Exhibit 3.2
JACK IN THE BOX INC.
(a Delaware corporation)
BY-LAWS
AMENDED AND RESTATED
Effective July 28, 2009
ARTICLE I
Offices
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SECTION 1.01 Registered Office. The registered office of Jack in the Box
Inc. (hereinafter called the "Corporation") in the State of Delaware shall be at
1209 Orange Street, City of Wilmington, County of New Castle, and the name of
the registered agent in charge thereof shall be The Corporation Trust Company.
SECTION 1.02 Other Offices. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors (hereinafter called the "Board") may from
time to time determine or as the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
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SECTION 2.01 Annual Meetings. Annual meetings of the stockholders of the
Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution. In lieu of
holding an annual meeting of stockholders at a designated place, the Board may,
in its sole discretion, determine that any annual meeting of stockholders may be
held solely by means of remote communication.
SECTION 2.02 Special Meetings. A special meeting of the stockholders for
the transaction of any proper business may be called at any time by the Board or
by the President for any purpose or purposes prescribed in the notice of the
meeting and shall be held at such place (if any) on such date and at such time
as the Board may fix. In lieu of holding a special meeting of stockholders at a
designated place, the Board may, in its sole discretion, determine that any
special meeting of stockholders may be held solely by means of remote
communication. Business transacted at a special meeting of stockholders shall be
confined to the purpose or purposes stated in the notice of meeting.
SECTION 2.03 Place of Meetings. All meetings of the stockholders shall be
held at such places (if any), within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of notice thereof.
SECTION 2.04 Notice of Meetings.
(a) Except as otherwise required by law or in the Certificate of
Incorporation, notice of each meeting of the stockholders, whether annual or
special, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder of record entitled to vote at
such meeting. Every notice of a meeting of the stockholders shall state the
place, if any, date and hour of the meeting, and the means of remote
communication, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting. The notice of a special meeting,
shall state, in addition, the purpose or purposes for which the meeting is
called. Notice of any meeting of stockholders shall be deemed waived by any
stockholder who shall attend such meeting in person or by proxy, except as a
stockholder who shall attend such meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
(b) Notice to stockholders may be given by personal delivery, mail, or,
with the consent of the stockholder entitled to receive notice, by facsimile or
other means of electronic transmission. If mailed, such notice shall be
delivered by postage prepaid envelope directed to each stockholder at such
stockholder's address as it appears in the records of the Corporation and shall
be deemed given when deposited in the United States mail. Notice given by
electronic transmission pursuant to this subsection shall be deemed given: (i)
if by facsimile telecommunication, when directed to a facsimile
telecommunication 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 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 in a form in which such stockholder has consented to
receive notice. 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 by personal delivery, by mail, or by a form of electronic transmission
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
(c) Notice of any meeting of stockholders need not be given to any
stockholder if waived by such stockholder either in a writing signed by such
stockholder or by electronic transmission, whether such waiver is given before
or after such meeting is held. If such a waiver is given by electronic
transmission, the 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.
SECTION 2.05 Adjournments. Any meeting of stockholders may be adjourned to
any other time and to any other place at which a meeting of stockholders may be
held under these By-laws by the chairman of the meeting or, in the absence of
such person, by any officer entitled to preside at or to act as secretary of
such meeting, or by the holders of a majority of the shares of stock present or
represented at the meeting and entitled to vote, although less than a quorum.
When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the date, time, and place, if any,
thereof, and the means of remote communication, 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; provided, however, that if the date of any adjourned meeting is more than
thirty (30) days after the date for which the meeting was originally noticed, or
if a new record date is fixed for the adjourned meeting, written notice of the
place, if any, date, and time of the adjourned meeting 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, shall be given in
conformity herewith. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting.
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SECTION 2.06 Quorum. Except as otherwise provided by law or these By-laws,
the holders of a majority of the shares of the capital stock of the Corporation
entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. Where a separate
class vote by a class or classes or series is required, a majority of the shares
of such class or classes or series present in person or represented by proxy
shall constitute a quorum entitled to take action with respect to that vote on
that matter.
SECTION 2.07 Voting.
(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy each share or fractional share of the
stock of the Corporation having voting rights on the matter in question and
which shall have been held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of these By-laws as the
record date for the determination of stockholders entitled to notice of and
to vote at such meeting; or
(ii) if no such record date shall have been so fixed, then (a) at the
close of business on the day next preceding the day on which notice of the
meeting shall be given or (b) if notice of the meeting shall be waived, at
the close of business on the day next preceding the day on which the
meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity shall
be entitled to vote such stock. Persons whose stock is pledged shall be entitled
to vote, unless in the transfer by the pledgor on the books of the Corporation
he shall have expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants in common, tenants
by entirety or otherwise, or with respect to which two or more persons have the
same fiduciary relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in writing,
subscribed by such stockholder or by his attorney thereunto authorized, or by
any other means permitted by the Delaware General Corporation Law, and delivered
to the secretary of the meeting; provided, however, that no proxy shall be voted
or acted upon after three years from its date unless said proxy shall provide
for a longer period. The attendance at any meeting of a stockholder who may
theretofore have given a proxy shall not have the effect of revoking the same
unless he shall in writing so notify the secretary of the meeting prior to the
voting of the proxy. At any meeting of the stockholders all matters, except as
otherwise provided in the Certificate of Incorporation, in these By-laws or by
law, shall be decided by the vote of a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat and
thereon, a quorum being present. The vote at any meeting of the stockholders on
any question need not be by ballot, unless so directed by the chairman of the
meeting. On a vote by ballot each ballot shall be signed by the stockholder
voting, or by his proxy, if there be such proxy, and it shall state the number
of shares voted.
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SECTION 2.08 Voting List. The Secretary of the Corporation shall prepare at
least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, in
the manner provided by law. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. This list shall determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
SECTION 2.09 Inspector of Elections. The Corporation shall appoint one or
more inspectors to act at any meeting of stockholders. If an inspector is not
able to act, the person presiding at the meeting of stockholders shall appoint
one or more inspectors to act at the meeting. Each inspector, before discharging
the duties of inspector, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of the
inspector's ability. The inspector shall decide upon the validity of proxies and
ballots and shall report the number of shares represented at the meeting and
entitled to vote on each question; shall count the votes and ballots, and, when
the voting is completed, shall ascertain and report the number of shares voted
respectively for and against each question. Reports of inspectors shall be in
writing and subscribed and delivered by them to the Secretary of the
Corporation.
SECTION 2.10 Action Without Meeting. Any action required to be taken at any
annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of such 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 have not consented in writing.
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SECTION 2.11 Stockholder Proposals at Annual Meetings.
(a) Other than a proposal sought to be included in the Corporation's proxy
materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934 (the
"Exchange Act"), or a nomination for election as a director of the Corporation
governed by Section 3.16 hereof, business may be properly brought before an
annual meeting by a stockholder only upon the stockholder's timely notice
thereof in writing to the Secretary of the Corporation pursuant to the terms of
this Section 2.11 and only if such business is a proper subject for stockholder
action. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than one
hundred twenty (120) days and not more than one hundred fifty (150) days in
advance of the first anniversary of the date of the previous year's annual
meeting of stockholders; provided, however, that if either (i) no annual meeting
was held in the previous year, or (ii) the date of the annual meeting is
advanced by more than thirty (30) calendar days or delayed by more than seventy
(70) calendar days from the date of the previous year's annual meeting, then
notice by the stockholder must be received not earlier than one hundred fifty
(150) days prior to such annual meeting and not later than the close of business
on the later of: (i) one hundred twenty (120) days prior to such annual meeting
or (ii) the tenth (10th) day following the day on which the date of the annual
meeting is publicly announced. A public announcement for purposes of these
By-laws means disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above. For purposes of this Section 2.11, any
adjournment(s) or postponement(s) of the original meeting that do not require a
new written notice to stockholders shall be deemed for purposes of notice to be
a continuance of the original meeting and no new business may be brought before
any reconvened meeting by a stockholder unless timely notice of such business
was given to the Secretary of the Corporation for the meeting as originally
scheduled.
(b) To be proper, a stockholder's notice to the Secretary pursuant to
Section 2.11(a) must set forth, as to each matter the stockholder proposes to
bring before the annual meeting:
(i) the name and address of each of the Proponents (as defined below);
(ii) a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting, and
the text of the proposal or business (including the text of any resolutions
proposed for consideration and, in the event that such business includes a
proposal to amend the By-laws of the Corporation, the language of the
proposed amendment);
(iii) any interest in such business, including any anticipated benefit
of such business to any of the Proponents other than solely as a result of
their ownership of the Corporation's stock, that is material to any
Proponent individually, or to the Proponents in the aggregate;
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(iv) the class and number of all shares of stock of the Corporation
owned, of record or beneficially, by the Proponents as of the date of the
notice;
(v) a description of all Derivative Transactions (as defined below)
that have been entered into by the Proponents as of the date of the
Proponents' notice, including the date of the transactions and the class,
series and number of securities involved in, and the material economic
terms of, such Derivative Transactions;
(vi) whether any of the Proponents holds a proxy, or is a party to any
contract, arrangement, understanding, or relationship pursuant to which any
of the Proponents has the right to vote, or control or direct the voting
of, the Corporation's stock, the material terms thereof and the number of
shares of the Corporation's stock subject thereto;
(vii) a brief description of all plans, proposals, understandings,
agreements and arrangements (whether oral or in writing) in connection with
which the Proponents are providing the notice and intending to bring the
business named therein before the meeting, including without limitation any
plans, proposals, understandings, agreements and arrangements that would be
required to be disclosed pursuant to Items 4, 5 and 6 of Exchange Act
Schedule 13D (regardless of whether the requirement to file a Schedule 13D
is applicable to the Proponents);
(viii) a representation that the Proponents intend to appear in person
or by proxy to bring such matter before the meeting, and, if any of the
Proponents intend to solicit proxies in respect to the business named in
the notice, a representation to that effect; and
(ix) to the extent known by the Proponents, the name and address of
any other stockholder supporting the proposal on the date of such
stockholder's notice.
(c) The following definitions apply for purposes of these By-laws:
(i) "Affiliate" means, with respect to a specified natural person or
entity, any natural person or entity that directly, or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with, such specified person.
(ii) "Derivative Transaction" means any (A) transaction in, or
arrangement, agreement or understanding with respect to, any option,
warrant, convertible security, stock appreciation right or similar right
with an exercise, conversion or exchange privilege, or settlement payment
or mechanism related to, any security of the Corporation, or similar
instrument with a value derived in whole or in part from the value of a
security of the Corporation, in any such case whether or not it is subject
to settlement in a security of the Corporation or otherwise, and (B) any
transaction, arrangement, agreement or understanding (including short
positions, hedging transactions and transactions involving borrowed or
loaned shares) that included or includes an opportunity for such person,
directly or indirectly, to profit or share in any profit derived from any
increase or decrease in the value of any security of the Corporation, to
mitigate any loss or manage any risk associated with any increase or
decrease in the value of any security of the Corporation or to increase or
decrease the number of securities of the Corporation that such person was,
is or will be entitled to vote, in any case whether or not such security is
subject to settlement in a security of the Corporation or otherwise.
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(iii) "Proponents" means, collectively, the stockholder of record
providing the notice to the Corporation, any beneficial owner or beneficial
owners (within the meaning of Section 13(d) of the Exchange Act) upon whose
behalf such stockholder of record is providing such notice, and any
Stockholder Associated Person. Any one of the foregoing is referred to
herein as a "Proponent".
(iv) "Stockholder Associated Person" means any Affiliate of either the
stockholder of record providing notice to the Corporation or, if different,
the beneficial owner or beneficial owners on whose behalf such notice is
being provided, and any other person knowingly acting in concert, or
towards a common goal, with the proposing stockholder of record or the
beneficial owner or beneficial owners on whose behalf the notice is being
provided.
(d) Notwithstanding anything to the contrary in Section 2.11(b), a broker
acting solely as the nominee record holder of shares of the Corporation's stock
held in street name on behalf of a beneficial owner need not provide the
information required by Section 2.11(b)(v) and Section 2.11(b)(vi) with respect
to such broker or any of its Affiliates, so long as such broker (including its
Affiliates): (i) will not share in any of the profits earned, or bear the risk
of any losses incurred, by the beneficial owner of the Corporation's stock held
by such broker; (ii) does not hold investment control with respect to the
Corporation's stock held by such broker for the beneficial owner on whose behalf
the notice is being provided, or voting control of such stock with respect to
the business being proposed by such stockholder of record; and (iii) is not
acting pursuant to any arrangement, agreement or understanding other than a
usual and customary brokerage relationship.
(e) A stockholder providing notice of business proposed to be brought
before an annual meeting shall further update and supplement such notice, if
necessary, so that the information provided or required to be provided in such
notice pursuant to this Section 2.11 is true and correct in all material
respects as of the record date for the meeting and as of the date that is five
(5) business days prior to the meeting or any adjournment or postponement
thereof, and such update and supplement shall be delivered to or mailed and
received by the Secretary at the principal executive offices of the Corporation
not later than five (5) business days after the record date for the meeting (in
the case of the update and supplement required to be made as of the record
date), and not later than three (3) business days prior to the date for the
meeting or any adjournment or postponement thereof (in the case of the update
and supplement required to be made as of five (5) business days prior to the
meeting or any adjournment or postponement thereof).
(f) Nothing in this By-law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
(g) The chairman of the annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2.11, and
in such case, any such business not properly brought before the meeting shall
not be transacted.
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(h) The provisions of this Section 2.11 shall apply to any amendments to
these By-laws proposed by the shareholders under Section 8.07.
ARTICLE III
Board of Directors
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SECTION 3.01 General Powers. The property, business and affairs of the
Corporation shall be managed by the Board.
SECTION 3.02 Number and Term of Office. The exact number of directors shall
be fixed from time to time by resolution of the board of directors or the
stockholders. Directors need not be stockholders. Each of the directors of the
Corporation shall hold office until his successor shall have been duly elected
and shall qualify or until he shall resign or shall have been removed in the
manner hereinafter provided.
SECTION 3.03 Election of Directors. The directors shall be elected annually
by the stockholders of the Corporation and the persons receiving the greatest
number of votes, up to the number of directors to be elected, shall be the
directors.
SECTION 3.04 Resignations. Any director of the Corporation may resign at
any time by giving written notice to the Board or to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately upon
its receipt; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.05 Vacancies. Except as otherwise provided in the Certificate of
Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by vote of the majority of the remaining directors, although less
than a quorum. Each director so chosen to fill a vacancy shall hold office until
his successor shall have been elected and shall qualify or until he shall resign
or shall have been removed in the manner hereinafter provided.
SECTION 3.06 Place of Meeting, Etc. The Board may hold any of its meetings
at such place or places within or without the State of Delaware as the Board may
from time to time by resolution designate or as shall be designated by the
person or persons calling the meeting or in the notice or a waiver of notice of
any such meeting. Directors may participate in any regular or special meeting of
the Board by means of conference telephone or similar communications equipment
pursuant to which all persons participating in the meeting of the Board can hear
each other, and such participation shall constitute presence in person at such
meeting.
SECTION 3.07 First Meeting. The Board shall meet as soon as practicable
after each annual election of directors and notice of such first meeting shall
not be required.
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SECTION 3.08 Regular Meetings. Regular meetings of the Board may be held at
such times as the Board shall from time to time by resolution determine. If any
day fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting shall be held at the same hour and place
on the next succeeding business day not a legal holiday. Except as provided by
law, notice of regular meetings need not be given.
SECTION 3.09 Special Meetings. Special meetings of the Board shall be held
whenever called by the President or a majority of the authorized number of
directors. Except as otherwise provided by law or by these By-laws, notice of
the time and place of each such special meeting shall be given in accordance
with Section 8.05 of these By-laws. Except where otherwise required by law or by
these By-laws, notice of the purpose of a special meeting need not be given.
Notice of any meeting of the Board shall not be required to be given to any
director who is present at such meeting, except a director who shall attend such
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
SECTION 3.10 Quorum and Manner of Acting. Except as otherwise provided in
these By-laws or by law, the presence of a majority of the authorized number of
directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. Notice of any adjourned meeting need not be given. The
directors shall act only as a Board, and the individual directors shall have no
power as such.
SECTION 3.11 Action by Consent. 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 a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
SECTION 3.12 Emergency. In the event of any emergency, disaster or
catastrophe, or similar emergency condition, as referred to in Section 110 of
the Delaware General Corporation Law, as a result of which a quorum of the Board
or a standing committee thereof cannot be readily convened for action, any
director or officer of the Corporation may call a meeting of the Board or any
standing committee of the Board. Notice of such meeting shall be adequate if the
director or officer calling such meeting has informed, or attempted to inform
all directors by means of telephone, facsimile, email and cell phone, using such
telephone, facsimile, email and cell phone numbers and addresses as are on file
with the Corporation for each director from time to time or, in the event such
numbers and addresses are not readily available from the Corporation, at the
most recent number or address available to the director or officer calling the
meeting. If, as a result of such an emergency, disaster or catastrophe, a quorum
of the Board or a standing committee of the Board cannot readily be convened for
action, the director or directors in attendance at the meeting shall constitute
a quorum. Such director or directors in attendance may further take action to
appoint one or more of themselves or other directors to membership on any
standing or temporary committees of the Board as they shall deem necessary and
appropriate.
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SECTION 3.13 Removal of Directors. Subject to the provisions of the
Certificate of Incorporation, any director may be removed at any time, either
with or without cause, by the affirmative vote of the stockholders having a
majority of the voting power of the Corporation given at a special meeting of
the stockholders called for the purpose.
SECTION 3.14 Compensation. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse each
such director for any expense incurred by him on account of his attendance at
any meetings of the Board or Committees of the Board. Neither the payment of
such compensation nor the reimbursement of such expenses shall be construed to
preclude any director from serving the Corporation or its subsidiaries in any
other capacity and receiving compensation therefor.
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. Any such committee, to the
extent provided in the resolution of the Board and except as otherwise limited
by law, 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.
Any such committee shall keep written minutes of its meetings and report the
same to the Board at the next regular meeting of the Board. 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.
SECTION 3.16 Nominations for Election to the Board of Directors.
(a) Subject to the rights of holders of any class or series of Preferred
Stock then outstanding, nominations for the election of directors at an annual
meeting may be made by (i) the Board or a duly authorized committee thereof or
(ii) any stockholder entitled to vote in the election of directors generally who
complies with the procedures set forth in this By-law and who is a stockholder
of record at the time notice is delivered to the Secretary of the Corporation.
Any stockholder entitled to vote in the election of directors may nominate one
or more persons for election as directors at an annual meeting only if timely
notice of such stockholder's intent to make such nomination or nominations has
been given in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation before the close of business not
less than one hundred twenty (120) days and not more than one hundred fifty
(150) days in advance of the first anniversary of the date of the previous
year's annual meeting of stockholders; provided, however, that if either (i) no
annual meeting was held in the previous year, or (ii) the date of the annual
meeting is advanced by more than thirty (30) calendar days or delayed by more
than seventy (70) calendar days from the date of the previous year's annual
meeting, then notice by the stockholder must be received not earlier than one
hundred fifty (150) days prior to such annual meeting and not later than the
close of business on the later of: (i) one hundred twenty (120) days prior to
such annual meeting or (ii) the close of business on the tenth (10th) day
following the day on which the date of the annual meeting is publicly announced.
In no event shall the public announcement of an adjournment or postponement of
an annual meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
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(b) To be proper, a stockholder's notice to the Secretary pursuant to
Section 3.16(a) must set forth: (i) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (A) the name,
age, business and residence of such person, (B) the class and number of any
shares of stock of the Corporation that are beneficially owned or owned of
record by such person (C) the date or dates such shares were acquired and the
investment intent of such acquisition, (D) all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors in an election contest, or is otherwise required, in each case
pursuant to and in accordance with Regulation 14A under the Exchange Act, (E)
the written consent of each nominee to serve as a director of the Corporation if
so elected, (F) such other information as the Corporation may reasonably require
to determine eligibility of such proposed nominee to serve as a director of the
Corporation, specifically information related to the proposed nominee's ability
to comply with established standards of director independence and (G) a
completed and signed questionnaire, representation, and agreement as provided in
subsection (h) of this Section 3.16; (ii) as to the Proponents of such
nomination (as such term is defined in Section 2.11(c) hereof), (A) the name and
address of each Proponent, (B) a representation that the stockholder making the
nomination is a holder of record of stock of the Corporation entitled to vote
for the election of directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice, (C) a description of all arrangements, agreements or
understandings (oral or written) between any of the Proponents and each nominee
and any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the stockholder, and (D)
the information required to be set forth in a notice to the Corporation under
clauses (iv), (v), (vi), (vii) and (ix) of Section 2.11(b) hereof.
(c) A stockholder nominating a person for election or re-election as a
director shall further update and supplement such notice thereof, if necessary,
so that the information provided or required to be provided in such notice
pursuant to Section 3.16(b) is true and correct in all material respects as of
the record date for the meeting and as of the date that is five (5) business
days prior to the meeting or any adjournment or postponement thereof, and such
update and supplement shall be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation not later than
five (5) business days after the record date for the meeting (in the case of the
update and supplement required to be made as of the record date), and not later
than three (3) business days prior to the date for the meeting or any
adjournment or postponement thereof (in the case of the update and supplement
required to be made as of five (5) business days prior to the meeting or any
adjournment or postponement thereof).
(d) Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting by (i) or at the direction of the Board or a
committee thereof or (ii) any stockholder of the Corporation who is entitled to
vote at the meeting, who complies with the notice procedures set forth in this
By-law and who is a stockholder of record at the time such notice is delivered
to the Secretary of the Corporation. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as are specified in the
Corporation's notice of meeting, if the stockholder's notice as required by
paragraph (a) of this By-law shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
fiftieth (150th) day prior to such special meeting and not later than the close
of business on the later of: (i) the one hundred twentieth (120th) day prior to
such special meeting or (ii) the tenth (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. In no event shall
the public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
11
(e) Notwithstanding the foregoing provisions of this By-law, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-law. Nothing in this By-law shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
(f) Only persons nominated in accordance with the procedures set forth in
this Section 3.16 are be eligible to serve as directors. Except as otherwise
provided by law, the Chairman of the meeting shall have the power and duty (i)
to determine whether a nomination was made in accordance with the procedures set
forth in this Section 3.16 and (ii) if any proposed nomination was not made in
compliance with this Section 3.16, to declare that such nomination shall be
disregarded.
(g) If the Chairman of the meeting for the election of directors determines
that a nomination of any candidate for election as a director at such meeting
was not made in accordance with the applicable provisions of this Section 3.16,
such nomination shall be void; provided, however, that nothing in this Section
3.16 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
(h) To be eligible to be a nominee for election as a director of the
Corporation, the proposed nominee must deliver (in accordance with the time
periods prescribed for delivery of notice under Section 3.16) to the secretary
at the principal executive offices of the Corporation a written questionnaire
with respect to the background and qualification of such proposed nominee (which
questionnaire shall be provided by the secretary upon written request) and a
written representation and agreement (in a form provided by the secretary upon
written request) that such proposed nominee (i) is not and will not become a
party to (A) any agreement, arrangement, or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such
proposed nominee, if elected as a director of the Corporation, will act or vote
on any issue or question (a "Voting Commitment") that has not been disclosed to
the Corporation or (B) any Voting Commitment that could limit or interfere with
such proposed nominee's ability to comply, if elected as a director of the
Corporation, with such proposed nominee's fiduciary duties under applicable law,
(ii) is not, and will not become a party to any agreement, arrangement, or
understanding with any person or entity other than the Corporation with respect
to any direct or indirect compensation, reimbursement, or indemnification in
connection with service or action as a director that has not been disclosed to
the Corporation and (iii) in such proposed nominee's individual capacity and on
behalf of the Proponents on whose behalf the nomination is made, would be in
compliance, if elected as a director of the Corporation, and will comply with
applicable publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the
Corporation.
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ARTICLE IV
Officers
--------
SECTION 4.01 Number. The officers of the Corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents (the number thereof
and their respective titles to be determined by the Board), a Secretary and such
other officers as the Board may determine from time to time.
SECTION 4.02 Election, Term of Office and Qualifications. The officers of
the Corporation, except such officers as may be appointed in accordance with
Section 4.03, shall be elected annually by the Board at the first meeting
thereof held after the election thereof. Each officer shall hold office until
his successor shall have been duly chosen and shall qualify or until his
resignation or removal in the manner hereinafter provided.
SECTION 4.03 Assistants, Agents and Employees, Etc. In addition to the
officers specified in Section 4.01, the Board may appoint other assistants,
agents and employees as it may deem necessary or advisable, including one or
more Assistant Secretaries each of whom shall hold office for such period, have
such authority, and perform such duties as the Board may from time to time
determine. The Board may delegate to any officer of the Corporation or any
committee of the Board the power to appoint, remove and prescribe the duties of
any such assistants, agents or employees.
SECTION 4.04 Removal. Any officer, assistant, agent or employee of the
Corporation may be removed, with or without cause, at any time: (i) in the case
of an officer, assistant, agent or employee appointed by the Board, only by
resolution of the Board; and (ii) in the case of an officer, assistant, agent or
employee, by any officer of the Corporation or committee of the Board upon whom
or which such power of removal may be conferred by the Board.
SECTION 4.05 Resignations. Any officer or assistant may resign at any time
by giving written notice of his resignation to the Board or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, upon receipt thereof by the Board or
the Secretary, as the case may be; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or other cause, may be filled for the
unexpired portion of the term thereof in the manner prescribed in these By-laws
for regular appointments or elections to such office.
SECTION 4.07 The Chief Executive Officer. The Chief Executive Officer of
the Corporation shall have, subject to the control of the Board, general and
active supervision and management over the business of the Corporation and over
its several officers, assistants, agents and employees.
13
SECTION 4.07A The President. The President of the Corporation shall have
such powers and perform such duties as the Board may from time to time
prescribe. At the request of the Chief Executive Officer, or in case of the
Chief Executive Officer's absence or inability to act, upon the request of the
Board, 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. In the event the Board has not
appointed a Chief Executive Officer, the President shall be the chief executive
officer of the Corporation.
SECTION 4.08 The Vice Presidents. Each Vice President shall have such
powers and perform such duties as the Board may from time to time prescribe. At
the request of the President, or in case of the President's absence or inability
to act upon the request of the Board, a Vice President 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.
SECTION 4.09 The Secretary. The Secretary or an Assistant Secretary shall
record the proceedings of all meetings of the stockholders and directors in one
or more books kept for that purpose, and, in general, perform all the duties
incident to the office of Secretary and such other duties as may from time to
time be assigned by the Board.
SECTION 4.10 Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board or the compensation
committee of the Board. None of such officers shall be prevented from receiving
such compensation by reason of the fact that he is also a director of the
Corporation. Nothing contained herein shall preclude any officer from serving
the Corporation, or any subsidiary Corporation, in any other capacity and
receiving such compensation by reason of the fact that he is also a director of
the Corporation. Nothing contained herein shall preclude any officer from
serving the Corporation, or any subsidiary Corporation, in any other capacity
and receiving proper compensation therefor.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
----------------------------------------------
SECTION 5.01 Execution of Contracts. The Board, except as in these By-laws
otherwise provided, may authorize any officer or officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these By-laws, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
SECTION 5.02 Checks, Drafts, Etc. All checks, drafts or other orders for
payment of money, notes or other evidence of indebtedness, issued in the name of
or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such officer, assistant, agent or attorney shall
give such bond, if any, as the Board may require.
14
SECTION 5.03 Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board may select, or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. For the purpose of deposit and for the purpose
of collection for the account of the Corporation, the President, or any Vice
President (or any other officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation who shall from time to time
be determined by the Board) may endorse, assign and deliver checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation.
SECTION 5.04 General and Special Bank Accounts. The Board may from time to
time authorize the opening and keeping of general and special bank accounts with
such banks, trust companies or other depositories as the Board may select or as
may be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-laws, as it may deem expedient.
ARTICLE VI
Shares and Their Transfer
-------------------------
SECTION 6.01 Certificates for Stock. The shares of the Corporation shall be
represented by certificates, provided that the Board may provide by resolution
or resolutions that some or all of any class or series of its stock shall be
uncertificated shares; provided, however, that no such resolution shall apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Every holder of stock of the Corporation represented by
certificates, and, upon written request to the Corporation's transfer agent or
registrar, any holder of uncertificated shares, shall be entitled to have a
certificate, in such form as may be prescribed by law and by the Board,
certifying the number and class of shares owned by him in the Corporation. Each
such certificate shall be signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman, if any, of the Board, or the President or a Vice
President, or the Secretary or an Assistant Secretary of the Corporation. Any or
all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock that are subject to any restriction on
transfer pursuant to the Certificate of Incorporation, the By-laws, applicable
securities laws or any agreement among any number of stockholders or among such
holders and the Corporation shall have conspicuously noted on the face or back
of the certificate either the full text of the restriction or a statement of the
existence of such restriction.
SECTION 6.02 Transfers. Except as otherwise established by rules and
regulations adopted by the Board, and subject to applicable law, shares of stock
may be transferred on the books of the Corporation: (i) in the case of shares
represented by a certificate, by the surrender to the Corporation or its
transfer agent of the certificate representing such shares properly endorsed or
accompanied by a written assignment or power of attorney properly executed, and
with such proof of authority or authenticity of signature as the Corporation or
its transfer agent may reasonably require; and (ii) in the case of
uncertificated shares, upon the receipt of proper transfer instructions from the
registered owner thereof. Except as may be otherwise required by law, the
Certificate of Incorporation or the By-laws, the Corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect to such stock, regardless of any transfer, pledge or other
disposition of such stock until the shares have been transferred on the books of
the Corporation in accordance with the requirements of these By-laws.
15
SECTION 6.03 Regulations. The Board may make such rules and regulations as
it may deem expedient, not inconsistent with these By-laws, concerning the
issue, transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
SECTION 6.04 Lost, Stolen or Destroyed Certificates. The corporation may
issue a new certificate of stock in place of any previously issued certificate
alleged to have been lost, stolen, or destroyed, or it may issue uncertificated
shares if the shares represented by such certificate have been designated as
uncertificated shares in accordance with Section 4.2, upon such terms and
conditions as the Board may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board may require for the protection of the Corporation or any transfer
agent or registrar.
SECTION 6.05 Record Date. The Board may fix in advance a record date for
the determination of the stockholders entitled to notice of or to vote at any
meeting of stockholders or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change, concession or
exchange of stock, or for the purpose of any other lawful action. Such record
date shall not precede the date on which the resolution fixing the record date
is adopted and shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action to which such record date relates.
If no record date is fixed by the Board, 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 before the day on which notice is given,
or, if notice is waived, at the close of business on the day before the day on
which the meeting is held. If no record date is fixed by the Board, the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action by the Board is
necessary shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
to such purpose.
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 may fix a new record date for the adjourned
meeting.
16
ARTICLE VII
Indemnification
---------------
SECTION 7.01 Action, Etc., 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 he 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 him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 his 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 act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
SECTION 7.02 Actions, Etc., 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 he 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 him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
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 or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of 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 7.03 Determination of Right of Indemnification. Any indemnification
under Section 7.01 or 7.02 (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 7.01 and 7.02. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (i) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (iii) if there are no such directors, or such directors so direct, by
independent legal counsel in a written opinion, or (iv) by the stockholders.
17
SECTION 7.04 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that a
present or former director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 7.01 or 7.02, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
SECTION 7.05 Prepaid Expenses. Expenses (including attorneys' fees)
incurred by an officer or director in defending a civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board in the specific case upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article. Such expenses (including
attorneys' fees) incurred by former directors and officers or other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
deems appropriate.
SECTION 7.06 Other Rights and Remedies. The indemnification and advancement
of expenses provided by, or granted pursuant to this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-laws, 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, 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 heirs,
executors and administrators of such a person. A right to indemnification or to
advancement of expenses arising under a provision of the certificate of
incorporation or a By-law shall not be eliminated or impaired by an amendment to
such provision after the occurrence of the act or omission that is the subject
of the civil, criminal, administrative or investigative action, suit or
proceeding for which indemnification or advancement of expenses is sought.
SECTION 7.07 Insurance. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article.
SECTION 7.08 Constituent Corporations. For the purposes of this Article,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employee or agent of such a
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 with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
18
SECTION 7.09 Other Enterprises, Fines, and Serving at Corporation's
Request. For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
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 this
Article.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01 Corporate Seal. The corporate seal shall be in such form as
shall be approved by the Board.
SECTION 8.02 Waiver of Notice. Whenever any notice whatsoever is required
to be given by law, by the Certificate of Incorporation or by these By-laws, a
waiver of such notice either in writing signed by the person entitled to such
notice or such person's duly authorized attorney, or by electronic transmission
or any other method permitted under the Delaware General Corporation Law,
whether before, at or after the time stated in such waiver, or the appearance of
such person or persons at such meeting in person or by proxy, shall be deemed
equivalent to such notice. Neither the business nor the purpose of any meeting
need be specified in such a waiver. Attendance at any meeting shall constitute
waiver of notice except attendance for the sole purpose of objecting to the
timeliness of notice.
SECTION 8.03 Evidence of Authority. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
Corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
SECTION 8.04 Severability. Any determination that any provision of these
By-laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-laws.
SECTION 8.05 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by commercial
courier service, or by facsimile or other electronic transmission, provided that
notice to stockholders by electronic transmission shall be given in the manner
provided in Section 232 of the Delaware General Corporation Law. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if
delivered by hand, facsimile, other electronic transmission or commercial
courier service, or the time such notice is dispatched, if delivered through the
mails. Without limiting the manner by which notice otherwise may be given
effectively, notice to any stockholder shall be deemed given: (1) if by
facsimile, when directed to a number at which the stockholder has consented to
receive notice; (2) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (3) 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; (4) if by any other form of electronic
transmission, when directed to the stockholder; and (5) if by mail, when
deposited in the mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation.
19
SECTION 8.06 Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board, and each officer of the
Corporation shall, in the performance of his duties, be fully protected in
relying in good faith upon the books of account or other records of the
Corporation as provided by law, including reports made to the Corporation by any
of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
SECTION 8.07 Amendments. These By-laws, or any of them, may be altered,
amended or repealed, and new By-laws may be made, (i) by the Board, by vote of a
majority of the number of directors then in office as directors, acting at any
meeting of the Board, or (ii) by the stockholders, at any annual meeting of
stockholders, or at any special meeting of stockholders, provided that notice of
such proposed amendment, modification, repeal or adoption is given in the notice
of special meeting. Any By-laws made or altered by the stockholders may be
altered or repealed by either the Board or the stockholders.
20