Exhibit 3.2
RESTATED
BYLAWS
OF
INFOSPACE, INC.
AS OF
FEBRUARY 12, 2003
Originally adopted on April 10, 1996 and amended August 24, 1998, April 3, 2000
and February 12, 2003.
Amendments are listed on p. i
INFOSPACE, INC.
AMENDMENTS
Date of
Section Effect of Amendment Amendment
- ------- ------------------- ---------
All Restated in its entirety August 24, 1998
All Name change from April 3, 2000
InfoSpace.com, Inc. to
InfoSpace, Inc.
All Restated in its entirety February 12, 2003
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CONTENTS
SECTION 1. OFFICES ...................................................... 1
SECTION 2. STOCKHOLDERS ................................................. 1
2.1 Annual Meeting ............................................... 1
2.2 Special Meetings ............................................. 1
2.3 Place of Meeting ............................................. 1
2.4 Notice of Meeting ............................................ 1
2.5 Business for Stockholders' Meetings .......................... 2
2.5.1 Nomination of Directors ............................... 2
2.5.2 Other Business at Annual Meetings ..................... 3
2.5.3 Business at Special Meetings .......................... 4
2.5.3 Notice to Corporation ................................. 4
2.6 Waiver of Notice ............................................. 4
2.6.1 Waiver in Writing ..................................... 4
2.6.2 Waiver by Attendance .................................. 5
2.7 Fixing of Record Date for Determining Stockholders ........... 5
2.7.1 Meetings .............................................. 5
2.7.2 Consent to Corporate Action Without a Meeting ......... 5
2.7.3 Inspectors of Written Consent ......................... 6
2.7.4 Dividends, Distributions and Other Rights ............. 6
2.8 Voting List .................................................. 6
2.9 Quorum ....................................................... 6
2.10 Manner of Acting ............................................. 6
2.11 Proxies ...................................................... 7
2.11.1 Appointment ........................................... 7
2.11.2 Delivery to Corporation; Duration ..................... 7
2.12 Voting of Shares ............................................. 8
2.13 Voting for Directors ......................................... 8
2.14 Action by Stockholders Without a Meeting ..................... 8
2.15 Inspectors of Election ....................................... 9
2.15.1 Appointment ........................................... 9
2.15.2 Duties ................................................ 9
SECTION 3. BOARD OF DIRECTORS ........................................... 10
3.1 General Powers ............................................... 10
3.2 Number and Tenure ............................................ 10
3.3 Election ..................................................... 10
3.4 Annual and Regular Meetings .................................. 10
3.5 Special Meetings ............................................. 10
3.6 Meetings by Telephone ........................................ 10
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3.7 Notice of Special Meetings ................................... 10
3.7.1 Personal Delivery ..................................... 11
3.7.2 Delivery by Mail ...................................... 11
3.7.3 Delivery by Private Carrier ........................... 11
3.7.4 Facsimile Notice ...................................... 11
3.7.5 Delivery by Telegraph ................................. 11
3.7.6 Oral Notice ........................................... 11
3.8 Waiver of Notice ............................................. 11
3.8.1 In Writing ............................................ 11
3.8.2 By Attendance ......................................... 12
3.9 Quorum ....................................................... 12
3.10 Manner of Acting ............................................. 12
3.11 Presumption of Assent ........................................ 12
3.12 Action by Board or Committees Without a Meeting .............. 12
3.13 Resignation .................................................. 13
3.14 Removal ...................................................... 13
3.15 Vacancies .................................................... 13
3.16 Committees ................................................... 13
3.16.1 Creation and Authority of Committees .................. 13
3.16.2 Audit Committee ....................................... 14
3.16.3 Compensation Committee ................................ 14
3.16.4 Nominating and Organization Committee ................. 14
3.16.5 Minutes of Meetings ................................... 15
3.16.6 Quorum and Manner of Acting ........................... 15
3.16.7 Resignation ........................................... 15
3.16.8 Removal ............................................... 15
3.17 Compensation ................................................. 15
SECTION 4. OFFICERS ..................................................... 16
4.1 Number ....................................................... 16
4.2 Election and Term of Office .................................. 16
4.3 Resignation .................................................. 16
4.4 Removal ...................................................... 16
4.5 Vacancies .................................................... 16
4.6 Chairman of the Board ........................................ 17
4.7 Chief Executive Officer ...................................... 17
4.8 President .................................................... 17
4.9 Vice President ............................................... 17
4.10 Secretary .................................................... 18
4.11 Treasurer .................................................... 18
4.12 Salaries ..................................................... 18
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS ........................ 18
5.1 Contracts .................................................... 18
5.2 Loans to the Corporation ..................................... 18
5.3 Checks, Drafts, Etc .......................................... 19
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5.4 Deposits .................................................... 19
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER ................... 19
6.1 Issuance of Shares .......................................... 19
6.2 Certificates for Shares ..................................... 19
6.3 Stock Records ............................................... 19
6.4 Restriction on Transfer ..................................... 20
6.5 Transfer of Shares .......................................... 20
6.6 Lost or Destroyed Certificates .............................. 20
6.7 Shares of Another Corporation ............................... 21
SECTION 7. BOOKS AND RECORDS ........................................... 21
SECTION 8. ACCOUNTING YEAR ............................................. 21
SECTION 9. SEAL ........................................................ 21
SECTION 10. INDEMNIFICATION ............................................. 21
10.1 Right to Indemnification .................................... 21
10.2 Right of Indemnitee to Bring Suit ........................... 22
10.3 Nonexclusivity of Rights .................................... 22
10.4 Insurance, Contracts and Funding ............................ 23
10.5 Indemnification of Employees and Agents of the Corporation .. 23
10.6 Persons Serving Other Entities .............................. 23
10.7 Procedures for the Submission of Claims ..................... 23
SECTION 11. AMENDMENTS OR REPEAL ........................................ 24
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RESTATED BYLAWS
OF
INFOSPACE, INC.
SECTION 1. OFFICES
The principal office of the corporation shall be located at its principal
place of business or such other place as the Board of Directors (the "Board")
may designate. The corporation may have such other offices, either within or
without the state of Delaware, as the Board may designate or as the business of
the corporation may require from time to time.
SECTION 2. STOCKHOLDERS
2.1 Annual Meeting
The annual meeting of the stockholders shall be held on such date and at
such time as may be designated from time to time by the Board at the principal
office of the corporation or such other place designated by the Board for the
purpose of electing Directors and transacting such other business as may
properly come before the meeting. If the day fixed for the annual meeting is a
legal holiday at the place of the meeting, the meeting shall be held on the next
succeeding business day. If the annual meeting is not held on the date
designated therefor, the Board shall cause the meeting to be held as soon
thereafter as may be convenient. At any time prior to the commencement of the
annual meeting, the Board may postpone the annual meeting.
2.2 Special Meetings
The Chairman of the Board, the President, the Board or the holders of not
less than 30 percent of all the outstanding shares of the corporation entitled
to vote on any issue proposed to be considered at the meeting may call special
meetings of the stockholders for any purpose.
2.3 Place of Meeting
All meetings shall be held at the principal office of the corporation or at
such other place within or without the State of Delaware designated by the
Board, by any persons entitled to call a meeting hereunder or in a waiver of
notice signed by all of the stockholders entitled to notice of the meeting.
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2.4 Notice of Meeting
The Chairman of the Board, the President, the Secretary or the Board shall
cause to be delivered to each stockholder entitled to notice of or to vote at
the meeting either personally or by mail, not less than 10 nor more than 60 days
before the meeting, written notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called; except that where the matter to be acted on is a merger
or consolidation of the corporation or the sale, lease, exchange or other
disposition of all or substantially all of the corporation's assets other than
in the ordinary course of business, such notice shall be given not less than 20
nor more than 60 days prior to such meeting. Upon written request by the holders
of not less than the number of outstanding shares of the corporation specified
in subsection 2.2 hereof and entitled to vote at the meeting, it shall be the
duty of the Secretary to give notice of a special meeting of stockholders to be
held on such date and at such place and hour as the Secretary may fix, not less
than 10 nor more than 60 days after receipt of said request, and if the
Secretary shall neglect or refuse to issue such notice, the person making the
request may do so and may fix the date for such meeting. If such notice is
mailed, it shall be deemed delivered when deposited in the official government
mail properly addressed to the stockholder at such stockholder's address as it
appears on the stock transfer books of the corporation with postage prepaid. If
the notice is telegraphed, it shall be deemed delivered when the content of the
telegram is delivered to the telegraph company. Notice given in any other manner
shall be deemed delivered when dispatched to the stockholder's address,
telephone number or other number appearing on the stock transfer records of the
corporation.
2.5 Business for Stockholders' Meetings
2.5.1 Nomination of Directors
Nominations of persons for election to the Board may be made at an annual
meeting of stockholders or at a special meeting of stockholders called for such
purpose (a) by or at the direction of the Board or (b) by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this Section, who shall be entitled to vote for the election of
directors at the meeting and who complies with the notice procedures set forth
in this Section. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not fewer than 60 nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the meeting was first given or such public disclosure was first made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection 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 Securities Exchange Act of 1934,
as amended (the "Exchange Act"), including, without limitation, such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected; and (b) as to the stockholder giving notice
(i) the name and address, as they appear on the Corporation's stock ledger, of
such
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stockholder, (ii) the class and number of shares of the Corporation which are
beneficially owned by such stockholder and (iii) if the stockholder intends,
directly or indirectly, to solicit proxies in support of such stockholder's
nominees, a representation to that effect. In addition, if the stockholder
intends, directly or indirectly, to solicit proxies in support of such
stockholder's nominee(s) for election or reelection as a director, the
stockholder's notice shall set forth, as to the stockholder and any other
participants in the solicitation of proxies, all information relating thereto
that is required pursuant to Regulation 14A under the Exchange Act. At the
request of the Board, any person nominated by the Board for election as a
director shall furnish to the Secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election at any meeting of
stockholders as a director of the corporation unless nominated in compliance
with the procedures set forth in this Section 2.5.1. The chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in compliance with the procedures prescribed by the
Bylaws, and if he or she should so determine, he or she shall so declare to the
meeting and the defective nominations shall be disregarded. Notwithstanding the
foregoing provisions of this Section, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.5.1.
The procedures set forth in this subsection 2.5.1 for business to be
properly brought before an annual meeting by a stockholder are in addition to,
and not in lieu of, the requirements set forth in Rule 14a-8 under Section 14 of
the Securities Exchange Act of 1934, as amended, or any successor provision.
2.5.2 Other Business at Annual Meetings
At the annual 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 meeting, any business other than the nomination of
persons for election to the Board (which is governed by subsection 2.5.1 of the
Bylaws) must be a proper subject for stockholder action under the Delaware
General Corporation Law, as the same may be amended (the "DGCL"), and must be
(a) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board, (b) otherwise properly brought before the meeting
by or at the direction of the Board, or (c) otherwise properly brought before
the meeting by a stockholder of the corporation who is a stockholder of record
at the time of giving of notice provided for in this Section and who shall be
entitled to vote at the meeting. 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. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not fewer than 60 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 days' notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder, to be timely, must
be so received not later than the close of business on the 10th day following
the date on which such notice of the date of the annual meeting was first mailed
or such public disclosure was first made. A stockholder's notice to the
Secretary of the corporation
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shall set forth as to each matter the shareholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting, (b) as to the stockholder giving such notice (i) the
name and address, as they appear on the corporation's stock ledger, of such
stockholder, (ii) the class and number of shares of the corporation which are
beneficially owned by such stockholder, and (iii) if the stockholder intends,
directly or indirectly, to solicit proxies in support of such stockholder's
proposal, a representation to that effect; and (c) any material interest of the
stockholder in such business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
compliance with the procedures set forth in this Section 2.5.2 (or with respect
to the nomination of persons for election to the Board, Section 2.5.1 of the
Bylaws). In addition, if the stockholder intends, directly or indirectly, to
solicit proxies in support of such stockholder's proposal, the stockholder's
notice shall set forth, as to the stockholder and any other participants in the
solicitation of proxies, all information relating thereto that is required
pursuant to Regulation 14A under the Exchange Act. The Chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that business
was not properly brought before the meeting and in compliance with the
provisions of this Section 2.5.2, and if he or she should so determine, he or
she shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
2.5.3 Business at Special Meetings
At any special meeting of the stockholders, only such business as is
specified in the notice of such special meeting given by or at the direction of
the person or persons calling such meeting pursuant to subsections 2.2 and 2.4
of the Bylaws shall come before such meeting.
2.5.4 Notice to Corporation
Any written notice required to be delivered by a stockholder to the
corporation pursuant to subsection 2.5.1 or subsection 2.5.2 hereof must be
given, either by personal delivery or by registered or certified mail, postage
prepaid, to the Secretary at the corporation's executive offices.
2.6 Waiver of Notice
2.6.1 Waiver in Writing
Whenever any notice is required to be given to any stockholder under the
provisions of these Bylaws, the Certificate of Incorporation or the DGCL, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
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2.6.2 Waiver by Attendance
The attendance of a stockholder at a meeting shall constitute a waiver of
notice of such meeting, except when a stockholder 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.
2.7 Fixing of Record Date for Determining Stockholders
2.7.1 Meetings
For the purpose of determining stockholders entitled to notice of and to
vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall not be more than 60 (or the maximum number permitted by applicable law)
nor less than 10 days before the date of such meeting. If no record date is
fixed by the Board, the record date for determining stockholders entitled to
notice of and 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 and to vote at the meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
2.7.2 Consent to Corporate Action Without a Meeting
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which date shall
not be more than 10 days after the date upon which the resolution fixing the
record date is adopted by the Board. Any stockholder of record seeking to have
the stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary of the corporation, request the Board to fix a
record date. The Board shall promptly, but in all events within 10 days after
the date on which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board within 10 days of the
date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by applicable law, shall
be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
any officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board
and prior action by the Board is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
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2.7.3 Inspectors of Written Consent
In the event of the delivery, in the manner provided by Section 2.7.2, to
the corporation of the requisite written consent or consents to take corporate
action and/or any related revocation or revocations, the corporation shall
engage independent inspectors of elections for the purpose of performing
promptly a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the corporation that the consents delivered to
the corporation in accordance with Section 2.7.2 represent at least the minimum
number of votes that would be necessary to take the corporate action. Nothing
contained in this Section 2.7.3 shall in any way be construed to suggest or
imply that the Board or any stockholder shall not be entitled to contest the
validity of any consent or revocation thereof, whether before or after such
certification by the independent inspectors, or to take any other action
(including, without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief in such
litigation).
2.7.4 Dividends, Distributions and Other Rights
For the purpose of determining stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 (or the maximum number permitted by applicable
law) days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
2.8 Voting List
At least 10 days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting, or any adjournment thereof,
shall be made, arranged in alphabetical order, with the address of and number of
shares held by each stockholder. This list shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of 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. This list shall also be produced and kept at such meeting for
inspection by any stockholder who is present.
2.9 Quorum
A majority of the outstanding shares of the corporation entitled to vote,
present in person or represented by proxy at the meeting, shall constitute a
quorum at a meeting of the stockholders; provided, that where a separate vote by
a class or classes is required, a majority of the outstanding shares of such
class or classes, present in person or represented by proxy at the meeting,
shall constitute a quorum entitled to take action with
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respect to that vote on that matter. If less than a majority of the outstanding
shares entitled to vote are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice.
If a quorum is present or represented at a reconvened meeting following such an
adjournment, any business may be transacted that might have been transacted at
the meeting as originally called. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.10 Manner of Acting
In all matters other than the election of Directors, if a quorum is
present, the affirmative vote of the majority of the outstanding shares present
in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders, unless the vote of a
greater number is required by these Bylaws, the Certificate of Incorporation or
the DGCL. Where a separate vote by a class or classes is required, if a quorum
of such class or classes is present, the affirmative vote of the majority of
outstanding shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class or classes, unless the vote
of a greater number is required by these Bylaws, the Certificate of
Incorporation or the DGCL. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of Directors.
2.11 Proxies
2.11.1 Appointment
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy. Such
authorization may be accomplished by (a) the stockholder or such stockholder's
authorized officer, director, employee or agent executing a writing or causing
his or her signature to be affixed to such writing by any reasonable means,
including facsimile signature or (b) by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
to the intended holder of the proxy or to a proxy solicitation firm, proxy
support service or similar agent duly authorized by the intended proxy holder to
receive such transmission; provided, that any such telegram, cablegram or other
electronic transmission must either set forth or be accompanied by information
from which it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
by which a stockholder has authorized another person to act as proxy for such
stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
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2.11.2 Delivery to Corporation; Duration
A proxy shall be filed with the Secretary before or at the time of the
meeting or the delivery to the corporation of the consent to corporate action in
writing. A proxy shall become invalid three years after the date of its
execution unless otherwise provided in the proxy. A proxy with respect to a
specified meeting shall entitle the holder thereof to vote at any reconvened
meeting following adjournment of such meeting but shall not be valid after the
final adjournment thereof.
2.12 Voting of Shares
Each outstanding share entitled to vote with respect to the subject matter
of an issue submitted to a meeting of stockholders shall be entitled to one vote
upon each such issue.
2.13 Voting for Directors
Each stockholder entitled to vote at an election of Directors may vote, in
person or by proxy, the number of shares owned by such stockholder for as many
persons as there are Directors to be elected and for whose election such
stockholder has a right to vote; provided, however, that no cumulative voting
shall be permitted in the election of Directors.
2.14 Action by Stockholders Without a Meeting
Subject to subsections 2.7.2 and 2.7.3 hereof and the following paragraph,
any action that is properly brought before the stockholders by or at the
direction of the Board of Directors and that could be taken at an annual or
special meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall (a) be signed by the holders of outstanding shares of
capital stock entitled to be voted with respect to the subject matter thereof
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted (as determined in accordance with subsection
2.6.2 hereof) and (b) be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the records of
proceedings of meetings of stockholders. Delivery made to the corporation's
registered office shall be by hand or by certified mail or registered mail,
return receipt requested. Every written consent shall bear the date of signature
of each stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless written
consents signed by the requisite number of stockholders entitled to vote with
respect to the subject matter thereof are delivered to the corporation, in the
manner required by this Section 2, within 60 (or the maximum number permitted by
applicable law) days of the earliest dated consent delivered to the corporation
in the manner required by this Section 2. The validity of any consent executed
by a proxy for a stockholder pursuant to a telegram, cablegram or other means of
electronic transmission transmitted to such proxy holder by or upon the
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authorization of the stockholder shall be determined by or at the direction of
the Secretary. A written record of the information upon which the person making
such determination relied shall be made and kept in the records of the
proceedings of the stockholders. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing. Any such consent shall
be inserted in the minute book as if it were the minutes of a meeting of the
stockholders.
2.15 Inspectors of Election
2.15.1 Appointment
In advance of any meeting of stockholders after this corporation has become
a Public Company (as defined below), the Board shall appoint one or more persons
to act as inspectors of election at such meeting and to make a written report
thereof. The Board may designate one or more persons to serve as alternate
inspectors to serve in place of any inspector who is unable or fails to act. If
no inspector or alternate is able to act at a meeting of stockholders, the
chairman of such meeting shall appoint one or more persons to act as inspector
of elections at such meeting. This corporation shall be a "Public Company" upon
the earliest of (a) a vote by the Board of Directors of the corporation
designating the corporation a Public Company, (b) when a registration statement
filed by the corporation under the Securities Act of 1933, as amended, in
connection with an offering of the corporation's securities to the public first
becomes effective or (c) upon the effective date of the registration of the
corporation's securities pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended.
2.15.2 Duties
The inspectors of election shall:
(a) ascertain the number of shares of the corporation outstanding and
the voting power of each such share;
(b) determine the shares represented at the meeting and the validity
of proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period of time a record of
the disposition of any challenges made to any determination by them; and
(e) certify their determination of the number of shares represented at
the meeting and their count of the votes and ballots.
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The validity of any proxy or ballot shall be determined by the inspectors
of election in accordance with the applicable provisions of these Bylaws and the
DGCL as then in effect. In determining the validity of any proxy transmitted by
telegram, cablegram or other electronic transmission, the inspectors shall
record in writing the information upon which they relied in making such
determination. Each inspector of elections shall, before entering upon the
discharge of his or her duties, take and sign an oath to faithfully execute the
duties of inspector with strict impartiality and according to the best of his or
her ability. The inspectors of election may appoint or retain other persons or
entities to assist them in the performance of their duties.
SECTION 3. BOARD OF DIRECTORS
3.1 General Powers
The business and affairs of the corporation shall be managed by the Board.
3.2 Number and Tenure
The number and tenure of the Directors shall be governed by Article 5 of
the Restated Certificate of Incorporation.
3.3 Election
At each election of Directors, the persons receiving the greatest number of
votes shall be the Directors.
3.4 Annual and Regular Meetings
An annual Board meeting shall be held without notice immediately after and
at the same place as the annual meeting of stockholders. By resolution, the
Board or any committee designated by the Board may specify the time and place
either within or without the State of Delaware for holding regular meetings
thereof without other notice than such resolution.
3.5 Special Meetings
Special meetings of the Board or any committee appointed by the Board may
be called by or at the request of the Board, Chairman of the Board, the Chief
Executive Officer, the President or, in the case of any special Board meetings,
any three (3) directors, and, in the case of any special meeting of any
committee appointed by the Board, by such committee or the Chairman thereof. The
person or persons authorized to call special meetings may fix any place either
within or without the State of Delaware as the place for holding any special
meeting called by them.
3.6 Meetings by Telephone
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
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3.7 Notice of Special Meetings
Notice of a special Board or committee meeting stating the place, day and
hour of the meeting shall be given to a Director in writing or orally by
telephone or in person. Neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in the notice of such meeting.
3.7.1 Personal Delivery
If notice is given by personal delivery, the notice shall be effective if
delivered to a Director at least two days before the meeting.
3.7.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deemed effective if
deposited in the official government mail properly addressed to a Director at
his or her address shown on the records of the corporation with postage prepaid
at least five days before the meeting.
3.7.3 Delivery by Private Carrier
If notice is given by private carrier, the notice shall be deemed effective
when dispatched to a Director at his or her address shown on the records of the
corporation at least three days before the meeting.
3.7.4 Facsimile Notice
If notice is delivered by wire or wireless equipment that transmits a
facsimile of the notice, the notice shall be deemed effective when dispatched at
least two days before the meeting to a Director at his or her telephone number
or other number appearing on the records of the corporation.
3.7.5 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be deemed effective
if the content thereof is delivered to the telegraph company at least two days
before the meeting for delivery to a Director at his or her address shown on the
records of the corporation.
3.7.6 Oral Notice
If notice is delivered orally, by telephone or in person, the notice shall
be deemed effective if personally given to the Director at least two days before
the meeting.
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3.8 Waiver of Notice
3.8.1 In Writing
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Certificate of Incorporation or the DGCL, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Board or any
committee appointed by the Board need be specified in the waiver of notice of
such meeting.
3.8.2 By Attendance
The attendance of a Director at a Board or committee meeting shall
constitute a waiver of notice of such meeting, except when a Director 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.
3.9 Quorum
A majority of the total number of Directors fixed by or in the manner
provided in these Bylaws or, if vacancies exist on the Board, a majority of the
total number of Directors then serving on the Board, provided, however, that
such number may be not less than one-third of the total number of Directors
fixed by or in the manner provided in these Bylaws, shall constitute a quorum
for the transaction of business at any Board meeting. If less than a majority
are present at a meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
3.10 Manner of Acting
The act of the majority of the Directors present at a Board or committee
meeting at which there is a quorum shall be the act of the Board or committee,
unless the vote of a greater number is required by these Bylaws, the Certificate
of Incorporation or the DGCL.
3.11 Presumption of Assent
A Director of the corporation present at a Board or committee meeting at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless his or her dissent is entered in the minutes of the
meeting, or unless such Director files a written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof, or
forwards such dissent by registered mail to the Secretary of the corporation
immediately after the adjournment of the meeting. A Director who voted in favor
of such action may not dissent.
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3.12 Action by Board or Committees Without a Meeting
Any action that could be taken at a meeting of the Board or of any
committee appointed by the Board may be taken without a meeting if a written
consent setting forth the action so taken is signed by each of the Directors or
by each committee member. Any such written consent shall be inserted in the
minute book as if it were the minutes of a Board or a committee meeting.
3.13 Resignation
Any Director may resign at any time by delivering written notice to the
Chairman of the Board, the Chief Executive Officer, the President, the Secretary
or the Board, or to the registered office of the corporation. Any such
resignation shall take effect at the time specified therein, or if the time is
not specified, upon delivery thereof and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
3.14 Removal
One or more members of the Board (including the entire Board) may be
removed, but only for cause, at a meeting of stockholders called expressly for
that purpose, or without a meeting pursuant to Section 2.14 of these Bylaws, by
the holders of not less than a majority of the shares entitled to elect the
Director or Directors whose removal is sought in the manner provided by these
Bylaws.
3.15 Vacancies
Any vacancy occurring on the Board may be filled only by the affirmative
vote of a majority of the remaining Directors, whether or not they constitute a
quorum of the Board. A Director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office, if any. Any directorship
to be filled by reason of an increase in the number of Directors may be filled
by the Board for a term of office continuing only until the next election of
Directors, and until his or her successor shall be elected and qualify.
3.16 Committees
3.16.1 Creation and Authority of Committees
The Board may, by resolution passed by a majority of the number of
Directors fixed by or in the manner provided in these Bylaws, appoint standing
or temporary committees, each committee to consist of one or more Directors of
the corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. 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 establishing
such
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committee or as otherwise provided in these Bylaws, shall have and may exercise
all the powers and authority of the Board 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 to the fullest extent permitted by law.
3.16.2 Audit Committee
In addition to any committees appointed pursuant to this subsection 3.16,
no later than such time as this corporation may become a Public Company there
shall be an Audit Committee, appointed annually by the Board, consisting of at
least two Directors who are not members of management. It shall be the
responsibility of the Audit Committee, if and when appointed, to review the
scope and results of the annual independent audit of books and records of the
corporation, to review compliance with all corporate policies which have been
approved by the Board and to discharge such other responsibilities as may from
time to time be assigned to it by the Board. The Audit Committee shall meet at
such times and places as the members deem advisable, and shall make such
recommendations to the Board as they consider appropriate.
3.16.3 Compensation Committee
The Board may, in its discretion, designate a Compensation Committee
consisting of one or more Directors as it may from time to time determine. The
duties of the Compensation Committee shall consist of the following: (a) to
establish and review periodically, but not less than annually, the compensation
of the officers of the corporation and to make recommendations concerning such
compensation to the Board; (b) to consider incentive compensation plans for the
employees of the corporation; (c) to carry out the duties assigned to the
Compensation Committee under any stock option plan or other plan approved by the
corporation; (d) to consult with the Chief Executive Officer or the President
concerning any compensation matters deemed appropriate by the Chief Executive
Officer or the President or the Compensation Committee; and (e) to perform such
other duties as shall be assigned to the Compensation Committee by the Board.
3.16.4 Nominating and Organization Committee
The Board may, in its discretion, designate a Nominating and Organization
Committee consisting of one or more Directors as it may from time to time
determine. The duties of the Nominating and Organization Committee shall consist
of the following: (a) to report and make recommendations to the Board on the
size and composition of the Board and nominees for Directors; (b) to evaluate
the performance of the officers of the corporation and together with management,
select and recommend to the Board appropriate individuals for election,
appointment and promotion as officers of the corporation and ensure the
continuity of capable management; (c) to report and make recommendations to the
Board on the organization of the corporation; and (d) to perform such other
duties as shall be assigned to the Nominating and Organization Committee by the
Board.
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3.16.5 Minutes of Meetings
All committees so appointed shall keep regular minutes of their meetings
and shall cause them to be recorded in books kept for that purpose.
3.16.6 Quorum and Manner of Acting
A majority of the number of Directors composing any committee of the Board,
as established and fixed by resolution of the Board, shall constitute a quorum
for the transaction of business at any meeting of such committee but, if less
than a majority are present at a meeting, a majority of such Directors present
may adjourn the meeting from time to time without further notice. The act of a
majority of the members of a committee present at a meeting at which a quorum is
present shall be the act of such committee.
3.16.7 Resignation
Any member of any committee may resign at any time by delivering written
notice to the Chairman of the Board, the Chief Executive Officer, the President,
the Secretary, the Board or the Chairman of such committee. Any such resignation
shall take effect at the time specified therein or, if the time is not
specified, upon delivery thereof and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
3.16.8 Removal
The Board may remove from office any member of any committee elected or
appointed by it, but only by the affirmative vote of not less than a majority of
the number of Directors fixed by or in the manner provided in these Bylaws.
3.17 Compensation
By Board resolution, Directors and committee members may be paid their
expenses, if any, of attendance at each Board or committee meeting, a fixed sum
for attendance at each Board or committee meeting, or a stated salary as
Director or a committee member, or a combination of the foregoing. No such
payment shall preclude any Director or committee member from serving the
corporation in any other capacity and receiving compensation therefor.
SECTION 4. OFFICERS
4.1 Number
The officers of the corporation shall be a Chief Executive Officer, a
President, a Secretary and a Treasurer, each of whom shall be elected by the
Board. One or more Vice Presidents and such other officers and assistant
officers, including a Chairman of the Board, may be elected or appointed by the
Board, such officers and assistant officers to hold office for such period, have
such authority and perform such duties as are provided in these Bylaws or as may
be provided by resolution of the Board. Any officer may be
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assigned by the Board any additional title that the Board deems appropriate. The
Board may delegate to any officer or agent the power to appoint any such
subordinate officers or agents and to prescribe their respective terms of
office, authority and duties. Any two or more offices may be held by the same
person.
4.2 Election and Term of Office
The officers of the corporation shall be elected annually by the Board at
the Board meeting held after the annual meeting of the stockholders. If the
election of officers is not held at such meeting, such election shall be held as
soon thereafter as a Board meeting conveniently may be held. Unless an officer
dies, resigns or is removed from office, he or she shall hold office until the
next annual meeting of the Board or until his or her successor is elected.
4.3 Resignation
Any officer may resign at any time by delivering written notice to the
Chairman of the Board, the Chief Executive Officer, the President, a Vice
President, the Secretary or the Board. Any such resignation shall take effect at
the time specified therein or, if the time is not specified, upon delivery
thereof and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
4.4 Removal
Any officer or agent elected or appointed by the Board may be removed by
the Board whenever in its judgment the best interests of the corporation would
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
4.5 Vacancies
A vacancy in any office because of death, resignation, removal,
disqualification, creation of a new office or any other cause may be filled by
the Board for the unexpired portion of the term, or for a new term established
by the Board.
4.6 Chairman of the Board
If elected, the Chairman of the Board shall perform such duties as shall be
assigned to him or her by the Board from time to time and shall preside over
meetings of the Board and stockholders unless another officer is appointed or
designated by the Board as chairman of such meeting.
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4.7 Chief Executive Officer
The Chief Executive Officer shall be the chief executive officer of the
corporation, shall preside over meetings of the Board and stockholders in the
absence of a Chairman of the Board and, subject to the Board's control, shall
supervise and control all of the assets, business and affairs of the
corporation. The Chief Executive Officer may sign certificates for shares of the
corporation, deeds, mortgages, bonds, contracts or other instruments, except
when the signing and execution thereof have been expressly delegated by the
Board or by these Bylaws to some other officer or agent of the corporation or
are required by law to be otherwise signed or executed by some other officer or
in some other manner. In general, the Chief Executive Officer shall perform all
duties incident to the office of Chief Executive Officer and such other duties
as are prescribed by the Board from time to time.
4.8 President
In the event of the death of the Chief Executive Officer or his inability
to act, the President shall perform the duties of the Chief Executive Officer,
except as may be limited by resolution of the Board, with all the powers of and
subject to all the restrictions upon the Chief Executive Officer. The President
may sign with the Secretary or any Assistant Secretary certificates for shares
of the corporation. The President shall have, to the extent authorized by the
Chief Executive Officer or the Board, the same powers as the Chief Executive
Officer to sign deeds, mortgages, bonds, contracts or other instruments. The
President shall perform such other duties as from time to time may be assigned
to him or her by the Chief Executive Officer or the Board.
4.9 Vice President
In the event of the death of the President or his or her inability to act,
the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Any Vice President may sign with the Secretary
or any Assistant Secretary certificates for shares of the corporation. Vice
Presidents shall have, to the extent authorized by the President or the Board,
the same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from time
to time may be assigned to them by the President or the Board.
4.10 Secretary
The Secretary shall be responsible for preparation of minutes of meetings
of the Board and stockholders, maintenance of the corporation's records and
stock registers, signing certificates for shares of the corporation and
authentication of the corporation's records and shall in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him or her by the President or the Board. In the absence
of the Secretary, an Assistant Secretary may perform the duties of the
Secretary.
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4.11 Treasurer
The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the corporation; receive and give receipts for moneys
due and payable to the corporation from any source whatsoever, and deposit all
such moneys in the name of the corporation in banks, trust companies or other
depositories selected in accordance with the provisions of these Bylaws; sign
certificates for shares of the corporation; and in general perform all of the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to him or her by the President or by the Board. In the
absence of the Treasurer, an Assistant Treasurer may perform the duties of the
Treasurer.
4.12 Salaries
The salaries of the officers shall be fixed from time to time by the Board
or by any person or persons to whom the Board has delegated such authority. No
officer shall be prevented from receiving such salary by reason of the fact that
he or she is also a Director of the corporation.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts
The Board may authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 Loans to the Corporation
No loans for borrowed money shall be contracted on behalf of the
corporation and no evidences of indebtedness for borrowed money shall be issued
in its name unless authorized by a resolution of the Board. Such authority may
be general or confined to specific instances.
5.3 Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, or agent or agents, of the corporation and in such
manner as is from time to time determined by resolution of the Board.
5.4 Deposits
All funds of the corporation not otherwise employed shall be deposited from
time to time to the credit of the corporation in such banks, trust companies or
other depositories as the Board may select.
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SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Issuance of Shares
No shares of the corporation shall be issued unless authorized by the
Board, which authorization shall include the maximum number of shares to be
issued and the consideration to be received for each share.
6.2 Certificates for Shares
Certificates representing shares of the corporation shall be signed by the
Chairman of the Board or Vice-Chairman of the Board, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, any of whose signatures may be a facsimile. The Board may
in its discretion appoint responsible banks, trust companies or other
professionals from time to time to act as transfer agents and registrars of the
stock of the corporation; and, when such appointments shall have been made, no
stock certificate shall be valid until countersigned by one of such transfer
agents and registered by one of such registrars. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person was such officer, transfer agent or
registrar at the date of issue. All certificates shall include on their face
written notice of any restrictions that may be imposed on the transferability of
such shares and shall be consecutively numbered or otherwise identified.
6.3 Stock Records
The stock transfer books shall be kept at the registered office or
principal place of business of the corporation or at the office of the
corporation's transfer agent or registrar. The name and address of each person
to whom certificates for shares are issued, together with the class and number
of shares represented by each such certificate and the date of issue thereof,
shall be entered on the stock transfer books of the corporation. The person in
whose name shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
6.4 Restriction on Transfer
Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable securities laws, or has otherwise satisfied itself
that such transfer restrictions are not required, all certificates representing
shares of the corporation shall bear a legend on the face of the certificate, or
on the reverse of the certificate if a reference to the legend is contained on
the face, that reads substantially as follows:
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The securities evidenced by this certificate have not been
registered under the Securities Act of 1933 or any
applicable state law, and no interest therein may be sold,
distributed, assigned, offered, pledged or otherwise
transferred unless (a) there is an effective registration
statement under such Act and applicable state securities
laws covering any such transaction involving said
securities or (b) this corporation receives an opinion of
legal counsel for the holder of these securities
(concurred in by legal counsel for this corporation)
stating that such transaction is exempt from registration
or this corporation otherwise satisfies itself that such
transaction is exempt from registration. Neither the
offering of the securities nor any offering materials
have been reviewed by any administrator under the
Securities Act of 1933 or any applicable state law.
6.5 Transfer of Shares
The transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and canceled.
6.6 Lost or Destroyed Certificates
In the case of a lost, destroyed or mutilated certificate, a new
certificate may be issued therefor upon such terms and indemnity to the
corporation as the Board may prescribe.
6.7 Shares of Another Corporation
Shares owned by the corporation in another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the Board may determine
or, in the absence of such determination, by the Chief Executive Officer, the
President or any Vice President of the corporation.
SECTION 7. BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its stockholders
and Board and such other records as may be necessary or advisable.
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SECTION 8. ACCOUNTING YEAR
The accounting year of the corporation shall be the calendar year, provided
that if a different accounting year is at any time selected for purposes of
federal income taxes, the accounting year shall be the year so selected.
SECTION 9. SEAL
The seal of the corporation, if any, shall consist of the name of the
corporation, the state of its incorporation and the year of its incorporation.
SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the corporation or that,
being or having been such a Director or officer of the corporation, he or she 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 an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as such a Director or officer or in any
other capacity while serving as such a Director or officer, shall be indemnified
and held harmless by the corporation to the full extent permitted by the General
Corporation Law of the State of Delaware, 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
permitted prior thereto), or by other applicable law as then in effect, against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by such indemnitee in connection therewith and
such indemnification shall continue as to an indemnitee who has ceased to be a
Director or officer and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
subsection 10.2 hereof with respect to proceedings seeking to enforce rights to
indemnification, the corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized or ratified by the Board.
The right to indemnification conferred in this subsection 10.1 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 (hereinafter an "advancement of expenses"); provided, however, that
if the DGCL requires, an advancement of expenses incurred by an indemnitee 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 indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified
for such expenses under this subsection 10.1 or otherwise.
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10.2 Right of Indemnitee to Bring Suit
If a claim under subsection 10.1 hereof is not paid in full by the
corporation within 60 days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Section 10 upon submission of a
written claim (and, in an action brought to enforce a claim for an advancement
of expenses, where the required undertaking, if any is required, has been
tendered to the corporation), and thereafter the corporation shall have the
burden of proof to overcome the presumption that the indemnitee is not so
entitled. Neither the failure of the corporation (including its Board,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances nor an actual determination by the corporation
(including its Board, independent legal counsel or its stockholders) that the
indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the indemnitee is not so entitled.
10.3 Nonexclusivity of Rights
The rights to indemnification and to the advancement of expenses conferred
in this Section 10 shall not be exclusive of any other right that any person may
have or hereafter acquire under any statute, agreement, vote of stockholders or
disinterested Directors, provisions of the Certificate of Incorporation or
Bylaws of the corporation or otherwise. Notwithstanding any amendment to or
repeal of this Section 10, any indemnitee shall be entitled to indemnification
in accordance with the provisions hereof with respect to any acts or omissions
of such indemnitee occurring prior to such amendment or repeal.
10.4 Insurance, Contracts and Funding
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 DGCL.
The corporation, without further stockholder approval, may enter into contracts
with any Director, officer, employee or agent in furtherance of the provisions
of this Section 10 and may create a trust fund, grant a security interest or use
other means (including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Section 10.
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10.5 Indemnification of Employees and Agents of the Corporation
The corporation may, by action of the Board, grant rights to
indemnification and advancement of expenses to employees or agents or groups of
employees or agents of the corporation with the same scope and effect as the
provisions of this Section 10 with respect to the indemnification and
advancement of expenses of Directors and officers of the corporation; provided,
however, that an undertaking shall be made by an employee or agent only if
required by the Board.
10.6 Persons Serving Other Entities
Any person who is or was a Director or officer of the corporation who is or
was serving (a) as a Director or officer of another corporation of which a
majority of the shares entitled to vote in the election of its Directors is held
by the corporation or (b) in an executive or management capacity in a
partnership, joint venture, trust or other enterprise of which the corporation
or a wholly owned subsidiary of the corporation is a general partner or has a
majority ownership shall be deemed to be so serving at the request of the
corporation and entitled to indemnification and advancement of expenses under
subsection 10.1 hereof.
10.7 Procedures for the Submission of Claims
The Board may establish reasonable procedures for the submission of claims
for indemnification pursuant to this Section 10, determination of the
entitlement of any person thereto and review of any such determination. Such
procedures shall be set forth in an appendix to these Bylaws and shall be deemed
for all purposes to be a part hereof.
SECTION 11. AMENDMENTS OR REPEAL
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this corporation; provided, however, the Board of Directors may not
repeal or amend any bylaw that the stockholders have expressly provided may not
be amended or repealed by the Board of Directors. The stockholders shall also
have the power to adopt, amend or repeal the Bylaws of this corporation.
Notwithstanding any amendment to Section 10 hereof or repeal of these
Bylaws, or of any amendment or repeal of any of the procedures that may be
established by the Board pursuant to Section 10 hereof, any indemnitee shall be
entitled to indemnification in accordance with the provisions hereof and thereof
with respect to any acts or omissions of such indemnitee occurring prior to such
amendment or repeal.
The foregoing Bylaws were amended and restated by the Board of Directors on
February 12, 2003.
/s/ John M. Hall_____________
John M. Hall, Senior Vice President,
General Counsel, and Secretary
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