Exhibit 3.4
AMENDED AND RESTATED
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BYLAWS
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OF
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NETFLIX, INC.
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ARTICLE I
CORPORATE OFFICES
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1.1 REGISTERED OFFICE
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The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
1.2 OTHER OFFICES
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The Board of Directors of the corporation (the "Board") may at any time
establish other offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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2.1 PLACE OF MEETINGS
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Meetings of stockholders shall be held at any place, within or outside the
State of Delaware, as designated by the Board. In the absence of any such
designation, stockholders' meetings shall be held at the registered office of
the corporation.
2.2 ANNUAL MEETING
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The annual meeting of stockholders shall be held each year on a date and at
a time designated by the Board. At the annual meeting, directors shall be
elected and any other proper business may be transacted.
2.3 SPECIAL MEETING
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Subject to the rights of the holders of any series of Preferred Stock then
outstanding, special meetings of the stockholders may be called at any time only
by the Board acting pursuant to a resolution duly adopted by a majority of the
Whole Board (as defined below), the Chairman of the Board, the Chief Executive
Officer or by the President. Only such business shall be considered at a special
meeting of stockholders as shall have been stated in the notice for such
meeting. The term "Whole Board" shall mean the total number of authorized
directors of the corporation whether or not there exist any vacancies in
previously authorized directorships.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS; EXCEPTION TO REQUIREMENTS OF NOTICE
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All notices of meetings with stockholders shall be in writing and shall be
sent or otherwise given in accordance with Section 2.5 of these Bylaws not less
than ten (10) nor more than sixty (60) calendar days before the date of the
meeting to each stockholder entitled to vote at such meeting. The notice shall
specify the place, date and hour of the meeting, 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 (as authorized by the Board in its
sole discretion pursuant to Section 211(a)(2) of the General Corporation Law of
Delaware), and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Any previously scheduled meeting of stockholders
may be postponed, and, unless the Certificate of Incorporation of the
corporation, as the same may be amended and/or restated from time to time (as so
amended and restated, the "Certificate") provides otherwise, any special meeting
of the stockholders may be cancelled by resolution duly adopted by a majority of
the Board members then in office upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Whenever notice is required to be given, under the General Corporation Law
of Delaware, the Certificate or these Bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate with the Secretary of State of
Delaware, the certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive notice except
such persons with whom communication is unlawful.
Whenever notice is required to be given, under any provision of the General
Corporation Law of Delaware, the Certificate or these Bylaws, to any stockholder
to whom (a) notice of two (2) consecutive annual meetings, or (b) all, and at
least two (2) payments (if sent by first-class mail) of dividends or interest on
securities during a twelve (12) month period, have been mailed addressed to such
person at such person's address as shown on the records of the corporation and
have been returned undeliverable, the giving of such notice to such person shall
not be required. Any actions or meeting which shall be taken or held without
notice to such person shall have the same force and
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effect as if such notice had been duly given. If any such person shall deliver
to the corporation a written notice setting forth such person's then current
address, the requirement that notice be given to such person shall be
reinstated. In the event that the action taken by the corporation is such as to
require the filing of a certificate with the Secretary of State of Delaware, the
certificate need not state that notice was not given to persons to whom notice
was not required to be given pursuant to Section 230(b) of the General
Corporation Law of Delaware.
The exception in subsection (a) of the above paragraph to the requirement
that notice be given shall not be applicable to any notice returned as
undeliverable if the notice was given by electronic transmission.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
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Written notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his, her or its address as it appears on the records of the
corporation and otherwise is given when delivered. An affidavit of the Secretary
or an Assistant Secretary, the transfer agent or other agent of the corporation
that the notice has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
2.6 QUORUM
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The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business,
except as otherwise provided by statute or the Certificate. If, however, such
quorum is not present or represented at any meeting of the stockholders, then a
majority of the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present
or represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. The stockholders present at a duly called
meeting at which quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
2.7 ADJOURNED MEETING; NOTICE
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When a meeting is adjourned to another time or place, unless these Bylaws
otherwise require, notice need not be given of the adjourned meeting if the time
and place thereof, and the means of remote communications, in any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting (as authorized by the Board in its sole discretion
pursuant to Section 211(a)(2) of the General Corporation Law of Delaware), are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the corporation may transact any business that might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of
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record entitled to vote at the meeting. The Chairman of the meeting shall have
the power to adjourn any meeting of stockholders for any reason and the
stockholders shall have the power to adjourn any meeting of stockholders in
accordance with Section 2.6 of these Bylaws.
2.8 VOTING
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The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 of these Bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners
of stock and to voting trusts and other voting agreements).
Except as otherwise provided in the provisions of Section 213 of the
General Corporation Law of Delaware (relating to the fixing of a date for
determination of stockholders of record), or as may be otherwise provided in the
Certificate, each stockholder shall be entitled to one (1) vote for each share
of capital stock held by such stockholder.
In all matters, other than the election of directors and except as
otherwise required by law, the affirmative vote of the majority of shares
present or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Directors shall be elected
by a plurality of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote on the election of directors.
2.9 WAIVER OF NOTICE
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Whenever notice is required to be given under any provision of the General
Corporation Law of Delaware, the Certificate or these Bylaws, a written waiver
thereof, 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 shall 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. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be specified
in any written waiver of notice, or any waiver by electronic transmission,
unless so required by the Certificate or these Bylaws.
2.10 NO STOCKHOLDER ACTION BY WRITTEN CONSENT
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Any action required or permitted to be taken by the stockholders of the
corporation must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE
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In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any
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dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which such date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board and which such date
shall not be more than sixty (60) nor less than ten (10) calendar days before
the date of such meeting, nor more than sixty (60) days prior to any other
action.
If the Board does not so fix a record date:
(a) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(b) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating 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 may fix a new record date for the adjourned
meeting.
2.12 PROXIES
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Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him, her or it by a written
proxy, signed by the stockholder and filed with the Secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A
stockholder may authorize another person or persons to act for him, her or it as
proxy in the manner(s) provided under Section 212(c) of the General Corporate
Law of Delaware or as otherwise provided under Delaware law. The revocability of
a proxy that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE; STOCK LEDGER
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The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) calendar days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
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: (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (b) for a period of at least ten (10)
calendar days prior to the meeting during ordinary business hours at the
principal place of business of the corporation.
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In the event that the corporation determines to make the list available on
an electronic network, the corporation may take reasonable steps to ensure that
such information is available only to the stockholders of the corporation. The
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
2.14 NOMINATIONS AND PROPOSALS BY STOCKHOLDERS AT ANNUAL MEETING
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Nominations of persons for election to the Board and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the corporation's notice with respect to such
meeting, (b) by or at the direction of the Board, or (c) by any stockholder of
record of the corporation who was a stockholder of record at the time of the
giving of the notice provided for in these Bylaws, who is entitled to vote at
the meeting and who has complied with the notice procedures set forth in this
Section 2.14.
For nominations or other proposals of business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of the
preceding paragraph, (i) the stockholder must have given timely notice thereof
in writing to the Secretary of the corporation (as provided in the third
paragraph below), (ii) such business must be a proper matter for stockholder
action under the General Corporation Law of the State of Delaware, (iii) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has (1) provided the corporation with a Solicitation Notice
(as defined below), (2) such stockholder or beneficial owner must, in the case
of a proposal, have delivered a proxy statement and form of proxy to holders of
at least the percentage of the corporation's voting shares required under
applicable law to carry any such proposal, or, in the case of a nomination(s),
have delivered a proxy statement and form of proxy to holders of a percentage of
the corporation's voting shares reasonably believed by such stockholder or
beneficial holder to be sufficient to elect the nominee(s) proposed to be
nominated by such stockholder, and must, in either case, have included in such
materials the Solicitation Notice, and (iv) if no Solicitation Notice relating
thereto has been timely provided pursuant to this Section 2.14, the stockholder
or beneficial owner proposing such business or nomination must not have
solicited a number of proxies sufficient to have required the delivery of such a
Solicitation Notice under this Section.
To be timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the corporation (a) not later than the close
of business on the ninetieth (90/th/) calendar day, nor earlier than the close
of business on the one hundred and twentieth (120/th/) calendar day, prior to
the first anniversary of the preceding year's annual meeting, or (b) not later
than the close of business on the forty-fifth (45/th/) calendar day, nor earlier
than the close of business on the seventy-fifth (75/th/) calendar day, prior to
the first anniversary (the "Anniversary") of the date on which the corporation
first mailed its proxy materials for the preceding year's annual meeting,
whichever period described in clause (a) or (b) of this sentence occurs first;
provided, however, that if the date of the annual meeting is advanced more than
thirty (30) calendar days prior to, or delayed by more than sixty (60) calendar
days after, the anniversary of the preceding year's annual meeting, and in
respect of nominations to be brought before a special meeting, where permitted,
notice by the
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stockholder to be timely must be so delivered not earlier than the close of
business on the one hundred and twentieth (120/th/) calendar day prior to such
meeting and not later than the close of business on the later of (i) the
ninetieth (90/th/) calendar day prior to such annual meeting, and (ii) the tenth
(10/th/) calendar day following the day on which Public Announcement (as defined
below) of the date of such meeting is first made. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director, all information relating to such
person as would be required to be disclosed in solicitations of proxies for the
election of such nominee(s) as directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended or any successor thereto (the
"Exchange Act"), and such nominee's written consent to be named in the proxy
statement as a nominee and to serve as a director if elected, as well as a
written statement executed by such person acknowledging that as a director of
the corporation, such person will owe a fiduciary duty under the General
Corporation Law of Delaware exclusively to the corporation and its stockholders,
(b) as to any other business that the 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
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made, and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the corporation's books, and of
such beneficial owner, (ii) the class and number of shares of the corporation
that are owned beneficially and of record by such stockholder and such
beneficial owner, and (iii) whether either such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to holders of, in the
case of a proposal, at least the percentage of the corporation's voting shares
required under applicable law to carry the proposal or, in the case of a
nomination(s), a sufficient number of holders of the corporation's voting shares
to elect such nominee(s) (an affirmative statement of such intent, a
"Solicitation Notice").
Notwithstanding anything in the first sentence of the third paragraph of
this Section 2.14 to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no Public Announcement naming
all of the nominee(s) for director or specifying the size of the increased Board
made by the corporation at least fifty-five (55) calendar days prior to the
Anniversary, a stockholder's notice required by this Bylaw shall also be
considered timely, but only with respect to nominee(s) for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth (10/th/) calendar day following the day on which such
Public Announcement is first made by the corporation.
Only such persons nominated in accordance with the procedures set forth in
this Section 2.14 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. The Chairman 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 defective proposed business or
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nomination shall not be presented for stockholder action at the annual 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 pursuant to the corporation's
notice of meeting. Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the corporation's notice (as provided in Section 2.3 above) of
meeting (a) by or at the direction of the Board, or (b) by any stockholder of
record of the corporation who is a stockholder of record at the time of giving
of notice provided for in this paragraph, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this Section
2.14. Nominations by stockholders of persons for election to the Board, where
permitted, may be made at such a special meeting of stockholders if the
stockholder's notice required by the third paragraph of this Section 2.14 shall
be delivered to the Secretary at the principal executive offices of the
corporation not earlier than the close of business on the one hundred and
twentieth (120/th/) calendar day prior to the special meeting and not later than
the close of business on the later of (a) the ninetieth (90/th/) calendar day
prior to such special meeting, and (ii) the tenth (10/th/) calendar day
following the day on which Public Announcement is first made of the date of the
special meeting and of the nominee(s) proposed by the Board to be elected at
such meeting.
For purposes of this Section 2.14, "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 (the "Commission")
pursuant to Section 13, 14 or 15(d) of the Exchange Act. In no event shall the
Public Announcement of an adjournment of stockholders meeting commence a new
time period for the giving of stockholder's notice as described above.
Notwithstanding the foregoing provisions of this Section 2.14, 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 2.14. Nothing in this Section 2.14 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.15 ORGANIZATION
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Meetings of stockholders shall be presided over by (a) the Chairman of the
Board or, in the absence thereof, (b) such person as the Chairman of the Board
shall appoint or, in the absence thereof or in the event that the Chairman of
the Board shall fail to make such appointment, (c) such person as the Chairman
of the executive committee of the corporation shall appoint or, in the absence
thereof or in the event that the Chairman of the executive committee of the
corporation shall fail to make such appointment, any officer of the corporation
elected by the Board. In the absence of the Secretary of the corporation, the
secretary of the meeting shall be such person as the Chairman of the meeting
appoints.
The Board shall, in advance of any meeting of stockholders, appoint one (1)
or more inspector(s), who may include individual(s) who serve the corporation in
other capacities, including
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without limitation as officers, employees or agents, to act at the meeting of
stockholders and make a written report thereof. The Board may designate one (1)
or more persons as alternate inspector(s) to replace any inspector, who fails to
act. If no inspector or alternate has been appointed or is able to act at a
meeting of stockholders, the Chairman of the meeting shall appoint one (1) or
more inspector(s) to act at the meeting. Each inspector, before discharging his
or her duties, shall take and sign an oath to faithfully execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector(s) or alternate(s) shall have the duties prescribed
pursuant to Section 231 of the General Corporate Laws of Delaware or other
applicable law.
The Board shall be entitled to make such rules or regulations for the
conduct of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations, if any, the Chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all acts as, in the judgment of such Chairman, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including without limitation establishing an agenda of business of the meeting,
rules or regulations to maintain order, restrictions on entry to the meeting
after the time fixed for commencement thereof and the fixing of the date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting (and shall announce such at the meeting).
2.16 NOTICE BY ELECTRONIC TRANSMISSION
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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 General Corporation Law of Delaware, 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 (a) the corporation is unable to deliver
by electronic transmission two (2) consecutive notices given by the corporation
in accordance with such consent, and (b) such inability becomes known to the
Secretary or an Assistant Secretary of the corporation, 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 the above paragraph shall be deemed given (a) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice, (b) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice, (c) if by a posting on an electronic network together with a
separate notice to the stockholder of such specific posting, upon the later of
(i) such posting, and (ii) the giving of such separate notice, and (d) if by any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or Assistant Secretary, the transfer agent or other
agent of the corporation that the notice has been given by a form of electronic
transmission shall in the absence of fraud, be prima facie evidence of the facts
stated therein.
For purposes of these Bylaws, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by
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such a recipient through an automated process. This Section 2.16 shall not apply
to Section 164 (failure to pay for stock; remedies), Section 296 (adjudication
of claims; appeal), Section 311 (revocation of voluntary dissolution), Section
312 (renewal, revival, extension and restoration of certificate of
incorporation) or Section 324 (attachment of shares of stock) of the General
Corporation Law of Delaware.
ARTICLE III
DIRECTORS
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3.1 POWERS
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The business and affairs of the corporation shall be managed by or under
the direction of the Board. In addition to the power and authorities these
Bylaws expressly confer upon them, the Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not required by
statute, the Certificate or these Bylaws to be exercised or done by the
stockholders.
3.2 NUMBER OF DIRECTORS; TERM OF OFFICE
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Subject to the rights of the holders of any Preferred Stock of the
corporation to elect additional directors under specified circumstances, the
authorized number of directors of the corporation shall be fixed from time to
time exclusively by the Board pursuant to a resolution duly adopted by a
majority of the Board members then in office.
No reduction of the authorized number of directors shall have the effect of
removing any director before such director's term of office expires.
3.3 ELECTION AND QUALIFICATION OF DIRECTORS
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Except as provided in the Certificate or Section 3.4 of these Bylaws,
directors shall be classified, with respect to the time for which they severally
hold office, into three (3) classes, as nearly equal in number as possible, one
(1) class to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 2003, another class to be originally elected for a
term expiring at the annual meeting of stockholders to be held in 2004, and
another class to be originally elected for a term expiring at the annual meeting
of stockholders to be held in 2005, with each class to hold office until its
successor is duly elected and qualified. At each succeeding annual meeting of
stockholders, commencing with the first annual meeting (a) directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified, and (b) if authorized by a
resolution of the Board, directors may be elected to fill any vacancy on the
Board, regardless of how such vacancy shall have been created (as set forth in
Section 3.4 below).
Directors need not be stockholders unless so required by the Certificate or
these Bylaws, wherein other qualifications for directors may be prescribed.
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Elections of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot and, subject to the rights of the
holders of any Preferred Stock of the corporation to elect additional directors
under specified circumstances, a plurality of the votes cast thereat shall elect
directors. The ballot shall state the name of the stockholder or proxy voting or
such other information as may be required under the procedure established by the
Chairman of the meeting. If authorized by the Board, such requirement of a
ballot shall be satisfied by a ballot submitted by electronic transmission
provided that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the electronic
submission was authorized.
3.4 RESIGNATION AND VACANCIES
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Any director may resign at any time upon written notice or by
electronic transmission to the corporation.
Subject to the rights of the holders of any series of Preferred Stock
of the corporation then outstanding and unless the Board otherwise determines,
newly created directorships resulting from any increase in the authorized number
of directors, or any vacancies on the Board resulting from the death,
resignation, retirement, disqualification, removal from office or other cause,
shall be filled only by a majority vote of the directors then in office, whether
or not less than a quorum, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
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The Board may hold meetings, both regular and special, either within or
outside the State of Delaware.
Unless otherwise restricted by the Certificate or these Bylaws, members
of the Board, or any committee designated by the Board, may participate in a
meeting of the Board, or any committee, by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 FIRST MEETINGS
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The first meeting of each newly elected Board shall be held immediately
after, and at the same location as, the annual meeting of stockholders, unless
the Board shall fix another time and place and give notice thereof (or obtain
waivers of notice thereof) in the manner required herein for special meetings of
directors, and no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting, except as provided in this
Section 3.6 and provided that a quorum shall be present.
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3.7 REGULAR MEETINGS
----------------
Regular meetings of the Board may be held without notice at such time
and at such place as shall from time to time be determined by the Board.
3.8 SPECIAL MEETINGS; NOTICE
------------------------
Special meetings of the Board for any purpose(s) may be called at any
time by the Chairman of the Board, the Chief Executive Officer, the President or
a majority of the members of the Board then in office. The person(s) authorized
to call special meetings of the Board may fix the place and time of the
meetings.
The Secretary shall give notice of any special meeting to each director
personally or by telephone, or sent by first-class mail, overnight mail, courier
service or telegram, postage or charges prepaid, addressed to each director at
that director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) calendar days before the time of the holding of the meeting. If the notice
is delivered by telegram, overnight mail or courier, it shall be deemed
adequately delivered when the telegram is delivered to the telegraph company or
the notice is delivered to the overnight mail or courier service company at
least forty-eight (48) hours before such meeting. If by facsimile transmission,
such notice shall be deemed adequately delivered when the notice is transmitted
at least twelve (12) hours before such meeting. If by telephone or hand delivery
the notice shall be given at least twelve (12) hours prior to the time set for
the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.9 QUORUM
------
At all meetings of the Board, a majority of the Whole Board shall
constitute a quorum for all purposes and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board,
except as may be otherwise specifically provided by statute or by the
Certificate. The directors present at a duly organized meeting may continue to
transact business until adjournment notwithstanding the withdrawal of enough
directors to leave less than quorum.
3.10 WAIVER OF NOTICE
----------------
Whenever notice is required to be given under any provisions of the
General Corporation Law of Delaware of the Certificate or these Bylaws, a
written waiver thereof, 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 shall 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. Neither the business to be
-12-
transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by the Certificate or these Bylaws.
3.11 ADJOURNED MEETING; NOTICE
-------------------------
If a quorum is not present at any meeting of the Board, then a majority
of the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is
present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------
Unless otherwise restricted by the Certificate or these Bylaws, any
action required or permitted to be taken at any meeting of the Board, or of any
committee thereof, may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by electronic
transmission and the writing(s) or electronic transmission(s) are filed with the
minutes of proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
3.13 FEES AND COMPENSATION OF DIRECTORS
----------------------------------
Unless otherwise restricted by the Certificate or these Bylaws, the
Board shall have the authority to fix the compensation of directors.
3.14 APPROVAL OF LOANS TO EMPLOYEES AND OFFICERS; GUARANTEES OF
----------------------------------------------------------
OBLIGATIONS OF EMPLOYEES AND OFFICERS
-------------------------------------
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured or secured in such manner as the Board shall
approve, including without limitation a pledge of shares of stock of the
corporation. Nothing contained in this Section shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the corporation at common law or
under any statute.
3.15 REMOVAL OF DIRECTORS
--------------------
Subject to the rights of the holders of any series of Preferred Stock
of the corporation then outstanding, unless otherwise restricted by statute, the
Certificate or these Bylaws, any director, or all of the directors, may be
removed from the Board, but only for cause and only by the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of all the then outstanding shares of capital stock of the corporation
then entitled to vote at the election of directors, voting together as a single
class.
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No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
ARTICLE IV
COMMITTEES
----------
4.1 COMMITTEES OF DIRECTORS
-----------------------
The Board may from time to time, by resolution passed by a majority of
the Whole Board, designate one (1) or more committees of the Board, with such
lawfully delegable powers and duties as it thereby confers, with each committee
to consist of one (1) or more of the directors of the corporation. The Board may
designate one (1) or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member(s)
thereof present at any meeting and not disqualified from voting, whether or not
such member(s) constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member.
4.2 COMMITTEE MINUTES
-----------------
Each committee shall keep regular minutes of its meetings and report
the same to the Board when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
---------------------------------
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws, Section
3.5 (place of meetings and meetings by telephone), Section 3.7 (regular
meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of
adjournment), and Section 3.12 (action without a meeting), with such changes in
the context of those Bylaws as are necessary to substitute the committee and its
members for the Board and its members; provided, however, that the time of
regular and special meetings of committees may also be called by resolution of
the Board. The Board may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
ARTICLE V
OFFICERS
--------
5.1 OFFICERS
--------
The officers of the corporation shall be a President and a Secretary.
The corporation may also have, at the discretion of the Board, a Chairman of the
Board, a Vice Chairman of the Board, a Chief Executive Officer, a Chief
Financial Officer, a Treasurer, one or more Vice Presidents,
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Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, and
any such other officers as may be appointed in accordance with the provisions of
Section 5.3 of these Bylaws. Any number of offices may be held by the same
person.
5.2 ELECTION OF OFFICERS
--------------------
The officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 of these Bylaws,
shall be chosen by the Board, which shall consider such subject at its first
meeting after every annual meeting of stockholders, subject to the rights, if
any, of an officer under any contract of employment. Each officer shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. A failure to elect officers shall not dissolve
or otherwise affect the corporation.
5.3 SUBORDINATE OFFICERS
--------------------
The Board may appoint, or empower the Chief Executive Officer or, in
the absence of a Chief Executive Officer, the President, to appoint, such other
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 are
provided in these Bylaws or as the Board may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
-----------------------------------
Subject to the rights, if any, of an officer under contract of
employment, any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the Board at any regular or special meeting
of the Board.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice. Unless otherwise
specified in such notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
--------------------
Any vacancy occurring in any office of the corporation shall be filled
by the Board.
5.6 CHAIRMAN OF THE BOARD
---------------------
The Chairman of the Board, if such an officer be elected, shall, if
present, preside at meetings of the Board and exercise and perform such other
powers and duties as may from time to time be assigned to him or her by the
Board or as may be prescribed by these Bylaws. If there is no Chief Executive
Officer or President, then the Chairman of the Board shall also be the Chief
Executive Officer of the corporation and as such shall also have the powers and
duties prescribed in Section 5.7 of these Bylaws.
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5.7 CHIEF EXECUTIVE OFFICER
-----------------------
Subject to such supervisory powers, if any, as the Board may give to the
Chairman of the Board, the Chief Executive Officer, if any, shall, subject to
the control of the Board, have general supervision, direction, and control of
the business and affairs of the corporation and shall report directly to the
Board. All other officers, officials, employees and agents shall report directly
or indirectly to the Chief Executive Officer. The Chief Executive Officer shall
see that all orders and resolutions of the Board are carried into effect. The
Chief Executive Officer shall serve as chairperson of and preside at all
meetings of the stockholders. In the absence of a Chairman of the Board, the
Chief Executive Officer shall preside at all meetings of the Board.
5.8 PRESIDENT
---------
In the absence or disability of the Chief Executive Officer, the President
shall perform all the duties of the Chief Executive Officer. When acting as the
Chief Executive Officer, the President shall have all the powers of, and be
subject to all the restrictions upon, the Chief Executive Officer. The President
shall have such other powers and perform such other duties as from time to time
may be prescribed for him by the Board, these bylaws, the Chief Executive
Officer or the Chairman of the Board.
5.9 VICE PRESIDENT
--------------
In the absence or disability of the President, the Vice President(s), if
any, in order of their rank as fixed by the Board or, if not ranked, a Vice
President designated by the Board, shall perform all the duties of the President
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the President. The Vice President(s) shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board, these Bylaws, the Chairman of the Board, the
Chief Executive Officer or, in the absence of a Chief Executive Officer, the
President.
5.10 SECRETARY
---------
The Secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the Board may direct, a book of
minutes of all meetings and actions of directors, committees of directors, and
stockholders. The minutes shall show the time and place of each meeting, whether
regular or special (and, if special, how authorized and the notice given), the
names of those present at directors' meetings or committee meetings, the number
of shares present or represented at stockholders' meetings, and the proceedings
thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the Board, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates evidencing such shares, and the number and date of cancellation of
every certificate
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surrendered for cancellation. Such share register shall be the "stock ledger"
for purposes of Section 2.13 of these Bylaws.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board, or committee of the Board, required to be
given by law or by these Bylaws. He or she shall keep the seal of the
corporation, if one be adopted, in safe custody and shall have such other powers
and perform such other duties as may be prescribed by the Board or by these
Bylaws.
5.11 CHIEF FINANCIAL OFFICER
-----------------------
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital and
retained earnings.
The Chief Financial Officer shall deposit all money and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board or Chief Executive Officer. The Chief Financial Officer
shall disburse the funds of the corporation as may be ordered by the Board,
shall render to the Board and Chief Executive Officer, or in the absence of a
Chief Executive Officer the President, whenever they request, an account of all
of his or her transactions as Chief Financial Officer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board or these Bylaws. In lieu of any
contrary resolution duly adopted by the Board, the Chief Financial Officer shall
be the Treasurer of the corporation.
5.12 ASSISTANT SECRETARY
-------------------
The Assistant Secretary(ies), if any, in the order determined by the Board
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board may
from time to time prescribe.
5.13 ASSISTANT TREASURER
-------------------
The Assistant Treasurer(s), if any, in the order determined by the Board
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Chief Financial Officer or in the event of his or
her inability or refusal to act, perform the duties and exercise the powers of
the Chief Financial Officer and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
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5.14 AUTHORITY AND DUTIES OF OFFICERS
--------------------------------
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the corporation as may be designated from time
to time by the Board.
ARTICLE VI
INDEMNITY
---------
6.1 RIGHT TO INDEMNIFICATION
------------------------
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (collectively, a "Proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation (or any
predecessor), or is or was serving at the request of the corporation (or any
predecessor) as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise (or any predecessor
of such entities), including service with respect to an employee benefit plan
maintained or sponsored by the corporation (or any predecessor) (collectively,
an "Indemnitee"), whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the General Corporation Law of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than such law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including attorney's fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such Indemnitee in connection
therewith and such indemnification shall continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators; provided,
however, that, except as provided in Section 6.3 below with respect to
proceedings to enforce rights to indemnification, the corporation shall
indemnify any such Indemnitee seeking indemnification in connection with a
Proceeding (or part thereof) initiated by such Indemnitee only if such
Proceeding (or part thereof) was authorized by the Board.
6.2 RIGHT TO ADVANCEMENT OF EXPENSES
--------------------------------
In addition to the right to indemnification conferred in Section 6.1, an
Indemnitee shall also have the right to be paid by the corporation the expenses
incurred in defending against any such Proceeding in advance of its final
disposition (an "Advancement of Expenses"), such Advancement to be paid by the
corporation within twenty (20) calendar days after the receipt by the
corporation of a statement(s) from the Indemnitee requesting such Advancement of
Expenses from time to time; provided, however, that if the General Corporation
Law of Delaware requires, the payment of an Advancement of Expenses incurred by
a director or officer in his or her capacity as a director or
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officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including without limitation service to
an employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the corporation of an undertaking (an
"Undertaking"), by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified for such Expenses under this Section
6.2 or otherwise. The rights to indemnification and to the Advancement of
Expenses conferred in Sections 6.1 and 6.2 shall be contract rights.
6.3 RIGHT OF INDEMNITEE TO BRING SUIT
---------------------------------
To obtain indemnification or Advancement of Expenses under this Article VI,
an Indemnitee shall submit to the corporation a written request, including such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification or Advancement of Expenses. Upon such written
request, a determination, if required by applicable law, with respect to the
Indemnitee's entitlement thereto shall be made as follows: (a) if requested by
the Indemnitee, by Independent Counsel (as defined below); or (b) if no request
is made by the Indemnitee for a determination by Independent Counsel, (i) by the
Board by a majority vote of a quorum consisting of Disinterested Directors (as
defined below), or (ii) if a quorum of the Board consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of Disinterested
Directors so directs, by Independent Counsel in a written opinion to the Board,
a copy of which shall be delivered to the Indemnitee; or (c) if a quorum of
Disinterested Directors so directs, by the stockholders of the corporation. In
the event the determination of entitlement to indemnification or Advancement of
Expenses is to be made by Independent Counsel at the request of the Indemnitee,
the Independent Counsel shall be selected by the Board, unless there shall have
occurred within two (2) years prior to the date of the commencement of the
action, suit or proceeding for which indemnification or Advancement of Expenses
is claimed a Change of Control (as defined below), in which case the Independent
Counsel shall be selected by the Indemnitee unless the Indemnitee shall request
that such selection be made by the Board. If it is so determined that the
Indemnitee is entitled to indemnification or Advancement of Expenses, payment to
the Indemnitee shall be made within ten (10) calendar days after such
determination.
If a claim under Section 6.1 or 6.2 is not paid in full by the corporation
within thirty (30) calendar days after a written claim has been received by the
corporation as set forth above, except in the case of a claim for an Advancement
of Expenses, in which case the applicable period shall be twenty (20) calendar
days, the Indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the Indemnitee shall be entitled to be paid also the expense
of prosecuting such claim. In (a) 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 where the required
Undertaking, if any is required, has been tendered to the corporation) it shall
be a defense that, and (b) 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 determination that, the
Indemnitee has not met any applicable standard for indemnification set forth
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in the General Corporation Law of Delaware. Neither the failure of the
corporation (including its Board, a committee of the Board, Independent 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 General Corporate Law of Delaware, nor an actual determination by the
corporation (including its Board, a committee of the Board, Independent 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 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 and 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, shall be on the
corporation.
6.4 NON-EXCLUSIVITY OF RIGHTS
-------------------------
If a determination shall have been made pursuant to this Article VI that
the Indemnitee is entitled to indemnification or Advancement of Expenses, the
corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Section 6.3 above. The corporation shall be precluded from
asserting in any judicial proceeding commenced pursuant to Section 6.3 above
that the procedures and presumptions of these Bylaws are not valid, binding and
enforceable and shall stipulate in such proceeding that the corporation is bound
by all the provisions of this Article VI.
The rights to indemnification and to the Advancement of Expenses conferred
in this Article VI shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Certificate, these Bylaws,
agreement, vote of stockholders or Disinterested Directors or otherwise. No
repeal or modification of this Article VI shall in any way diminish or adversely
affect the rights of any director, officer, employee or agent of the corporation
hereunder in respect of any occurrence or matter arising prior to any such
repeal or modification.
If any provision(s) of Article VI of these Bylaws shall be held to be
invalid, illegal or unenforceable for any reasons whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of such Article shall
not in any way be affected or impaired thereby; and (b) to the fullest extent
possible, the provisions of this Article VI shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
6.5 INSURANCE
---------
The corporation may maintain insurance to protect itself and any 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 General
Corporation Law of Delaware.
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6.6 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
----------------------------------------------------------
The corporation may, to the extent authorized from time to time by the
Board, grant rights to indemnification and to the Advancement of Expenses to any
employee or agent of the corporation to the fullest extent of the provisions of
this Article VI with respect to the indemnification and Advancement of Expenses
of directors and officers of the corporation.
6.7 DEFINITIONS
-----------
For the purposes of this Article VI:
(a) "Change of Control" means:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"))(a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty percent (20%) or more of either (A) the then outstanding shares of
common stock of the corporation (the "Outstanding Corporation Common Stock"), or
(B) the combined voting power of the then outstanding voting securities of the
corporation entitled to vote generally in the election of directors (the
"Outstanding Corporation Voting Securities"); provided, however, that for
purposes of this subsection (i), the following acquisitions shall not constitute
a Change of Control: (I) any acquisition directly from the corporation or any
acquisition from other stockholders where (aa) such acquisition was approved in
advance by the Board, and (bb) such acquisition would not constitute a change of
control under subsection (iii) of this definition; (II) any acquisition by the
corporation; (III) any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the corporation or any corporation controlled
by the corporation; or (IV) any acquisition by any corporation pursuant to a
transaction which complies with subsections (A), (B) or (C) of subsection (iii)
of this definition; or
(ii) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies by
or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the corporation (a "Business Combination"), in each case, unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than fifty percent (50%)
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of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including without limitation a
corporation which as a result of such transaction owns the corporation or all or
substantially all of the corporation's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the case may be,
(B) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the corporation
or such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, twenty percent (20%) or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the board of directors, providing for
such Business Combination; or
(iv) Approval by the stockholders of a complete liquidation
or dissolution of the corporation.
(b) "Disinterested Director" means a director of the corporation who is
not and was not a party to the matter in respect of which indemnification or
Advancement of Expenses is sought by the Indemnitee.
(c) "Independent Counsel" means a law firm, a member of a law firm or an
independent practitioner that is experienced in matters of corporation law and
shall include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in representing
either the corporation or the Indemnitee in an action to determine the
Indemnitee's rights under this Article VI.
Any notice, request or other communication required or permitted to be
given to the corporation under this Article VI shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the corporation and shall be effective
only upon receipt by the Secretary.
ARTICLE VII
RECORDS AND REPORTS
-------------------
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7.1 MAINTENANCE AND INSPECTION OF RECORDS
-------------------------------------
The corporation shall, either at its principal executive office or at
such place or places as designated by the Board, keep a record of its
stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these Bylaws, as may be amended to
date, minute books, accounting books and other records.
Any such records maintained by the corporation 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 pursuant to
the provisions of the General Corporation Law of Delaware. When records are kept
in such manner, a clearly legible paper form produced from or by means of the
information storage device or method shall be admissible in evidence, and
accepted for all other purposes, to the same extent as an original paper form
accurately portrays the record.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTORS
-----------------------
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his or her position as a director. The Court of
Chancery is hereby vested with the exclusive jurisdiction to determine whether a
director is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
----------------------------------------------
Unless otherwise directed by the Board, the President, or any other
person authorized by the President, is authorized to vote, represent, and
exercise on behalf of the corporation all rights incident to any and all shares
of any other corporation(s) standing in the name of the corporation. The
authority granted herein may be exercised either by such person directly or by
any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
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ARTICLE VIII
GENERAL MATTERS
---------------
8.1 CHECKS
------
From time to time, the Board shall determine by resolution which person
or persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other evidences of indebtedness that are issued in the name of
or payable to the corporation, and only the persons so authorized shall sign or
endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
------------------------------------------------
The Board, except as otherwise provided in these Bylaws, may authorize
any officer or officers, or agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the corporation. Such
authority may be general or confined to specific instances. Unless so authorized
or ratified by the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
--------------------------------------
The shares of a corporation shall be represented by certificates,
provided that the Board may provide by resolution that some or all of any or all
classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Notwithstanding the adoption of
such a resolution by the Board, every holder of stock represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the corporation by
the Chairman of the Board, or the President or Vice-President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation representing the number of shares registered in certificate
form. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has 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 he were such officer, transfer
agent or registrar at the date of issue.
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, 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.
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8.4 SPECIAL DESIGNATION ON CERTIFICATES
-----------------------------------
If the corporation is authorized to issue more than one (1) class of
stock or more than one (1) series of any class, then the powers, the
designations, the preferences, and the 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
that the corporation shall issue to represent such class or series of stock;
provided, however, that, except as otherwise provided in Section 202 of the
General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate that 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, the designations, the preferences, and the 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.
8.5 LOST CERTIFICATES
-----------------
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require, or may require any transfer agent,
if any, for the shares to require, the owner of the lost, stolen or destroyed
certificate, or his, her or its 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.
8.6 CONSTRUCTION; DEFINITIONS
-------------------------
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the Delaware General Corporation Law shall
govern the construction of these Bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
8.7 DIVIDENDS
---------
The directors of the corporation, subject to any restrictions contained
in the Certificate, may declare and pay dividends upon the shares of its capital
stock pursuant to the General Corporation Law of Delaware. Dividends may be paid
in cash, in property or in shares of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds of
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such
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reserve. Such purposes shall include but not be limited to equalizing dividends,
repairing or maintaining any property of the corporation, and meeting
contingencies.
8.8 FISCAL YEAR
-----------
The fiscal year of the corporation shall be fixed by resolution of the
Board and may be changed by resolution of the Board.
8.9 SEAL
-----
This corporation may have a corporate seal, which may be adopted or
altered at the pleasure of the Board, and may use the same by causing it or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
8.10 TRANSFER OF STOCK
-----------------
Upon surrender to the corporation or the transfer agent of the
corporation, if any, of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer (as
determined by legal counsel to the corporation), it shall be the duty of the
corporation, as the corporation may so instruct its transfer agent, if any, to
issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction in its books.
8.11 REGISTERED STOCKHOLDERS
-----------------------
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends and
to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE IX
AMENDMENTS
----------
The Bylaws of the corporation may be adopted, amended or repealed by the
stockholders entitled to vote; provided, however, that the corporation may, in
its Certificate, confer the power to adopt, amend or repeal bylaws upon the
Board. The fact that such power has been so conferred upon the Board shall not
divest the stockholders of the power, nor limit their power to adopt, amend or
repeal bylaws. Notwithstanding the foregoing, in addition to any vote of the
holders of any class or series of stock of the corporation required by law or by
the Certificate, the amendment or repeal of all or any portion of Article II,
Section 3.2 (number of directors), Section 3.3 (election, qualification and term
of office of directors), Section 3.4 (resignation and vacancies), Section 3.15
(removal of directors), Article VI or this Article IX by the stockholders of the
corporation shall require the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting power of the then
outstanding shares of voting stock entitled to vote generally in the election of
directors, voting together as a single class.
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