EXHIBIT 3.2
FORM OF AMENDED AND RESTATED BYLAWS
OF
GREAT WOLF RESORTS, INC.
(ORIGINALLY ADOPTED ON MAY 14, 2004)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The Corporation shall maintain a registered
office and shall have a registered agent whose business office is the same as
the registered office.
SECTION 2. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of
the Corporation shall be at the principal place of business of the Corporation
and shall not be its registered office.
SECTION 3. OTHER OFFICES. The Corporation 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 Corporation may
require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, either within or
without the State of Delaware, on such date and at such time as the Board of
Directors may by resolution provide. The Board of Directors may specify by
resolution prior to any special meeting of stockholders held within the year
that such meeting shall be in lieu of the annual meeting.
SECTION 2. SPECIAL MEETING. Special meetings of the stockholders may be
called at any time by the Board of Directors, the Chairman of the Board of
Directors, the Chief Executive Officer, the President or the holders of 35% or
more of the Corporation's common stock then outstanding. Such meeting shall be
held at such place, either within or without the State of Delaware, as fixed by
the Secretary.
SECTION 3. NOTICE OF MEETINGS. Written notice of each meeting of
stockholders, stating the time and place of the meeting, and the purpose of any
special meeting, shall be mailed to each stockholder entitled to vote at or to
notice of such meeting at the address shown on the books of the Corporation not
less than ten (10) nor more than sixty (60) days prior to such meeting unless
such stockholder waives notice of the meeting. Any stockholder may execute a
waiver of notice, in person or by proxy, either before or after any meeting, and
shall be deemed to have waived notice if he is present at such meeting in person
or by proxy, unless he objects at the beginning of the meeting to the holding of
the meeting or to transacting business at the
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meeting. Neither the business transacted at, nor the purpose of, any meeting
need be stated in the waiver of notice of such meeting.
Notice of any meeting may be given by the Board of Directors, Chairman of
the Board of Directors, Chief Executive Officer, President or Secretary.
SECTION 4. ADJOURNMENT. In the absence of a quorum or for any other
reason, the chairman of the meeting may adjourn the meeting from time to time.
If the adjournment is not for more than thirty (30) days, the adjourned meeting
may be held without notice other than an announcement at the meeting. If the
adjournment is for more than thirty (30) days, or if 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 any such
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting originally called.
SECTION 5. LIST OF STOCKHOLDERS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, 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
ten (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 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 6. QUORUM; VOTING. Each outstanding share of common stock of the
Corporation is entitled to one vote on each matter submitted to a vote. A quorum
for the transaction of business at any annual or special meeting of stockholders
shall exist when the holders of a majority of the issued and outstanding shares
entitled to vote are represented either in person or by proxy at such meeting.
Where a separate vote by a class or classes or series is required, a majority of
the shares of such class or classes or series present in person or represented
by proxy shall constitute a quorum entitled to take action with respect to the
vote on that matter. If a quorum is present, the affirmative vote of a majority
of the shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders, unless a greater vote is required
by law, the Certificate of Incorporation or these Bylaws. Directors shall be
elected by a plurality of the votes cast in the election for such directors.
When a quorum is once present to organize a meeting, the stockholders present
may continue to do business at the meeting or at any adjournment thereof
notwithstanding withdrawal of enough stockholders to leave less than a quorum.
The holders of a majority of the voting shares represented at a meeting, whether
or not a quorum is present, may adjourn such meeting from time to time.
SECTION 7. PROXIES. A stockholder may vote either in person or by a proxy
that such stockholder has duly executed in writing. No proxy shall be valid
after three (3) years from the date of its execution unless a longer period is
expressly provided in the proxy.
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SECTION 8. INSPECTORS OF ELECTION. All votes by ballot at any meeting of
stockholders shall be conducted by such number of inspectors of election as are
appointed for that purpose by the Corporation. The Corporation may designate one
or more alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting may, and to the extent required by law, 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. Every vote taken by ballots shall be counted by a
duly appointed inspector or inspectors.
SECTION 9. NOTICE OF STOCKHOLDER PROPOSALS. At any annual or special
meeting of stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual or special meeting, business must be: (A) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors; (B) otherwise properly brought before the meeting by or at the
direction of the Board of Directors; or (C) otherwise properly brought before
the meeting by a stockholder. In order for business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation and such
proposal must be a proper matter for stockholder action under the Delaware
General Corporation Law. To be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the Corporation
not later than the close of business on the one hundred twentieth (120th)
calendar day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than
thirty (30) days, notice by the stockholder to be timely received must be so
received not later than the close of business on the later of one hundred twenty
(120) calendar days in advance of such meeting or ten (10) calendar days
following the date on which public announcement of the date of the meeting is
first made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting: (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the meeting; (ii) the name and
address, as they appear on the Corporation's books, of the stockholder proposing
such business; (iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder; (iv) any material interest of the
stockholder in such business; and (v) any other information that is required to
be provided by the stockholder pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), in the stockholder's capacity
as a proponent to a stockholder proposal. Notwithstanding the foregoing, in
order to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholders' meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 9. The chairman of the meeting shall, if the facts
warrant, determine and declare at the meeting that business was not properly
brought before the meeting and in accordance with the provisions of this Section
9, and, if he should so determine, he shall so declare at the meeting that any
such business not properly brought before the meeting shall not be transacted.
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SECTION 10. SHAREHOLDER NOMINATIONS OF DIRECTORS. Except for Directors who
are elected by Directors pursuant to the provisions of Section 7 of Article III
of these Bylaws, only persons who are nominated in accordance with the
procedures set forth in this Section 10 shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders (a) by or at the directions
of the Board of Directors (or any duly authorized committee thereof) or (b) by
any stockholders of the Corporation entitled to vote for the election of
Directors at the meeting who (i) is a stockholder of record on the date of the
giving of the notice provided for in this Section 10 and on the record date for
the determination of stockholders entitled to vote at such meeting and (ii)
complies with the notice procedures set forth in this Section 10 and Section 9
of Article II. Such nominations other than those made by or at the direction of
the Board of Directors (or any duly authorized committee thereof), shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice for an annual meeting must be delivered to or
mailed and received at the principal executive offices of the Corporation not
later than the close of business on the one hundred twentieth (120th) day prior
to the anniversary date of the preceding year's annual meeting of stockholders,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if and only if the annual meeting is not
scheduled to be held within a period that commences 25 days before such
anniversary date and ends 25 days after such anniversary date, such
stockholder's notice must be delivered by the tenth (10th) day following the day
on which the date of the annual meeting is publicly disclosed or notice of the
date of the annual meeting was mailed, whichever occurs first. A stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a Director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the 1934 Act and the rules and
regulations promulgated thereunder, and (b) as to the stockholder giving the
notice (i) the name and record address, as they appear on the Corporation's
books, of such stockholder, (ii) the class and number of shares of each class of
capital stock of the Corporation that are owned beneficially or of record by
such stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and that such stockholder intends to appear in person or by proxy at the meeting
to nominate the person or persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of Directors pursuant to Regulation 14A of
the 1934 Act. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected. The Chairman shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
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ARTICLE III
DIRECTORS
SECTION 1. POWER OF DIRECTORS. The business of the Corporation shall be
managed by or under the direction of its Board of Directors, which may exercise
all the powers of the Corporation, subject to any restrictions imposed by law,
by the Certificate of Incorporation or by these Bylaws.
SECTION 2. COMPOSITION OF THE BOARD.
(a) The Board of Directors of the Corporation shall consist of no less
than three (3) members of the age of eighteen or over. The exact number of
directors may be fixed by resolution duly adopted by the Board of Directors, but
no decrease in the number of directors shall shorten the term of any incumbent
director.
(b) Directors need not be residents of the State of Delaware or
stockholders of the Corporation.
(c) At each annual meeting the stockholders shall elect the Directors, who
shall serve until their successors are elected and qualified; provided, that at
any stockholders' meeting, the entire Board of Directors or any individual
director may be removed, with or without cause, by the affirmative vote of the
holders of at least a majority of the shares entitled to vote at an election of
directors.
(d) Each Director shall be elected for a one-year term. A Director shall
hold office until the annual meeting for the year in which his term expires and
until his successor shall be duly elected and qualified to serve, subject to
prior death, resignation, retirement, disqualification or removal from office.
SECTION 3. MEETINGS OF THE BOARD; NOTICE OF MEETINGS; WAIVER OF NOTICE.
The Board of Directors shall hold an annual meeting of the Board of Directors
for the purpose of electing officers and transacting such other business as may
be brought before the meeting. The Board of Directors may by resolution provide
for the time and place of this annual meeting and other regular meetings and no
notice of such regular meetings need be given. Special meetings of the Board of
Directors may be called by the Chairman, Chief Executive Officer, President or
by a majority of directors unless the Board consists of one director, in which
case special meetings may be called by the sole director. Written notice of the
time and place of such meetings shall be given to each director by first class
or air mail at least four (4) days before the meeting or by telephone,
telegraph, cablegram or in person at least two (2) days before the meeting. Any
director may execute a waiver of notice, either before or after any meeting, and
shall be deemed to have waived notice if he or she is present at such meeting,
unless at the beginning of the meeting he or she states that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of the Board of Directors need be stated in the notice
or waiver of notice of such meeting. Any meeting may be held at any place within
or without the State of Delaware.
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SECTION 4. QUORUM; VOTING. A majority of the number of Directors in office
shall constitute a quorum for the transaction of business at any meeting. When a
quorum is present, the vote of a majority of the directors present shall be the
act of the Board of Directors, unless a greater vote is required by law, the
Certificate of Incorporation or these Bylaws.
SECTION 5. ACTION OF BOARD WITHOUT MEETING. Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if a written consent, setting forth the
action so taken, is signed by all the directors or committee members and filed
with the minutes of proceedings of the Board of Directors or committee. Such
consent shall have the same force and effect as a unanimous affirmative vote of
the Board of Directors or committee, as the case may be.
SECTION 6. COMMITTEES. The Board of Directors shall designate an Audit
Committee, a Compensation Committee and a Nominating and Corporate Governance
Committee, and such other committees the Board of Directors deems advisable,
each of which shall have and may exercise the powers and authority of the Board
of Directors to the extent provided in the charters of each committee adopted by
the Board of Directors in one or more resolutions. The Board of Directors may
designate the chairman and vice chairman, if any, of each committee. Vacancies
may be filled by the Board of Directors at any meeting. The committee chairman,
vice chairman, if any, or a majority of any committee may call a meeting of that
committee. A quorum of any committee shall consist of a majority of its members
unless otherwise provided by resolution of the Board of Directors. The majority
vote of a quorum shall be required for the transaction of business. The
secretary of the committee or the chairman of the committee shall give notice of
all meetings of the committee in accordance with the provisions of Article III
Section 3 of these Bylaws. Each committee shall fix its other rules of
procedure. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
SECTION 7. VACANCIES. Any vacancy occurring in the Board of Directors may
be filled by the affirmative vote of a majority of the remaining Directors
though less than a quorum of the Board of Directors, or by the sole remaining
director, as the case may be, or if the vacancy is not so filled, or if no
director remains, by the stockholders. A director elected to fill a vacancy
shall serve for the unexpired term of his or her predecessor in office, or, if
such vacancy occurs by reason of an amendment to these Bylaws increasing the
number of directors, until the next election of directors by the stockholders
and the election and qualification of the successor.
SECTION 8. TELEPHONE CONFERENCE MEETINGS. Unless the Certificate of
Incorporation otherwise provides, 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 telephone conference 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 8 shall constitute presence in person at such meeting.
SECTION 9. CHAIRMAN. At all meetings of the Board of Directors, the
Chairman of the Board of Directors shall preside and in the absence of, or in
the case of a vacancy in the office of,
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the Chairman of the Board of Directors, a chairman selected by the Chairman of
the Board of Directors or, if he or she fails to do so, by the directors, shall
preside.
SECTION 10. COMPENSATION OF DIRECTORS. Directors and members of any
committee of the Board of Directors shall be entitled to such reasonable
compensation and fees for their services as shall be fixed from time to time by
resolution of the Board of Directors and shall also be entitled to reimbursement
for any reasonable expenses incurred in attending meetings of the Board of
Directors and any committee thereof, except that a director who is an officer or
employee of the Corporation shall receive no compensation or fees for serving as
a director or a committee member.
ARTICLE IV
OFFICERS
SECTION 1. EXECUTIVE STRUCTURE OF THE CORPORATION. The officers of the
Corporation shall be elected by the Board of Directors and shall consist of a
Chief Executive Officer, President, Chief Financial Officer, Secretary and such
other officers or assistant officers, including Vice Presidents, as may be
elected by the Board of Directors. Each officer shall hold office for the term
for which such officer has been elected or appointed or until such officer's
successor has been elected or appointed and has qualified, or until such
officer's earlier resignation, removal from office, or death. Any two or more
offices may be held by the same person. The Board of Directors may designate a
Vice President as an Executive Vice President or a Senior Vice President and may
designate the order in which other Vice Presidents may act.
SECTION 2. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall be chosen from among the Directors, shall have the general
powers and duties of management and supervision of the business of the
Corporation, shall preside at all meetings of the Board of Directors if present,
and shall, in general, perform all duties incident to the office of Chairman of
the Board of Directors and such other duties as, from time to time, may be
assigned to him by the Board of Directors.
SECTION 3. VICE CHAIRMAN. In the absence of the Chairman of the Board of
Directors, or in the event of such officer's inability or refusal to act, the
Vice Chairman, if any, shall perform the duties and exercise the powers of the
Chairman of the Board of Directors and shall perform such other duties and have
such other powers as the Chairman of the Board of Directors or the Board of
Directors may from time to time prescribe.
SECTION 4. CHIEF EXECUTIVE OFFICER The Chief Executive Officer shall have
the general powers of oversight, supervision and management of the business and
affairs of the Corporation and shall perform such other duties as may be
prescribed by the Board of Directors. The Chief Executive Officer may sign
certificates for shares of the Corporation and any deeds, bonds, mortgages,
contracts and other documents that the Board of Directors has authorized to be
executed (and those deeds, bonds, mortgages, contracts and other documents for
which no such authorization is required under applicable law), except where
required by law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly
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delegated by the Board of Directors or these Bylaws to some other officer or
agent of the Corporation.
SECTION 5. PRESIDENT. The President shall, under the direction of the
Chief Executive Officer: (i) have general and active management of business and
affairs of the Corporation; (ii) implement the general directives, plans and
policies formulated by the Board of Directors; and (iii) further have such
duties, responsibilities and authorities as may be assigned by the Board of
Directors. The President may sign certificates for shares of the Corporation and
any deeds, bonds, mortgages, contracts and other documents that the Board of
Directors has authorized to be executed (and those deeds, bonds, mortgages,
contracts and other documents for which no such authorization is required under
applicable law), except where required by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors or these Bylaws, to some other officer or
agent of the Corporation.
SECTION 6. VICE PRESIDENT. The several Vice Presidents shall have such
powers and duties as may be assigned to them by these Bylaws and as may from
time to time be assigned to them by the Chief Executive Officer, the President
or the Board of Directors. Each Vice President may sign certificates for shares
of the Corporation and any deeds, bonds, mortgages, contracts and other
documents that the Board of Directors has authorized to be executed (and those
deeds, bonds, mortgages, contracts and other documents for which no such
authorization is required under applicable law), except where required by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors or these Bylaws,
to some other officer or agent of the Corporation.
SECTION 7. SECRETARY. The Secretary shall record all the proceedings of
the meetings of the stockholders and of the Board of Directors in a book to be
kept for that purpose, and shall have custody of and attest the seal of the
Corporation.
SECTION 8. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall have
the custody of the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in the books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Chief Financial Officer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer or, if
there be no Chief Executive Officer, the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an account
of all such person's transactions as Chief Financial Officer and of the
financial condition of the Corporation.
SECTION 9. OTHER DUTIES AND AUTHORITY. Each officer, employee and agent of
the Corporation shall have such other duties and authority as may be conferred
upon such officer, employee or agent by the Board of Directors or delegated to
such officer, employee or agent by the Chief Executive Officer.
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SECTION 10. REMOVAL OF OFFICERS. Any officer may be removed at any time by
the Board of Directors or the Chief Executive Officer, and such vacancy may be
filled by the Board of Directors. This provision shall not prevent the making of
a contract of employment for a definite term with any officer and shall have no
effect upon any cause of action that any officer may have as a result of such
officer's removal in breach of a contract of employment.
SECTION 11. COMPENSATION. The salaries of the officers shall be fixed from
time to time by the Board of Directors or a duly authorized committee of the
Board of Directors. No officer shall be prevented from receiving such salary by
reason of the fact that such officer is also a Director of the Corporation.
ARTICLE V
SHARES
SECTION 1. STOCK CERTIFICATES. The shares of stock of the Corporation
shall be represented by certificates or shall be uncertificated. Certificates
shall be in such form as may be approved by the Board of Directors, which
certificates shall be issued to stockholders of the Corporation in numerical
order from the stock book of the Corporation, and each of which shall bear the
name of the stockholder, the number of shares represented and the date of issue;
and which shall be signed by the Chief Executive Officer, President or a Vice
President (or in lieu thereof, by the Chairman of the Board if there be one) and
may be signed by the Secretary or an Assistant Secretary of the Corporation;
provided, however, that where the Certificate is signed (either manually or by
facsimile) by a transfer agent, or registered by a registrar, the signatures of
those officers may be facsimiles.
SECTION 2. TRANSFER OF STOCK. Shares of stock of the Corporation shall be
transferred only on the books of the Corporation upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the stockholder of record or such stockholder's duly authorized
attorney-in-fact and with all taxes on the transfer having been paid. The
Corporation may refuse any requested transfer until furnished evidence
satisfactory to it that such transfer is proper. Upon the surrender of a
certificate for transfer of stock, such certificate shall at once be
conspicuously marked on its face "Canceled" and filed with the permanent stock
records of the Corporation. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the Corporation. The Board of Directors may make such
additional rules concerning the issuance, transfer and registration of stock and
requirements regarding the establishment of lost, destroyed or wrongfully taken
stock certificates (including any requirement of an indemnity bond prior to
issuance of any replacement certificate) as it deems appropriate.
SECTION 3. LOCK-UP PERIOD. Notwithstanding any other provision contained
in these Bylaws to the contrary, no holder (each a "Pre-IPO Holder") of a share
of common stock issued prior to the initial public offering of the Corporation
(each a "Pre-IPO Share"), including any
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shares issued in the Private Placement (which shall mean the issuance of shares
of the Corporation's common stock prior to, concurrently with, or immediately
following the closing of the Corporation's initial public offering in a
transaction exempt from registration under the Securities Act of 1933), shall
offer, pledge, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, directly or indirectly (collectively, "Dispose of"), any
such Pre-IPO Share, without the prior written consent of the Board of Directors
or the Chief Executive Officer, until the date that is one hundred eighty (180)
days following the closing date of the Corporation's initial public offering.
The following transfers of Pre-IPO Shares shall not be subject to the
lock-up period set forth in the preceding paragraph:
(a) a Pre-IPO Holder who is a natural person may Dispose of Pre-IPO
Shares to his or her spouse, siblings, parents or any natural or
adopted children or other descendants or to any personal trust in
which such family members or such Pre-IPO Holder retain the entire
beneficial interest;
(b) a Pre-IPO Holder that is a corporation, partnership, limited
liability company or other business entity may (1) Dispose of
Pre-IPO Shares to one or more entities that are wholly owned or
controlled by, or under common control with, the Pre-IPO Holder or
(2) Dispose of Pre-IPO Shares by distributing such Pre-IPO Shares in
a liquidation, dissolution, winding up or otherwise without
consideration to the equity owners of such corporation, partnership,
limited liability company or business entity or to any other
corporation, partnership, limited liability company or business
entity that is wholly owned by such equity owners;
(c) a Pre-IPO Holder may Dispose of Pre-IPO Shares on his or her death
to such Pre-IPO Holder's estate, executor, administrator or personal
representative or to such Pre-IPO Holder's beneficiaries pursuant to
a devise or bequest or by the laws of descent and distribution;
(d) a Pre-IPO Holder may Dispose of Pre-IPO Shares as a bona fide gift;
and
(e) a Pre-IPO Holder may Dispose of Pre-IPO Shares pursuant to a pledge,
grant of security interest or other encumbrance effected in a bona
fide transaction with an unrelated and unaffiliated pledgee.
SECTION 4. REGISTERED STOCKHOLDERS. The Corporation may deem and treat the
holder of record of any stock as the absolute owner for all purposes and shall
not be required to take any notice of any right or claim of right of any other
person.
SECTION 5. RECORD DATE. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or in order
to make a determination of stockholders for any other purpose, the Board of
Directors of the Corporation may fix in advance a date as the record date for
any such determination of stockholders, such date in any case to be not more
than sixty (60)
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days and, in the case of a meeting of stockholders, not less than ten (10) days
prior to the date on which the particular action, requiring such determination
of stockholders, is to be taken.
SECTION 6. TRANSFER AGENT AND REGISTRAR. The Board of Directors may
appoint such transfer agents and registrars of transfers as may be deemed
necessary and may require all stock certificates to bear the signature or either
or both.
SECTION 7. DIVIDENDS. The Board of Directors, subject to any restrictions
contained in the Certificate of Incorporation, may declare and pay dividends
upon the shares of the Corporation's capital stock pursuant to the Delaware
General Corporation Law. Dividends may be paid in cash, in property, or in
shares of the Corporation's capital stock. The Board of Directors 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.
ARTICLE VI
DEPOSITORIES, SIGNATURES AND SEAL
SECTION 1. DEPOSITORIES. All funds of the Corporation shall be deposited
in the name of the Corporation in such bank, banks or other financial
institutions as the Board of Directors may from time to time designate and shall
be drawn out on checks, drafts or other orders signed on behalf of the
Corporation by such person or persons as the Board of Directors may from time to
time designate.
SECTION 2. CONTRACTS AND DEEDS. All contracts, deeds and other instruments
shall be signed on behalf of the Corporation by the Chief Executive Officer,
President or by such other officer, officers, agent or agents as the Board of
Directors may from time to time by resolution provide.
SECTION 3. SEAL. The seal of the Corporation shall be as follows:
If the seal is affixed to a document, the signature of the Chief Executive
Officer, President, Secretary or an Assistant Secretary shall attest the seal.
The seal and its attestation may be lithographed or otherwise printed on any
document and shall have, to the extent permitted by law, the same force and
effect as if it had been affixed and attested manually.
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ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE VIII
INDEMNITY
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "Proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, 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, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or (if
serving for another corporation at the request of the Corporation) agent or in
any other capacity while serving as a director, officer, employee or (if serving
for another corporation at the request of the Corporation) agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or (if serving for another corporation at
the request of the Corporation) agent and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that except as
provided in Section 2 of this Article VIII with respect to proceedings seeking
to enforce rights to indemnification, the Corporation shall indemnify any such
persons seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 1 shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of the proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article VIII or
otherwise.
SECTION 2. PAYMENT OF INDEMNIFICATION. If a claim under Section 1 of this
Article VIII is not paid in full by the Corporation within ninety (90) days
after a written claim has been
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received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, should be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
SECTION 3. INDEMNIFICATION NOT EXCLUSIVE. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article VIII shall not be exclusive of any
other right that any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 5. AUTHORITY TO ENTER INTO INDEMNIFICATION AGREEMENTS. The
Corporation shall have the power to enter into contracts with any director,
officer, employee or agent of the Corporation in furtherance of the provisions
in this Article VIII to provide for the payment of such amounts as may be
appropriate, in the discretion of the Board of Directors, to effect
indemnification and payment of expenses as provided in this Article VIII.
ARTICLE IX
ELECTRONIC TRANSMISSION
Subject to the provisions of Section 232 of the Delaware General
Corporation Law, any notice required by these Bylaws may be given by "electronic
transmission," as defined in Section 232(c).
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ARTICLE X
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or repeal the
Bylaws or adopt new bylaws, but any bylaws adopted by the Board of Directors may
be altered, amended, or repealed and new bylaws adopted by the stockholders. The
stockholders may prescribe that any bylaw or bylaws adopted by them shall not be
altered, amended or repealed by the Board of Directors.
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