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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
THE GYMBOREE CORPORATION
(a Delaware Corporation)
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TABLE OF CONTENTS
PAGE
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ARTICLE I CORPORATE OFFICES ............................................... 1
1.1 REGISTERED OFFICE ............................................ 1
1.2 OTHER OFFICES ................................................ 1
ARTICLE II MEETINGS OF STOCKHOLDERS ....................................... 1
2.1 PLACE OF MEETINGS ............................................ 1
2.2 ANNUAL MEETING; NOTICE ....................................... 1
2.3 SPECIAL MEETING .............................................. 3
2.4 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE ................. 5
2.5 QUORUM ....................................................... 5
2.6 ADJOURNED MEETING; NOTICE .................................... 6
2.7 VOTING ....................................................... 6
2.8 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT ............ 6
2.9 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING ...... 7
2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS .. 7
2.11 PROXIES ...................................................... 8
2.12 INSPECTORS OF ELECTION ....................................... 8
ARTICLE III DIRECTORS ..................................................... 9
3.1 POWERS ....................................................... 9
3.2 NUMBER AND TERM OF OFFICE .................................... 10
3.3 CLASSES OF DIRECTORS ......................................... 10
3.4 RESIGNATION AND VACANCIES .................................... 10
3.5 REMOVAL ...................................................... 11
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE ..................... 12
3.7 FIRST MEETINGS ............................................... 12
3.8 REGULAR MEETINGS ............................................. 12
3.9 SPECIAL MEETINGS; NOTICE ..................................... 12
3.10 QUORUM ....................................................... 13
3.11 WAIVER OF NOTICE ............................................. 13
3.12 ADJOURNMENT .................................................. 13
3.13 NOTICE OF ADJOURNMENT ........................................ 14
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING ............ 14
3.15 FEES AND COMPENSATION OF DIRECTORS ........................... 14
3.16 APPROVAL OF LOANS TO OFFICERS ................................ 14
ARTICLE IV COMMITTEES ..................................................... 15
4.1 COMMITTEES OF DIRECTORS ...................................... 15
4.2 MEETINGS AND ACTION OF COMMITTEES ............................ 15
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TABLE OF CONTENTS
(Continued)
PAGE
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ARTICLE V OFFICERS ........................................................ 16
5.1 OFFICERS ..................................................... 16
5.2 ELECTION OF OFFICERS ......................................... 16
5.3 SUBORDINATE OFFICERS ......................................... 16
5.4 REMOVAL AND RESIGNATION OF OFFICERS .......................... 16
5.5 VACANCIES IN OFFICES ......................................... 17
5.6 CHAIRMAN OF THE BOARD ........................................ 17
5.7 PRESIDENT .................................................... 17
5.8 VICE PRESIDENTS .............................................. 17
5.9 SECRETARY .................................................... 18
5.10 CHIEF FINANCIAL OFFICER ...................................... 18
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
OTHER AGENTS ...................................................... 19
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS .................... 19
6.2 INDEMNIFICATION OF OTHERS .................................... 19
6.3 INSURANCE .................................................... 19
ARTICLE VII RECORDS AND REPORTS ........................................... 20
7.1 MAINTENANCE AND INSPECTION OF RECORDS ........................ 20
7.2 INSPECTION BY DIRECTORS ...................................... 20
7.3 ANNUAL STATEMENT TO STOCKHOLDERS ............................. 21
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS ............... 21
ARTICLE VIII GENERAL MATTERS .............................................. 21
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING ........ 21
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS .................... 22
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED ........... 22
8.4 STOCK CERTIFICATES; PARTLY PAID SHARES ....................... 22
8.5 SPECIAL DESIGNATION ON CERTIFICATES .......................... 23
8.6 LOST CERTIFICATES ............................................ 23
8.7 CONSTRUCTION; DEFINITIONS .................................... 23
8.8 RESTRICTIONS ON TRANSFER OF SHARES ........................... 24
ARTICLE IX AMENDMENTS ..................................................... 25
ARTICLE X DISSOLUTION ..................................................... 25
ARTICLE XI CUSTODIAN ...................................................... 26
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES .................. 26
11.2 DUTIES OF CUSTODIAN .......................................... 26
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AMENDED AND RESTATED BYLAWS
OF
THE GYMBOREE CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE.
The registered office of the Corporation shall be fixed in the
Certificate of Incorporation of the Corporation.
1.2 OTHER OFFICES.
The Board of Directors may at any time establish branch or subordinate
offices at any place or places where the Corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the Board of Directors. In the absence of
any such designation, stockholders' meetings shall be held at the registered
office of the Corporation.
2.2 ANNUAL MEETING; NOTICE.
(a) The annual meeting of stockholders shall be held each year
on a date and at a time designated by the Board of Directors. In the absence of
such designation, the annual meeting of stockholders shall be held on the third
Tuesday of May in each year at 10:00 a.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, Directors shall be elected, and
any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (A) specified in
the notice of meeting (or any supplement thereto)
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given by or at the direction of the Board of Directors, (B) otherwise properly
brought before the meeting by or at the direction of the Board of Directors, or
(C) otherwise properly brought before the meeting by a stockholder. 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
less than one hundred twenty (120) calendar days in advance of the date
specified in the Corporation's proxy statement released to stockholders in
connection with the previous year's annual meeting of stockholders; provided,
however, that in the event that no annual meeting was held in the previous year
or the date of the annual meeting has been changed by more than thirty (30) days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholder to be timely must be so received a reasonable time
before the solicitation is made. Any business not proposed by the Board of
Directors of the Corporation may be taken by written consent of the stockholders
only if timely notice thereof is given by a stockholder to the Secretary of the
Corporation, such notice to be timely if delivered to or mailed and received at
the principal offices of the Corporation not less than one hundred twenty (120)
days prior to the proper delivery to the Corporation of a sufficient number of
signed written consents to take such action. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting or to take by written consent: (i) a brief description
of the business desired to be brought before the annual meeting or taken by
written consent and the reasons for conducting such business at the annual
meeting or for taking such action, (ii) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder, (iv) any material interest of the stockholder in such business
and (v) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information with respect to a
stockholder proposal in the proxy statement and form of proxy for a
stockholder's meeting, stockholders must provide notice as required by the
regulations promulgated under the 1934 Act. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at any annual meeting or
by the written consent of stockholders except in accordance with the procedures
set forth in this paragraph (b). The chairman of the annual meeting shall, if
the facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this paragraph (b), and, if he should so determine, he shall so declare at the
meeting that any such business not properly brought before the meeting shall not
be transacted. The Board of Directors shall, with respect to any action taken by
written consent of stockholders, determine whether or not proper notice was
given in connection therewith and, if the Board of Directors shall determine
that proper notice was not given, shall declare that such written consent was
not made in accordance with these Bylaws.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (c) or Section 2.3 of these Bylaws shall
be eligible for election or appointment as Directors. Nominations of persons for
election or appointment to the Board of Directors of the Corporation may be made
at a meeting of stockholders by or at the direction of the Board of Directors or
by any stockholder of the Corporation entitled to vote in the election of
Directors at the
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meeting who complies with the notice procedures set forth in this paragraph (c)
or Section 2.3 of these Bylaws, or in connection with action by written consent
of stockholders, by the Board of Directors or any stockholder who complies with
this paragraph (c). 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 in accordance with the provisions of
paragraph (b) of this Section 2.2 or Section 2.3 of these Bylaws. Such
stockholder's notice shall set forth (i) as to each person, if any, whom the
stockholder proposes to nominate for election or re-election or appointment as a
Director: (A) the name, age, business address and residence address of such
person, (B) the principal occupation or employment of such person, (C) the class
and number of shares of the Corporation which are beneficially owned by such
person, (D) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nominations are to be made by the stockholder,
and (E) any other information relating to such person that is required to be
disclosed in solicitations of proxies for elections of Directors, or is
otherwise required, in each case pursuant to Regulation 14A under the 1934 Act
(including without limitation such person's written consent to being named in
the proxy statement, if any, as a nominee and to serving as a Director if
elected or appointed); and (ii) as to such stockholder giving notice, the
information required to be provided pursuant to paragraph (b) of this Section
2.2. At the request of the Board of Directors, any person nominated by a
stockholder for election or appointment as a Director shall furnish to the
Secretary of the Corporation that information required to be set forth in the
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election or appointment as a Director of the Corporation
unless nominated in accordance with the procedures set forth in this paragraph
(c). The chairman of the meeting shall, if the facts warrant, determine and
declare at the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if he should so determine, he shall
so declare at the meeting, and the defective nomination shall be disregarded.
The Board of Directors shall, with respect to any election or appointment of
Directors effected by written consent of stockholders, determine whether or not
proper notice was given in connection with such election or appointment and, if
the Board of Directors shall determine that proper notice was not given, shall
declare that such action by written consent was not made in accordance with
these Bylaws.
2.3 SPECIAL MEETING.
A special meeting of the stockholders may be called at any time by the
Board of Directors, or by the chairman of the board, by the president or by the
chief executive officer, or by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent of the votes at that
meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing and shall specify the
general nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, chief executive
officer, or the Secretary of the Corporation. If the general nature of the
business proposed to be transacted includes the election or appointment of
Directors, the request shall be accompanied by the notice required by
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paragraph (c) of Section 2.2 of these Bylaws. No business may be transacted at
such special meeting otherwise than specified in such request, and no director
may be nominated at such special meeting by a stockholder who has requested such
a meeting or who has acted in concert with any stockholder making such request
unless the request contains the information required by paragraph (c) of Section
2.2 of these Bylaws with respect to such person. Upon such request, the Board of
Directors shall determine a place and time for such meeting, which time shall be
not less than ninety (90) nor more than one hundred (100) days after the receipt
and determination of the validity of such request, and a record date for the
determination of stockholders entitled to vote at such meeting in the manner set
forth in Section 2.10 hereof. Following such receipt and determination, it shall
be the duty of the Secretary to cause notice to be given to the stockholders
entitled to vote at such meeting, in the manner set forth in Sections 2.4 and
2.6 hereof, that a meeting will be held at the time and place so determined.
Nothing contained in this paragraph of this Section 2.3 shall be construed as
limiting, fixing, or affecting the time when a meeting of stockholders called by
action of the Board of Directors may be held.
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election or
appointment to the Board of Directors may be made at a special meeting of
stockholders at which Directors are to be elected pursuant to the Corporation's
notice of meeting (a) by or at the direction of the Board of Directors or (b) by
any stockholder of the Corporation who is a stockholder at the time of giving of
notice provided for in this paragraph, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
2.3. Nominations by stockholders of persons for election to the Board of
Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by paragraph (c) of Section 2.2 of these Bylaws
shall be delivered to or mailed and received by the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
later of the 90th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and the election of Directors thereof; provided, however, that no such
stockholder who has requested a meeting as permitted by this Section 2.3, or who
has acted in concert with any stockholder making such a request, may make such
nomination unless such notice was delivered together with such request. The
chairman of the meeting shall, if the facts warrant, determine and declare at
the meeting that a nomination was not made in accordance with the procedures
prescribed by these Bylaws, and if he should so determine, he shall so declare
at the meeting, and the defective nomination shall be disregarded.
For purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act.
2.4 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall
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be sent charges prepaid and shall be addressed to the stockholder at the address
of that stockholder appearing on the books of the Corporation or given by the
shareholder to the Corporation for the purpose of notice. If no such address
appears on the Corporation's books or is given, notice shall be deemed to have
been given if sent to that stockholder by mail or telegraphic or other written
communication to the Corporation's principal executive office, or if published
at least once in a newspaper of general circulation in the county where that
office is located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or other means
of written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service marked to indicate that the
United States Postal service is unable to deliver the notice to the stockholder
at that address, then all future notices or reports shall be deemed to have been
duly given without further mailing if the same shall be available to the
stockholder on written demand of the stockholder at the principal executive
office of the Corporation for a period of one (1) year from the date of the
giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the Secretary, assistant Secretary or any
transfer agent of the Corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.5 QUORUM.
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote thereat constitutes a quorum for the transaction of
business at all meetings of stockholders. The stockholders present at a duly
called or held meeting at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
2.6 ADJOURNED MEETING; NOTICE.
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of the
shares represented at that meeting, either in person or by proxy. In the absence
of a quorum, no other business may be transacted at that meeting except as
provided in Section 2.6 of these Bylaws.
When any meeting of stockholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at the meeting at which the adjournment is
taken. However, if a new record date for the adjourned meeting is fixed or if
the adjournment is for more than thirty (30) days from the date set for the
original meeting, then notice of the adjourned meeting shall be given. Notice of
any such adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting in accordance with the provisions of Sections
2.4 and 2.6 of these Bylaws. At any adjourned meeting the Corporation may
transact any business which might have been transacted at the original meeting.
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2.7 VOTING.
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.10 of these Bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the Certificate of Incorporation,
each outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote of the stockholders. Any stockholder entitled to
vote on any matter may vote part of the shares in favor of the proposal and
refrain from voting the remaining shares or, except when the matter is the
election of Directors, may vote them against the proposal; but, if the
stockholder fails to specify the number of shares which the stockholder is
voting affirmatively, it will be conclusively presumed that the stockholder's
approving vote is with respect to all shares which the stockholder is entitled
to vote.
If a quorum is present, in all matters other than the election of
directors, the affirmative vote of the majority of the shares represented and
voting at a duly held meeting (which shares voting affirmatively also constitute
at least a majority of the required quorum) shall be the act of the
stockholders, unless the vote of a greater number or a vote by classes is
required by law, by the Certificate of Incorporation or by the Bylaws. 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.
2.8 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT.
The transactions of any meeting of stockholders, either annual or
special, however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call and notice,
if a quorum be present either in person or by proxy, and if, either before or
after the meeting, each person entitled to vote, who was not present in person
or by proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
or approval need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers, consents,
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.9 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Unless otherwise provided in the Certificate of Incorporation, any
action which may be taken at any annual or special meeting of stockholders may
be taken without a meeting and without prior
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notice, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting at
which all shares entitled to vote on that action were present and voted, but
only if such written consent is otherwise made in accordance with these Bylaws.
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. If the action which is consented to is such as
would have required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by stockholders at
a meeting thereof, then the certificate filed under such section shall state, in
lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
2.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat or entitled to give consent to corporate action
without a meeting, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before
the date of any such meeting nor more than sixty (60) days before any such
action without a meeting, and in such event only stockholders of record on the
date so fixed are entitled to notice and to vote or to give consents, as the
case may be, notwithstanding any transfer of any shares on the books of the
Corporation after the record date. In the event that a notice of any business
not proposed by Directors or of nominations of persons for election or
appointment to the Board of Directors by written consent is given in accordance
with Section 2.2 of these Bylaws, the Board of Directors shall, not more than
sixty-five (65) days and not less than sixty (60) days after the delivery of
such notice, adopt a resolution fixing the record date for the taking of such
action, which record date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors.
If the Board of Directors does not so fix a record date:
(a) 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 business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining stockholders entitled to
given consent to corporate action in writing without a meeting, (i) when no
prior action by the board has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action by the board has been taken,
shall be at the close of business on the day on which the board adopts the
resolution relating to that action.
The record date for any other purpose shall be as provided in Article
VIII of these Bylaws.
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2.11 PROXIES.
Every person entitled to vote for Directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the Secretary
of the Corporation, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(c) of the General Corporation Law of Delaware.
2.12 INSPECTORS OF ELECTION.
Before any meeting of stockholders, the Board of Directors may appoint
an inspector or inspectors of election to act at the meeting or its adjournment.
If no inspector of election is so appointed, then the chairman of the meeting
may, and on the request of any stockholder or a stockholder's proxy shall,
appoint an inspector or inspectors of election to act at the meeting. The number
of inspectors shall be either one (1) or three (3). If inspectors are appointed
at a meeting pursuant to the request of one (1) or more stockholders or proxies,
then the holders of a majority of shares or their proxies present at the meeting
shall determine whether one (1) or three (3) inspectors are to be appointed. If
any person appointed as inspector fails to appear or fails or refuses to act,
then the chairman of the meeting may, and upon the request of any stockholder or
a stockholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election
or vote with fairness to all stockholders.
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ARTICLE III
DIRECTORS
3.1 POWERS.
Subject to the provisions of the General Corporation Law of Delaware and
to any limitations in the Certificate of Incorporation or these Bylaws relating
to action required to be approved by the stockholders or by the outstanding
shares, the business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board of
Directors.
3.2 NUMBER AND TERM OF OFFICE.
The exact number of Directors shall be seven (7) until changed by a
bylaw amending this Section 3.2, duly adopted by the Board of Directors or by
the stockholders. No reduction of the authorized number of Directors shall have
the effect of removing any director before that director's term of office
expires. If for any cause, the Directors shall not have been elected at an
annual meeting, they may be elected as soon thereafter as convenient at a
special meeting of the stockholders called for that purpose in the manner
provided in these Bylaws.
3.3 CLASSES OF DIRECTORS.
Following the closing of the Corporation's initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering the offer and sale of Common Stock
of the Corporation (the "Initial Public Offering") the Directors shall be
divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors. At the first annual
meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class I Directors shall expire and Class I Directors
shall be elected for a full term of three years. At the second annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class II Directors shall expire and Class II Directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class III Directors shall expire and Class III Directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, Directors shall be elected for a full term of three years to
succeed the Directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each Director
shall serve until his successor is duly elected and qualified or until his
earlier death, resignation or removal. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
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3.4 RESIGNATION AND VACANCIES.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the Secretary or the Board of Directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
Board of Directors may elect a successor to take office when the resignation
becomes effective.
Vacancies in the Board of Directors may be filled by a majority of the
remaining Directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote or
written consent of the stockholders or by court order may be filled only by the
affirmative vote of a majority of the shares represented and voting at a duly
held meeting at which a quorum is present (which shares voting affirmatively
also constitute a majority of the required quorum), or by the unanimous written
consent of all shares entitled to vote thereon. Each director so elected shall
hold office until the next annual meeting of the stockholders and until a
successor has been elected and qualified.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws:
(i)Vacancies and newly created Directorships resulting
from any increase in the authorized number of Directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the Directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more Directors by the
provisions of the certificate of incorporation, vacancies and newly created
Directorships of such class or classes or series may be filled by a majority of
the Directors elected by such class or classes or series thereof then in office,
or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
Corporation should have no Directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these Bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
Directorship, the Directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such Directors, summarily order an
election to be held to fill any such vacancies or newly created Directorships,
or to replace the Directors chosen by the Directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
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3.5 REMOVAL.
Subject to any limitations imposed by law or the Certificate of
Incorporation, the Board of Directors, or any individual Director, may be
removed from office at any time (a) with cause by the affirmative vote of the
holders of at least a majority of the then outstanding shares of the capital
stock of the Corporation entitled to vote at an election of Directors or (b)
without cause by an affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of such outstanding shares.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
Regular meetings of the Board of Directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the Corporation.
Special meetings of the board may be held at any place within or outside the
State of Delaware that has been designated in the notice of the meeting or, if
not stated in the notice or if there is no notice, at the principal executive
office of the Corporation.
Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all Directors participating in the
meeting can hear one another; and all such Directors shall be deemed to be
present in person at the meeting.
3.7 FIRST MEETINGS.
The first meeting of each newly elected Board of Directors shall be held
at such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected Directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected Board of Directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as herein-after provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the Directors.
3.8 REGULAR MEETINGS.
Regular meetings of the Board of Directors may be held without notice if
the times of such meetings are fixed by the Board of Directors.
3.9 SPECIAL MEETINGS; NOTICE.
Special meetings of the Board of Directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the Secretary or any two Directors.
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Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that director's address
as it is shown on the records of the Corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
Corporation.
3.10 QUORUM.
A majority of the authorized number of Directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.12 of these Bylaws. Every act or decision done or made by a majority of the
Directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the Board of Directors, subject to the provisions of the
Certificate of Incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of Directors, if any action
taken is approved by at least a majority of the required quorum for that
meeting.
3.11 WAIVER OF NOTICE.
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or (ii) who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to such Directors. All such waivers, consents, and approvals shall be
filed with the corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or special meeting
of the Board of Directors.
3.12 ADJOURNMENT.
A majority of the Directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
3.13 NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an adjourned meeting need not be
given unless the meeting is adjourned for more than twenty-four (24) hours. If
the meeting is adjourned for more than twenty-four (24) hours, then notice of
the time and place of the adjourned meeting shall be given before the adjourned
meeting takes place, in the manner specified in Section 3.9 of these Bylaws, to
the Directors who were not present at the time of the adjournment.
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3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action required or permitted to be taken by the Board of Directors
may be taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
Board of Directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board.
3.15 FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the Board of Directors. This Section 3.15 shall not
be construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
3.16 APPROVAL OF LOANS TO OFFICERS.
The Corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the Corporation or of its
subsidiary, including any officer or employee who is a director of the
Corporation or its subsidiary, whenever, in the judgment of the Directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the Corporation at
common law or under any statute.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The Board of Directors may, by resolution adopted by a majority of the
authorized number of Directors, designate one (1) or more committees, each
consisting of two or more Directors, to serve at the pleasure of the board. The
board may designate one (1) or more Directors as alternate members of any
committee, who may replace any absent member at any meeting of the committee.
The appointment of members or alternate members of a committee requires the vote
of a majority of the authorized number of Directors. Any committee, to the
extent provided in the resolution of the board, shall have all the authority of
the board, but no such committee shall have the power or authority to (i) amend
the Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of the
General Corporation Law of Delaware,
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fix any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation), (ii) adopt an agreement of merger or consolidation
under Sections 251 or 252 of the General Corporation Law of Delaware, (iii)
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (iv) recommend to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or (v) amend the Bylaws of the Corporation; and, unless the board
resolution establishing the committee, the Bylaws or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
4.2 MEETINGS AND ACTION OF COMMITTEES.
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws, Section
3.6 (place of meetings), Section 3.8 (regular meetings), Section 3.9 (special
meetings and notice), Section 3.10 (quorum), Section 3.11 (waiver of notice),
Section 3.12 (adjournment), Section 3.13 (notice of adjournment), and Section
3.14 (action without meeting), with such changes in the context of those Bylaws
as are necessary to substitute the committee and its members for the Board of
Directors and its members; provided, however, that the time of regular meetings
of committees may be determined either by resolution of the Board of Directors
or by resolution of the committee, that special meetings of committees may also
be called by resolution of the Board of Directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The Board of Directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS.
The officers of the Corporation shall be a president, a Secretary and a
chief financial officer. The Corporation may also have, at the discretion of the
Board of Directors, a chairman of the board, one or more vice presidents, one or
more assistant secretaries, one or more assistant treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 5.3 of
these Bylaws. Any number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS.
The officers of the Corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these Bylaws, shall be chosen by the board, subject to the rights, if any, of an
officer under any contract of employment.
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5.3 SUBORDINATE OFFICERS.
The Board of Directors may appoint, or may empower the president to
appoint, such other officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority, and perform
such duties as are provided in these Bylaws or as the Board of Directors may
from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS.
Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by the
Board of Directors at any regular or special meeting of the board or, except in
case of an officer chosen by the Board of Directors, by any officer upon whom
such power of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the Corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to that office.
5.6 CHAIRMAN OF THE BOARD.
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the Board of Directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
Board of Directors or as may be prescribed by these Bylaws. If there is no
president, then the chairman of the board shall also be the chief executive
officer of the Corporation and shall have the powers and duties prescribed in
Section 5.7 of these Bylaws.
5.7 PRESIDENT.
Subject to such supervisory powers, if any, as may be given by the Board
of Directors to the chairman of the board, if there be such an officer, the
president shall be the chief executive officer of the Corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction, and control of the business and the officers of the Corporation. He
or she shall preside at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the Board of
Directors. He or she shall have the general powers and duties of management
usually vested in the office of president of a Corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or these
Bylaws.
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5.8 VICE PRESIDENTS.
In the absence or disability of the president, the vice presidents, if
any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a vice president designated by the Board of Directors, shall perform all
the duties of the president and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the president. The vice presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board of Directors, these Bylaws,
the president or the chairman of the board.
5.9 SECRETARY.
The Secretary shall keep or cause to be kept, at the principal executive
office of the Corporation or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of Directors, committees
of Directors and stockholders. The minutes shall show the time and place of each
meeting, whether regular or special (and, if special, how authorized and the
notice given), the names of those present at Directors' meetings or committee
meetings, the number of shares present or represented at stockholders' meetings,
and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the Corporation's
transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register, or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares, and the number
and date of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required to be given by law or
by these Bylaws. He or she shall keep the seal of the Corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or by these Bylaws.
5.10 CHIEF FINANCIAL OFFICER.
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director.
The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the Corporation with such depositaries as may
be designated by the Board of Directors. He or she shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, shall render to the
president and Directors, whenever they request it, an account of all of his or
her transactions as chief financial officer and of the financial condition of
the Corporation, and shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors or these Bylaws.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER
AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation shall, to the maximum extent and in the manner permitted
by the General Corporation Law of Delaware, indemnify each of its Directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the Corporation. For purposes of this Section 6.1, a "director" or
"officer" of the Corporation includes any person (i) who is or was a director or
officer of the Corporation, (ii) who is or was serving at the request of the
Corporation as a director or officer of another Corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a
Corporation which was a predecessor Corporation of the Corporation or of another
enterprise at the request of such predecessor Corporation.
6.2 INDEMNIFICATION OF OTHERS.
The Corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware, to indemnify each
of its employees and agents (other than Directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the Corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the Corporation (other
than a director or officer) includes any person (i) who is or was an employee or
agent of the Corporation, (ii) who is or was serving at the request of the
Corporation as an employee or agent of another Corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a
Corporation which was a predecessor Corporation of the Corporation or of another
enterprise at the request of such predecessor Corporation.
6.3 INSURANCE.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
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ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS.
The Corporation shall, either at its principal executive office or at
such place or places as designated by the Board of Directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws as amended to date,
accounting books and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Delaware or at its principal place of
business.
The officer who has charge of the stock ledger of a 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, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The Court of Chancery
is hereby vested with the exclusive jurisdiction to determine whether a director
is entitled to the inspection sought. The Court may summarily order the
Corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
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7.3 ANNUAL STATEMENT TO STOCKHOLDERS.
The Board of Directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the Corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chairman of the board, the president, any vice president, the chief
financial officer, the Secretary or assistant Secretary of this Corporation, or
any other person authorized by the Board of Directors or the president or a vice
president, is authorized to vote, represent, and exercise on behalf of this
Corporation all rights incident to any and all shares of any other Corporation
or Corporations standing in the name of this Corporation. The authority herein
granted may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING.
For purposes of determining the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any other lawful
action (other than action by stockholders by written consent without a meeting),
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) days before any such action. In that case, only
stockholders of record at the close of business on the date so fixed are
entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after the record date so fixed, except as
otherwise provided by law.
If the Board of Directors does not so fix a record date, then 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 applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS.
From time to time, the Board of Directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the Corporation, and only the persons so authorized
shall sign or endorse those instruments.
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8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED.
The Board of Directors, except as otherwise provided in these Bylaws,
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
Corporation; such authority may be general or confined to specific instances.
Unless so authorized or ratified by the Board of Directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or for any amount.
8.4 STOCK CERTIFICATES; PARTLY PAID SHARES.
The shares of a Corporation shall be represented by certificates,
provided that the Board of Directors of the Corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the Corporation by, the chairman or vice-chairman
of the Board of Directors, or the president or vice-president, and by the chief
financial officer, the Secretary or an assistant Secretary of such Corporation
representing the number of shares registered in certificate form. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate has 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 or she were such officer, transfer agent or
registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the Corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the Corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.5 SPECIAL DESIGNATION ON CERTIFICATES.
If the Corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences, and the 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 shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the Corporation shall issue to represent
such class or series of
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stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, the designations, the preferences, and
the 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.
8.6 LOST CERTIFICATES.
Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the Corporation and canceled at the same time. The Board of
Directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the Corporation secured by a bond or other
adequate security sufficient to protect the Corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
8.7 CONSTRUCTION; DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the General Corporation Law of Delaware shall
govern the construction of these Bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a Corporation and a natural
person.
8.8 RESTRICTIONS ON TRANSFER OF SHARES.
Before there can be a valid sale or transfer for consideration of any of
the Common Stock or Series E Preferred Stock of the Corporation by any holder
thereof, such holder shall first offer those shares to the Corporation in the
manner set forth in this Section 8.8:
(a) The offering stockholder shall deliver a notice in writing
by mail or otherwise to the Secretary of the Corporation stating the price,
terms, and conditions of such proposed sale or transfer, the number of shares to
be sold or transferred, and such stockholder's intention so to sell or transfer
the shares.
(b) If the Corporation desires to acquire all or any of the
shares subject to the said notice, then within fifteen (15) days after receipt
of the notice of intent to sell or transfer the shares, the Corporation shall
mail or deliver to the stockholder a written offer of the Corporation to acquire
a specified number of the shares offered at the price and upon the terms and
conditions stated in the notice. Within the limitations herein provided, the
Corporation may purchase the shares of this Corporation from any offering
stockholder; provided, however, that at no time shall the Corporation be
permitted to purchase all of its outstanding voting shares.
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(c) The right of the Corporation to purchase all or any part of
the shares subject to the notice may be assigned in whole or in part to any
stockholder or stockholders of the Corporation or to other persons or
organizations.
(d) If none or only a part of the shares in the offering
stockholder's notice to the Secretary is purchased by the Corporation or its
assignee within a sixty (60) day period from the date of delivery of the notice
by the offering stockholder, the offering stockholder may sell or transfer to
any person or persons all shares of stock referred to in his notice to the
Secretary that were not purchased by the Corporation or its assignee but only
within a period of one hundred twenty (120) days from the date of his first
notice; provided, however, that he shall not sell or transfer such shares at a
lower price or on terms more favorable to the purchaser or transferee than those
specified in his notice to the Secretary. After said 120-day period, the
foregoing procedure for first offering shares to the Corporation shall again
apply.
(e) Any sale or transfer or purported sale or transfer of the
shares of the Corporation shall be null and void unless the terms, conditions,
and provisions of this Section 8.8 are strictly observed and followed.
(f) The Corporation shall place the following legend on each
certificate of its Common Stock and Series E Preferred Stock: "Transfer of the
shares represented by this certificate is restricted by Section 8.8 of the
Bylaws of this Corporation."
(g) Notwithstanding the foregoing, the restrictions on transfer
contained in this Section 8.8 shall expire upon the closing of the Corporation's
Initial Public Offering.
ARTICLE IX
AMENDMENTS
The original or other Bylaws of the Corporation may be adopted, amended
or repealed by the stockholders entitled to vote; provided, however, that the
Corporation may, in its Certificate of Incorporation, confer the power to adopt,
amend or repeal Bylaws upon the Directors. The fact that such power has been so
conferred upon the Directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal Bylaws. Notwithstanding any other
provision of these Bylaws, (1) whenever any provision of these Bylaws shall
require for action by the stockholders, the affirmative vote of a greater number
of stockholders than would otherwise be required to amend these Bylaws, such
provision shall not be altered, amended or repealed by the stockholders, and the
stockholders shall not adopt any bylaw inconsistent therewith, except by such
greater vote or by the written consent of such greater number of stockholders;
and (2) whenever any provision of these Bylaws shall require for action by
written consent of the stockholders, the consent of a greater number of
stockholders than would otherwise be required to amend these Bylaws by written
consent of the stockholders, such provision shall not be altered, amended or
repealed by the stockholders by written consent and the stockholders shall not,
by written consent, adopt any bylaw inconsistent therewith, except by the
written consent of such greater number of stockholders.
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ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the Board of
Directors of the Corporation that the Corporation should be dissolved, the
board, after the adoption of a resolution to that effect by a majority of the
whole board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the Corporation entitled
to vote thereon votes for the proposed dissolution, then a certificate stating
that the dissolution has been authorized in accordance with the provisions of
Section 275 of the General Corporation Law of Delaware and setting forth the
names and residences of the Directors and officers shall be executed,
acknowledged, and filed and shall become effective in accordance with Section
103 of the General Corporation Law of Delaware. Upon such certificate's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the Corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent
in writing, either in person or by duly authorized attorney, to a dissolution,
no meeting of Directors or stockholders shall be necessary. The consent shall be
filed and shall become effective in accordance with Section 103 of the General
Corporation Law of Delaware. Upon such consent's becoming effective in
accordance with Section 103 of the General Corporation Law of Delaware, the
Corporation shall be dissolved. If the consent is signed by an attorney, then
the original power of attorney or a photocopy thereof shall be attached to and
filed with the consent. The consent filed with the Secretary of State shall have
attached to it the affidavit of the Secretary or some other officer of the
Corporation stating that the consent has been signed by or on behalf of all the
stockholders entitled to vote on a dissolution; in addition, there shall be
attached to the consent a certification by the Secretary or some other officer
of the Corporation setting forth the names and residences of the Directors and
officers of the Corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES.
The Court of Chancery, upon application of any stockholder, may appoint
one or more persons to be custodians and, if the Corporation is insolvent, to be
receivers, of and for the Corporation when:
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(i)at any meeting held for the election of Directors the
stockholders are so divided that they have failed to elect successors to
Directors whose terms have expired or would have expired upon qualification of
their successors; or
(ii) the business of the Corporation is suffering or is
threatened with irreparable injury because the Directors are so divided
respecting the management of the affairs of the Corporation that the required
vote for action by the Board of Directors cannot be obtained and the
stockholders are unable to terminate this division; or
(iii) the Corporation has abandoned its business and has
failed within a reasonable time to take steps to dissolve, liquidate or
distribute its assets.
11.2 DUTIES OF CUSTODIAN.
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the General Corporation Law of Delaware, but the
authority of the custodian shall be to continue the business of the Corporation
and not to liquidate its affairs and distribute its assets, except when the
Court of Chancery otherwise orders and except in cases arising under Sections
226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.
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CERTIFICATE OF ADOPTION OF AMENDED AND RESTATED BYLAWS
OF
THE GYMBOREE CORPORATION
The undersigned hereby certifies that she is the duly elected,
qualified, and acting Secretary of The Gymboree Corporation and that the
foregoing Amended and Restated Bylaws were adopted as the Bylaws of the
Corporation by this Corporation's Board of Directors effective on June 27, 2001.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and
affixed the corporate seal this 27th day of June 2001.
/s/ Alison L. May
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Alison L. May
Secretary
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