EXHIBIT 3.2.3
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AMENDED AND RESTATED BYLAWS
OF
CONN'S, INC.
AS OF JUNE 3, 2008
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TABLE OF CONTENTS
Page
ARTICLE 1 OFFICES..........................................................................1
Section 1.1 Registered Office...........................................................1
Section 1.2 Other Offices...............................................................1
ARTICLE 2 MEETINGS OF STOCKHOLDERS.........................................................1
Section 2.1 Place of Meetings...........................................................1
Section 2.2 Annual Meeting..............................................................1
Section 2.3 Special Meetings............................................................1
Section 2.4 Notice......................................................................1
Section 2.5 Voting List.................................................................2
Section 2.6 Quorum......................................................................2
Section 2.7 Adjourned Meeting...........................................................2
Section 2.8 Required Vote...............................................................2
Section 2.9 Proxies.....................................................................2
Section 2.10 Record Date.................................................................3
Section 2.11 Action By Remote Communication..............................................4
Section 2.12 No Stockholder Action by Written Consent....................................4
Section 2.13 Inspectors of Elections.....................................................4
Section 2.14 Notice of Stockholder Business; Nominations.................................5
ARTICLE 3 DIRECTORS........................................................................5
Section 3.1 Management..................................................................5
Section 3.2 Number; Election; Change In Number..........................................5
Section 3.3 Removal; Resignation........................................................6
Section 3.4 Vacancies and Newly Created Directorships...................................6
Section 3.5 Cumulative Voting Prohibited................................................6
Section 3.6 Place of Meetings...........................................................6
Section 3.7 First Meetings..............................................................6
Section 3.8 Regular Meetings............................................................6
Section 3.9 Special Meetings............................................................6
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TABLE OF CONTENTS
(continued)
Page
Section 3.10 Quorum......................................................................6
Section 3.11 Action Without Meeting; Telephone Meetings..................................7
Section 3.12 Chairman of the Board; Vice Chairman........................................7
Section 3.13 Compensation................................................................7
ARTICLE 4 COMMITTEES.......................................................................7
Section 4.1 Designation.................................................................7
Section 4.2 Number; Term................................................................7
Section 4.3 Authority...................................................................7
Section 4.4 Committee Changes; Removal..................................................8
Section 4.5 Alternate Members; Acting Members...........................................8
Section 4.6 Regular Meetings............................................................8
Section 4.7 Special Meetings............................................................8
Section 4.8 Quorum; Majority Vote.......................................................8
Section 4.9 Minutes.....................................................................8
Section 4.10 Compensation................................................................8
ARTICLE 5 NOTICES..........................................................................8
Section 5.1 Method......................................................................8
Section 5.2 Waiver......................................................................9
Section 5.3 Exception to Notice Requirement.............................................9
ARTICLE 6 OFFICERS........................................................................10
Section 6.1 Officers...................................................................10
Section 6.2 Election...................................................................10
Section 6.3 Compensation...............................................................10
Section 6.4 Removal and Vacancies......................................................10
Section 6.5 Chief Executive Officer....................................................10
Section 6.6 President..................................................................10
Section 6.7 Chief Financial Officer....................................................11
Section 6.8 Chief Operating Officer....................................................11
Section 6.9 Executive Vice Presidents..................................................11
Section 6.10 Vice Presidents............................................................11
Section 6.11 Secretary..................................................................12
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TABLE OF CONTENTS
(continued)
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Section 6.12 Assistant Secretaries......................................................12
Section 6.13 Treasurer..................................................................12
Section 6.14 Assistant Treasurers.......................................................12
Section 6.15 Other Officers.............................................................12
ARTICLE 7 CERTIFICATES REPRESENTING SHARES................................................12
Section 7.1 Certificated and Uncertificated Shares.....................................12
Section 7.2 Legends....................................................................13
Section 7.3 Lost Certificates..........................................................13
Section 7.4 Transfers..................................................................13
Section 7.5 Registered Stockholders....................................................13
ARTICLE 8 INDEMNIFICATION.................................................................13
Section 8.1 Actions, Suits or Proceedings Other Than by or in the Right of the
Corporation................................................................13
Section 8.2 Actions or Suits by or in the Right of the Corporation.....................14
Section 8.3 Indemnification for Costs, Charges and Expenses of Successful Party........14
Section 8.4 Determination of Right to Indemnification..................................14
Section 8.5 Advance of Costs, Charges and Expenses.....................................14
Section 8.6 Procedure for Indemnification..............................................15
Section 8.7 Other Rights; Continuation of Right to Indemnification.....................15
Section 8.8 Construction...............................................................15
Section 8.9 Savings Clause.............................................................16
Section 8.10 Insurance..................................................................16
ARTICLE 9 GENERAL PROVISIONS..............................................................17
Section 9.1 Dividends..................................................................17
Section 9.2 Reserves...................................................................17
Section 9.3 Authority to Sign Instruments..............................................17
Section 9.4 Fiscal Year................................................................17
Section 9.5 Seal.......................................................................17
Section 9.6 Transactions with Directors and Officers...................................17
Section 9.7 Amendments.................................................................18
Section 9.8 Table of Contents; Headings................................................18
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BYLAWS
OF
CONN'S, INC.
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ARTICLE 1
OFFICES
Section 1.1 Registered Office. The registered office and registered agent
of Conn's, Inc., a Delaware corporation (the "Corporation"), will be as from
time to time set forth in the Corporation's Certificate of Incorporation or in
any certificate filed with the Secretary of State of the State of Delaware, and
the appropriate County Recorder or Recorders, as the case may be, to amend such
information.
Section 1.2 Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of stockholders for all purposes
may be held at such time and place, either within or without the State of
Delaware, as designated by the Board of Directors and as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof. The Board
of Directors may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by
means of remote communication as authorized by Section 211 of the Delaware
General Corporation Law.
Section 2.2 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. At such meeting,
the stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
Section 2.3 Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute, the Corporation's
Certificate of Incorporation or these Bylaws, may be called only by the Chairman
of the Board, President or by a majority of the Board of Directors. Business
transacted at all special meetings shall be confined to the purposes stated in
the notice of the meeting.
Section 2.4 Notice. Written or printed notice stating the place, if any,
date, and hour of each meeting of the stockholders, the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting, to each stockholder entitled to vote at such meeting. If such notice is
sent by mail, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at the stockholder's address as it appears
on the records of the Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Corporation that the
notice has been given shall, in the absence of fraud, be prima facie evidence of
the facts stated therein. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend such meeting in person
or by proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy.
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Section 2.5 Voting List. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by the Secretary or such other officer or through a transfer agent
appointed by the Board of Directors, shall prepare 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, 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 of the meeting 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.
Section 2.6 Quorum. A majority of the shares entitled to vote, present in
person or represented by proxy, shall constitute a quorum at any meeting of
stockholders, except as otherwise provided by statute, the Corporation's
Certificate of Incorporation or these Bylaws. The stockholders present at a duly
constituted meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. If a quorum shall not be present at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation, may adjourn the meeting from time to time until a quorum shall be
present.
Section 2.7 Adjourned Meeting. When a meeting is adjourned to another time
or place, notice need not be given of the adjourned meeting if the time, place,
if any, thereof, and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is
taken. At any adjourned meeting at which a quorum shall be present, any business
may be transacted which might have been transacted at the original meeting had a
quorum been present. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 2.8 Required Vote. In all matters other than the election of
directors, the affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall be the act of the stockholders, unless the question is one on which, by
express provision of statute, the Corporation's Certificate of Incorporation or
these Bylaws, a different vote is required, in which case such express provision
shall govern and control the decision of the question.
Section 2.9 Proxies.
(a) Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for such stockholder by proxy,
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. Each proxy shall be filed
with the Secretary of the Corporation prior to or at the time of the meeting.
(b) Without limiting the manner in which a stockholder may authorize
another person or persons to act for such stockholder as proxy pursuant to
subsection (a) of this section, the following shall constitute a valid means by
which a stockholder may grant such authority:
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(1) A stockholder may execute a writing authorizing another person
or persons to act for such stockholder as proxy. Execution may be accomplished
by the stockholder or by an authorized officer, director, employee or agent of
the stockholder signing such writing or causing such stockholder's signature to
be affixed to such writing by any reasonable means including, but not limited
to, by facsimile signature.
(2) stockholder may authorize another person or persons to act for
such stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
stockholder. If it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied.
(c) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (b)
of this section 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.
(d) A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power.
Section 2.10 Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting. If
no record date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, if so
permitted by the Corporation's Certificate of Incorporation and these Bylaws,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which 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 no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by statute or these Bylaws, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Such delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
statute or these Bylaws, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
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(c) In order that the Corporation may determine 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 change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty (60) days prior to
such payment, exercise, or other action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
Section 2.11 Action By Remote Communication. If authorized by the Board of
Directors in its sole discretion, and subject to such guidelines and procedures
as the Board of Directors may adopt, stockholders and proxy holders not
physically present at a meeting of stockholders may, by means of remote
communication: (i) participate in a meeting of stockholders; and (ii) be deemed
present in person and vote at a meeting of stockholders, whether such meeting is
to be held at a designated place or solely by means of remote communication,
provided that (A) the Corporation shall implement reasonable measures to verify
that each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder; (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings; and
(C) if any stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such vote or other action
shall be maintained by the Corporation.
Section 2.12 No Stockholder Action by Written Consent. Any action required
or permitted to be taken by the stockholders of the Corporation must be effected
at a duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders, unless
the action to be effected by written consent of the stockholders and the taking
of such action by such written consent have been expressly approved in advance
by the Board of Directors.
Section 2.13 Inspectors of Elections. The Board of Directors may, in
advance of any meeting of stockholders, appoint one or more inspectors to act at
such meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if inspectors
shall not have been appointed, the chairman of the meeting may, appoint one or
more inspectors. Each inspector, before entering upon the discharge of such
inspector's duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the best
of such inspector's ability. The inspectors shall determine the number of shares
of capital stock of the Corporation outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, and
the validity and effect of proxies and shall receive votes, ballots, or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots, or consents,
determine the results, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the chairman of the
meeting, the inspectors shall make a report in writing of any challenge,
request, or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as an inspector of an election of directors. Inspectors need not be
stockholders.
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Section 2.14 Notice of Stockholder Business; Nominations.
(a) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders shall be made at
an annual meeting of stockholders (1) pursuant to the Corporation's notice of
such meeting; (2) by or at the direction of the Board of Directors; or (3) by
any stockholder of the Corporation who was a stockholder of record at the time
of giving of the notice provided for in this Section 2.14, who is entitled to
vote at such meeting and who complies with the notice procedures set forth in
this Section 2.14.
(b) For nominations or other business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice must be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding year's
proxy statement in connection with the last annual meeting. Such stockholder's
notice shall set forth: (1) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; (2) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (3) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(A) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner; and (B) the class and number
of shares of the Corporation that are owned beneficially and held of record by
such stockholder and such beneficial owner.
(c) Notwithstanding the aforementioned procedure, the Board of
Directors may, in its discretion, exclude from any proxy materials sent to
stockholders any matters that may properly be excluded under the Exchange Act,
Securities and Exchange Commission rules or other applicable laws.
ARTICLE 3
DIRECTORS
Section 3.1 Management. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute, the Corporation's Certificate of Incorporation or these Bylaws
directed or required to be exercised or done by the stockholders. The Board of
Directors shall keep regular minutes of its proceedings.
Section 3.2 Number; Election; Change In Number. Except as otherwise
provided for or fixed pursuant to the provisions of Article FOUR of the
Corporation's Certificate of Incorporation relating to the rights of holders of
any series of Preferred Stock to elect additional directors, the total number of
directors which shall constitute the entire Board of Directors of the
Corporation shall be no less than three (3) directors. The number of directors
which shall constitute the entire Board of Directors may be increased or
(subject to the immediately preceding sentence) decreased by one or more
resolutions adopted by the Board of Directors. Except with respect to the
current terms of directors elected prior to the effective time of the amendment
to the Corporation's Certificate of Incorporation eliminating the classified
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Board of Directors, who shall serve the remainder of their term, each director
shall hold office until the next annual meeting of the stockholders of the
Corporation following such director's election or appointment and, the foregoing
notwithstanding, shall serve until his successor shall have been duly elected
and qualified, unless he shall resign, become disqualified, disabled or shall
otherwise be removed. If authorized by the Board of Directors, a ballot may be
submitted by electronic transmission, provided that any such electronic
transmission must either set forth, or be submitted with, information from which
it can be determined that the electronic transmission was authorized by the
stockholder or proxy holder. No decrease in the number of directors constituting
the whole Board of Directors shall have the effect of shortening the term of any
incumbent director.
Section 3.3 Removal; Resignation. Any director or the entire Board of
Directors may be removed from office at any time, but only for cause and only by
the affirmative vote of at least 75% of the total voting power of the
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors voting together as a single class. Any
director may resign at any time upon notice given in writing or by electronic
transmission to the Corporation.
Section 3.4 Vacancies and Newly Created Directorships. Vacancies and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Each director so chosen
shall hold office until the next election of directors and until such director's
successor is elected and qualified or until such director's earlier death,
resignation or removal. If at any time there are no directors in office, an
election of directors may be held in the manner provided by statute. Except as
otherwise provided in these Bylaws, when one or more directors shall resign from
the Board of Directors, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have the power to
fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in these Bylaws with respect to the filling of
other vacancies.
Section 3.5 Cumulative Voting Prohibited. Cumulative voting shall be
prohibited.
Section 3.6 Place of Meetings. The directors of the Corporation may hold
their meetings, both regular and special, either within or without the State of
Delaware.
Section 3.7 First Meetings. The first meeting of each newly elected Board
of Directors shall be held without further notice immediately following the
annual meeting of stockholders, and at the same place, unless by unanimous
consent of the directors then elected and serving, such time or place shall be
changed.
Section 3.8 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by the Board of Directors.
Section 3.9 Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President on twenty-four (24)
hours' notice to each director, if by telecopier, electronic facsimile or hand
delivery, or on three (3) days' notice to each director, if by mail or by
telegram. Except as may be otherwise expressly provided by law or the
Corporation's Certificate of Incorporation, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in a
notice or waiver of notice.
Section 3.10 Quorum. At all meetings of the Board of Directors, a majority
of the total number of directors shall constitute a quorum for the transaction
of business, and the vote of a majority of the directors present at any meeting
at which a quorum is present shall be the act of the Board of Directors, except
as may be otherwise specifically provided by law or the Corporation's
Certificate of Incorporation. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
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Section 3.11 Action Without Meeting; Telephone Meetings. Any action
required or permitted to be taken at a meeting of the Board of Directors, or of
any committee thereof, may be taken without a meeting if all members of the
Board of Directors or such committee, as the case may be, consent thereto in
writing or by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the
Board of Directors or such committee, respectively. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form. Such consent
shall have the same force and effect as a unanimous vote at a meeting. Subject
to applicable notice provisions and unless otherwise restricted by the
Corporation's Certificate of Incorporation, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in and
hold a meeting by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in such meeting shall constitute presence in
person at such meeting, except where a person's participation is for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 3.12 Chairman of the Board; Vice Chairman. The Board of Directors
may elect a Chairman of the Board to preside at their meetings and to perform
such other duties as the Board of Directors may from time to time assign to such
person. The Chairman of the Board may be either an Executive Chairman of the
Board, who shall be an executive of the Corporation; or a Non-Executive Chairman
of the Board. The Board of Directors may also elect a Vice Chairman of the Board
to preside at their meetings in the absence of the Chairman of the Board and to
perform such other duties as the Board of Directors may from time to time assign
to such person. The Vice Chairman of the Board may be either an Executive Vice
Chairman of the Board, who shall be an executive of the Corporation, or a
Non-Executive Vice Chairman of the Board.
Section 3.13 Compensation. The Board of Directors may fix the compensation
of the members of the Board of Directors at any time and from time to time.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE 4
COMMITTEES
Section 4.1 Designation. The Board of Directors may designate one or more
committees.
Section 4.2 Number; Term. Each committee shall consist of one or more
directors. The number of committee members may be increased or decreased from
time to time by the Board of Directors. Each committee member shall serve as
such until the earliest of (i) the expiration of such committee member's term as
director; (ii) such committee member's resignation as a committee member or as a
director; or (iii) such committee member's removal as a committee member or as a
director.
Section 4.3 Authority. Each committee, to the extent expressly provided in
the resolution of the Board of Directors establishing such committee, shall have
and may exercise all of the authority of the Board of Directors in the
management of the business and affairs of the Corporation except to the extent
expressly restricted by statute, the Corporation's Certificate of Incorporation
or these Bylaws.
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Section 4.4 Committee Changes; Removal. The Board of Directors shall have
the power at any time to fill vacancies in, to change the membership of, and to
discharge any committee. The Board of Directors may remove any committee member,
at any time, with or without cause.
Section 4.5 Alternate Members; Acting Members. The Board of Directors may
designate one or more directors as alternate members of any committee. Any such
alternate member 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 present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member.
Section 4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
Section 4.7 Special Meetings. Special meetings of any committee may be held
whenever called by the Chairman of the Committee, or, if the committee members
have not elected a Chairman, by any committee member. The Chairman of the
Committee or the committee member calling any special meeting shall cause notice
of such special meeting, including therein the time and place of such special
meeting, to be given to each committee member at least (i) twenty-four (24)
hours before such special meeting if notice is given by telecopy, electronic
facsimile or hand delivery or (ii) at least three days before such special
meeting if notice is given by mail or by telegram. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
Section 4.8 Quorum; Majority Vote. At meetings of any committee, a majority
of the number of members designated as the Committee by the Board of Directors
shall constitute a quorum for the transaction of business. Alternate members and
acting members shall be counted in determining the presence of a quorum. If a
quorum is not present at a meeting of any committee, a majority of the members
present may adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum is present. The vote of a majority
of the members, including alternate members and acting members, present at any
meeting at which a quorum is present shall be the act of a committee, unless the
act of a greater number is required by law or the Corporation's Certificate of
Incorporation.
Section 4.9 Minutes. Each committee shall cause minutes of its proceedings
to be prepared and shall report the same to the Board of Directors upon the
request of the Board of Directors. The minutes of the proceedings of each
committee shall be delivered to the Secretary of the Corporation for placement
in the minute books of the Corporation.
Section 4.10 Compensation. Committee members may, by resolution of the
Board of Directors, be allowed a fixed sum and expenses of attendance, if any,
for attending any committee meetings or a stated salary.
ARTICLE 5
NOTICES
Section 5.1 Method.
(a) Whenever by statute, the Corporation's Certificate of
Incorporation, or these Bylaws, notice is required to be given to any
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stockholder, director or committee member, and no provision is made as to how
such notice shall be given, personal notice shall not be required, and any such
notice may be given (i) in writing, by mail, postage prepaid, addressed to such
committee member, director, or stockholder at such stockholder's address as it
appears on the books or (in the case of a stockholder) the stock transfer
records of the Corporation; or (ii) by any other method permitted by law
(including, but not limited to, overnight courier service, facsimile
telecommunication, electronic mail, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be given when
deposited in the United States mail as aforesaid. Any notice required or
permitted to be given by overnight courier service shall be deemed to be given
at the time delivered to such service with all charges prepaid and addressed as
aforesaid.
(b) Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the Corporation
under any provision of the Delaware General Corporation Law, the Corporation's
Certificate of Incorporation, or these Bylaws shall be effective if given by a
form of electronic transmission consented to by the stockholder to whom the
notice is given. Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any such consent shall be deemed revoked if:
(i) the Corporation is unable to deliver by electronic transmission two (2)
consecutive notices given by the Corporation in accordance with such consent;
and (ii) such inability becomes known to the Secretary or an Assistant Secretary
of the Corporation or to the transfer agent, or other person responsible for the
giving of notice; provided, however, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action.
(c) Notice given pursuant to Section 5.1(b) shall be deemed given: (i)
if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice; (iii) if by a posting on an electronic network together with
separate notice to the stockholder of such specific posting, upon the later of
(A) such posting and (B) the giving of such separate notice; and (iv) if by any
other form of electronic transmission, when directed to the stockholder.
(d) An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent or other agent of the Corporation that the notice has been given,
including by a form of electronic transmission, shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by law, the
Corporation's Certificate of Incorporation or these Bylaws, a written waiver
thereof, signed by the person or persons entitled to such notice, or a waiver by
electronic transmission by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to notice.
Attendance of a stockholder, director, or committee member at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 5.3 Exception to Notice Requirement. The giving of any notice
required under any provision of the Delaware General Corporation Law, the
Corporation's Certificate of Incorporation or these Bylaws shall not be required
to be given to any stockholder to whom: (i) notice of two consecutive annual
meetings, and all notices of meetings or of the taking of action by written
consent without a meeting to such stockholder during the period between such two
consecutive annual meetings; or (ii) all, and at least two, payments (if sent by
first-class mail) of dividends or interest on securities during a twelve-month
period, have been mailed addressed to such person at such person's address as
shown on the records of the Corporation and have been returned undeliverable. If
any such stockholder shall deliver to the Corporation a written notice setting
forth such stockholder's then current address, the requirement that notice be
given to such stockholder shall be reinstated. The exception provided for in
this Section 5.3 to the requirement that notice be given shall not be applicable
to any notice returned as undeliverable if the notice was given by electronic
transmission.
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ARTICLE 6
OFFICERS
Section 6.1 Officers. The officers of the Corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents (who shall rank in
such order and who shall have such additional titles or designations, such as
"Executive," "Senior," "First," or "Second," as may be determined from time to
time by the Board of Directors), a Chief Financial Officer, a Chief Operating
Officer, a Secretary, and a Treasurer. The Board of Directors may also choose a
Chairman of the Board, Vice Chairman of the Board, Presidents of divisions of
the Corporation, additional Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers or other officers. The Board of Directors
may also from time to time, in its discretion, assign titles, powers, duties and
reporting arrangements for any elected officer. Any two or more offices may be
held by the same person.
Section 6.2 Election. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect the officers of the Corporation,
none of whom need be a member of the Board, a stockholder or a resident of the
State of Delaware. The Board of Directors may appoint such other officers and
agents as it shall deem necessary, who shall be appointed for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors.
Section 6.3 Compensation. The compensation of all officers and agents of
the Corporation shall be fixed by the Compensation Committee.
Section 6.4 Removal and Vacancies. Each officer of the Corporation shall
hold office until such officer's successor is elected and qualified or until
such officer's earlier resignation or removal. Any officer or agent elected or
appointed by the Board of Directors may be removed either for or without cause
by a majority of the directors represented at a meeting of the Board of
Directors at which a quorum is represented, whenever in the judgment of the
Board of Directors the best interests of the Corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. If the office of any officer becomes vacant for any
reason, the vacancy may be filled by the Board of Directors, however, any office
of the Corporation may be left vacant from time to time at the discretion of the
Board of Directors.
Section 6.5 Chief Executive Officer. The Chief Executive Officer shall be
the senior officer of the Corporation, shall preside at all meetings of the
stockholders and the Board of Directors unless the Board of Directors shall
elect a Chairman of the Board or Vice Chairman of the Board, in which event the
Chief Executive Officer shall preside at meetings of the Board of Directors only
in the absence of both the Chairman of the Board and Vice Chairman of the Board,
if any. The Chief Executive Officer shall be an ex-officio member of the
executive committee (if established), and will share the general and active
management of the business of the Corporation with the President(s), and shall
see, along with the President(s), that all orders and resolutions of the Board
of Directors are carried into effect. Under the seal of the Corporation, he
shall execute bonds, mortgages, and other contracts requiring a seal, except
where required or permitted by law to be otherwise signed and executed, except
where the signing and execution shall be especially delegated by the Board of
Directors to some other officer or agent of the Corporation. Unless otherwise
provided by the Board of Directors, all other officers of the Corporation shall
report directly or indirectly to the Chief Executive Officer.
Section 6.6 President. The President shall, subject to the control of the
Board of Directors, Chairman of the Board of Directors and Chief Executive
Officer, in the absence, disability, or inability to act of the Chief Executive
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Officer, exercise all powers and perform all duties of the Chief Executive
Officer (except such powers and duties as are incident to the Chief Executive
Officer's position or a member of the Board of Directors or any Executive
Committee appointed by the Board of Directors pursuant to Section 4.3 of Article
4). The President shall have general and active management of the business and
affairs of the Corporation, shall see that all orders and resolutions of the
Board are carried into effect, and shall perform such other duties as the Board
of Directors, the Chairman of the Board of Directors, or the Chief Executive
Officer shall prescribe.
Section 6.7 Chief Financial Officer. The Chief Financial Officer of the
Corporation shall, subject to the control of the Board of Directors, the
Chairman of the Board of Directors and the Chief Executive Officer, be the chief
financial officer of the Corporation. The Chief Financial Officer shall have
custody of the funds and securities of the Corporation and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors (or any duly authorized committee thereof). 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 and stock. The
Chief Financial Officer shall receive and give receipts and acquittances for
money paid in an account of the Corporation and shall pay out of the
Corporation's funds on hand all bills, payrolls and other just debts of the
Corporation of whatever nature upon maturity. The Chief Financial Officer shall
render to the Chief Executive Officer and the Board of Directors, at its regular
meetings or when the Board of Directors so requires, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
Corporation. The Chief Financial Officer shall have such other powers and
perform such other duties as may from time to time be assigned to such officer
by the Board of Directors, the Chairman of the Board of Directors or the Chief
Executive Officer.
Section 6.8 Chief Operating Officer. The Chief Operating Officer shall,
subject to the control of the Board of Directors, the Chairman of the Board of
Directors and the Chief Executive Officer, be the chief administrative officer
of the Corporation and shall have general charge of the business, affairs and
property of the Corporation, and control over its officers (other than the Chief
Executive Officer, the President and the Chief Financial Officer), agents and
employees. The Chief Operating Officer shall see to it that all orders and
resolutions of the Board of Directors (or any duly authorized committee
thereof), the Chairman of the Board of Directors and the Chief Executive Officer
are carried into effect. The Chief Operating Officer shall have such other
powers and perform such other duties as may from time to time be assigned to
such officer by the Board of Directors, the Chairman of the Board of Directors
or the Chief Executive Officer.
Section 6.9 Executive Vice Presidents. The Board of Directors may designate
one or more Vice President(s) as Executive Vice President(s), who shall, in the
absence, disability, or inability to act of the President, perform all the
duties, exercise the powers and assume all responsibilities of the President.
They shall also generally assist the President and exercise any other powers and
perform such other duties as are delegated to them by the Chief Executive
Officer, President or such other officer to whom they report and as the Board of
Directors shall prescribe.
Section 6.10 Vice Presidents. In the absence or disability of the
President, and Executive Vice Presidents, the Vice President (or in the event
there is more than one Vice President, the Vice Presidents in the order
designated by the Board, or in the absence of any designation, then in the order
of their election or appointment) shall perform the duties of the President, and
when so acting shall have all the powers of and be subject to all of the
restrictions upon the President. Each Vice President shall have only such powers
and perform only such duties as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer, the President or such other officer
to whom they report may from time to time delegate.
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Section 6.11 Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for any committee when required. Except as otherwise
provided herein, the Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision the Secretary shall be. The Secretary
shall keep in safe custody the seal of the Corporation and, when authorized by
the Board of Directors, affix the same to any instrument requiring it, and, when
so affixed, it shall be attested by the signature of the Secretary or by the
signature of the Treasurer or an Assistant Secretary.
Section 6.12 Assistant Secretaries. Each Assistant Secretary shall have
only such powers and perform only such duties as the Board of Directors may from
time to time prescribe or as the Chief Executive Officer or the President may
from time to time delegate.
Section 6.13 Treasurer. The Treasurer shall perform such duties and have
such powers as from time to time may be assigned to him by the Board of
Directors (or any duly authorized committee thereof), the Chairman of the Board
of Directors, the Chief Executive Officer or the Chief Financial Officer and if
there be no Chief Financial Officer or in the absence of the Chief Financial
Officer or in the event of the Chief Financial Officer's disability or refusal
to act, 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.
Section 6.14 Assistant Treasurers. Each Assistant Treasurer shall have only
such powers and perform only such duties as the Board of Directors may from time
to time prescribe or as the Chief Executive Officer or the President may from
time to time delegate.
Section 6.15 Other Officers. Other officers of the Corporation shall have
such powers and perform such duties as may be prescribed from time to time by
the Board of Directors, or the Chief Executive Officer, or any officer of the
Corporation to whom such other officer shall report, may from time to time
delegate.
ARTICLE 7
CERTIFICATES REPRESENTING SHARES
Section 7.1 Certificated and Uncertificated Shares. The shares of stock of
the Corporation shall be represented by certificates of stock; provided,
however, that the Board of Directors may provide by resolution or resolutions
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares; provided, further, that 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 the Chairman or Vice Chairman of the
Board of Directors or the President, a Vice President or other officer
designated by the Board of Directors, countersigned by the Treasurer or the
Secretary or an Assistant Treasurer or an Assistant Secretary. Such signature of
the Chairman or Vice Chairman of the Board, President, Vice President, or other
officer, such countersignature of the Treasurer or Secretary or Assistant
Treasurer or Assistant Secretary, and such seal, or any of them, may be executed
in facsimile, engraved or printed. In case any officer who has signed or whose
facsimile signature has been placed upon any share certificate shall have ceased
to be such officer because of death, resignation or otherwise before the
certificate is issued, it may be issued by the Corporation with the same effect
as if the officer had not ceased to be such at the date of its issue. Said
certificates of stock shall be in such form as the Board of Directors may from
time to time prescribe.
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Section 7.2 Legends. The Board of Directors shall have the power and
authority to provide that certificates representing shares of stock shall bear
such legends, and stop transfer instructions and the equivalent of legends with
respect to any uncertificated shares, as the Board of Directors shall authorize,
including, without limitation, such legends as the Board of Directors deems
appropriate to assure that the Corporation does not become liable for violations
of federal or state securities laws or other applicable law, including, but not
limited to, the requirements imposed pursuant to Section 151(f) of the Delaware
General Corporation Law.
Section 7.3 Lost Certificates. The Corporation may issue a new certificate
representing shares in place of any certificate theretofore issued by the
Corporation, alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate to be lost,
stolen or destroyed. The Board of Directors, in its discretion and as a
condition precedent to the issuance thereof, may require the owner of such lost,
stolen or destroyed certificate, or such owner's legal representative, to
advertise the same in such manner as it shall specify and/or to give the
Corporation a bond in such form, in such sum, and with such surety or sureties
as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 7.4 Transfers. Certificated shares of the Corporation will only be
transferred on its books upon the surrender to the Corporation of the share
certificates duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer. The surrendered certificates shall be
canceled, new certificates issued to the person entitled to them and the
transaction recorded on the books of the Corporation. Uncertificated shares will
only be transferred on the books of the Corporation upon the written instruction
from the registered owner of such uncertificated shares, or from a duly
authorized attorney, or from an individual presenting proper evidence of
succession, assignment or authority to transfer the stock.
Section 7.5 Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof for any and all purposes, and, accordingly, shall not be bound to
recognize any equitable or other claim or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE 8
INDEMNIFICATION
Section 8.1 Actions, Suits or Proceedings Other Than by or in the Right of
the Corporation. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not meet the standards of conduct set forth in this Section 8.1.
Section 8.2 Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person 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 expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, if such person acted in good faith and in
a manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 8.3 Indemnification for Costs, Charges and Expenses of Successful
Party. Notwithstanding the other provisions of this Article 8, to the extent
that a present or former director or officer of the Corporation has been
successful on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Section 8.1 and Section 8.2 of this Section 8.8, or in
the defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
Section 8.4 Determination of Right to Indemnification. Any indemnification
under Section 8.1 and Section 8.2 of this Article 8 (unless ordered by a court)
shall be paid by the Corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in Section 8.1 and Section 8.2 of this
Article 8. Such determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (a) by a majority vote of
the Board of Directors who were not parties to such action, suit or proceeding,
even though less than a quorum, or (b) by a committee of such directors
designated by majority vote of such directors, even though less than a quorum,
(c) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (d) by the stockholders.
Section 8.5 Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys, fees) incurred by a person referred to in Section
8.1 and Section 8.2 of this Article 8 in defending a civil or criminal action,
suit or proceeding (including investigations by any government agency and all
costs, charges and expenses incurred in preparing for any threatened action,
suit or proceeding) shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding; provided, however, that the
payment of such costs, charges and expenses incurred by a director or officer in
such person's capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article 8. No security shall be required
for such undertaking and such undertaking shall be accepted without reference to
the recipient's financial ability to make repayment. The repayment of such
charges and expenses incurred by other employees and agents of the Corporation
which are paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as permitted by this Section 8.5 may be required upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
The Board of Directors may, in the manner set forth above, and subject to the
approval of such director, officer, employee or agent of the Corporation,
authorize the Corporation's counsel to represent such person, in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
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Section 8.6 Procedure for Indemnification. Any indemnification under
Section 8.1 and Section 8.2 or Section 8.3 or advance of costs, charges and
expenses under Section 8.5 of this Article 8 shall be made promptly, and in any
event within 30 days, upon the written request of the director, officer,
employee or agent directed to the Secretary of the Corporation. The right to
indemnification or advances as granted by this Article 8 shall be enforceable by
the director, officer, employee or agent in any court of competent jurisdiction
if the Corporation denies such request, in whole or in part, or if no
disposition thereof is made within 30 days. Such person's costs and expenses
incurred in connection with successfully establishing such person's right to
indemnification or advances, in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of costs,
charges and expenses under Section 8.5 of this Article 8 where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in Section 8.1 and Section 8.2 of this
Article 8, but the burden of proving that such standard of conduct has not been
met shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 8.1 and Section 8.2 or Section 8.3 of this Article 8, nor the fact that
there has been an actual determination by the Corporation (including its Board
of Directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 8.7 Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article 8 shall not be deemed exclusive of any
other rights to which a person seeking indemnification may be entitled under any
law (common or statutory), 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 office or while employed by or
acting as agent for the Corporation, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the estate, heirs, executors and administrators of such person. All
rights to indemnification under this Article 8 shall be deemed to be a contract
between the Corporation and each director, officer, employee or agent of the
Corporation who serves or served in such capacity at any time while this Article
8 is in effect. No amendment or repeal of this Article 8 or of any relevant
provisions of the Delaware General Corporation Law or any other applicable laws
shall adversely affect or deny to any director, officer, employee or agent any
rights to indemnification which such person may have, or change or release any
obligations of the Corporation, under this Article 8 with respect to any costs,
charges, expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement which arise out of an action, suit or proceeding based in
whole or substantial part on any act or failure to act, actual or alleged, which
takes place before or while this Article 8 is in effect. The provisions of this
Section 8.7 shall apply to any such action, suit or proceeding whenever
commenced, including any such action, suit or proceeding commenced after any
amendment or repeal of this Article 8.
Section 8.8 Construction. For purpose of this Article 8:
(i) "the Corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
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merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article 8 with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its
separate existence had continued;
(ii) "other enterprises" shall include employee benefit plans,
including, but not limited to, any employee benefit plan of the
Corporation;
(iii) "serving at the request of the Corporation" shall include any
service which imposes duties on, or involves services by, a director,
officer, employee, or agent of the Corporation with respect to an employee
benefit plan, its participants, or beneficiaries, including acting as a
fiduciary thereof;
(iv) "fines" shall include any penalties and any excise or similar
taxes assessed on a person with respect to an employee benefit plan;
(v) a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the Corporation" as referred
to in Section 8.1 and Section 8.2 of this Article 8; and
(vi) service as a partner, trustee or member of management or similar
committee of a partnership or joint venture, or as a director, officer,
employee or agent of a corporation which is a partner, trustee or joint
venturer, shall be considered service as a director, officer, employee or
agent of the partnership, joint venture, trust or other enterprise.
Section 8.9 Savings Clause. If this Article 8 or any portion hereof shall
be invalidated on any ground by a court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee and
agent of the Corporation as to expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
an action by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article 8 that shall not have been invalidated
and to the full extent permitted by applicable law.
Section 8.10 Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become 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 such person and incurred by such person
or on such person's behalf in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article 8,
provided that such insurance is available on acceptable terms as determined by a
vote of a majority of the entire Board of Directors.
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ARTICLE 9
GENERAL PROVISIONS
Section 9.1 Dividends. The Board of Directors, subject to any restrictions
contained in the Corporation's Certificate of Incorporation, may declare
dividends upon the shares of the Corporation's capital stock. Dividends may be
paid in cash, in property, or in shares of the Corporation, subject to the
provisions of the Delaware General Corporation Law and the Corporation's
Certificate of Incorporation.
Section 9.2 Reserves. By resolution of the Board of Directors, the
directors may set apart out of any of the funds of the Corporation such reserve
or reserves as the directors from time to time, in their discretion, think
proper to provide for contingencies, or to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other purposes as the
directors shall think beneficial to the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
Section 9.3 Authority to Sign Instruments. Any checks, drafts, bills of
exchange, acceptances, bonds, notes or other obligations or evidences of
indebtedness of the Corporation, and all deeds, mortgages, indentures, bills of
sale, conveyances, endorsements, assignments, transfers, stock powers, or other
instruments of transfer, contracts, agreements, dividend and other orders,
powers of attorney, proxies, waivers, consents, returns, reports, certificates,
demands, notices, or documents and other instruments or writings of any nature
whatsoever may be signed, executed, verified, acknowledged, and delivered, for
and in the name and on behalf of the Corporation, by such officers, agents, or
employees of the Corporation, or any of them, and in such manner, as from time
to time may be authorized by the Board of Directors, and such authority may be
general or confined to specific instances.
Section 9.4 Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 9.5 Seal. The corporate seal shall have inscribed thereon the name
of the Corporation. Said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
Section 9.6 Transactions with Directors and Officers. No contract or other
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers, are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or committee
which authorizes the contract or transaction, or solely because any such
director's or officer's votes are counted for such purpose, if: (a) the material
facts as to the director's or officer's relationship or interest and to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum, or (b) the material facts as to the director's or officer's relationship
or interest as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders, or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
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Section 9.7 Amendments. These Bylaws may be altered, amended, or repealed
or new bylaws may be adopted by the Board of Directors or by written consent of
the Board of Directors. In addition to any requirements of law and any other
provision of these Bylaws, the affirmative vote of the holders of at least 75
percent of the of the combined voting power of the then outstanding shares of
all classes and series of capital stock entitled generally to vote in the
election of directors of the Corporation, voting together as a single class,
shall be required for stockholders to adopt, amend, alter, or repeal Section
2.3, Section 2.12, Section 2.14, Section 3.2, Section 3.3, and Section 3.4 of
these Bylaws or to amend this Section 9.7 as it relates to the vote required to
adopt, amend, alter or repeal the aforementioned sections of these Bylaws.
Section 9.8 Table of Contents; Headings. The table of contents and headings
used in these Bylaws have been inserted for convenience only and do not
constitute matters to be construed in interpretation.
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