AMENDED AND RESTATED
BY-LAWS
of
ANTEON INTERNATIONAL CORPORATION
(A Delaware Corporation)
------------------------
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Board" means the Board of Directors of the Corporation.
1.4 "Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are authorized to close in the City of New York,
State of New York.
1.5 "By-laws" means the by-laws of the Corporation, as amended from time
to time.
1.6 "Certificate of Incorporation" means the amended and restated
certificate of incorporation of the Corporation, as amended,
supplemented or restated from time to time.
1.7 "Chairman" means the Chairman of the Board.
1.8 "Corporation" means Anteon International Corporation.
1.9 "Directors" means directors of the Corporation.
1.10 "Entire Board" means all Directors of the Corporation then in
office, whether or not present at a meeting of the Board, but
disregarding vacancies.
1.11 "General Corporation Law" means the General Corporation Law of the
State of Delaware, as amended from time to time.
1.12 "Office of the Corporation" means the principal place of business of
the Corporation, anything in Section 131 of the General Corporation
Law to the contrary notwithstanding.
1.13 "President" means the President of the Corporation.
1.14 "Secretary" means the Secretary of the Corporation.
1.15 "Stockholders" means stockholders of the Corporation.
1.16 "Treasurer" means the Treasurer of the Corporation.
1.17 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders shall be held at a place,
within or without the State of Delaware, as may be designated by resolution of
the Board from time to time.
2.2 Annual Meeting. If required by applicable law, a meeting of Stockholders
shall be held annually for the election of Directors and the transaction of
other business at such hour and on such Business Day as may be designated by
resolution of the Board from time to time.
2.3 Other Special Meetings. Unless otherwise prescribed by applicable law,
special meetings of Stockholders may be called at any time only by the Board or
the Chairman and may not be called at any time by any other person or persons.
Business transacted at any special meeting of S tockholders shall be limited to
the purpose stated in the notice.
2.4 Fixing Record Date. For the purpose of (a) determining the Stockholders
entitled (i) to notice of or to vote at any meeting of Stockholders or any
adjournment thereof or (ii) to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock; or (b) any other lawful
action, the Board may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date was adopted by the Board
and which record date shall not be (y) in the case of clause (a)(i) above,
unless otherwise required by applicable law, more than sixty (60) nor less than
ten (10) days before the date of such meeting and (z) in the case of clause
(a)(ii) or (b) above, more than sixty (60) days prior to such action. If no such
record date is fixed:
2.4.1 the record date for determining Stockholders entitled to notice of or
to vote at a meeting of Stockholders shall be at the close of business
on the Business Day next preceding the Business Day on which notice is
given, or, if notice is waived, at the close of business on the
Business Day next preceding the Business Day on which the meeting is
held; and
2.4.2 the record date for determining Stockholders for any purpose other than
those specified in Section 2.4.1 hereof shall be at the close of
business on the Business Day on which the Board adopts the resolution
relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.4, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting.
2.5 Notice of Meetings of Stockholders. Whenever under the provisions of
applicable law, the Certificate of Incorporation or these By-laws, Stockholders
are required or permitted to take any action at a meeting, written notice shall
be given stating the place, if any, date and hour of the meeting, the means of
remote communications, if any, by which Stockholders and proxyholders 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. Unless
otherwise provided by applicable law, the Certificate of Incorporation or these
By-laws, the notice of any meeting 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 mailed, such notice shall be deemed to be
given when deposited in the United States mail, with postage prepaid, directed
to the Stockholder at his or her 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 required by
this Section 2.5 has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. 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, and the means of remote communications, if any, by which
Stockholders and proxyholders may be deemed to be present in person and vote at
such meeting are announced at the meeting at which the adjournment is taken, and
at the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, 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.
2.6 Waivers of Notice. Whenever the giving of any notice to Stockholders is
required by applicable law, the Certificate of Incorporation or these By-laws, a
waiver thereof, in writing, signed by the person entitled to said notice, or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by a Stockholder at a meeting shall constitute
a waiver of notice of such meeting except when the Stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Stockholders need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by applicable law, the Certificate of Incorporation or these By-laws.
2.7 List of Stockholders. The Secretary shall prepare and make, at least ten
(10) days before every meeting of Stockholders, a complete list of the
Stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each Stockholder and the number of shares registered
in the name of each Stockholder. Such list shall be open to the examination of
any Stockholder, the Stockholder's agent or attorney, at the Stockholder's
expense, for any purpose germane to the meeting for a period of at least ten
(10) days prior to the meeting, either on a reasonably accessible electronic
network as permitted by applicable law (provided that the information required
to gain access to the list is provided with the notice of the meeting) or during
ordinary business hours at the Office of the Corporation at the election of the
Secretary. 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, the list shall be produced
and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any Stockholder who is present. If the meeting is to be held
solely by means of remote communication, then the list shall also be open to the
examination of any Stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting. Upon the willful
neglect or refusal of the Directors to produce such a list at any meeting for
the election of Directors held at a place, or to open such a list to examination
on a reasonably accessible electronic network during any meeting for the
election of Directors held solely by means of remote communication, they shall
be ineligible for election to any office at such meeting. The stock ledger shall
be the only evidence as to who are the Stockholders entitled to examine the
stock ledger, the list of Stockholders or the books of the Corporation, or to
vote in person or by proxy at any meeting of Stockholders.
2.8 Quorum of Stockholders; Adjournment. Except as otherwise provided by
applicable law, the Certificate of Incorporation or these By-laws, at each
meeting of Stockholders, the presence in person or by proxy of the holders of a
majority of all outstanding shares of stock entitled to vote at the meeting of
Stockholders shall constitute a quorum for the transaction of any business at
such meeting, except that, where a separate vote by a class or series or classes
or series is required, a quorum shall consist of no less than a majority of the
shares of such class or series or classes or series. When a quorum is present to
organize a meeting of Stockholders and for purposes of voting on any matter, the
quorum for such meeting or matter is not broken by the subsequent withdrawal of
any Stockholders. In the absence of a quorum, the holders of a majority of the
shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. 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 of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.9 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder entitled to vote at any meeting of Stockholders
shall be entitled to one (1) vote for each share of stock held by such
Stockholders which has voting power upon the matter in question. If the
Certificate of Incorporation provides for more or less than one vote for any
share on any matter, each reference in the By-laws or the General Corporation
Law to a majority or other proportion of stock shall refer to such majority or
other proportion of the votes of such stock. The provisions of Sections 212 and
217 of the General Corporation Law shall apply in determining whether any shares
of stock may be voted and the persons, if any, entitled to vote such shares; but
the Corporation shall be protected in assuming that the persons in whose names
shares of stock stand on the stock ledger of the Corporation are entitled to
vote such shares. At any meeting of Stockholders (at which a quorum was present
to organize the meeting), all matters, except as otherwise provided by
applicable law, pursuant to any regulation applicable to the Corporation or its
securities or by the Certificate of Incorporation or by these By-laws, shall be
decided by the affirmative vote of a majority in voting power of shares present
in person or represented by proxy and entitled to vote thereon. At all meetings
of Stockholders for the election of Directors, a plurality of the votes cast
shall be sufficient to elect. Except as otherwise provided by the Certificate of
Incorporation, each Stockholder entitled to vote at a meeting of Stockholders
may authorize another person or persons to act for such Stockholder by proxy.
The validity and enforceability of any proxy shall be determined in accordance
with Section 212 of the General Corporation Law. A Stockholder may revoke any
proxy that is not irrevocable by attending the meeting and voting in person or
by delivering to the Secretary an instrument in writing revoking the proxy or by
delivering a proxy in accordance with applicable law bearing a later date to the
Secretary.
2.10 Voting Procedures and Inspectors of Election at Meetings of
Stockholders. The Board, in advance of any meeting of Stockholders, may, and
shall, if required by applicable law, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Board may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If required by applicable law, if no inspector or alternate is able to act at a
meeting, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. At the meeting, the inspectors shall (a) ascertain
the number of shares outstanding and the voting power of each, (b) determine the
shares represented at the meeting and the validity of proxies and ballots, (c)
count all votes and ballots, (d) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. Unless otherwise provided by the
Board, the date and time of the opening and the closing of the polls for each
matter upon which the Stockholders will vote at a meeting shall be determined by
the person presiding at the meeting and shall be announced at the meeting. No
ballot, proxies or votes, or any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery of the State of Delaware upon application by a Stockholder shall
determine otherwise. In determining the validity and counting of proxies and
ballots cast at any meeting of Stockholders, the inspectors may consider such
information as is permitted by applicable law. No person who is a candidate for
office at an election may serve as an inspector at such election.
2.11 Conduct of Meetings. (a) The Board may adopt by resolution such rules and
regulations for the conduct of the meeting of Stockholders as it shall deem
appropriate. At each meeting of Stockholders, the Chairman, or in the absence of
the Chairman or if one shall not have been appointed, the President, or if the
President is absent, a Vice President, and in case more than one (1) Vice
President shall be present, that Vice President designated by the Board (or in
the absence of any such designation, the most senior Vice President, based on
age, present), shall act as chairman of the meeting. Except to the extent
inconsistent with any rules and regulations for the conduct of the meeting of
Stockholders adopted by the Board, the chairman of the meeting shall have the
right and authority to convene and to adjourn the meeting, to prescribe such
rules and regulations for the conduct of the meeting and to do such acts as, in
the judgment of the chairman of the meeting, are appropriate for the proper
conduct of the meeting. The Secretary, or in his or her absence, one of the
Assistant Secretaries, shall act as secretary of the meeting. In the absence of
the Secretary or one of the Assistant Secretaries, the chairman of the meeting
shall appoint a person to act as secretary of the meeting. In case none of the
officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as the
case may be, shall be chosen by resolution of the Board, and in case the Board
has not so acted, by a majority of the votes cast at such meeting by the holders
of shares of stock present in person or represented by proxy and entitled to
vote at the meeting.
(b) Only persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of persons for election
to the Board may be made at an annual meeting or special meeting of Stockholders
only (i) by or at the direction of the Board, (ii) by any nominating committee
designated by the Board or (iii) by any Stockholder of the Corporation who was a
Stockholder of record of the Corporation at the time the notice provided for in
this Section 2.11 is delivered to the Secretary, who is entitled to vote for the
election of Directors at the meeting and who complies with the applicable
provisions of Section 2.11(d) hereof (persons nominated in accordance with (iii)
above are referred to herein as "Stockholder nominees").
(c) At any annual meeting of Stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting of Stockholders, (i) business must be specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board, (ii) otherwise properly brought before the meeting by or at the
direction of the Board or (iii) otherwise properly brought before the meeting by
a Stockholder who was a Stockholder of record of the Corporation at the time the
notice provided for in this Section 2.11 is delivered to the Secretary, who is
entitled to vote at the meeting and who complies with the applicable provisions
of Section 2.11(d) hereof (business brought before the meeting in accordance
with (iii) above is referred to as "Stockholder business").
(d) In addition to any other applicable requirements, at any annual or special
meeting of Stockholders (i) all nominations of Stockholder nominees must be made
by timely written notice given by or on behalf of a Stockholder of record of the
Corporation (the "Notice of Nomination") and (ii) all proposals of Stockholder
business must be made by timely written notice given by or on behalf of a
Stockholder of record of the Corporation (the "Notice of Business"). To be
timely, the Notice of Nomination or the Notice of Business, as the case may be,
must be delivered personally to, or mailed to, and received at the Office of the
Corporation, addressed to the attention of the Secretary, (i) in the case of the
nomination of a person for election to the Board, or business to be conducted,
at an annual meeting of Stockholders, not less than ninety (90) days nor more
than one hundred and twenty (120) days prior to the first anniversary of the
date of the prior year's annual meeting of Stockholders or (ii) in the case of
the nomination of a person for election to the Board at a special meeting of
Stockholders, not more than one hundred and twenty (120) days prior to and not
less than the later of (a) ninety (90) days prior to such special meeting or (b)
the tenth day following the day on which the notice of such special meeting was
made by mail or Public Disclosure; provided, however, that in the event that (i)
the annual meeting of Stockholders is advanced by more than thirty (30) days, or
delayed by more than seventy (70) days, from the first anniversary of the prior
year's annual meeting of Stockholders, (ii) no annual meeting was held during
the prior year or (iii) in the case of the Corporation's first annual meeting of
Stockholders as a corporation with a class of equity security registered under
the Securities Act of 1933, as amended (the "IPO Date"), notice by the
Stockholder to be timely must be received (i) no earlier than one hundred and
twenty (120) days prior to such annual meeting and (ii) no later than the later
of ninety (90) days prior to such annual meeting or ten (10) days following the
day the notice of such annual meeting was made by mail or Public Disclosure,
regardless of any postponement, deferral or adjournment of the meeting to a
later date. In no event shall the Public Disclosure of an adjournment or
postponement of an annual or special meeting commence a new time period (or
extend any time period) for the giving of the Notice of Nomination or Notice of
Business, as applicable.
Notwithstanding anything in the immediately preceding paragraph to the contrary,
in the event that the number of directors to be elected to the Board at an
annual meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least one
hundred (100) days prior to the first anniversary of the preceding year's annual
meeting, a Notice of Nomination shall also be considered timely, but only with
respect to nominees for the additional directorships, if it shall be delivered
at the Office of the Corporation, addressed to the attention of the Secretary,
not later than the close of business on the tenth (10th) day following the day
on which such public announcement is first made by the Corporation.
The Notice of Nomination shall set forth (i) the name and record address of the
Stockholder and/or beneficial owner proposing to make nominations, as they
appear on the Corporation's books, (ii) the class and number of shares of stock
held of record and beneficially by such Stockholder and/or such beneficial
owner, (iii) a representation that the Stockholder is a holder of record of
stock of the Corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to propose such nomination, (iv) all
information regarding each Stockholder nominee that would be required to be set
forth in a definitive proxy statement filed with the Securities and Exchange
Commission pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended, or any successor statute thereto (the "Exchange Act"), and the written
consent of each such Stockholder nominee to being named in a proxy statement as
a nominee and to serve if elected and (v) all other information that would be
required to be filed with the Securities and Exchange Commission if the person
proposing such nominations were a participant in a solicitation subject to
Section 14 of the Exchange Act or any successor statute thereto. The Corporation
may require any Stockholder nominee to furnish such other information as it may
reasonably require to determine the eligibility of such Stockholder nominee to
serve as a Director of the Corporation. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that any proposed
nomination of a Stockholder nominee was not made in accordance with the
foregoing procedures and, if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
The Notice of Business shall set forth (i) the name and record address of the
Stockholder and/or beneficial owner proposing such Stockholder business, as they
appear on the Corporation's books, (ii) the class and number of shares of stock
held of record and beneficially by such Stockholder and/or such beneficial
owner, (iii) a representation that the Stockholder is a holder of record of
stock of the Corporation entitled to vote at the meeting and intends to appear
in person or by proxy at the meeting to propose such business, (iv) a brief
description of the Stockholder business desired to be brought before the annual
meeting, the text of the proposal (including the text of any resolutions
proposed for consideration and, in the event that such business includes a
proposal to amend the By-laws, the language of the proposed amendment, and the
reasons for conducting such Stockholder business at the annual meeting, (v) any
material interest of the Stockholder and/or beneficial owner in such Stockholder
business and (vi) all other information that would be required to be filed with
the Securities and Exchange Commission if the person proposing such Stockholder
business were a participant in a solicitation subject to Section 14 of the
Exchange Act. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at the annual meeting of Stockholders except in
accordance with the procedures set forth in this Section 2.11(d), provided,
however, that nothing in this Section 2.11(d) shall be deemed to preclude
discussion by any Stockholder of any business properly brought before the annual
meeting in accordance with said procedure. Nevertheless, it is understood that
Stockholder business may be excluded if the exclusion of such Stockholder
business is permitted by the applicable regulations of the Securities and
Exchange Commission. Only such business shall be conducted at a special meeting
of Stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting, that business was not properly
brought before the meeting in accordance with the foregoing procedures and, if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.11, if the
Stockholder (or a qualified representative of the Stockholder) does not appear
at the annual or special meeting of Stockholders to present the Stockholder
nomination or the Stockholder business, as applicable, such nomination shall be
disregarded and such business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
For purposes of this Section 2.11, "Public Disclosure" shall be deemed to be
first made when disclosure of such date of the annual or special meeting of
Stockholders, as the case may be, is first made in a press release reported by
the Dow Jones News Services, Associated Press or comparable national news
service, or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act
or any successor statute thereto.
Notwithstanding the foregoing, a Stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.11. Nothing
in this Section 2.11 shall be deemed to affect any rights of the holders of any
series of preferred stock of the Corporation pursuant to any applicable
provision of the Certificate of Incorporation.
2.12 Order of Business. The order of business at all meetings of Stockholders
shall be as determined by the chairman of the meeting.
2.13 Written Consent of Stockholders Without a Meeting. Except as otherwise
provided for or fixed pursuant to the provisions of the Certificate of
Incorporation relating to the rights of holders of any series of Preferred
Stock, no action that is required or permitted to be taken by the Stockholders
of the Corporation at any annual or special meeting of Stockholders may be
effected by written consent of Stockholders in lieu of a meeting of
Stockholders.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed by
or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or these
By-laws or applicable law, as it may deem proper for the conduct of its meetings
and the management of the Corporation.
3.2 Number; Qualification; Term of Office. The Board shall consist of one or
more members, the number thereof to be determined from time to time by
resolution of the Board. Directors need not be Stockholders. Each Director shall
hold office until a successor is duly elected and qualified or until the
Director's death, resignation or removal. The Board (other than those Directors
elected by the holders of any series of Preferred Stock provided for or fixed
pursuant to the provisions of the Certificate of Incorporation (the "Preferred
Stock Directors")) shall be divided into three classes, as nearly equal in
number as possible, designated Class I, Class II and Class III. Class I
Directors shall initially serve until the first annual meeting of Stockholders
held after the IPO Date; Class II Directors shall initially serve until the
second annual meeting of Stockholders held after the IPO Date; and Class III
Directors shall initially serve until the third annual meeting of Stockholders
held after the IPO Date. Commencing with the first annual meeting of
Stockholders held after the IPO Date, Directors of each class the term of which
shall then expire shall be elected to hold office for a term expiring at the
third succeeding annual meeting of Stockholders and until the election and
qualification of their respective successors in office. In case of any increase
or decrease, from time to time, in the number of Directors (other than Preferred
Stock Directors), the number of directors in each class shall be apportioned as
nearly equal as possible.
3.3 Election. Directors shall, except as otherwise required by applicable law or
by the Certificate of Incorporation, be elected by a plurality of the votes cast
at a meeting of Stockholders by the holders of shares present in person or
represented by proxy at the meeting and entitled to vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided by
applicable law or the Certificate of Incorporation and subject to the rights of
the holders of any series of Preferred Stock then outstanding, any newly created
Directorships resulting from any increase in the authorized number of Directors
or any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled by a majority
vote of the remaining Directors then in office although less than a quorum, or
by a sole remaining Director, and Directors so chosen shall hold office until
the expiration of the term of office of the Director whom he or she has replaced
or until his or her successor is duly elected and qualified. No decrease in the
number of Directors constituting the Board shall shorten the term of any
incumbent Director. When any Director shall give notice of resignation effective
at a future date, the Board may fill such vacancy to take effect when such
resignation shall become effective in accordance with the General Corporation
Law.
3.5 Resignation. Any Director may resign at any time upon notice given in
writing or by electronic transmission to the Corporation. Such resignation shall
take effect at the time therein specified, and, unless otherwise specified in
such resignation, the acceptance of such resignation shall not be necessary to
make it effective.
3.6 Removal. Except for Preferred Stock Directors, any Director, or the Entire
Board, may be removed from office at any time, but only for cause and only by
the affirmative vote of at least a majority of the total voting power of the
outstanding shares of stock of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class.
3.7 Compensation. Each Director, in consideration of his or her service as such,
shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at Directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in connection with the performance
of his or her duties. Each Director who shall serve as a member of any committee
of Directors in consideration of serving as such shall be entitled to such
additional amount per annum or such fees for attendance at committee meetings,
or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
such Director in the performance of his or her duties. Nothing contained in this
Section 3.7 shall preclude any Director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Regular Meetings. Regular meetings of the Board may be held without notice
at such times and at such places within or without the State of Delaware as
shall from time to time be determined by the Board.
3.9 Special Meetings. Special meetings of the Board may be held at any time or
place, within or without the State of Delaware, whenever called by the Chairman,
the President or the Secretary or by any two or more Directors then serving as
Directors on at least twenty-four hours' notice to each Director given by one of
the means specified in Section 3.12 hereof other than by mail, or on at least
three days' notice if given by mail. Special meetings shall be called by the
Chairman, President or Secretary in like manner and on like notice on the
written request of any two or more of the Directors then serving as Directors.
3.10 Telephone Meetings. Directors or members of any committee designated by the
Board may participate in a meeting of the Board or of such committee 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 a
meeting pursuant to this Section 3.10 shall constitute presence in person at
such meeting.
3.11 Adjourned Meetings. A majority of the Directors present at any meeting of
the Board, including an adjourned meeting, whether or not a quorum is present,
may adjourn such meeting to another time and place. At least one (1) day's
notice of any adjourned meeting of the Board shall be given to each Director
whether or not present at the time of the adjournment, if such notice shall be
given by one of the means specified in Section 3.12 hereof other than by mail,
or at least three (3) days' notice if by mail. Any business may be transacted at
an adjourned meeting that might have been transacted at the meeting as
originally called.
3.12 Notice Procedure. Subject to Sections 3.9 and 3.15 hereof, whenever, under
the provisions of applicable law, the Certificate of Incorporation or these
By-laws, notice is required to be given to any Director, such notice shall be
deemed given effectively if given in person or by telephone, by mail addressed
to such Director at such Director's address as it appears on the records of the
Corporation, with postage thereon prepaid, or by telegram, telex, telecopy or
other means of electronic transmission.
3.13 Waiver of Notice. Whenever the giving of any notice to Directors is
required by applicable law, the Certificate of Incorporation or these By-laws, a
waiver thereof, in writing, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance by a Director at a meeting
shall constitute a waiver of notice of such meeting except when the Director
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Directors or a
committee of Directors need be specified in any written waiver of notice unless
so required by applicable law, the Certificate of Incorporation or these
By-laws.
3.14 Organization. At each meeting of the Board, the Chairman, or in the absence
of the Chairman, the President, or in the absence of the President, a chairman
chosen by a majority of the Directors present, shall preside. The Secretary
shall act as secretary at each meeting of the Board. In case the Secretary shall
be absent from any meeting of the Board, an Assistant Secretary shall perform
the duties of secretary at such meeting; and in the absence from any such
meeting of the Secretary and all Assistant Secretaries, the person presiding at
the meeting may appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. The presence in person of a majority of the Entire
Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board.
3.16 Action by Majority Vote. Except as otherwise expressly required by
applicable law, the Certificate of Incorporation or these By-laws, the act of a
majority of the Directors present at a meeting at which a quorum is present
shall be the act of the Board.
3.17 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By-laws, any action required or permitted to be taken at
any meeting of the Board or of any committee thereof may be taken without a
meeting if all Directors or members of 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 or committee. 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.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may designate one or more committees, each committee to consist of one
or more of the Directors. The Board may remove any Director from any committee
at any time, with or without cause. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the
remaining member or members present and not disqualified from voting, whether or
not such member or members constitute a quorum, may, by a unanimous vote,
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member. Any such committee, to the extent provided
in the resolution of the Board passed as aforesaid, 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
impressed on all papers that may require it, but no such committee shall have
the power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the Stockholders, any action or matter expressly
required by the General Corporation Law to be submitted to Stockholders for
approval or (ii) adopting, amending or repealing these By-laws. Unless the Board
provides otherwise, at all meetings of such committee a majority of the total
number of members of the committee shall constitute a quorum for the transaction
of business, and the vote of a majority of the members of the committee present
at any meeting at which there is a quorum shall be the act of the committee.
Each committee shall keep regular minutes of its meetings, copies of which shall
be delivered to the Secretary. Unless the Board provides otherwise, each
committee designated by the Board may make, alter and repeal rules for the
conduct of its business. In the absence of such rules each committee shall
conduct its business in the same manner as the Board conducts its business
pursuant to Article 3 of these By-laws.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President, a
Secretary, a Treasurer and such other officers as the Board may appoint,
including a Chairman, one or more Vice Presidents and one or more Assistant
Secretaries and Assistant Treasurers, who shall exercise such powers and perform
such duties as shall be determined from time to time by the Board. The Board may
designate one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any number
of offices may be held by the same person unless the Certificate of
Incorporation or these By-laws otherwise provide.
5.2 Appointment. The officers of the Corporation shall be chosen by the Board at
its annual meeting or at such other time or times as the Board shall determine.
5.3 Compensation. The compensation of all officers of the Corporation shall be
fixed by the Board. No officer shall be prevented from receiving a salary or
other compensation by reason of the fact that the officer is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold office for the
term for which he or she is elected and until such officer's successor is chosen
and qualifies or until such officer's earlier death, resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. Such
resignation shall take effect at the date of receipt of such notice or at such
later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The
resignation of an officer shall be without prejudice to the contractual or other
legal rights of the Corporation, if any. Any officer elected or appointed by the
Board may be removed at any time, with or without cause, by the Board. Any
vacancy occurring in any office of the Corporation shall be filled by the Board.
The removal of an officer without cause shall be without prejudice to the
officer's contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5.6 Chairman. The Chairman, if one shall have been appointed, shall preside at
all meetings of the Board and Stockholders (unless the Chairman has delegated
such powers to the President) and shall exercise such powers and perform such
other duties as shall be determined from time to time by the Board.
5.7 President. The President shall be the Chief Executive Officer of the
Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of Directors. The President shall preside at all meetings
of Stockholders and the Board at which the Chairman (if there be one) has
delegated such powers to the President or at which the Chairman is not present.
The President may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments except in cases in which the
signing and execution thereof shall be expressly delegated by the Board or by
these By-laws to some other officer or agent of the Corporation or shall be
required by applicable law otherwise to be signed or executed and, in general,
the President shall perform all duties incident to the office of President of a
corporation and such other duties as may from time to time be assigned to the
President by the Board.
5.8 Vice Presidents. At the request of the President, or, in the President's
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board) perform all of the duties of the President
and, in so performing, shall have all the powers of, and be subject to all
restrictions upon, the President. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments,
except in cases in which the signing and execution thereof shall be expressly
delegated by the Board or by these By-laws to some other officer or agent of the
Corporation, or shall be required by applicable law otherwise to be signed or
executed, and each Vice President shall perform such other duties as from time
to time may be assigned to such Vice President by the Board or by the President.
5.9 Secretary. The Secretary shall attend all
meetings of the Board and of the Stockholders and shall record all the
proceedings of the meetings of the Board and of the Stockholders in a book to be
kept for that purpose, and shall perform like duties for committees of the
Board, when required. The Secretary shall give, or cause to be given, notice of
all special meetings of the Board and of the Stockholders and shall perform such
other duties as may be prescribed by the Board or by the President, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant Secretary,
shall have authority to impress the same on any instrument requiring it, and
when so impressed the seal may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board may give general
authority to any other officer to impress the seal of the Corporation and to
attest the same by such officer's signature. The Secretary or an Assistant
Secretary may also attest all instruments signed by the President or any Vice
President. The Secretary shall have charge of all the books, records and papers
of the Corporation relating to its organization and management, shall see that
the reports, statements and other documents required by applicable law are
properly kept and filed and, in general, shall perform all duties incident to
the office of Secretary of a corporation and such other duties as may from time
to time be assigned to the Secretary by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys and valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board; against proper vouchers, cause such funds to be disbursed by checks or
drafts on the authorized depositaries of the Corporation signed in such manner
as shall be determined by the Board and be responsible for the accuracy of the
amounts of all moneys so disbursed; regularly enter or cause to be entered in
books or other records maintained for the purpose full and adequate account of
all moneys received or paid for the account of the Corporation; have the right
to require from time to time reports or statements giving such information as
the Treasurer may desire with respect to any and all financial transactions of
the Corporation from the officers or agents transacting the same; render to the
President or the Board, whenever the President or the Board shall require the
Treasurer so to do, an account of the financial condition of the Corporation and
of all financial transactions of the Corporation; exhibit at all reasonable
times the records and books of account to any of the Directors upon application
at the Office of the Corporation where such records and books are kept; disburse
the funds of the Corporation as ordered by the Board; and, in general, perform
all duties incident to the office of Treasurer of a corporation and such other
duties as may from time to time be assigned to the Treasurer by the Board or the
President.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and
Assistant Treasurers shall perform such duties as shall be assigned to them by
the Secretary or by the Treasurer, respectively, or by the Board or by the
President.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board, except as otherwise provided in these
By-laws, may prospectively or retroactively authorize any officer or officers,
employee or employees or agent or agents, in the name and on behalf of the
Corporation, to enter into any contract or execute and deliver any instrument,
and any such authority may be general or confined to specific instances, or
otherwise limited. Any action by the Board authorizing the President to enter
into any contract or execute and deliver any instrument in the name of and on
behalf of the Corporation shall be deemed to authorize the President to delegate
such authority to such other officer as the President may choose.
6.2 Loans. The Board may prospectively or retroactively authorize the President
or any other officer, employee or agent of the Corporation to effect loans and
advances at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances the person so authorized may make, execute and deliver promissory
notes, bonds or other certificates or evidences of indebtedness of the
Corporation, and, when authorized by the Board so to do, may pledge and
hypothecate or transfer any securities or other property of the Corporation as
security for any such loans or advances. Such authority conferred by the Board
may be general or confined to specific instances, or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the payment of
money out of the funds of the Corporation and all evidences of indebtedness of
the Corporation shall be signed on behalf of the Corporation in such manner as
shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation with such banks,
trust companies, investment banking firms, financial institutions or other
depositaries as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power to select may from time
to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of stock of the Corporation
shall be represented by certificates in such form (consistent with the
provisions of Section 158 of the General Corporation Law) as shall be approved
by the Board. Such certificates shall be signed by the Chairman, the President
or a Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, and may be impressed with the seal of the
Corporation or a facsimile thereof. The signatures of the officers upon a
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon any certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may, unless otherwise ordered by the
Board, be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of stock of the Corporation shall be
made only on the books of the Corporation by the holder thereof or by the
holder's duly authorized attorney appointed by a power of attorney duly executed
and filed with the Secretary, an Assistant Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates representing
such shares of stock properly endorsed for transfer and upon payment of all
necessary transfer taxes. Every certificate exchanged, returned or surrendered
to the Corporation shall be marked "Cancelled," with the date of cancellation,
by the Secretary or an Assistant Secretary or the transfer agent of the
Corporation. A person in whose name shares of stock shall stand on the books of
the Corporation shall be deemed the owner thereof to receive dividends, to vote
as such owner and for all other purposes as respects the Corporation. No
transfer of shares of stock shall be valid as against the Corporation, its
Stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by applicable
law, until such transfer shall have been entered on the books of the Corporation
by an entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time maintain
one or more transfer offices or agents and registry offices or agents at such
place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed and Stolen Certificates. The holder of any shares of stock
of the Corporation shall notify the Corporation of any loss, destruction or
theft of the certificate representing such shares, and the Corporation may issue
a new certificate to replace the certificate alleged to have been lost,
destroyed or stolen. The Board may, in its discretion, as a condition to the
issue of any such new certificate, require the owner of the lost, destroyed or
stolen certificate, or his or her legal representatives, to make proof
satisfactory to the Board of such loss, destruction or theft and to advertise
such fact in such manner as the Board may require, and to give the Corporation a
bond in such form, in such sums and with such surety or sureties as the Board
may direct, sufficient to indemnify the Corporation against any claim that may
be made against it on account of the alleged loss, theft or destruction of any
such certificate and the issuance of such new certificate.
7.5 Rules and Regulations. The Board may make such rules and regulations as it
may deem expedient, not inconsistent with applicable law, these By-laws or with
the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares of its stock.
7.6 Restriction on Transfer of Stock. A written restriction or restrictions on
the transfer or registration of transfer of stock of the Corporation, or on the
amount of the Corporation's stock that may be owned by any person or group of
persons, if permitted by Section 202 of the General Corporation Law and noted
conspicuously on the certificate or certificates representing such stock, may be
enforced against the holder of the restricted stock or any successor or
transferee of the holder, including an executor, administrator, trustee,
guardian or other fiduciary entrusted with like responsibility for the person or
estate of the holder. Unless noted conspicuously on the certificate or
certificates representing such stock, a restriction, even though permitted by
Section 202 of the General Corporation Law, shall be ineffective except against
a person with actual knowledge of the restriction. A restriction on the transfer
or registration of transfer of stock of the Corporation, or on the amount of the
Corporation's stock that may be owned by any person or group of persons, may be
imposed either by the Certificate of Incorporation or these By-laws or by an
agreement among any number of Stockholders or among such Stockholders and the
Corporation. No restrictions so imposed shall be binding with respect to stock
issued prior to the adoption of the restriction unless the holders of such stock
are parties to an agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate of
Incorporation and of applicable law, the Board:
7.7.1 may declare and pay dividends or make other distributions on the
outstanding shares of stock in such amounts and at such time or times as it, in
its discretion, shall deem advisable;
7.7.2 may use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of stock of the Corporation,
or purchase warrants therefor, in accordance with law, or any of its bonds,
debentures, notes, scrip or other securities or evidences of indebtedness; and
7.7.3 may set aside from time to time out of such surplus or net profits such
sum or sums as, in its discretion, it may think proper, as a reserve fund to
meet contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any purpose it may think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnity Undertaking. To the extent not prohibited by applicable law, the
Corporation shall indemnify any person (a "Covered Person") who is or was made,
or threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding (a "Proceeding"), whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation to procure a judgment in its favor, by reason of
the fact that such person, or a person of whom such person is the legal
representative, is or was a Director or officer of the Corporation, or, while a
Director or officer of the Corporation, is or was serving at the request of the
Corporation as a director or officer of any other corporation or in a capacity
with comparable authority or responsibilities for any partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other Entity"),
against expenses (including attorneys' fees) in the event of an action by or in
the right of the Corporation and against judgments, fines, and amounts paid in
settlement and expenses (including attorneys' fees), in the event of any other
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal proceeding, had no reason to
believe the person's conduct was unlawful. Persons who are not Directors or
officers of the Corporation may be similarly indemnified in respect of service
to the Corporation or to an Other Entity at the request of the Corporation to
the extent the Board at any time specifies that such persons are entitled to the
benefits of this Article 8. Notwithstanding the preceding sentence, except as
otherwise provided in Section 8.9, the Corporation shall be required to
indemnify a Covered Person in connection with a Proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such Proceeding (or
part thereof) by the Covered Person was authorized by the Board.
8.2 Advancement of Expenses. The Corporation shall, from time to time, reimburse
or advance to any Covered Person the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in defense of any
Proceeding, in advance of the final disposition of such Proceeding; provided,
however, that, if required by the General Corporation Law, such payment of
expenses in advance of the final disposition of a Proceeding shall be made only
upon receipt by the Corporation of an undertaking, by the Covered Person, to
repay any such amount so advanced if it shall ultimately be determined that such
Covered Person is not entitled to be indemnified for such expenses.
8.3 Rights Not Exclusive. The rights to indemnification or advancement of
expenses provided by, or granted pursuant to, this Article 8 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
applicable law, the Certificate of Incorporation, these By-laws, any agreement,
any vote of Stockholders or disinterested Directors or otherwise.
8.4 Continuation of Benefits. The rights to indemnification or advancement of
expenses provided by, or granted pursuant to, this Article 8 shall continue as
to a person who has ceased to be a Director or officer and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person.
8.5 Insurance. The Corporation shall have power to 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 an Other Entity, against any
liability asserted against such person and incurred by such person 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, the Certificate of Incorporation or
under Section 145 of the General Corporation Law or any other provision of law.
8.6 Binding Effect. Any repeal or modification of the provisions of this Article
8 shall not adversely affect any right or protection hereunder of any Covered
Person in respect of any act or omission occurring prior to the time of such
repeal or modification.
8.7 Procedural Rights. The rights to indemnification or advancement of expenses
provided by, or granted pursuant to, this Article 8 shall be enforceable by any
Covered Person in the Court of Chancery of the State of Delaware. The burden of
proving that such indemnification or advancement of expenses is not appropriate
shall be on the Corporation. Neither the failure of the Corporation (including
its Board, its independent legal counsel and its Stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board, its independent
legal counsel and its Stockholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or advancement of expenses, in whole or in part, in any such
proceeding.
8.8 Contribution. The Corporation's obligation, if any, to indemnify or to
advance expenses to any Covered Person who was or is serving at the
Corporation's request as a director, officer, employee or agent of any Other
Entity shall be reduced by any amount such Covered Person may collect as
indemnification or advancement of expenses from such Other Entity.
8.9 Claims. If a claim for indemnification or advancement of expenses under this
Article 8 is not paid in full within 30 days after a written claim therefor by
the Covered Person has been received by the Corporation, the Covered Person may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
Covered Person is not entitled to the requested indemnification or advancement
of expenses under applicable law.
8.10 Indemnification of Others. This Article 8 shall not limit the right of the
Corporation, to the extent and in the manner permitted by applicable law, to
indemnify and advance expenses to persons other than Covered Persons when and as
authorized by appropriate corporate action.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. There shall be kept at the principal Office of the
Corporation correct and complete records and books of account recording the
financial transactions of the Corporation and minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
Stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or by means of, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device or method, provided that the records so kept can be converted into
clearly legible paper form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
such records pursuant to any provision of the General Corporation Law.
9.3 Inspection of Books and Records. Except as
otherwise provided by applicable law, the Board shall determine whether, and, if
allowed, when and under what conditions and regulations, the accounts, books,
minutes and other records of the Corporation, or any of them, shall be open to
the Stockholders for inspection.
ARTICLE 10
SEAL
The corporate seal shall have inscribed thereon the name of the Corporation and
the words "Corporate Seal, Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise reproduced.
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year, unless otherwise
determined by resolution of the Board.
ARTICLE 12
PROXIES AND CONSENTS
Unless otherwise provided by resolution of the Board, the Chairman, the
President, any Vice President, the Secretary or the Treasurer, or any one of
them, may execute and deliver on behalf of the Corporation proxies respecting
any and all shares or other ownership interests of any Other Entity owned by the
Corporation appointing such person or persons as the officer executing the same
shall deem proper to represent and vote the shares or other ownership interests
so owned at any and all meetings of holders of shares or other ownership
interests, whether general or special, and/or to execute and deliver written
consents respecting such shares or other ownership interests; or any of the
aforesaid officers may attend any meeting of the holders of shares or other
ownership interests of such Other Entity and thereat vote or exercise any or all
other powers of the Corporation as the holder of such shares or other ownership
interests.
ARTICLE 13
AMENDMENTS
Subject to the provisions of the Certificate of Incorporation, (i) these By-laws
may be altered, amended or repealed and new By-laws may be adopted by a vote of
the Stockholders or by the Board and (ii) any By-laws altered, adopted or
amended by the Board may be altered, amended or repealed by the Stockholders.