EXHIBIT No. 3.1
SECOND
AMENDED AND RESTATED
BYLAWS
OF
STANDARD PARKING CORPORATION
September 1, 2007
5
Article I
Offices
Section 1.01 Registered Office. The registered office of Standard
Parking Corporation (the "Corporation") required by the General Corporation Law
of Delaware to be maintained in the State of Delaware shall be fixed in the
Corporation's Second Amended and Restated Certificate of Incorporation, as may
be further amended from time to time (the "Certificate of Incorporation").
Section 1.02 Principal and Other Offices. The principal and other
offices of the Corporation may be, within or without the State of Delaware as
the business of the Corporation may require from time to time.
Article II
Stockholders
Section 2.01 Annual Meeting. The annual meeting of the stockholders
(the "Annual Meeting") shall be held on such date as determined by the Board of
Directors (the "Board"), at such hour as shall be designated in the notice of
the meeting for the purpose of electing directors and for the transaction of
such other business as may properly come before the meeting. If the day fixed
for the Annual Meeting shall be a legal holiday, such meeting shall be held on
the next succeeding business day. If the election of directors shall not be held
on the day designated herein for any Annual Meeting, or at any adjournment
thereof, the Board shall cause the election to be held at a meeting of the
stockholders as soon thereafter as convenient.
Section 2.02 Special Meetings. Special meetings of the stockholders may
be called by the Chairperson of the Board alone or by the Board pursuant to a
resolution adopted by a majority of the directors on the Board.
Section 2.03 Place of Meeting. The Board may designate any place,
either within or without the State of Delaware, as the place of meeting for any
annual meeting or for any special meeting called pursuant to Section 2.02 of
these Bylaws. If no designation is made, or if a special meeting is otherwise
called, the place of meeting shall be at the principal executive office of the
Corporation, except as otherwise provided in Section 2.05 of these Bylaws. The
Board may, in its sole discretion, determine that a meeting or meetings of the
stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized and in the manner set forth in
paragraph (a)(2) of Section 211 of the Delaware General Corporation Law
("DGCL").
Section 2.04 Notice of Meeting. Written or printed notice stating the
place, if any, day, hour of the meeting, and means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be present in
person and vote at stockholder meetings, and in the case of a special meeting,
the purposes for which the meeting is called, shall be delivered not less than
ten (10) nor more than sixty (60) days before the date of the meeting, or in the
case of a merger or consolidation not less than twenty (20) nor more than sixty
(60) days before the meeting, either personally or by mail, by or at the
direction of the President, or the Secretary, or the officer or persons calling
the meeting, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at such stockholder's address as it
appears on the records of the Corporation, with postage thereon prepaid.
Stockholders may consent to receiving electronic delivery of notice of
stockholder meetings, subject to the limitations found in Section 232 of the
DGCL. Any waiver of notice of a stockholder meeting may be given by electronic
transmission in the manner set forth in Section 229 of the DGCL.
6
Section 2.05 Closing of Transfer Books or Fixing of Record Date. For
the purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board may provide that the stock transfer books shall be
closed for a stated period but not to exceed, in any case, sixty (60) days. If
the stock transfer books shall be closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten (10) days, or in the case of a merger or
consolidation, at least twenty (20) days, immediately preceding such meeting. In
lieu of closing the stock transfer books, the Board may fix in advance a date as
the record date for any such determination of stockholders, such date in any
case to be not more than (60) sixty days and, for a meeting of stockholders, not
less than ten (10) days, or in the case of a merger or consolidation, not less
than twenty (20) days, immediately preceding such meeting. If the stock transfer
books are not closed and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders, or
stockholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the Board
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders.
Section 2.06 Voting Lists. The officer or agent having charge of the
transfer books for shares of the Corporation shall make at least ten (10) days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each. Such list need not include
electronic mail addresses or other electronic contact information and shall be
open to the examination of any stockholder for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the meeting, (i) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting or (ii)
during ordinary business hours, at the principal place of business of the
Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
Corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting.
7
Section 2.07 Quorum. The holders of shares having a majority of the
voting power of the capital stock of the Corporation issued and outstanding and
entitled to vote at such meeting, represented in person or by proxy, shall
constitute a quorum at any meeting of stockholders; provided, that if shares
having less than a majority of the voting power of the capital stock of the
Corporation are represented at said meeting, then shares having a majority of
the voting power of all shares so represented may adjourn the meeting from time
to time without further notice. If a quorum is present, the affirmative vote of
the majority of the voting power of the shares represented at the meeting shall
be the act of the stockholders, unless the vote of a greater number or voting by
classes is required by the DGCL or the Certificate of Incorporation. Where a
separate vote by class or classes is required, a majority of the shares of such
class or classes in person or represented by proxy shall constitute a quorum
entitled to take action with respect to that vote on that matter.
Section 2.08 Proxies. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law and filed in
accordance with the procedure established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this paragraph 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. No proxy shall be valid after eleven
(11) months from the date of its execution, unless otherwise provided in the
proxy.
Section 2.09 Order of Business. At any Annual Meeting, only such
business shall be conducted as shall have been brought before the Annual Meeting
(i) by or at the direction of the Board, or (ii) by any stockholder who complies
with the procedures set forth in this Section 2.09. For business properly to be
brought before an Annual Meeting by a stockholder, the stockholder must have
given timely notice thereof in proper written form to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to the
Secretary at the principal executive offices of the Corporation no later than
the close of business on the 120th day nor earlier than the close of business on
the 150th day prior to the anniversary date of the preceding year's Annual
Meeting. To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing as to each matter the stockholder proposes to bring
before the Annual Meeting: (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting; (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business; (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder; and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an Annual Meeting except in accordance with the procedures set
forth in this Section 2.09. The chairperson of an Annual Meeting shall, if the
facts warrant, determine and declare to the Annual Meeting that business was not
properly brought before the Annual Meeting in accordance with the provisions of
this Section 2.09 and, if he should so determine, he shall so declare to the
Annual Meeting and any such business not properly brought before the Annual
Meeting shall not be transacted.
8
Section 2.10 Informal Action by Stockholders. Any action required to be
taken at any Annual Meeting or special meeting of the stockholders, or any other
action which may be taken at any Annual Meeting or special meeting of the
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock 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.
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 would
have been entitled to notice of the meeting in which the action was taken and
who have not consented in writing. Written consent includes the use of telegram,
cablegram, or other electronic transmission as described in Section 219 of the
DGCL. However, unless the Board provide otherwise, such transmission must be
reproduced in paper form and delivered to the Corporation's registered office,
principal place of business or its officer or agent having custody of the book
in which proceeding of meetings of stockholders are recorded, in order to be
deemed delivered.
Section 2.11 Voting by Ballot and Proxy. Voting on any question or in
any election at any meeting may be by voice vote unless the presiding officer
shall order or any stockholder shall demand that voting be by ballot or proxy.
When counting written ballots and proxies to determine their validity,
inspectors of election may rely on any verification information required of
stockholders voting electronically. Written ballots and proxies include those
submitted electronically as set forth in paragraph (e) of Section 211 of the
DGCL.
Article III
Directors
Section 3.01 General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of its Board.
Section 3.02 Number, Tenure and Qualification. The number of directors
of the Corporation shall be no less than three (3) and no more than nine (9).
The exact number of directors may be fixed from time to time by resolution of
the Board. Each director shall hold office until the next annual meeting of
stockholders or until his successor shall have been duly elected and qualified.
Directors need not be residents of Delaware or stockholders of the Corporation.
Section 3.03 Regular Meetings. A regular meeting of the Board shall be
held without other notice than these Bylaws, immediately after, and at the same
place, if any, as the annual meeting of stockholders. The Board may provide, by
resolution, the time and place, either within or without the State of Delaware,
for the holding of additional regular meetings without other notice than such
resolution. The independent directors of the Corporation will have regularly
scheduled meetings at which only independent directors may be present. Notice of
such meetings shall be provided as set forth in Section 3.05 below.
9
Section 3.04 Special Meetings. Special meetings of the Board may be
called by the Chairperson of the Board alone or by a majority of the directors
on the Board. The person or persons authorized to call special meetings of the
Board may fix any place, if any, either within or without the State of Delaware,
as the place for holding any special meeting of the Board called by them.
Section 3.05 Notice. Notice of any special meeting shall be given at
least 24 hours prior thereto by written notice delivered personally, by courier
or mailed to each director at such director's business address, or by telegram
or facsimile. If notice is given by courier, such notice shall be deemed to be
delivered one (1) business day following deposit with the courier. If mailed,
such notice shall be deemed to be delivered two (2) days following deposit in
the United States mail. If notice be given by telegram, such notice shall be
deemed to be delivered when the telegram is delivered to the telegraph company.
If notice is given by facsimile, such notice shall be deemed to be delivered on
the day of transmission if transmitted during the recipient's normal business
hours or one (1) business day following transmission if transmitted after
business hours. Any director may waive notice of any meeting. The attendance of
a director at any meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board need be specified in the notice or
waiver of notice of such meeting.
Section 3.06 Quorum. A majority of the number of directors fixed by
these Bylaws shall constitute a quorum for the transaction of business at any
meeting of the Board, provided, that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
Section 3.07 Manner of Acting. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board.
Section 3.08 Vacancies. Any vacancy occurring in a directorship and any
directorship to be filled by reason of an increase in the number of directors
shall be filled by the Board based upon the recommendation of the Nominating and
Corporate Governance Committee, or by stockholders if such vacancy was caused by
the removal of a director by the action of the holders of Common Stock, in which
event such vacancy may not be filled by the Board. Any director elected to such
vacancy shall hold office until the next annual meeting of stockholders.
10
Section 3.09 Resignations. Any director of the Corporation may resign
at any time by giving notice in writing or by electronic transmission (as such
term is defined in subsection (c) of Section 232 of the DGCL) to the Board, the
Chairperson, if any, the chief executive officer, the president, the chief
financial officer or the secretary of the Corporation. Such resignation shall
take effect at the time specified therein and, unless tendered to take effect
upon acceptance thereof, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3.10 Removal of Directors. Any director or the entire Board of
this Corporation may be removed with or without cause at any annual or special
meeting of stockholders by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 3.11 Expenses of Attendance; Excess Compensation. By resolution
of the Board, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board. In the event the Internal Revenue Service shall deem
any compensation (including any fringe benefit) paid to a director to be
unreasonable or excessive, such director must repay to the Corporation the
excess over what is determined by the Internal Revenue Service to be reasonable
compensation, with interest on such excess at the minimum applicable federal
rate, within ninety days after notice from the Corporation.
Section 3.12 Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board at which action on any corporate matter is
taken shall be conclusively presumed to have assented to the action taken unless
such director's dissent shall be entered in the minutes of the meeting or unless
such director shall file such director's written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 3.13 Informal Action by Board. Any action required or permitted
to be taken at any meeting of the Board, or of any committee thereof, may be
taken without a meeting if all members of the Board or committee consent thereto
in writing or by electronic transmission (as such term is defined in subsection
(c) of Section 232 of the DGCL), and the writing(s) or electronic
transmissions(s) are filed with the minutes of proceedings of the Board or
committee thereof. Such filing(s) shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 3.14 Participation by Conference Telephone. Members of the
Board or of any committee designated by the Board may participate in a meeting
of such Board or committee by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
participating.
11
Section 3.15 Committees. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. 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 he or they 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, or 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 which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation by the
Board, adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
Bylaws of the Corporation; and, unless the Board, Bylaws or 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.
Section 3.15.1 Nominating and Corporate Governance Committee.
The Board shall establish a Nominating and Corporate Governance Committee
authorized to (i) identify individuals qualified to become directors and
recommend to the full Board the director nominees for each annual meeting of the
Corporation's stockholders; (ii) recommend to the full Board director nominees
qualified to fill any vacancy on the Board occurring for any reason; (iii)
recommend to the full Board directors to serve on each committee of the Board;
and (iv) develop, recommend to the Board and assess corporate governance
policies. The Nominating and Corporate Governance Committee shall consist of at
least three (3) members. The Board shall adopt a charter for the Nominating and
Corporate Governance Committee setting out more fully the duties and powers of
the Nominating and Corporate Governance Committee.
A stockholder may recommend a director nominee for consideration by the
Nominating and Corporate Governance Committee by complying with the procedures
adopted by the Nominating and Corporate Governance Committee. In lieu of making
a recommendation of a director nominee for consideration by the Nominating and
Corporate Governance Committee, a stockholder may seek to directly nominate
candidates for an election of directors at an Annual Meeting or Special Meeting
called for the purpose of electing one or more directors to the Board only by
providing timely notice in writing to the Secretary of the Corporation. To be
timely for an Annual Meeting, a stockholder's notice must be delivered to the
Secretary at the principal executive offices of the Corporation no later than
the close of business on the 120th day nor earlier than the close of business on
the 150th day prior to the anniversary date of the preceding year's Annual
Meeting. To be timely for a Special Meeting, a stockholder's notice must be
delivered to the Secretary at the principal executive offices of the Corporation
no later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the date of the special meeting or the
10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board to be
elected at such meeting. Such stockholder's notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (ii) as to the stockholder giving notice (A) the name and address, as they
appear on the Corporation's books, of the stockholder making such nomination;
and (B) the class and number of shares of the Corporation which are beneficially
owned by the stockholder. At the request of the Board of Directors any person
nominated by the Board of Directors 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.
12
Section 3.15.3 Compensation Committee. The Board shall
establish a Compensation Committee whose principal duties shall be to provide
assistance to the Board in fulfilling their responsibility to the stockholders
to ensure that the Corporation's officers, executives, and Board members are
compensated in accordance with the Corporation's total compensation objectives
and executive compensation policy. The Compensation Committee shall (i) review
and determine compensation policies, strategies, pay levels and forms of
compensation necessary to support organizational objectives; (ii) review and
determine bonuses for officers and other employees, (iii) review and determine
stock-based compensation, and (iv) produce an annual report on executive
compensation for inclusion in the Corporation's proxy statement, or, if the
Corporation does not file a proxy statement, in its annual report filed on Form
10-K with the SEC, in accordance with applicable rules and regulations. The
Board shall adopt a charter for the Compensation Committee setting out more
fully the duties and powers of the Compensation Committee.
Section 3.15.4 Audit Committee. The Board shall establish an
Audit Committee to (i) be directly responsible for the appointment, compensation
and oversight over the work of the Corporation's public accountants; (ii)
oversee the accounting and financial reporting processes of the Corporation and
the audit of the financial statements of the Corporation; (iii) prepare the
report required by the rules of the Securities and Exchange Commission to be
included in the Corporation's annual proxy statement., and (iv) review and
approve related party transactions. The Audit Committee shall consist of three
(3) or more directors who shall be appointed by the Board. Each member of the
Audit Committee shall qualify as an "independent director", and shall possess
such other knowledge and background as may be required, under applicable law and
the Nasdaq National Market listing requirements. The Board shall adopt a charter
for the Audit Committee setting out more fully the duties, powers and member
qualifications of the Audit Committee.
13
Article IV
Officers
Section 4.01 Number. The executive officers of the Corporation shall
be, at minimum, a Chief Executive Officer, President, a Chief Financial Officer,
a Secretary and a Treasurer. The Board may also choose a Chairperson of the
Board and such Vice Presidents (the number thereof to be determined by the
Board), Assistant Treasurers, Assistant Secretaries or other officers as may be
elected or appointed by the Board. If more than one Vice President is elected or
appointed, only Executive Vice Presidents, if any, shall be deemed to be
executive officers of the Corporation. Any two or more offices may be held by
the same person.
Section 4.02 Election and Terms of Office. The officers of the
Corporation shall be elected annually by the Board at the first meeting of the
Board held after each annual meeting of stockholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until his or
her successor shall have been duly elected and shall have qualified or until his
or her death or until he or she shall resign or shall have been removed in the
manner hereinafter provided. Election or appointment of an officer or agent
shall not of itself create contract rights.
Section 4.03 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.
Section 4.04 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, or because of the creation
of an office, may be filled by the Board for the unexpired portion of the term.
Section 4.05 The Chairperson. The Chairperson of the Board, if one is
appointed, the Chief Executive Officer, if one is appointed, or the President
shall preside at all meetings of the stockholders and of the Board and shall see
that orders and resolutions of the Board are carried into effect. He or she
shall have concurrent power with the Chief Executive Officer, if any, and the
President to sign bonds, mortgages, certificates for shares and other contracts
and documents, whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board or by these Bylaws to some other officer or agent of the Corporation.
The Chairman of the Board shall perform such duties as the Board may from time
to time prescribe.
Section 4.06 The Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the Corporation and shall, in
general, supervise and control all of the business and affairs of the
Corporation, unless otherwise provided by the Board. He or she may sign bonds,
mortgages, certificates for shares and all other contracts and documents whether
or not under the seal of the Corporation except in cases where the signing and
execution thereof shall be expressly delegated by law, by the Board or by these
Bylaws to some other officer or agent of the Corporation. He or she shall have
general powers of supervision and shall be the final arbiter of all differences
between officers of the Corporation and his or her decision as to any matter
affecting the Corporation shall be final and binding as between the officers of
the Corporation subject only to its Board.
14
Section 4.07 The President. If no Chief Executive Officer is appointed,
or in the absence of the Chief Executive Officer, the President shall perform
the duties of the Chief Executive Officer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Chief Executive
Officer. He or she shall have concurrent power with the Chief Executive Officer
to sign bonds, mortgages, certificates for shares and other contracts and
documents, whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board or by these Bylaws to some other officer or agent of the Corporation.
In general, he or she shall perform all duties incident to the office of
President and such other duties as the Chief Executive Officer or the Board may
from time to time prescribe.
Section 4.08 The Vice Presidents. In the absence of the President or in
the event of his inability or refusal to act, the Vice President (or in the
event there be more than one Vice President, the Executive Vice Presidents in
the order designated, or in the absence of any designation, then in the order of
their election) shall perform 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 Board may classify any Vice President as an Executive Vice
President, Senior Vice President, Vice President or Assistant Vice President, or
any other designation as the Board may from time to time determine. Any Vice
President may sign, with the Secretary or an Assistant Secretary, certificates
for shares of the Corporation, and shall perform such other duties as from time
to time may be assigned to him by the President or by the Board.
Section 4.9 The Chief Financial Officer. The Chief Financial Officer
shall be the principal financial officer of the Corporation, and shall (a) have
charge and custody of, and be responsible for, all funds and securities of the
Corporation; (b) deposit all funds and securities of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these Bylaws; (c) from time to time prepare or cause to be prepared and
render financial statements of the Corporation at the request of the Chief
Executive Officer, the President, the Chairman of the Board, if any, or the
Board; and (d), in general, perform all duties incident to the office of Chief
Financial Officer and such other duties as from time to time may be prescribed
by the Chairman of the Board, if any, the Chief Executive Officer, the President
or the Board; provided, however, that in connection with the election of the
Chief Financial Officer, the Board may limit in any manner the duties (other
than those specified in clauses (a) through (d) hereof) which may be prescribed
to be performed by the Chief Financial Officer by the Chairman of the Board, if
any, the Chief Executive Officer and/or the President.
Section 4.10 The Principal Accounting Officer. The Principal Accounting
Officer shall be the principal accounting officer of the Corporation, and shall
(a) keep or cause to be kept correct and complete books and records of account
including a record of all receipts and disbursements; (b) from time to time
prepare or cause to be prepared and render financial statements of the
Corporation at the request of the Chief Executive Officer, the President, the
Chairman of the Board, if any, or the Board; and (c), in general, perform all
duties incident to the office of Principal Accounting Officer and such other
duties as from time to time may be prescribed by the Chairman of the Board, if
any, the Chief Executive Officer, the President or the Board.
15
Section 4.11 The Treasurer. If no Chief Financial Officer is appointed,
or in his or her absence or in the event of his or her inability or refusal to
act, the Treasurer shall perform the duties of the Chief Financial Officer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Financial Officer. He or she shall, in general,
perform all the duties incident to the office of Treasurer and such other duties
and have such other powers as the Chief Executive Officer, the President or the
Board may from time to time prescribe.
Section 4.12 The Secretary. The Secretary shall: (a) keep the minutes
of the stockholders' and of the Board' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation and see that the seal of
the Corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
Corporation under its seal is duly authorized in accordance with the provisions
of these Bylaws; (d) keep a register of the post office address of each
stockholder which shall be furnished to the Secretary by such stockholder; (e)
sign with the President, or a Vice President, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the
Board; (f) have general charge of the stock transfer books of the Corporation;
and (g) 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 by the President
or by the Board.
Section 4.13 Assistant Treasurers and Assistant Secretaries. The
Assistant Treasurers shall respectively, if required by the Board, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board shall determine. The Assistant Secretaries as thereunto authorized
by the Board may sign with the President or a Vice President certificates for
shares of the Corporation, the issue of which shall have been authorized by a
resolution of the Board. The Assistant Treasurers and Assistant Secretaries, in
general, shall perform such duties as shall be assigned to them by the Treasurer
or the Secretary, respectively, or by the President or the Board.
Section 4.14 Salaries. The salaries of the executive officers shall be
fixed from time to time by the Board and 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. In the event that the Internal Revenue Service shall deem any
compensation (including any fringe benefit) paid to an officer to be
unreasonable or excessive, such officer must repay to the Corporation the excess
over what is determined by the Internal Revenue Service to be reasonable
compensation, with interest on such excess at the minimum applicable federal
rate, within 90 days after notice from the Corporation.
16
Article V
Indemnification of Officers and Directors
Section 5.01 Indemnification of Officers and Directors. As provided in
the Certificate of Incorporation:
Section 5.01.1 Right to Indemnification. The Corporation
shall, to the fullest extent permitted by the provisions of Section 145 of the
DGCL, as the same may be amended and supplemented ("Section 145"), indemnify any
director or officer of the Corporation whom it shall have the power to indemnify
under said section (each a "Covered Person") from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by Section 145
("Covered Matter").
Section 5.01.2 Authorization of Indemnification.
Notwithstanding Section 5.01.1, the Corporation shall indemnify a Covered Person
only as authorized in the specific case upon a determination that
indemnification of the Covered Person is proper in the circumstances because
such Covered Person has met the applicable standard of conduct set forth in
Section 145. Such determination shall be made, with respect to a Covered Person
who is a director or officer at the time of such determination, (1) by the Board
by a majority vote of directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders of
the Corporation.
Section 5.01.3 Advancement of Expenses. Expenses (including
attorneys' fees) incurred by an officer or director in defending any Covered
Matter may be paid by the Corporation in advance of the final disposition of
such Covered Matter upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that such Covered Person is not entitled to be indemnified by the Corporation as
authorized in this Article V. Such expenses (including attorneys' fees) incurred
by former directors and officers or other Covered Persons may be so paid upon
such terms and conditions, if any, as the Corporation deems appropriate.
Section 5.01.4 Non-exclusive Rights. The indemnification and
advancement of expenses provided by or granted pursuant to this Section 5.01
shall not be deemed exclusive of any other rights to which Covered Persons may
be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
Section 5.01.5 Amendment or Repeal. Any repeal or modification
of this Section 5.01 shall not adversely affect any right or protection
hereunder of any Covered Person in respect of any act or omission occurring
prior to the time of such repeal or modification. The indemnification and
advancement of expenses provided by or granted pursuant to this Section 5.01,
unless otherwise provided when authorized or ratified, shall continue as to a
Covered Person who has ceased to be a Covered Person and shall inure to the
benefit of the heirs, executors, and administrators of such person.
Section 5.01.6 Amendment or Modification of Article V.
Notwithstanding anything contained in the Certificate of Incorporation or these
Bylaws to the contrary, the affirmative vote of the holders of at least a
majority of the voting power of the then outstanding capital stock of the
Corporation, voting together as a single class, shall be required to amend,
repeal or adopt any provision inconsistent with this Article V.
17
Section 5.02 Elimination of Certain Liability of Directors. As provided
for in the Certificate of Incorporation of the Corporation, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, as the same exists or hereafter may be amended, or (iv)
for any transaction from which the director derived an improper personal
benefit. If the DGCL is amended to authorize the further elimination or
limitation of liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by a amended DGCL. Any
repeal or modification of this Section 5.02 by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
Article VI
Capital Stock
Section 6.01 Certificates for Shares. The interest of each shareholder
of the Corporation shall be evidenced by certificates or by registration in
book-entry accounts without certificates for shares of stock in such form as the
appropriate officers of the Corporation may from time to time prescribe.
Section 6.02 Execution and Issuance of Certificates of Stock. Every
holder of stock represented by certificates shall be entitled to a certificate.
Such certificates shall be signed by the Chief Executive Officer, President or a
Vice President and by the Secretary or an Assistant Secretary and shall be
sealed with the seal of the Corporation. Any of or all 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
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 where such officer, transfer agent or registrar at the date of
issue. All certificates for shares shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the Corporation.
Section 6.02 Transfers. Subject to any restrictions on transfer and
unless otherwise provided by the Board, transfers of shares of the Corporation
shall be made on the books of the Corporation, in the case of certificated
shares, by the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his or her
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the Corporation, and on surrender for cancellation of the
certificate for such shares; and in the case of uncertificated shares, by
appropriate book-entry procedures upon the receipt of proper transfer
instructions from the registered owner of the uncertificated shares in such form
as the Corporation or its transfer agent may reasonably require.
18
Section 6.03 Record Ownership. The Corporation shall be entitled to
treat the person in whose name any share, right or option is registered as the
owner thereof, for all purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share, right or option on the
part of any other person, whether or not the Corporation shall have notice
thereof, except as otherwise provided by Delaware law.
Section 6.04 Lost, Stolen or Destroyed Stock Certificates. In the case
of the alleged loss, destruction or mutilation of a certificate of stock, a
duplicate certificate or certificates may be issued in place thereof or the
shares may be recorded in a book-entry account, upon such terms as the Board may
prescribe, including the requirement that a bond be delivered to the Corporation
upon such terms and indemnity to the Corporation and the transfer agent for the
Corporation and secured by such surety as the Board shall deem fit.
Section 6.05 Transfer Agent. The Board may appoint a transfer agent and
one or more co-transfer agents and registrar and one or more co-registrars and
may make or authorize such agent to make all such rules and regulations deemed
expedient concerning the issue, transfer and registration of all shares of
stock.
Article VII
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January in each year and end on the last day of December in each year.
Article VIII
Dividends
The Board may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Certificate of Incorporation.
19
Article IX
Seal
The Board may approve a corporate seal which shall be in the form of a
circle and shall have inscribed thereon the name of the Corporation and the
words, "Corporate Seal, Delaware."
Article X
Waiver of Notice
Whenever any notice whatever is required to be given under the
provisions of these Bylaws or under the provisions of the Certificate of
Incorporation or under the provisions of the DGCL law, 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.
Article XI
Amendments to the Bylaws
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by unanimous written consent of the Board or at any meeting of the Board
by a majority of the directors present at the meeting, subject to the power of
the stockholders holding a majority of the voting power of the Corporation's
capital stock to alter or repeal Bylaw amendments made by the Board.
20