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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 19, 2010
Northrop Grumman Corporation
(Exact name of registrant as specified in its charter)
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DELAWARE
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1-16411
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95-4840775 |
(State or other jurisdiction
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(Commission
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(IRS Employer |
of incorporation)
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File Number)
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Identification No.) |
1840 Century Park East, Los Angeles, CA 90067
(Address of principal executive offices) (Zip Code)
(310) 553-6262
Registrants telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
TABLE OF CONTENTS
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As disclosed in Item 5.07 below, on May 19, 2010 the shareholders of Northrop Grumman Corporation
(the Company) approved amendments to the Companys Certificate of Incorporation to provide
holders of 25% of the Companys voting stock the right, subject to any limitations imposed in the
Companys bylaws, to cause a special meeting to be called. In connection with such approval, the
shareholders also approved certain other revisions to the Certificate of Incorporation described in
the Companys definitive proxy statement filed on
April 9, 2010 for the Annual Meeting of
Shareholders (the Proxy Statement). The Restated Charter,
which became effective on May 19, 2010, is filed as Exhibit 3.1 hereto.
On May 19, 2010, the Companys Board of Directors approved an amendment and restatement to the
Companys bylaws to implement the changes to the Companys Certificate of Incorporation approved by
the shareholders. The following is a summary of the amendments, which summary is qualified in its
entirety by reference to the restated bylaws filed as Exhibit 3.2 hereto.
Section 2.02 Meetings of Shareholders
This section has been amended to establish certain requirements that must be satisfied by
shareholders who wish to cause a special meeting to be called. Under the proposed amendments, a
shareholder who wishes to conduct business between annual meetings must deliver to the Company a
written request to call a special meeting and may solicit written requests from other shareholders
in order to obtain requests from holders sufficient to require the Company to call a special
meeting. The amendments also establish the procedure for fixing a record date to determine which
shareholders are entitled to request a special meeting. Each written request to call a special
meeting must set forth the proposals to be voted on at the special meeting. A request must also
include certain background information on the shareholder signing the request, except that this
background information is not required from any shareholder who submits a request in response to a
public solicitation for requests initiated by another shareholder. If the Company receives written
requests from the holders of 25% of the voting power entitled to cast a vote on the proposals set
forth in the request, the Board of Directors will fix a date, time and place for a special meeting
to allow shareholders to vote on the proposals. The corporate secretary will not accept a written
request from a shareholder to call a special meeting that does not comply with the applicable
provisions of the Bylaws, that relates to an item of business that is not a proper subject for
shareholder action under applicable law, or if such request is identical or substantially similar
to a prior request submitted by a shareholder within certain time periods set forth in Section
2.02.
Section 3.02 Number of Authorized Directors
This section has been amended to establish that the authorized number of directors will be
determined by resolution of the Board of Directors. Following the Annual Meeting of Shareholders,
the Board set the authorized number of directors at twelve.
Item 5.07. Submission of Matters to a Vote of Security Holders.
At the Companys Annual Meeting of Shareholders held on May 19, 2010, shareholders considered and
approved five proposals, each of which is described in more detail in the Proxy Statement.
The results detailed below represent the final voting results as certified by the Inspector of
Elections:
Proposal 1
The shareholders elected the following twelve directors to hold office until the 2011 Annual
Meeting of Shareholders: Wesley G. Bush , Lewis W. Coleman, Thomas B. Fargo, Victor H. Fazio,
Donald E. Felsinger, Stephen E. Frank, Bruce S. Gordon, Madeleine Kleiner, Karl J. Krapek, Richard
B. Myers, Aulana L. Peters and Kevin W. Sharer.
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Director |
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For |
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Against |
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Abstain |
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Broker Non-Vote |
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Wesley G. Bush |
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239,401,912 |
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1,522,096 |
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611,652 |
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22,135,373 |
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Lewis W. Coleman |
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236,407,127 |
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4,118,233 |
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1,010,300 |
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22,135,373 |
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Thomas B. Fargo |
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239,089,017 |
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1,484,352 |
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962,291 |
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22,135,373 |
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Victor H. Fazio |
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236,646,117 |
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3,945,782 |
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943,760 |
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22,135,373 |
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Donald E. Felsinger |
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234,388,198 |
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6,035,239 |
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1,112,223 |
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22,135,373 |
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Stephen E. Frank |
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219,031,783 |
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21,421,437 |
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1,082,440 |
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22,135,373 |
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Bruce S. Gordon |
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236,925,641 |
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3,619,987 |
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990,032 |
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22,135,373 |
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Madeleine Kleiner |
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238,183,522 |
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2,340,593 |
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1,011,544 |
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22,135,373 |
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Karl J. Krapek |
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237,173,350 |
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3,320,475 |
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1,041,834 |
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22,135,373 |
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Richard B. Myers |
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237,213,394 |
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3,298,924 |
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1,023,342 |
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22,135,373 |
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Aulana L. Peters |
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217,526,384 |
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22,970,568 |
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1,038,708 |
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22,135,373 |
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Kevin W. Sharer |
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236,394,359 |
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4,080,585 |
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1,060,716 |
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22,135,373 |
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Proposal 2
The appointment of Deloitte & Touche LLP as the Companys independent auditor for fiscal year
ending December 31, 2010 was ratified with a vote of 260,276,003 shares for, 2,794,476 shares
against, and 600,554 abstentions.
Proposal 3
The amendments to the Companys Restated Certificate of Incorporation to provide holders of 25% of
the Companys voting stock the right, subject to any limitations imposed in the Companys bylaws,
to cause a special meeting to be called and to make certain other revisions were approved with a
vote of 258,943,918 shares for, 3,278,362 shares against, and 1,448,752 abstentions.
Proposal 4
The amendment to the Certificate of Incorporation of the Companys wholly-owned subsidiary Northrop
Grumman Systems Corporation to eliminate the requirement for Northrop Grumman Corporation
shareholders to approve certain actions by or involving that subsidiary was approved with a vote of
252,917,473 shares for, 9,435,720 shares against, and 1,317,839 abstentions.
Proposal 5
The shareholder proposal to reincorporate the Company from Delaware to North Dakota under the new
North Dakota Publicly Traded Corporations Act was not approved with a vote of 226,210,028 shares
against, 13,350,892 shares for, and 1,974,740 abstentions.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit 3.1 |
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Restated Certificate of Incorporation, as amended and restated May 19, 2010 |
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Exhibit 3.2 |
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Bylaws of Northrop Grumman Corporation, as amended and restated May 19,
2010 |
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Signature(s)
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this Report to be signed on its behalf by the undersigned hereunto duly authorized.
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Northrop Grumman Corporation
(Registrant)
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Date: May 25, 2010 |
By: |
/s/ Joseph F. Coyne, Jr.
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(Signature) |
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Joseph F. Coyne, Jr.
Corporate Vice President,
Deputy General Counsel and
Secretary |
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Exhibit Index
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Exhibit 3.1
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Restated Certificate of Incorporation, as amended and restated May 19, 2010 |
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Exhibit 3.2
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Bylaws of Northrop Grumman Corporation, as amended and restated May 19,
2010 |
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Exhibit
3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NORTHROP GRUMMAN CORPORATION
(Originally incorporated on January 16, 2001
under the name NNG, Inc.)
FIRST: The name of the corporation is Northrop Grumman Corporation (the Corporation).
SECOND: The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name and address of the Corporations registered agent in the State of Delaware is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of
New Castle, State of Delaware 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the General Corporation Law of the State of
Delaware.
FOURTH: 1. The total number of shares of stock which the Corporation shall have authority
to issue is Eight Hundred Ten Million (810,000,000), consisting of Eight Hundred Million
(800,000,000) shares of Common Stock, par value One Dollar ($1.00) per share (the Common Stock),
and Ten Million (10,000,000) shares of Preferred Stock, par value One Dollar ($1.00) per share (the
Preferred Stock).
2. Shares of Preferred Stock may be issued from time to time in one or more classes or
series, each of which class or series shall have such distinctive designation or title as shall be
fixed by resolution of the Board of Directors of the Corporation (the Board of Directors) prior
to the issuance of any shares thereof. Each such class or series of Preferred Stock shall have such
voting powers, full or limited, or no voting powers, and such preferences and relative,
participating, optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated in such resolution providing for the issuance of such
class or series of Preferred Stock as may be adopted from time to time by the Board of Directors
prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in
it, all in accordance with the laws of the State of Delaware. The Board of Directors is further
authorized to increase or decrease (but not below the number of shares of such class or series then
outstanding) the number of shares of any class or series subsequent to the issuance of shares of
that class or series.
FIFTH: In furtherance and not in limitation of the powers conferred by statute and subject
to Article Sixth hereof, the Board of Directors is expressly authorized to adopt, repeal, rescind,
alter or amend in any respect the bylaws of the Corporation (the Bylaws).
SIXTH: Notwithstanding Article Fifth hereof, the Bylaws may be adopted, repealed,
rescinded, altered or amended in any respect by the stockholders of the Corporation, but only by
the affirmative vote of the holders of not less than a majority of the voting power of all
outstanding shares of capital stock entitled to vote thereon, voting as a single class, and by the
holders of any one or more classes or series of capital stock entitled to vote thereon as a
separate class pursuant to one or more resolutions adopted by the Board of Directors in accordance
with Section 2 of Article Fourth hereof.
SEVENTH: The business and affairs of the Corporation shall be managed by and under the
direction of the Board of Directors. Except as may otherwise be provided pursuant to Section 2 of
Article Fourth hereof in connection with rights to elect additional directors under specified
circumstances which may be granted to the holders of any class or series of Preferred Stock, the
exact number of directors of the Corporation shall be fixed from time to time by the Board of
Directors.
EIGHTH: All directors of the Corporation shall be of one class and shall serve for a term
ending at the annual meeting following the annual meeting at which the director was elected.
Notwithstanding the foregoing sentence of this Article Eighth: each director shall serve until his
or her successor is elected and qualified or until his or her death, resignation or removal; no
decrease in the authorized number of directors shall shorten the term of any incumbent director;
and additional directors, elected pursuant to Section 2 of Article Fourth hereof in connection with
rights to elect such additional directors under specified circumstances which may be granted to the
holders of any class or series of Preferred Stock, shall serve for such term or terms and pursuant
to such other provisions as are specified in the resolution of the Board of Directors establishing
such class or series.
NINTH: Except as may otherwise be provided pursuant to Section 2 of Article Fourth hereof
in connection with rights to elect additional directors under specified circumstances which may be
granted to the holders of any class or series of Preferred Stock, newly created directorships
resulting from any increase in the number of directors, or any vacancies on the Board of Directors
resulting from death, resignation, removal or other causes, shall be filled solely by the
affirmative vote of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the preceding sentence
shall hold office for a term that shall end at the first annual meeting following his or her
election and shall remain in office until such directors successor shall have been elected and
qualified or until such directors death, resignation or removal, whichever first occurs.
TENTH: RESERVED.
ELEVENTH: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual meeting or at a special meeting of
stockholders of the Corporation, unless the Board of Directors authorizes such action to be taken
by the written consent of the holders of outstanding shares of capital stock having not less than
the minimum voting power that would be necessary to authorize or take such action at a meeting of
stockholders at which all shares entitled to vote thereon were present and voted, provided all
other requirements of applicable law and this Restated Certificate of Incorporation have been
satisfied.
TWELFTH: Subject to the terms of any class or series of Preferred Stock, special meetings
of the stockholders of the Corporation may be called by the Board of Directors (or an authorized
committee thereof) or the Chairperson of the Board of Directors and shall be called by the
Secretary of the Corporation following the Secretarys receipt of written requests to call a
meeting from the holders of at least 25% of the voting power of the outstanding capital stock of
the Corporation who have delivered such requests in accordance with and subject to the provisions
of the Bylaws (as amended from time to time), including any limitations set forth in the Bylaws on
the ability to make such a request for such a special meeting. Except as otherwise required by law
or provided by the terms of any class or series of Preferred Stock, special meetings of
stockholders of the Corporation may not be called by any other person or persons.
THIRTEENTH: Meetings of stockholders of the Corporation may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to
any provision of applicable law) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws.
FOURTEENTH: The Corporation reserves the right to adopt, repeal, rescind, alter or amend in
any respect any provision contained in this Restated Certificate of Incorporation in the manner now
or hereafter prescribed by applicable law, and all rights conferred on stockholders herein are
granted subject to this reservation.
FIFTEENTH: A director of the Corporation shall not be personally liable to the Corporation
or to its stockholders for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the directors duty of loyalty to the Corporation or to its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State
of Delaware, or (iv) for any transaction from which the director derives any improper personal
benefit. If, after approval of this Article by the stockholders of the Corporation, the General
Corporation Law of the State of Delaware is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as so amended.
Any repeal or modification of this Article by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation existing at the time of
such repeal or modification.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation which restates and integrates
and further amends the provisions of the Restated Certificate of Incorporation of this Corporation,
and which has been duly adopted in accordance with Sections 242 and 245 of the Delaware General
Corporation Law, has been executed by its duly authorized officer as of the date set forth below.
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NORTHROP GRUMMAN CORPORATION
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By: |
/s/ Wesley G. Bush |
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Name: |
Wesley G. Bush |
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Title: |
Chief Executive Officer and President |
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Date: May 19, 2010
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Exhibit
3.2
BYLAWS
OF
NORTHROP GRUMMAN CORPORATION
(A Delaware Corporation)
ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of Northrop Grumman Corporation (the
Corporation) in the State of Delaware shall be at Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle, and the name of the registered agent at that address
shall be The Corporation Trust Company.
Section 1.02. Principal Executive Office. The principal executive office of the Corporation
shall be located at 1840 Century Park East, Los Angeles, California 90067. The Board of Directors
of the Corporation (the Board of Directors) may change the location of said principal executive
office from time to time.
Section 1.03. 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
may from time to time determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Annual Meetings. The annual meeting of stockholders of the Corporation shall
be held on such date and at such time as the Board of Directors shall determine. At each annual
meeting of stockholders, directors shall be elected in accordance with the provisions of Section
3.04 hereof and any proper business may be transacted in accordance with the provisions of Section
2.08 hereof.
Section 2.02. Special Meetings.
(a) Subject to the terms of any class or series of Preferred Stock, special meetings of the
stockholders of the Corporation may be called by the Board of Directors (or an authorized committee
thereof) or the Chairperson of the Board of Directors and shall be called by the Secretary of the
Corporation following the Secretarys receipt of written requests to call a meeting from the
holders of at least X% of the voting power (the Required Percentage) of the outstanding capital
stock of the Corporation (the Voting Stock) who shall have delivered such requests in accordance
with this bylaw. Except as otherwise required by law or provided by the terms of any class or
series of Preferred Stock, special meetings of stockholders of the Corporation may not be called by
any other person or persons.
(b) A stockholder may not submit a written request to call a special meeting unless such
stockholder is a holder of record of Voting Stock on the record date fixed to determine the
stockholders entitled to request the call of a special meeting. Any stockholder seeking to call a
special meeting to transact business shall, by written notice to the Secretary, request that the
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Board of Directors fix a record date. A written request to fix a record date shall include
all of the information that must be included in a written request to call a special meeting from a
stockholder who is not a Solicited Stockholder, as set forth in the succeeding paragraph (c) of
this bylaw. The Board of Directors may, within 10 days of the Secretarys receipt of a request to
fix a record date, fix a record date to determine the stockholders entitled to request the call of
a special meeting, which date shall not precede, and shall not be more than 10 days after, the date
upon which the resolution fixing the record date is adopted. If a record date is not fixed by the
Board of Directors, the record date shall be the date that the first written request to call a
special meeting is received by the Secretary with respect to the proposed business to be conducted
at a special meeting.
(c) Each written request for a special meeting shall include the following: (i) the signature
of the stockholder of record signing such request and the date such request was signed, (ii) a
brief description of the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, and (iii) for each written request submitted by a person
or entity other than a Solicited Stockholder, as to the stockholder signing such request and the
beneficial owner (if any) on whose behalf such request is made (each, a party):
(1) the name and address of such party;
(2) the class, series and number of shares of the Corporation that are owned beneficially and
of record by such party (which information set forth in this clause shall be supplemented by such
party not later than 10 days after the record date for determining the stockholders entitled to
notice of the special meeting to disclose such ownership as of such record date);
(3) a description of any agreement, arrangement or understanding (including any derivative or
short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into as of the date of the
stockholders notice by, or on behalf of, such party, the effect or intent of which is to mitigate
loss to, manage risk or benefit of share price changes for, or increase or decrease the voting
power of, such party with respect to shares of stock of the Corporation (which information set
forth in this clause shall be supplemented by such party not later than 10 days after the record
date for determining the stockholders entitled to notice of the special meeting to disclose such
ownership as of such record date);
(4) any other information relating to each such party that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of
proxies for the proposal in a contested election pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the
Exchange Act);
(5) any material interest of such party in one or more of the items of business proposed to be
transacted at the special meeting; and
(6) a statement whether or not any such party will deliver a proxy statement and form of proxy
to holders of at least the percentage of voting power of all of the shares of
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capital stock of the Corporation required under applicable law to carry the proposal (such
statement, a Solicitation Statement).
For purposes of this bylaw, Solicited Stockholder means any stockholder that has provided a
request in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of
the Exchange Act by way of a solicitation statement filed on Schedule 14A.
A stockholder may revoke a request to call a special meeting by written revocation delivered to the
Secretary at any time prior to the special meeting; provided, however, that if any such
revocation(s) are received by the Secretary after the Secretarys receipt of written requests from
the holders of the Required Percentage of Voting Stock, and as a result of such revocation(s),
there no longer are unrevoked requests from the Required Percentage of Voting Stock to call a
special meeting, the Board of Directors shall have the discretion to determine whether or not to
proceed with the special meeting. A business proposal shall not be presented for stockholder
action at any special meeting if (i) any stockholder or beneficial owner who has provided a
Solicitation Statement with respect to such proposal does not act in accordance with the
representations set forth therein or (ii) the business proposal appeared in a written request
submitted by a stockholder who did not provide the information required by the preceding clause
(c)(2) of this bylaw in accordance with such clause.
(d) The Secretary shall not accept, and shall consider ineffective, a written request from a
stockholder to call a special meeting (i) that does not comply with the preceding provisions of
this bylaw, (ii) that relates to an item of business that is not a proper subject for stockholder
action under applicable law, (iii) if such request is delivered between the time beginning on the
61st day after the earliest date of signature on a written request that has been delivered to the
Secretary relating to an identical or substantially similar item (such item, a Similar Item) and
ending on the one-year anniversary of such earliest date, (iv) if a Similar Item will be submitted
for stockholder approval at any stockholder meeting to be held on or before the 90th day after the
Secretary receives such written request, or (v) if a Similar Item has been presented at the most
recent annual meeting or at any special meeting held within one year prior to receipt by the
Secretary of such request to call a special meeting.
(e) The Board of Directors shall determine in good faith whether the requirements set forth in
subparagraphs (d)(ii) through (v) have been satisfied. Either the Secretary or the Board of
Directors shall determine in good faith whether all other requirements set forth in this bylaw have
been satisfied. Any determination made pursuant to this paragraph shall be binding on the
Corporation and its stockholders.
(f) The Board of Directors shall determine the place, and fix the date and time, of any
special meeting called at the request of one or more stockholders, and, with respect to all other
special meetings, the date and time of a special meeting shall be determined by the person or body
calling the meeting. The Board of Directors may submit its own proposal or proposals for
consideration at a special meeting called by the Chairperson of the Board of Directors or called at
the request of one or more stockholders. The record date or record dates for a special meeting
shall be fixed in accordance with Section 213 (or its successor provision) of the Delaware General
Corporation Law (the DGCL). Business transacted at any special meeting shall be limited to the
purposes stated in the notice of such meeting.
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Section 2.03. Place of Meetings.
(a) Each annual or special meeting of stockholders shall be held at such location as may be
determined by the Board of Directors or, if no such determination is made, at such place as may be
determined by the Chairperson of the Board of Directors. If no location is so determined, the
annual or special meeting shall be held at the principal executive office of the Corporation.
Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, determine that
an annual meeting shall not be held at any place, but may instead be held solely by means of remote
communication as authorized by Section 2.03(b).
(b) If authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and proxy holders not
physically present at a meeting of stockholders may, by means of remote communication:
(1) participate in a meeting of stockholders; and
(2) be deemed present in person and vote at a meeting of stockholders, whether such meeting is
to be held at a designated place or solely by means of remote communication; provided that (A) the
Corporation implements reasonable measures to verify that each person deemed present and permitted
to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the
Corporation implements reasonable measures to provide such stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other
action at the meeting by means of remote communication, a record of such vote or other action is
maintained by the Corporation.
Section 2.04. Notice of Meetings.
(a) Unless otherwise required by law, written notice of each annual or special meeting of
stockholders stating the date and time when, the place, if any, where it is to be held, the means
of remote communications, if any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such meeting, the information required to gain access to the list of
stockholders entitled to vote, if such list is to be open for examination on a reasonably
accessible electronic network, and the record date for determining the stockholders entitled to
vote at the meeting, if such date is different from the record date for determining stockholders
entitled to notice of the meeting, shall be given not less than 10 nor more than 60 days before the
date on which the meeting is to be held, to each stockholder entitled to vote at such meeting as of
the record date for determining the stockholders entitled to notice of the meeting. The purpose or
purposes for which the meeting is called may, in the case of an annual meeting, and shall, in the
case of a special meeting, also be stated. If mailed, notice is given when it is deposited in the
United States mail, postage prepaid, directed to a stockholder at such stockholders address as it
shall appear on the records of the Corporation.
(b) Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under any provision of the
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DGCL, the Certificate of Incorporation of the Corporation (the Certificate) or these Bylaws
shall be effective if given by a form of electronic transmission consented to by the stockholder to
whom the notice is given. Any such consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent shall be deemed revoked if (i) the Corporation is unable to
deliver by electronic transmission two consecutive notices given by the Corporation in accordance
with such consent, and (ii) such inability becomes known to the Secretary or an assistant secretary
of the Corporation or to the transfer agent or other person responsible for the giving of notice;
provided, however, the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action. Notice given pursuant to this Section 2.04(b) shall be
deemed given: (i) if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice, (ii) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive notice, (iii) if by a
posting on an electronic network together with separate notice to the stockholder of such specific
posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (iv) if
by any other form of electronic transmission, when directed to the stockholder. For purposes of
these Bylaws, electronic transmission means any form of communication not directly involving the
physical transmission of paper that creates a record the recipient may retain, retrieve and review
and reproduce in paper form through an automated process.
(c) Without limiting the manner by which notice otherwise may be given effectively to
stockholders, but subject to Section 233(d) of the DGCL (or any successor provision thereof), any
notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate or
these Bylaws shall be effective if given by a single written notice to stockholders who share an
address if consented to by the stockholders at that address to whom such notice is given. Any such
consent shall be revocable by the stockholder by written notice to the Corporation. Any
stockholder who fails to object in writing to the Corporation, within 60 days of having been given
written notice by the Corporation of its intention to send the single notice described in the
preceding sentence, shall be deemed to have consented to receiving such single written notice.
Section 2.05. Waiver of Notice. Whenever notice is required to be given under any provision
of the DGCL or the Certificate or these Bylaws, a written waiver, signed by the person entitled to
notice, or a waiver by electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting will constitute a waiver of notice of such meeting, except when the person attends a
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 2.06. Adjourned Meetings. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place, if any, thereof are
announced at the meeting at which the adjournment is taken; provided, however, that if the date of
any adjourned meeting is more than 30 days after the date for which the meeting was originally
noticed, then notice of the place, if any, date and time of the adjourned 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 adjourned meeting, shall be given in conformity herewith. If after the
adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting,
the Board of Directors shall fix a new record date for notice of such
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adjourned meeting in accordance with Section 213(a) of the DGCL, and shall give notice of the
adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of
the record date fixed for notice of such adjourned meeting. At any adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 2.07. Conduct of Meetings. All annual and special meetings of stockholders shall be
conducted in accordance with such rules and procedures as the Board of Directors may determine
subject to the requirements of applicable law and, as to matters not governed by such rules and
procedures, as the chairperson of such meeting shall determine. Such rules or procedures, whether
adopted by the Board of Directors or prescribed by the chairperson of such meeting, may include
without limitation the following: (a) the establishment of an agenda or order of business for the
meeting, (b) rules and procedures for maintaining order at the meeting and the safety of those
present, (c) limitations on attendance at or participation in the meeting to stockholders of record
of the Corporation, their duly authorized and constituted proxies or such other persons as the
chairperson of the meeting shall determine, (d) restrictions on entry to the meeting after the time
fixed for commencement thereof, and (e) limitations on the time allotted to questions or comments
by participants. Unless and to the extent determined by the Board of Directors or the chairperson
of the meeting, meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
The chairperson of any annual or special meeting of stockholders shall be either the
Chairperson of the Board of Directors or any person designated by the Chairperson of the Board of
Directors. The Secretary, or in the absence of the Secretary, a person designated by the
chairperson of the meeting, shall act as secretary of the meeting.
Section 2.08. Notice of Stockholder Business and Nominations. Nominations of persons for
election to the Board of Directors and the proposal of business to be transacted by the
stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporations
proxy materials with respect to such meeting, (b) by or at the direction of the Board of Directors
or (c) by any stockholder of record of the Corporation (the Record Stockholder) at the time of
the giving of the notice required in the following paragraph, who is entitled to vote at the
meeting and who has complied with the notice procedures set forth in this section. For the
avoidance of doubt, the foregoing clause (c) shall be the exclusive means for a stockholder to
bring nominations or business (other than business included in the Corporations proxy materials
pursuant to Rule 14a-8 under the Exchange Act.
For nominations or business to be properly brought before an annual meeting by a stockholder
pursuant to clause (c) of the foregoing paragraph, (1) the Record Stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation, (2) any such business must be
a proper matter for stockholder action under applicable law, and (3) the Record Stockholder and the
beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted
in accordance with the representations set forth in the Solicitation Statement required by these
Bylaws. To be timely, a Record Stockholders notice shall be received by the Secretary at the
principal executive offices of the Corporation not less than 90 or more than 120 days prior to the
one-year anniversary (the Anniversary) of the date on which the Corporation first mailed its
proxy materials for the preceding years annual meeting of stockholders; provided, however, that if
the annual meeting is convened more than 30 days prior
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to or delayed by more than 30 days after the Anniversary of the preceding years annual
meeting, or if no annual meeting was held in the preceding year, notice by the Record Stockholder
to be timely must be so received not later than the close of business on the later of (i) the 135th
day before such annual meeting or (ii) the 10th day following the day on which public announcement
of the date of such meeting is first made. Notwithstanding anything in the preceding sentence to
the contrary, in the event that the number of directors to be elected to the Board of Directors is
increased and there is no public announcement naming all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 10 days before the last day a
Record Stockholder may deliver a notice of nomination in accordance with the preceding sentence, a
Record Stockholders notice required by this bylaw shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall be received by the
Secretary at the principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is first made by the
Corporation. In no event shall an adjournment of an annual meeting, or the postponement of a
special meeting for which notice has been given, commence a new time period for the giving of a
stockholders notice as described herein.
Such Record Stockholders notice shall set forth: (a) if such notice pertains to the
nomination of directors, as to each person whom the Record Stockholder proposes to nominate for
election or reelection as a director (i) all information relating to such person as would be
required to be disclosed in solicitations of proxies for the election of such nominees as directors
pursuant to Regulation 14A under the Exchange Act and such persons written consent to serve as a
director if elected, and (ii) a statement whether such person, if elected, intends to tender,
promptly following such persons election, an irrevocable resignation effective upon such persons
failure to receive the required vote for reelection at any future meeting at which such person
would face reelection and upon acceptance of such resignation by the Board of Directors, in
accordance with the Corporations Principles of Corporate Governance; (b) as to any business that
the Record Stockholder proposes to bring before the meeting, a brief description of such business,
the reasons for conducting such business at the meeting and any material interest in such business
of such Record Stockholder and the beneficial owner, if any, on whose behalf the proposal is made;
and (c) as to (1) the Record Stockholder giving the notice and (2) the beneficial owner, if any, on
whose behalf the nomination or proposal is made (each, a party) (i) the name and address of each
such party, as they appear on the Corporations books; (ii) the class, series and number of shares
of the Corporation that are owned beneficially and of record by each such party (which information
set forth in this clause shall be supplemented by such stockholder or such beneficial owner, as the
case may be, not later than 10 days after the record date for determining the stockholders entitled
to notice of the meeting to disclose such ownership as of such record date); (iii) a description of
any agreement, arrangement or understanding with respect to the nomination between or among such
stockholder and such beneficial owner, any of their respective affiliates or associates, and any
others acting in concert with any of the foregoing; (iv) a description of any agreement,
arrangement or understanding (including any derivative or short positions, profit interests,
options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or
loaned shares) that has been entered into as of the date of the stockholders notice by, or on
behalf of, such Record Stockholder or such beneficial owners, the effect or intent of which is to
mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the
voting power of, such stockholder and such beneficial owner, with respect to shares of stock of the
Corporation (which information set forth in this
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clause shall be supplemented by such party not later than 10 days after the record date for
determining the stockholders entitled to notice of the special meeting to disclose such ownership
as of such record date); (v) any other information relating to each such party that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for, as applicable, the proposal and/or for the election of directors
in a contested election pursuant to Section 14 of the Exchange Act; (vi) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting; and
(vii) a statement whether or not each such party will deliver a proxy statement and form of proxy
to holders of, in the case of a proposal, at least the percentage of voting power of all of the
shares of capital stock of the Corporation required under applicable law to carry the proposal or,
in the case of a nomination or nominations, at least the percentage of voting power of all of the
shares of capital stock of the Corporation reasonably believed by the Record Stockholder or the
beneficial holder, as the case may be, to be sufficient to elect the nominee or nominees proposed
to be nominated by such stockholder and/or intends otherwise to solicit proxies from stockholders
in support of such proposal or nomination (such statement, a Solicitation Statement).
Only persons nominated in accordance with the procedures set forth in this Section 2.08 shall
be eligible to serve as directors and only such business shall be conducted at an annual meeting of
stockholders as shall have been brought before the meeting in accordance with the procedures set
forth in this Section 2.08. The chairperson of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought before the meeting has been
made in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or
business is not in compliance with these Bylaws, to declare that such defectively proposed business
or nomination shall not be presented for stockholder action at the meeting and shall be
disregarded.
Only such business shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting in accordance with Section 2.02. The notice of such special meeting
shall include the purpose for which the meeting is called. Nominations of persons for election to
the Board of Directors may be made at a special meeting of stockholders at which directors are to
be elected (a) by or at the direction of the Board of Directors or (b) by any stockholder of record
of the Corporation at the time of giving of notice provided for in this paragraph, who shall be
entitled to vote at the meeting and who delivers a written notice to the Secretary setting forth
the information set forth in clauses (a) and (c) of the third paragraph of this Section 2.08.
Nominations by stockholders of persons for election to the Board of Directors may be made at a
special meeting of stockholders only if such stockholders notice required by the preceding
sentence shall be received by the Secretary at the principal executive offices of the Corporation
not later than the close of business on the later of the 135th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall an adjournment of a special meeting, or a postponement of a special
meeting for which notice has been given, commence a new time period for the giving of a record
stockholders notice. A person shall not be eligible for election or reelection as a director at a
special meeting unless the person is nominated (i) by or at the direction of the Board of Directors
or (ii) by a record stockholder in accordance with the notice procedures set forth in this Section
2.08.
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For purposes of this section, public announcement shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 2.08, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 2.08. Nothing in this Section 2.08 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.09. Quorum. At any meeting of stockholders, the presence, in person or by proxy,
of the holders of record of a majority of the voting power of the shares then issued and
outstanding and entitled to vote at the meeting shall constitute a quorum for the transaction of
business. Where a separate vote by a class or classes or series is required, a majority of the
voting power 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 the vote on that matter.
In the absence of a quorum, the chairperson of the meeting may adjourn the meeting from time to
time. At any reconvened meeting following such an adjournment at which a quorum shall be present,
any business may be transacted which might have been transacted at the original meeting.
Section 2.10. Votes Required. When a quorum is present at a meeting, a matter submitted for
stockholder action shall be approved if the votes cast for the matter exceed the votes cast
against such matter, unless a greater or different vote is required by statute, any applicable
law or regulation (including the applicable rules of any stock exchange), the rights of any
authorized class of stock, the Certificate or these Bylaws. Unless the Certificate or a resolution
of the Board of Directors adopted in connection with the issuance of shares of any class or series
of stock provides for a greater or lesser number of votes per share, or limits or denies voting
rights, each outstanding share of stock, regardless of class, shall be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders.
Section 2.11. Proxies. A stockholder may vote the shares owned of record by such stockholder
either in person or by proxy in any manner permitted by law, including by execution of a proxy in
writing or by telex, telegraph, cable, facsimile or electronic transmission, by the stockholder or
by the duly authorized officer, director, employee or agent of such stockholder. No proxy shall be
voted or acted upon after 3 years from its date, unless the proxy provides for a longer period. A
duly executed proxy will be irrevocable if it states it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be
made irrevocable regardless of whether the interest with which it is coupled is an interest in the
stock itself or an interest in the Corporation generally.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing or transmission
could be used, provided that such copy, facsimile telecommunication or other reproduction shall be
a complete reproduction of the entire original writing or transmission.
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Section 2.12. Stockholder Action. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual meeting or special meeting
of stockholders of the Corporation, unless the Board of Directors authorizes such action to be
taken by the written consent of the holders of outstanding shares of stock having not less than the
minimum voting power that would be necessary to authorize or take such action at a meeting of
stockholders at which all shares entitled to vote thereon were present and voted, provided all
other requirements of applicable law and the Certificate have been satisfied.
Section 2.13. List of Stockholders. The Secretary of the Corporation shall, in the manner
provided by law, prepare and make (or cause to be prepared and made) a complete list of
stockholders entitled to vote at any meeting of stockholders, provided, however, that if the record
date for determining the stockholders entitled to vote is less than 10 days before the meeting
date, the list shall reflect the stockholders entitled to vote as of the 10th day before the
meeting date, arranged in alphabetical order and showing the address of, and the number of shares
registered in the name of, each stockholder. Nothing contained in this section shall require the
Corporation to include electronic mail addresses or other electronic contact information on such
list. Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, for a period of at least 10 days prior to the meeting in the manner provided by law. A
list of the stockholders entitled to vote at the meeting shall also be produced and kept at the
time and place, if any, of the meeting during the duration 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 will 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 will be provided with the notice of the meeting.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the list of stockholders or to vote in person or by proxy at any meeting of stockholders.
Section 2.14. Inspectors of Election. In advance of any meeting of stockholders, the Board
of Directors may appoint Inspectors of Election to act at such meeting or at any adjournment or
adjournments thereof. The Corporation may designate one or more alternate inspectors to replace
any inspector who fails to act. If such inspectors are not so appointed or fail or refuse to act,
the chairperson of any such meeting may (and, to the extent required by law, shall) make such an
appointment. The number of Inspectors of Election shall be 1 or 3. If there are 3 Inspectors of
Election, the decision, act or certificate of a majority shall be effective and shall represent the
decision, act or certificate of all. No such inspector need be a stockholder of the Corporation.
Each inspector, before entering upon the discharge of 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 such inspectors ability.
The Inspectors of Election shall have such duties and responsibilities as required under
Section 231 of the DGCL (or any successor provision thereof).
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ARTICLE III
DIRECTORS
Section 3.01. Powers. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
Section 3.02. Number. Except as otherwise fixed pursuant to the provisions of Section 2 of
Article Fourth of the Certificate in connection with rights to elect additional directors under
specified circumstances which may be granted to the holders of any class or series of Preferred
Stock, the exact number of directors of the Corporation shall be fixed from time to time by a
resolution duly adopted by the Board of Directors.
Section 3.03. Lead Independent Director. At any time the Chairperson of the Board of
Directors is not independent as that term is defined under the then applicable rules and
regulations of each national securities exchange upon which shares of the stock of the Corporation
are listed for trading and of the Securities and Exchange Commission, the independent directors may
designate from among them a Lead Independent Director having the duties and responsibilities set
forth in the applicable rules of each such national securities exchange and as otherwise determined
by the Board of Directors from time to time.
Section 3.04. Election and Term of Office. Except as provided in Section 3.07 hereof and
subject to the right to elect additional directors under specified circumstances which may be
granted, pursuant to the provisions of Section 2 of Article Fourth of the Certificate, to the
holders of any class or series of Preferred Stock, directors shall be elected by the stockholders
of the Corporation for a term expiring at the annual meeting of stockholders following their
election. A nominee for director shall be elected to the Board of Directors if the votes cast for
such nominees election exceed the votes cast against such nominees election; provided, however,
that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for
which (i) the Secretary of the Corporation receives a notice that a stockholder has nominated a
person for election to the Board of Directors in compliance with Section 2.08 of these Bylaws and
(ii) such nomination has not been withdrawn by such stockholder on or before the 10th day before
the Corporation first mails its notice of meeting for such meeting to the stockholders. If
directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted
to vote against a nominee.
Section 3.05. Resignations. Any director may resign at any time by submitting a resignation
to the Corporation in writing or by electronic transmission. Such resignation shall take effect at
the time of its receipt by the Corporation unless such resignation is effective at a future time or
upon the happening of a future event or events in which case it shall be effective at such time or
upon the happening of such event or events. Unless the resignation provides otherwise, the
acceptance of a resignation shall not be required to make it effective.
Section 3.06. Removal. Subject to the right to elect directors under specified circumstances
which may be granted pursuant to Section 2 of Article Fourth of the Certificate to the holders of
any class or series of Preferred Stock, any director may be removed from office with or without
cause.
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Section 3.07. Vacancies and Additional Directorships. Except as otherwise provided pursuant
to Section 2 of Article Fourth of the Certificate in connection with rights to elect additional
directors under specified circumstances which may be granted to the holders of any class or series
of Preferred Stock, newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the preceding sentence shall hold office for a
term that shall end at the first annual meeting following his or her election and until such
directors successor shall have been elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent director.
Section 3.08. Meetings. Promptly after, and on the same day as, each annual election of
directors by the stockholders, the Board of Directors shall, if a quorum be present, meet in a
meeting (the Organizational Meeting) to elect a Chairperson of the Board of Directors, elect a
Lead Independent Directors, if any, appoint members of the standing committees of the Board of
Directors, elect officers of the Corporation and conduct other business as appropriate. Additional
notice of such meeting need not be given if such meeting is conducted promptly after the annual
meeting to elect directors and if the meeting is held in the same location where the election of
directors was conducted. Regular meetings of the Board of Directors shall be held at such times
and places as the Board of Directors shall determine and as shall be publicized among all
directors.
Directors may participate in regular or special meetings of the Board of Directors or any
committee designated by the Board of Directors by means of conference telephone or other
communications equipment by means of which all other persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 3.09. Notice of Meetings. A notice of each regular meeting of the Board of Directors
shall not be required. A special meeting of the Board of Directors may be called by the
Chairperson of the Board of Directors, the Chief Executive Officer or a majority of the directors
then in office and shall be held at such place, if any, on such date and at such time as the person
or persons calling such meeting may fix. Notice of special meetings shall be either (i) mailed to
each director at least 5 days before the meeting, addressed to the directors usual place of
business or to his or her residence address or to an address specifically designated by the
director or (ii) given by telephone, telegraph, telex, facsimile or electronic transmission not
less than 24 hours before the meeting. The notice need not specify the place of the meeting (if
the meeting is to be held at the Corporations principal executive office) nor the purpose of the
meeting, unless otherwise required by law. Unless otherwise indicated in the notice of a meeting,
any and all business may be transacted at a meeting of the Board of Directors. Notice of any
meeting may be waived in writing, or by electronic transmission, at any time before or after the
meeting, and attendance of any director at a meeting shall constitute a waiver of notice of such
meeting, except when the director attends the 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.
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Section 3.10. Action without Meeting. Unless otherwise restricted by the Certificate, any
action required or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, or by electronic transmission and such
writing or writings or electronic transmission filed with the minutes of the proceedings of the
Board of Directors 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.
Section 3.11. Quorum. At all meetings of the Board of Directors, directors constituting a
majority of the fixed number of directors shall constitute a quorum for the transaction of
business. In the absence of a quorum, the directors present, by majority vote and without notice
or waiver thereof, may adjourn the meeting to another date, place, if any, and time. At any
reconvened meeting following such an adjournment at which a quorum shall be present, any business
may be transacted which might have been transacted at the meeting as originally notified.
Section 3.12. Votes Required. Except as otherwise required by applicable law, the
Certificate or these Bylaws, the vote of a majority of the directors present at a meeting duly held
at which a quorum is present shall be sufficient to pass any measure.
Section 3.13. Place and Conduct of Meetings. Other than the Organizational Meeting, each
meeting of the Board of Directors shall be held at the location determined by the person or persons
calling such meeting. At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board of Directors may from time to time determine. The chairperson
of any regular or special meeting shall be the Chairperson of the Board of Directors, or in the
absence of the Chairperson a person designated by the Board of Directors. The Secretary, or in the
absence of the Secretary a person designated by the chairperson of the meeting, shall act as
secretary of the meeting.
Section 3.14. Fees and Compensation. Directors shall be paid such compensation as may be
fixed from time to time by resolutions of the Board of Directors. Compensation may be in the form
of an annual retainer fee or a fee for attendance at meetings, or both, or in such other form or on
such basis as the resolutions of the Board of Directors shall fix. Directors shall be reimbursed
for all reasonable expenses incurred by them in attending meetings of the Board of Directors and
committees appointed by the Board of Directors and in performing compensable extraordinary
services. Nothing contained herein shall be construed to preclude any director from serving the
Corporation in any other capacity, such as an officer, agent, employee, consultant or otherwise,
and receiving compensation therefor.
Section 3.15. Committees of the Board of Directors. The Board of Directors may from time to
time designate committees of the Board of Directors, with such lawfully delegable powers and duties
as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those
committees and any others provided for herein, elect a director or directors to serve as the member
or members, designating, if it desires, other directors as alternate members who may replace any
absent or disqualified member at any meeting of the committee. In the absence or disqualification
of any member of any committee and any alternate member in his or
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her place, the member or members of the committee present at the meeting and not disqualified
from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint
another member of the Board of Directors to act at the meeting in the place of the absent or
disqualified member.
Section 3.16. Meetings of Committees. Each committee of the Board of Directors shall fix its
own rules of procedure and shall act in accordance therewith, except as otherwise provided herein
or required by applicable law and any resolutions of the Board of Directors governing such
committee. A majority of the members of each committee shall constitute a quorum thereof, except
that when a committee consists of one or two members then one member shall constitute a quorum.
Section 3.17. Subcommittees. Unless otherwise provided in the Certificate or the resolutions
of the Board of Directors establishing a committee, or in the charter of a committee, a committee
may create one or more subcommittees, which consist of one or more members of the committee, and
delegate to a subcommittee any or all of the powers and authority of the committee.
ARTICLE IV
OFFICERS
Section 4.01. Designation, Election and Term of Office. The Corporation shall have a
Chairperson of the Board of Directors, a Chief Executive Officer, a Secretary and a Treasurer and
such other officers as the Board of Directors deems appropriate, including to the extent deemed
appropriate by the Board of Directors, a President, a Chief Financial Officer, a Chief Legal
Officer and one more Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. These
officers shall be elected annually by the Board of Directors at the Organizational Meeting
immediately following the annual meeting of stockholders and each such officer shall hold office
until a successor is elected or until his or her earlier resignation, death or removal. Any
vacancy in any of the above offices may be filled for an unexpired portion of the term by the Board
of Directors at any meeting thereof. The Chief Executive Officer may, by a writing filed with the
Secretary, designate titles for employees and agents, as, from time to time, may appear necessary
or advisable in the conduct of the affairs of the Corporation and, in the same manner, terminate or
change such titles.
Section 4.02. Chairperson of the Board of Directors. The Board of Directors shall designate
the Chairperson of the Board of Directors from among its members. The Chairperson of the Board of
Directors shall preside at all meetings of the Board of Directors, and shall perform such other
duties as shall be delegated to him or her by the Board of Directors.
Section 4.03. Chief Executive Officer. Subject to the direction of the Board of Directors,
the Chief Executive Officer shall be responsible for the general supervision, direction and control
of the business and affairs of the Corporation
Section 4.04. President. The President shall perform such duties and have such
responsibilities as may from time to time be delegated or assigned to him or her by the Board of
Directors or the Chief Executive Officer.
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Section 4.05. Chief Financial Officer. The Chief Financial Officer of the Corporation shall
be responsible to the Chief Executive Officer for the management and supervision of all financial
matters and to provide for the financial growth and stability of the Corporation. The Chief
Financial Officer shall also perform such additional duties as may be assigned to the Chief
Financial Officer from time to time by the Board of Directors or the Chief Executive Officer.
Section 4.06. Chief Legal Officer. The Chief Legal Officer of the Corporation shall be the
General Counsel who shall be responsible to the Chief Executive Officer for the management and
supervision of all legal matters. The Chief Legal Officer shall also perform such additional
duties as may be assigned to the Chief Legal Officer from time to time by the Board of Directors or
the Chief Executive Officer.
Section 4.07. Secretary. The Secretary shall keep the minutes of the meetings of the
stockholders, the Board of Directors and all committee meetings. The Secretary shall be the
custodian of the corporate seal and shall affix it to all documents that the Secretary is
authorized by law or the Board of Directors to sign and seal. The Secretary also shall perform
such other duties as may be assigned to the Secretary from time to time by the Board of Directors
or the Chief Executive Officer.
Section 4.08. Treasurer. The Treasurer shall be accountable to the Chief Financial Officer,
and shall perform such duties as may be assigned to the Treasurer from time to time by the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer or the Senior Vice President,
Finance.
Section 4.09. Executive Vice Presidents, Senior Vice Presidents and Vice Presidents.
Executive vice presidents, senior vice presidents, vice presidents and other officers of the
Corporation that are elected by the Board of Directors shall perform such duties as may be assigned
to them from time to time by the Chief Executive Officer.
Section 4.10. Appointed Officers. The Board of Directors or the Chief Executive Officer may
appoint one or more Corporate Staff Vice Presidents, officers of groups or divisions or assistant
secretaries, assistant treasurers and such other assistant officers as the business of the
Corporation may require, each of whom shall hold office for such period, have such authority and
perform such duties as may be specified from time to time by the Board of Directors or the Chief
Executive Officer.
Section 4.11. Absence or Disability of an Officer. In the case of the absence or disability
of an officer of the Corporation the Board of Directors, or any officer designated by it, or the
Chief Executive Officer may, for the time of the absence or disability, delegate such officers
duties and powers to any other officer of the Corporation.
Section 4.12. Officers Holding Two or More Offices. The same person may hold any two or more
of the above-mentioned offices except that the Secretary shall not be the same person as the Chief
Executive Officer or the President.
Section 4.13. Compensation. The Board of Directors shall have the power to fix the
compensation of all officers and employees of the Corporation and to delegate such power to a
committee of the Board of Directors.
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Section 4.14. Resignations. Any officer may resign at any time by submitting a resignation
to the Corporation in writing or by electronic transmission. Any such resignation shall take
effect at the time of receipt by the Corporation unless such resignation is effective at a future
time or upon the happening of a future event or events, in which case it shall be effective at such
time or upon the happening of such event or events. Unless the resignation provides otherwise, the
acceptance of a resignation shall not be required to make it effective.
Section 4.15. Removal. The Board of Directors may remove any elected officer of the
Corporation, with or without cause. Any appointed officer of the Corporation may be removed, with
or without cause, by the Chief Executive Officer or the Board of Directors.
Section 4.16. Delegation of Authority. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officer, employee or agent, notwithstanding any
provisions hereof.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
Section 5.01. Right to Indemnification. Each person who was or is made a party, or is
threatened to be made a party, to any actual or threatened action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (hereinafter a proceeding), by reason of the
fact that (i) he or she is or was a director, officer, employee, or agent of the Corporation
(hereinafter an indemnitee) or (ii) he or she is or was serving at the request of the Board of
Directors or an executive officer (as such term is defined in Section 16 of the Exchange Act) of
the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an
employee benefit plan, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended, or by other
applicable law as then in effect, against all expense, liability, and loss (including attorneys
fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually
and reasonably incurred or suffered by such indemnitee in connection therewith. The right to
indemnification provided by this Article shall apply whether or not the basis of such proceeding is
alleged action in an official capacity as such director, officer, employee or agent or in any other
capacity while serving as such director, officer, employee or agent. Notwithstanding anything in
this Section 5.01 to the contrary, except as provided in Section 5.03 with respect to proceedings
to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Corporation.
Section 5.02. Advancement of Expenses. The right to indemnification conferred in Section
5.01, shall include the right to have the expenses incurred in defending or preparing for any such
proceeding in advance of its final disposition (hereinafter an advancement of expenses) paid by
the Corporation; provided, however, that if the DGCL requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in
which service was or is to be rendered by such indemnitee, including, without limitation, service
to an employee benefit plan) shall be made only upon
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delivery to the Corporation of an undertaking containing such terms and conditions, including
the requirement of security, as the Board of Directors deems appropriate (hereinafter an
undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal
that such indemnitee is not entitled to be indemnified for such expenses under this Article or
otherwise. The Corporation shall not be obligated to advance fees and expenses to a director,
officer, employee or agent in connection with a proceeding instituted by the Corporation against
such person.
Section 5.03. Right of Indemnitee to Bring Suit. If a claim under Section 5.01 or 5.02 is
not paid in full by the Corporation within 60 calendar days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of expenses under Section
5.02, in which case the applicable period shall be 30 calendar days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If the
indemnitee is successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in
a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the DGCL. Neither the failure of the Corporation (including its
directors who are not parties to such action, a committee of such directors, independent legal
counsel or its stockholders) to have made a determination prior to the commencement of such suit
that indemnification of the indemnitee is proper in the circumstances because the indemnitee has
met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the
Corporation (including its directors who are not parties to such action, a committee of such
directors, independent legal counsel or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a
defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification
or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is
not entitled to be indemnified, or to such advancement of expenses, under this Article V or
otherwise shall be on the Corporation.
Section 5.04. Nonexclusivity of Rights. (a) The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provisions of the Certificate, Bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise. (b) The Corporation may
maintain insurance, at its expense, to protect itself and any past or present director, officer,
employee or agent of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or loss under the DGCL. The
Corporation may enter into contracts with any indemnitee in furtherance of the provisions of this
Article and may create a trust fund, grant a security interest or use other means (including,
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without limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this Article. (c) The Corporation may without
reference to Sections 5.01 through 5.04 (a) and (b) hereof, pay the expenses, including attorneys
fees, incurred by any director, officer, employee or agent of the Corporation who is subpoenaed,
interviewed or deposed as a witness or otherwise incurs expenses in connection with any civil,
arbitration, criminal or administrative proceeding or governmental or internal investigation to
which the Corporation is a party, target, or potentially a party or target, or of any such
individual who appears as a witness at any trial, proceeding or hearing to which the Corporation is
a party, if the Corporation determines that such payments will benefit the Corporation and if, at
the time such expenses are incurred by such individual and paid by the Corporation, such individual
is not a party, and is not threatened to be made a party, to such proceeding or investigation.
Section 5.05. Indemnification of Employees and Agents of the Corporation. The Corporation
may grant rights to indemnification and to the advancement of expenses to any employee or agent of
the Corporation to the fullest extent permitted by law. The Corporation may, by action of its
Board of Directors, authorize one or more officers to grant rights for indemnification or the
advancement of expenses to employees and agents of the Corporation on such terms and conditions as
such officers deem appropriate.
Section 5.06. Nature of Rights. The rights conferred upon indemnitees in this Article V
shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer or trustee and shall inure to the benefit of the indemnitees heirs, executors
and administrators. Any amendment, alteration or repeal of this Article V that adversely affects
any right of an indemnitee or its successors shall be prospective only and shall not limit or
eliminate any such right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such amendment or repeal.
ARTICLE VI
STOCK
Section 6.01. Shares of Stock. The Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the capital stock of the
Corporation shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the Corporation (or, if such
certificate has been lost, stolen or destroyed, the procedures required by the Corporation in
Section 6.07 shall have been followed). To the extent shares of capital stock are represented by
certificates, such certificates shall be signed by the Chairperson of the Board of Directors, the
President or a vice president, together with the Secretary or assistant secretary, or the Treasurer
or assistant treasurer. Any or all of the signatures on any certificate may be facsimile. A
stockholder that holds a certificate representing shares of any class or series of the capital
stock of the Corporation for which the Board of Directors has authorized uncertificated shares may
request that the Corporation cancel such certificate and issue such shares in an uncertificated
form, provided that the Corporation shall not be obligated to issue any uncertificated shares of
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capital stock to such stockholder until such certificate representing such shares of capital
stock shall have been surrendered to the Corporation (or, if such certificate has been lost, stolen
or destroyed, the procedures required by the Corporation in Section 6.07 shall have been followed).
With respect to certificated shares of capital stock, the Secretary or an assistant secretary
of the Corporation or the transfer agent thereof shall mark every certificate exchanged, returned
or surrendered to the Corporation with Cancelled and the date of cancellation.
In case any officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue. The
Corporation shall not have power to issue a certificate in bearer form.
If the Corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative, participating, optional,
or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided in Section 6.04 or
Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face
or back of the certificate which the Corporation shall issue to represent such class or series of
stock, a statement that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. In the case of uncertificated shares, within a
reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send
to the registered owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to this section, Sections 6.02(b), 6.04 and 6.05 of these
Bylaws and Sections 156, 202(a) and 218(a) of the DGCL, or with respect to this section and Section
151 of the DGCL a statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 6.02. Issuance of Stock; Lawful Consideration.
(a) Shares of stock may be issued for such consideration, having a value not less than the par
value thereof, as determined from time to time by the Board of Directors. Treasury shares may be
disposed of by the Corporation for such consideration as may be determined from time to time by the
Board of Directors. The consideration for subscriptions to, or the purchase of, the capital stock
to be issued by the Corporation shall be paid in such form and in such manner as the Board of
Directors shall determine. The Board of Directors may authorize capital stock to be issued for
consideration consisting of cash, any tangible or intangible property or any benefit to the
Corporation, or any combination thereof. In the absence of actual fraud in the transaction, the
judgment of the Board of Directors as to the value of such consideration shall be conclusive. The
capital stock so issued shall be deemed to be fully paid and nonassessable stock
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upon receipt by the Corporation of such consideration; provided, however, nothing contained
herein shall prevent the Board of Directors from issuing partly paid shares in accordance with
Section 6.02(b) and Section 156 of the DGCL.
(b) The Corporation may issue the whole or any part of its shares as partly paid and subject
to call for the remainder of the consideration to be paid therefor. Upon the face or back of each
stock certificate issued to represent any such partly paid shares, or upon the books and records of
the Corporation in the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage of the consideration actually
paid thereon.
Section 6.03. Transfer Agents and Registrars. The Corporation may have one or more transfer
agents and one or more registrars of its stock whose respective duties the Board of Directors or
the Secretary may, from time to time, define. No certificate of stock shall be valid until
countersigned by a transfer agent, if the Corporation has a transfer agent, or until registered by
a registrar, if the Corporation has a registrar. The duties of transfer agent and registrar may be
combined.
Section 6.04. Restrictions on Transfer and Ownership of Securities. A written restriction or
restrictions on the transfer or registration of transfer of a security of the Corporation, or on
the amount of the Corporations securities that may be owned by any person or group of persons, if
permitted by Section 202 of the DGCL and noted conspicuously on the certificate or certificates
representing the security or securities so restricted or, in the case of uncertificated shares,
contained in the notice or notices sent pursuant to Section 6.02 of these Bylaws and Section 151(f)
of the DGCL, may be enforced against the holder of the restricted security or securities 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 the security or securities so
restricted or, in the case of uncertificated shares, contained in the notice or notices sent
pursuant to Section 6.02 of these Bylaws and Sections 151(f) of the DGCL, a restriction, even
though permitted by Section 202 of the DGCL, is ineffective except against a person with actual
knowledge of the restriction.
Section 6.05. Voting Trusts and Voting Agreements. One stockholder or two or more
stockholders may by agreement in writing deposit capital stock of the Corporation of an original
issue with or transfer capital stock of the Corporation to any person or persons, or entity or
entities authorized to act as trustee, for the purpose of vesting in such person or persons, entity
or entities, who may be designated voting trustee, or voting trustees, the right to vote thereon
for any period of time determined by such agreement, upon the terms and conditions stated in such
agreement. The agreement may contain any other lawful provisions not inconsistent with such
purpose. After the filing of a copy of the agreement in the registered office of the Corporation
in the State of Delaware, which copy shall be open to the inspection of any stockholder of the
Corporation or any beneficiary of the trust under the agreement daily during business hours,
certificates of stock or uncertificated stock shall be issued to the voting trustee or trustees to
represent any stock of an original issue so deposited with such voting trustee or trustees, and any
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certificates of stock or uncertificated stock so transferred to the voting trustee or trustees
shall be surrendered and cancelled and new certificates or uncertificated stock shall be issued
therefor to the voting trustee or trustees. In the certificate so issued, if any, it shall be
stated that it is issued pursuant to such agreement, and that fact shall also be stated in the
stock ledger of the Corporation. The voting trustee or trustees may vote the stock so issued or
transferred during the period specified in the agreement. Stock standing in the name of the voting
trustee or trustees may be voted either in person or by proxy, and in voting the stock, the voting
trustee or trustees shall incur no responsibility as stockholder, trustee or otherwise, except for
their own individual malfeasance. In any case where two or more persons or entities are designated
as voting trustees, and the right and method of voting any stock standing in their names at any
meeting of the Corporation are not fixed by the agreement appointing the trustees, the right to
vote the stock and the manner of voting it at the meeting shall be determined by a majority of the
trustees, or if they be equally divided as to the right and manner of voting the stock in any
particular case, the vote of the stock in such case shall be divided equally among the trustees.
Section 6.06. Transfer of Shares. Registration of transfer of shares of stock of the
Corporation may be effected on the books of the Corporation in the following manner:
(a) Certificated Shares. In the case of certificated shares, upon authorization by the
registered holder of share certificates representing such shares of stock, or by his attorney
authorized by a power of attorney duly executed and filed with the Secretary or with a designated
transfer agent or transfer clerk, and upon surrender to the Corporation or any transfer agent of
the corporation of the certificate being transferred, which certificate shall be properly and fully
endorsed or accompanied by a duly executed stock transfer power, and otherwise in proper form for
transfer, and the payment of all transfer taxes thereon. Whenever a certificate is endorsed by or
accompanied by a stock power executed by someone other than the person or persons named in the
certificate, evidence of authority to transfer shall also be submitted with the certificate.
Notwithstanding the foregoing, such surrender, proper form for transfer or payment of taxes shall
not be required in any case in which the officers of the Corporation determine to waive such
requirement.
(b) Uncertificated Shares. In the case of uncertificated shares of stock, upon receipt of
proper and duly executed transfer instructions from the registered holder of such shares, or by his
attorney authorized by a power of attorney duly executed and filed with the Secretary or with a
designated transfer agent or transfer clerk, the payment of all transfer taxes thereon, and
compliance with appropriate procedures for transferring shares in uncertificated form. Whenever
such transfer instructions are executed by someone other than the person or persons named in the
books of the Corporation as the holder thereof, evidence of authority to transfer shall also be
submitted with such transfer instructions. Notwithstanding the foregoing, such payment of taxes or
compliance shall not be required in any case in which the officers of the Corporation determine to
waive such requirement.
No transfer of shares of capital stock shall be made on the books of this Corporation if such
transfer is in violation of a lawful restriction noted conspicuously on the certificate. No
transfer of shares of capital stock shall be valid as against the Corporation for any purpose until
it shall have been entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
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Section 6.07. Lost, Stolen or Destroyed Share Certificates. The Corporation may issue a new
certificate of stock or uncertificated shares in place of any certificate previously issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or such owners legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate or uncertificated shares; but the Corporation, in its discretion, may refuse to
issue a new certificate of stock unless the Corporation is ordered to do so by a court of competent
jurisdiction.
Section 6.08. Stock Ledgers. Original or duplicate stock ledgers, containing the names and
addresses of the stockholders of the Corporation and the number of shares of each class of stock
held by them, shall be kept at the principal executive office of the Corporation or at the office
of its transfer agent or registrar.
Section 6.09. Record Dates. In order that the Corporation may determine the stockholders
entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of
Directors may, except as otherwise required by law, fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors and which record date shall not be more than 60 nor less than 10 days before the date of
such meeting. If the Board of Directors so fixes a date, such date shall also be the record date
for determining the stockholders entitled to vote at such meeting unless the Board of Directors
determines, at the time it fixes such record date, that a later date on or before the date of the
meeting shall be the date for making such determination. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of and to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held, and, for determining stockholders entitled to receive payment
of any dividend or other distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall be at the close of
business on the day on which the Board of Directors adopts a resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for determining the stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to
notice of such adjourned meeting the same or an earlier date as that fixed for determining the
stockholders entitled to vote at such adjourned meeting in accordance with the foregoing provisions
of this Section 6.09 at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall not be more than 60 days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
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ARTICLE VII
SUNDRY PROVISIONS
Section 7.01. Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of
December of each year.
Section 7.02. Seal. The seal of the Corporation shall bear the name of the Corporation and
the words Delaware and Incorporated January 16, 2001.
Section 7.03. Voting of Stock in Other Corporations. Any shares of stock in other
corporations or associations, which may from time to time be held by the Corporation, may be
represented and voted in person or by proxy, at any of the stockholders meetings thereof by the
Chief Executive Officer or the designee of the Chief Executive Officer. The Board of Directors,
however, may by resolution appoint some other person or persons to vote such shares, in which case
such person or persons shall be entitled to vote such shares.
Section 7.04. Amendments. These Bylaws may be adopted, repealed, rescinded, altered or
amended only as provided in Articles Fifth and Sixth of the Certificate.
Section 7.05. 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, any 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 under the DGCL.
As amended, May 19, 2010.
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