Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
INTERCONTINENTALEXCHANGE, INC.
ADOPTED EFFECTIVE NOVEMBER 21, 2005
TABLE OF CONTENTS
Page
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ARTICLE I - OFFICES ................................................. 1
ARTICLE II - MEETINGS OF STOCKHOLDERS ............................... 1
ARTICLE III - DIRECTORS ............................................. 7
ARTICLE IV - NOTICES ................................................ 10
ARTICLE V - OFFICERS ................................................ 10
ARTICLE VI - CERTIFICATE OF STOCK ................................... 11
ARTICLE VII - GENERAL PROVISIONS .................................... 13
ARTICLE VIII - AMENDMENTS ........................................... 15
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BYLAWS
OF
INTERCONTINENTALEXCHANGE, INC.
ARTICLE I - OFFICES
1.1 The registered office of the Corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware.
1.2 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 - MEETINGS OF STOCKHOLDERS
2.1 All meetings of the stockholders for the election of directors
shall be held in the City of Atlanta, State of Georgia, at such place as may be
fixed from time to time by the Board of Directors, or at such other place either
within or without the State of Delaware as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof. The Board of Directors may, in
its sole discretion, determine that any meeting of stockholders shall not be
held at any place, but may instead be held by means of remote communication as
authorized by law.
2.2 Annual meetings of stockholders shall be held at such date and
time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which they shall elect the Board of
Directors by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote thereon, and transact
such other business as may properly be brought before the meeting.
2.3 Notice of the annual meeting stating the place, if any, date
and hour of the meeting, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, shall be given to each stockholder entitled to vote at
such meeting not fewer than ten (10) nor more than sixty (60) days before the
date of the 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.
2.4 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, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, at the option of the Corporation, (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 place of business of the Corporation.
In the event that the Corporation determines to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure that
such information is available only to stockholders of the Corporation. If the
meeting is to be held at a place, then the list shall be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to be held solely
by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting.
2.5 Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called at any time by the Board of Directors, the Chairman
of the Board, if any, or the Chief Executive Officer, or at the request of
holders of Common Stock or Class A Common Stock representing in the aggregate at
least 50% of the shares of Common Stock and Class A Common Stock outstanding at
such time. Such request shall state the purpose or purposes of the proposed
meeting.
2.6 Notice of a special meeting stating the place, if any, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, and the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such meeting,
shall be given not fewer than ten (10) nor more than sixty (60) 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.
2.7 The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation or these bylaws. For purposes of the foregoing, where a separate
vote by class or classes is required 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. 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 meeting of such class may
be adjourned from time to time in the manner provided by Sections 2.8 and 2.9 of
these bylaws until a quorum of such class shall be so present or represented.
2.8 Any meeting of stockholders, annual or special, may be
adjourned from time to time as provided in Section 2.9 of these bylaws, to
reconvene at the same or some other place, if
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any, and notice need not be given of any such adjourned meeting if the time and
place thereof, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the Corporation may transact any business which might have
been transacted at the original 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 in conformity with the
requirements of these bylaws.
2.9 Meetings of stockholders shall be presided over by the
Chairman of the Board, if any, or in the absence of the Chairman of the Board by
the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman
of the Board by the Chief Executive Officer, or in the absence of the Chief
Executive Officer 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.
The order of business at each such meeting shall be as determined by
the Chairman of the meeting. The Chairman of the meeting shall have the right,
power and authority to adjourn a meeting of stockholders for a reasonable period
of time to another place, if any, date and time, and to prescribe such rules,
regulations and procedures and to do all such acts and things as are necessary
or desirable for the proper conduct of the meeting and are not inconsistent with
any rules, regulations or procedures adopted by the Board of Directors pursuant
to the provisions of the certificate of incorporation, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls for each item upon which a vote is to be taken.
2.10 When a quorum is present at any meeting, any question brought
before the meeting shall be decided by the vote of the holders of a majority of
the votes cast affirmatively and negatively on the question, unless the question
is one upon which by express provision of the statutes, of the certificate of
incorporation or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. Where
a separate vote by class or classes is required, the vote of the holders of a
majority of votes cast affirmatively and negatively on the question (or, in the
case of an election of directors, a plurality) shall be the act of such class or
classes, except as otherwise provided by law or by the certificate of
incorporation or these bylaws.
2.11 Unless otherwise provided in the certificate of incorporation
or applicable law, each stockholder shall at any meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power upon the matter in question held by such stockholder. Each
stockholder entitled to vote at a meeting of stockholders may authorize
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another person or persons to act for such stockholder in writing or by
transmission permitted by law and filed in accordance with the procedures
established for the meeting, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
Voting at meetings of stockholders need not be by written ballot unless so
directed by the Chairman of the meeting or the Board of Directors.
2.12 Prior to any meeting of stockholders, the Board of Directors
or the Chief Executive Officer or any other officer designated by the Board
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 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 that 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.
2.13 (a) The matters to be considered and brought before any annual
or special meeting of stockholders of the Corporation shall be limited to only
such matters, including the nomination and election of directors, as shall be
brought properly before such meeting in compliance with the procedures set forth
in this Section 2.13.
(b) For any matter to be properly brought before any annual
meeting of stockholders, the matter must be (i) specified in the notice of
annual meeting given by or at the direction of the Board of Directors, (ii)
otherwise brought before the annual meeting by or at the direction of the
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Board of Directors or (iii) brought before the annual meeting in the manner
specified in this Section 2.13(b) by a person who either (x) is a stockholder
that holds of record stock of the Corporation entitled to vote at the annual
meeting on such matter (including any election of a director) or (y) is a person
(a "Nominee Holder") that holds such stock through a nominee or "street name"
holder of record of such stock and can demonstrate to the Corporation such
indirect ownership of, and such Nominee Holder's entitlement to vote, such stock
on such matter. In addition to any other requirements under applicable law, the
certificate of incorporation and these bylaws, persons nominated by stockholders
for election as directors of the Corporation and any other proposals by
stockholders shall be properly brought before an annual meeting of stockholders
only if notice of any such matter to be presented by a stockholder at such
meeting (a "Stockholder Notice") shall be delivered to the Secretary at the
principal executive office of the Corporation not less than ninety (90) nor more
than one hundred and twenty (120) days prior to the first anniversary date of
the annual meeting for the preceding year; provided, however, that if and only
if the annual meeting is not scheduled to be held within a period that commences
thirty (30) days before and ends thirty (30) days after such anniversary date
(an annual meeting date outside such period being referred to herein as an
"Other Meeting Date"), such Stockholder Notice shall be given in the manner
provided herein by the later of (i) the close of business on the date ninety
(90) days prior to such Other Meeting Date or (ii) the close of business on the
tenth day following the date on which such Other Meeting Date is first publicly
announced or disclosed. Any stockholder desiring to nominate any person or
persons (as the case may be) for election as a director or directors of the
Corporation at an annual meeting of stockholders shall deliver, as part of such
Stockholder Notice, a statement in writing setting forth the name of the person
or persons to be nominated, the number and class of all shares of each class of
stock of the Corporation owned of record and beneficially by each such person,
as reported to such stockholder by such person, the information regarding each
such person required by paragraphs(a), (e) and (f) of Item 401 of Regulation S-K
adopted by the Securities and Exchange Commission, as amended from time to time,
each such person's signed consent to serve as a director of the Corporation if
elected, such stockholder's name and address, the number and class of all shares
of each class of stock of the Corporation owned of record and beneficially by
such stockholder and, in the case of a Nominee Holder, evidence establishing
such Nominee Holder's indirect ownership of stock and entitlement to vote such
stock for the election of directors at the annual meeting. Any stockholder who
gives a Stockholder Notice of any matter (other than a nomination for director)
proposed to be brought before an annual meeting of stockholders shall deliver,
as part of such Stockholder Notice, the text of the proposal to be presented and
a brief written statement of the reasons why such stockholder favors the
proposal and setting forth such stockholder's name and address, the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by such stockholder, any material interest of such stockholder
in the matter proposed (other than as a stockholder), if applicable, and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock on the matter proposed at
the annual meeting. As used in these bylaws, shares "beneficially owned" shall
mean all shares that such person is deemed to beneficially own pursuant to Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended from time
to time (the "Exchange Act"). If a stockholder is entitled to vote only for a
specific class or category of directors at a
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meeting (annual or special), such stockholder's right to nominate one or more
individuals for election as a director at the meeting shall be limited to such
class or category of directors.
Notwithstanding any provision of this Section 2.13 to the contrary, in
the event that the number of directors to be elected to the Board of Directors
of the Corporation at the next annual meeting of stockholders is increased by
virtue of an increase in the size of the Board of Directors and either all of
the nominees for director at the next annual meeting of stockholders or the size
of the increased Board of Directors is not publicly announced or disclosed by
the Corporation at least one hundred (100) days prior to the first anniversary
of the preceding year's annual meeting, a Stockholder Notice shall also be
considered timely hereunder, but only with respect to nominees to stand for
election at the next annual meeting as the result of any new positions created
by such increase, if it shall be delivered to the Secretary at the principal
executive office of the Corporation not later than the close of business on the
tenth day following the first day on which all such nominees or the size of the
increased Board of Directors shall have been publicly announced or disclosed.
(c) Except as provided in the immediately following sentence, no
matter shall be properly brought before a special meeting of stockholders unless
such matter shall have been brought before the meeting pursuant to the
Corporation's notice of such meeting. 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 stockholder entitled to vote for the
election of such director(s) at such meeting may nominate a person or persons
(as the case may be) for election to such position(s) as are specified in the
Corporation's notice of such meeting, but only if the Stockholder Notice
required by Section 2.13(b) hereof shall be delivered to the Secretary at the
principal executive office of the Corporation not later than the close of
business on the tenth day following the first day on which the date of the
special meeting and either the names of all nominees proposed by the Board of
Directors to be elected at such meeting or the number of directors to be elected
shall have been publicly announced or disclosed.
(d) For purposes of this Section 2.13, a matter shall be deemed to
have been "publicly announced or disclosed" if such matter is disclosed in a
press release reported by the Dow Jones News Service, the Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or a
special meeting, or any announcement thereof, commence a new period for the
giving of notice as provided in this Section 2.13. This Section 2.13 shall not
apply to (i) any stockholder proposal that is made pursuant to Rule 14a-8 under
the Exchange Act or (ii) any nomination of a director in an election in which
only the holders of one or more series of Preferred Stock of the Corporation
issued pursuant to Article IV of the certificate of incorporation ("Preferred
Stock") are entitled to vote (unless otherwise provided in the terms of such
stock).
(f) The Chairman of any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a
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meeting has been duly given in the manner provided in this Section 2.13 and, if
not so given, shall direct and declare at the meeting that such nominees and
other matters shall not be considered.
2.14 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, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date on which the resolution fixing the record date
is adopted and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to the time for such other action as described above. If no 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. 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.
ARTICLE III - DIRECTORS
3.1 (a) Subject to the immediately following sentence, the number
of directors shall be determined exclusively by resolution of the Board of
Directors from time to time. If the holders of any class or classes of stock or
series thereof are entitled as such by the certificate of incorporation to elect
one or more directors, the preceding sentence shall not apply to such directors
and the number of such directors shall be as provided in the terms of such
stock. Each director shall be elected by the stockholders at their annual
meeting. Each director shall hold office until the next election, and until his
or her successor is elected and qualified or until his or her earlier death,
resignation or removal. Any director may resign at any time upon written notice
or by electronic transmission given to the Board of Directors or to the Chief
Executive Officer 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. Directors need not be stockholders.
3.2 Any vacancies resulting from death, resignation,
disqualification, removal or other cause, and newly created directorships
resulting from any increase in the authorized number of directors or from any
other cause, shall be filled by, and only by, directors then in office, even if
less than a quorum, or by the sole remaining director. Whenever the holders of
any class or classes of stock or series thereof are entitled, by the certificate
of incorporation, to elect one or more directors, vacancies and newly created
directorships of such class or classes or series may be filled by, and only by,
a majority of the directors elected by such class or classes or series then in
office, although less than a quorum, or by the sole remaining director so
elected. Any director elected or appointed to fill a vacancy or a newly created
directorship shall hold
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office until the next annual election and until his or her successor is duly
elected and shall qualify, or until his or her earlier resignation or removal.
3.3 The business of the Corporation shall be managed by or under
the direction of its Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these bylaws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
3.4 The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
3.5 Regular meetings of the Board of Directors may be held at such
time and at such place as shall from time to time be determined by the Board of
Directors and publicized among all directors, and if so determined and
publicized, notice thereof need not be given.
3.6 Special meetings of the Board of Directors may be called by
the Chairman of the Board, if any, by the Vice Chairman of the Board, if any, by
the Chief Executive Officer or by any two directors on reasonable notice to each
director either personally or by mail, e-mail or facsimile, which notice, with
respect to each director, may be waived in writing by such director.
3.7 At each meeting of the Board of Directors, the following shall
constitute a quorum for the transaction of business: one-half of (i) the total
number of directors fixed by resolution of the Board of Directors (including any
vacancies but excluding any directors or vacancies described in clause (ii))
plus (ii) if provided in the certificate of incorporation, such number (if any)
of directors elected by a holder or holders of Preferred Stock voting separately
as a class, as described in paragraph C of Article IV of the certificate of
incorporation (including any vacancies), as may be provided in the certificate
of incorporation. 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 bylaws 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.
3.8 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 Vice Chairman of the Board, if any, or in the absence of the Vice
Chairman of the Board by the Chief Executive Officer, 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.
3.9 Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all of the members of the Board or of such committee, as the case may be,
consent thereto in writing or by electronic transmission and the writing or
writings or transmission or transmissions are filed with the
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minutes of the Corporation. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
3.10 Members of the Board of Directors, or of 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 other
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
3.11 The Board of Directors may designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers that require it; but no such committee shall have such power or authority
in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval;
or (ii) adopting, amending or repealing any provision of these bylaws.
3.12 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 bylaws.
COMPENSATION OF DIRECTORS
3.13 Unless otherwise restricted by the certificate of
incorporation or these bylaws, the Board of Directors or any committee thereof
shall have the authority to fix the compensation of directors. 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 (which amounts may be paid in
cash or such other form as
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the Board or any committee may authorize). No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Stockholders of special or standing committees may be
allowed like compensation for attending committee meetings.
ARTICLE IV - NOTICES
4.1 Whenever any notice is required by law, the certificate of
incorporation or these bylaws to be given, a waiver thereof in writing, signed
by the person or persons entitled to said notice, or a waiver thereof by
electronic transmission by such person, whether given before or after the time
stated therein, shall be deemed equivalent thereto. 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 bylaws.
If mailed, notice to stockholders shall be deemed given when deposited in the
mail, postage prepaid, directed to the stockholder at the stockholder's address
as it appears on the records of the Corporation. Without limiting the manner by
which notices otherwise may be given effectively to stockholders, any notice to
stockholders may be given by electronic transmission in the manner provided in
Section 232 of the Delaware General Corporation Law.
ARTICLE V - OFFICERS
5.1 The Board of Directors may elect from among its members a
Chairman of the Board and a Vice Chairman of the Board. The Board of Directors
may also choose officers of the Corporation, which may include a Chief Executive
Officer, a President, one or more Senior Vice Presidents, a Chief Financial
Officer and a Secretary (collectively, the "Senior Officers") and may also
choose one or more Vice Presidents, Assistant Secretaries, Treasurers and
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. In addition, the Board at any time and from
time to time may authorize any officer of the Corporation to appoint one or more
officers of the kind described in the immediately preceding sentence (other than
any Senior Officers). Any number of offices may be held by the same person and
directors may hold any office, unless the certificate of incorporation or these
bylaws otherwise provide.
5.2 As soon as practicable after each annual meeting of
stockholders, the Board of Directors shall choose a Chief Executive Officer and
a Secretary. 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.
5.3 The Board of Directors 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
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perform such duties as shall be stated in these bylaws or as shall be determined
from time to time by resolution of the Board of Directors and which are not
inconsistent with these bylaws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board.
5.4 Unless otherwise provided in the resolution of the Board of
Directors electing or authorizing the appointment of any officer, each officer
of the Corporation shall hold office until his or her successor is chosen and
qualifies 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 Chief Executive
Officer 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. Any
officer may be removed with or without cause at any time by the affirmative vote
of a majority of the Board of Directors. Any officer authorized by the Board to
appoint a person to hold an office of the Corporation may also remove such
person from such office with or without cause at any time, unless otherwise
provided in the resolution of the Board providing such authorization. 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 shall be filled by the Board of Directors.
ARTICLE VI - CERTIFICATE OF STOCK
6.1 The shares of stock in the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the
Corporation's stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate theretofore issued until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board, to the extent, if any, required by applicable
law, 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 Chief Executive
Officer or a Vice President and the Chief Financial Officer or an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares of stock registered in certificate form owned by
him or her in the Corporation.
If the Corporation shall be 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 qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation 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. Within a reasonable time after the issuance or
transfer of
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uncertificated shares, the Corporation shall send to the registered owner
thereof a written notice containing the information required by law to be set
forth or stated on certificates or 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. Except as otherwise expressly
provided by law, the rights and obligations of the holders of uncertificated
shares and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be identical.
6.2 Any of or all the signatures on the certificate may be
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 he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
6.3 The Board of Directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed or such
person's legal representative. When authorizing such issue of a new certificate
or certificates or uncertificated shares, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
6.4 Subject to any applicable restrictions on transfer, upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate or uncertificated shares to the person
entitled thereto, cancel the old certificate and record the transaction upon its
books.
REGISTERED STOCKHOLDERS
6.5 The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
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ARTICLE VII - GENERAL PROVISIONS DIVIDENDS
7.1 Dividends upon the capital stock of the Corporation, subject
to the provisions of the certificate of incorporation, if any, and applicable
law 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
capital stock, subject to the provisions of the certificate of incorporation.
7.2 Before payment of any dividend, there may be set aside out
of any funds of the Corporation 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 Corporation, or for such other
purposes as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
FISCAL YEAR
7.3 The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
SEAL
7.4 The Board of Directors may adopt a corporate seal having
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate Seal, Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
TIME PERIODS
7.5 In applying any provision of these bylaws that requires that
an act be done or not be done a specified number of days prior to any event or
that an act be done during a period of a specified number of days prior to an
event, calendar days shall be used, the day of the doing of the act shall be
excluded, and the day of the event shall be included.
INDEMNIFICATION
7.6 The Corporation shall, to the fullest extent permitted by law,
as those laws may be amended and supplemented from time to time, indemnify any
director or Senior Officer made, or threatened to be made, a party to any
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of being a director or Senior Officer of the
Corporation or a predecessor corporation or, at the Corporation's request, a
director, officer, partner, member, employee or agent of another corporation or
other entity; provided, however, that the Corporation shall indemnify any
director or Senior Officer in connection with a proceeding initiated by such
person only if such proceeding was authorized in advance by the Board of
Directors of the Corporation. The indemnification provided for in this Section
7.6 shall: (i) not
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be deemed exclusive of any other rights to which those indemnified may be
entitled under any bylaw, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacities and as to
action in another capacity while holding such office; (ii) continue as to a
person who has ceased to be a director or Senior Officer; and (iii) inure to the
benefit of the heirs, executors and administrators of an indemnified person.
Expenses incurred by any such person in defending a civil or criminal
action, suit or proceeding by reason of the fact that he is or was a director or
Senior Officer of the Corporation (or was serving at the Corporation's request
as a director, officer, partner, member, employee or agent of another
corporation or other entity) shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or Senior Officer to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized by law. Notwithstanding the
foregoing, the Corporation shall not be required to advance such expenses to a
person who is a party to an action, suit or proceeding brought by the
Corporation and approved by a majority of the Board of Directors of the
Corporation that alleges willful misappropriation of corporate assets by such
person, disclosure of confidential information in violation of such person's
fiduciary or contractual obligations to the Corporation or any other willful and
deliberate breach in bad faith of such person's duty to the Corporation or its
stockholders.
The foregoing provisions of this Section 7.6 shall be deemed to be a
contract between the Corporation and each director or Senior Officer who serves
in such capacity at any time while this bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts. The rights provided to any person by this bylaw
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
or officer or in such other capacity as provided above.
The Board of Directors in its discretion shall have power on behalf of
the Corporation to indemnify any person, other than a director or Senior
Officer, made or threatened to be made a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that such person, or his or her testator or intestate, is or was an
officer, employee or agent of the Corporation or, at the Corporation's request,
is or was serving as a director, officer, partner, member, employee or agent of
another corporation or other entity.
To assure indemnification under this Section 7.6 of all directors,
officers, employees and agents who are determined by the Corporation or
otherwise to be or to have been "fiduciaries" of any employee benefit plan of
the Corporation that may exist from time to time, Section 145 of the Delaware
General Corporation Law shall, for the purposes of this Section 7.6, be
interpreted as follows: an "other enterprise" shall be deemed to include such an
employee benefit plan, including without limitation, any plan of the Corporation
that is governed by the Act of Congress entitled "Employee Retirement Income
Security Act of 1974," as amended from time to time; the Corporation shall be
deemed to have requested a person to serve an employee benefit plan where
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the performance by such person of his duties to the Corporation also imposes
duties on, or otherwise involves services by, such person to the plan or
participants or beneficiaries of the plan; excise taxes assessed on a person
with respect to an employee benefit plan pursuant to such Act of Congress shall
be deemed "fines."
FORM OF RECORDS
7.7 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, electronic data storage, media
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.
INTERPRETATION
7.8 Any reference in these bylaws to the Delaware General
Corporation Law shall be to the Delaware General Corporation Law as it now
exists or as it may hereafter be amended
ARTICLE VIII - AMENDMENTS
8.1 The Board of Directors may adopt additional bylaws, and may
amend or repeal any bylaws, whether or not adopted by them, at any time.
Stockholders of the Corporation may adopt additional bylaws and may amend or
repeal any bylaws whether or not adopted by them, at any time, but only in
accordance with Article V of the certificate of incorporation.
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