in this
by-law. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice containing the information required by
clause (b) of this Section 1.11 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th day prior to such special meeting and
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(c) General. As used herein, shares "beneficially owned" shall mean all
shares as to which such person, together with such person's affiliates and
associates (as defined in Rule 12b-2 under the Exchange Act), may be deemed to
beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act, as
well as all shares as to which such person, together with such person's
affiliates and associates, has the right to become the beneficial owner pursuant
to any agreement or understanding, or upon the exercise of warrants, options or
rights to convert or exchange (whether such rights are exercisable immediately
or only after the passage of time or the occurrence of conditions). The person
presiding at the meeting shall determine whether such notice has been duly given
and shall direct that proposals and nominees not be considered if such notice
has not been so given. For purposes of this by-law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act. In no event shall the
public announcement of an adjournment or postponement of an annual meeting or a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications; Voting Power. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, except as may be otherwise provided by law or in the
certificate of incorporation.
Unless otherwise provided in the certificate of incorporation, the Board of
Directors shall consist of one or more members, the number thereof to be
determined from time to time by the Board. Directors need not be stockholders.
Each Director shall have one vote on all matters to be voted on by the Board of
Directors.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies.
Each director shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Any director may
resign at any time upon written notice to the Board of Directors or to the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein, no
acceptance of such resignation shall be necessary to make it effective. Unless
otherwise provided in the certificate of incorporation or these by-laws,
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 an majority of the directors
then in office, although less than a quorum, by the sole remaining director, or
if there are no remaining directors, by action of the stockholders having the
right to elect such directors. Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by 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 elected
by such class or classes or series thereof then in office, or if there are no
such remaining directors, by the sole remaining director so elected.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors
may be held at such placed within or without the state of Delaware and at such
times as the Board may from time to time determine, and if so determined notice
thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be held at any time or placed within or without the State of Delaware
whenever called by the Chairman of the Board, if any, by the President or by a
majority of the Board of Directors. Twenty-four hours' advance notice thereof
shall be given by the person or persons calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone Permitted.
Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board or of such committee, as the
case may be, 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 by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Voting Power; Vote Required for Action. At all
meetings of the Board of Directors a majority of the entire Board shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board unless the certificate of incorporation or these by-laws shall
require a vote of a greater number. In case at any meeting of the Board a quorum
shall not be present, the members of the Board present may adjourn the meeting
from time to time until a quorum shall be present. The directors present at a
duly called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough directors
to leave less than a quorum.
Section 2.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the President, or in their absence by a chairman chosen
at the meeting. The Secretary, or in the absence of the Secretary an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.8. Action by Directors without a Meeting. Unless otherwise
restricted by the 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 all members of the
Board or of such 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.
Section 2.9. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of Directors shall have
the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, or, in the case the holders of any class or
classes of stock or series thereof are entitled to elect one or more directors
by the certificate of incorporation, by a majority of each class of directors
(other than directors elected by holders of any series of preferred stock unless
otherwise provided in the certificate of incorporation), designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board 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. Any such committee, to the extent provided in the resolution of
the Board of Directors or in these by-laws and not contrary to applicable law,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after the annual
meeting of stockholders in each year, the Board of Directors shall elect a
President and a Secretary, and it may, if it so determines, elect from among its
members a Chairman of the Board. The Board may also elect one or more Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers and such other
officers as the Board may deem desirable or appropriate and may give any of them
such further designations or alternate titles as it considers desirable. Any
number of offices may be held by the same person unless the certificate of
incorporation or these by-laws otherwise provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless
otherwise provided in the resolution of the Board of Directors electing any
officer, each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any officer
may resign at any time upon written notice to the Board or to the President or
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. The Board may remove any
officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled by the Board at any
regular or special meeting.
Section 4.3. Powers and Duties. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated
in these by-laws or in a resolution of the Board of Directors which is not
inconsistent with these by-laws and,
to the extent not so stated, as generally pertain to their respective offices,
subject to the control of the Board. The Secretary shall have the duty to record
the proceedings of the meetings of the stockholders, the Board of Directors and
any committees in a book to be kept for that purpose. The Board may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock in the Corporation 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, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, representing the
number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature 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 shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which 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, designations, preferences and 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.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock 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 such owner's 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.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January in each year and shall end on the thirty-first day of
December next following, unless otherwise determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Whenever notice is required to be given by law or under any
provision of the certificate of incorporation or these by-laws, 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,
directors or members of a committee of directors need be specified in any
written waiver of notice unless so required by the certificate of incorporation
or these by-laws.
Section 6.4. Indemnification of Directors, Officers and Employees. The
Corporation shall indemnify to the full extent permitted by law any person made
or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director, officer
or employee of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director, officer or employee. Expenses,
including attorneys' fees, incurred by any such person in defending any such
action, suit or proceeding shall be paid or reimbursed by the Corporation, in
advance of the final disposition of such action, suit or proceeding, promptly
upon receipt by it of an undertaking of such person to repay such expenses if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation. The rights provided to any person by this by-law
shall be enforceable against the Corporation by such person who shall be
presumed to have relied upon it in serving or continuing to serve as a director,
officer or employee as provided above. Upon written request by a current or
former director or executive officer claimant for indemnification pursuant to
these by-laws made during the two-year period following a "Change of Control"
(as defined in the Corporation's 2005 Equity Incentive Plan), the determination,
if required by law, as to the claimant's entitlement to indemnification, shall
be made by Independent Counsel, with any such Independent Counsel selected by
the claimant unless the claimant shall request that such selection be made by
the Board of Directors.
For purposes of this by-law, the term "Corporation" shall include any
predecessor of the Corporation and any constituent corporation (including any
constituent of a constituent) absorbed by the Corporation in a consolidation or
merger; the term "other enterprise" shall include any corporation, partnership,
joint venture, trust or employee benefit plan; service "at the request of the
Corporation" shall include 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; any excise taxes assessed on a person with respect to an
employee benefit plan shall be deemed to be indemnifiable expenses; and action
by a person with respect to an employee benefit plan which such person
reasonably believes to be in the interest of the participants and beneficiaries
of such plan shall be deemed to be action not opposed to the best interests of
the Corporation. In addition, for purposes of this by-law, the term "Independent
Counsel" means a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of Delaware corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the Corporation or the claimant in an action to determine the claimant's
rights under this by-law.
No amendment of this by-law shall impair the rights of any person arising
at any time with respect to events occurring prior to such amendment.
Section 6.5. Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation 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 Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (1) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board, a committee thereof 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
which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of By-Laws. Unless otherwise provided in the
certificate of incorporation, these by-laws may be amended or repealed, and new
by-laws adopted by the Board of Directors, but the stockholders entitled to vote
may adopt additional by-laws and may amend or repeal any by-law whether or not
adopted by them to the extent provided by law and in the certificate of
incorporation.