Section 2.02.
Special
Meetings
. Subject to the Certificate of Incorporation, special
meetings of stockholders, unless otherwise prescribed by statute, may be called
at any time by the Chairman of the Board, the Board of Directors or a committee
of the Board of Directors which has been duly designated by the Board of
Directors and whose powers and authority, as provided in a resolution of the
Board of Directors, include the power to call special meetings of stockholders
and no special meetings of stockholders shall be called by any other person or
persons.
Section 2.03.
Notice
of Stockholder Business
and
Nominations
.
(A)
Annual
Meetings of Stockholders
.
(1) Nominations
of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of
stockholders (a) as provided in the Second Amended and Restated
Shareholders Agreement, dated as of January 18, 2005, by and among the
Corporation, Blackstone Capital Partners (Cayman) Ltd. 1, Blackstone
Capital Partners (Cayman) Ltd. 2, Blackstone Capital Partners (Cayman)
Ltd. 3, and BA Capital Investors Sidecar Fund, L.P. (as the same may
be amended, supplemented, restated or otherwise modified from time to time, the
“
Shareholders
Agreement
”) (with respect to nominations of persons for election to the
Board of Directors only), (b) pursuant to the Corporation’s notice of
meeting (or any supplement thereto), (c) by or at the direction of the
Chairman of the Board or the Board of Directors or (d) by any stockholder
of the Corporation who is entitled to vote at the meeting, who, subject to
paragraph (C)(4) of this Section 2.03, complied with the notice
procedures set forth in paragraphs (A)(2) and (A)(3) of this
Section 2.03 and who was a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation.
(2) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (d) of paragraph (A)(1) of this
Section 2.03, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, and any such proposed business
other than nominations of persons for election to the Board of Directors must
constitute a proper matter for stockholder action. To be timely, a stockholder’s
notice shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not less than ninety (90) days nor
more than one hundred and twenty (120) days prior to the first anniversary
of the date on which the Corporation first mailed its proxy materials for the
preceding year’s annual meeting; provided, however, that in the event that the
date of the annual meeting is changed by more than thirty (30) days from
the anniversary date of the previous year’s meeting, notice by the stockholder
to be timely must be so
delivered
not earlier than one hundred and twenty (120) days prior to such annual
meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made.
Public announcement of an adjournment of an annual meeting shall not commence a
new time period for the giving of a stockholder’s notice. Notwithstanding
anything in this Section 2.03(A)(2) to the contrary, if the number of
directors to be elected to the Board of Directors of the Corporation at an
annual meeting is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size
of the increased board of directors at least one hundred (100) calendar
days prior to the anniversary of the mailing of proxy materials for the prior
year’s annual meeting of stockholders, then a stockholder’s notice required by
this Section shall be considered timely, but only with respect to nominees for
any new positions created by such increase, if it is received by the Secretary
of the Corporation not later than the close of business on the tenth (10th)
calendar day following the day on which such public announcement is first made
by the Corporation.
(3) Such
stockholder’s notice also 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 that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the “
Exchange Act
”),
including such person’s written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the text
of the proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-laws of the Corporation, the language of the proposed amendment), 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 records, and of such beneficial owner,
(ii) the class and number of shares of capital stock of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, (iii) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such business
or nomination and (iv) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends
(x) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (y) otherwise to
solicit proxies from stockholders in support of such proposal or nomination. The
foregoing notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the Corporation of his or her intention to present a
proposal at an annual meeting in compliance with Rule 14a-8 (or any
successor thereof) promulgated under the Exchange Act and such stockholder’s
proposal has been included in a proxy statement that has been prepared by the
Corporation to solicit proxies for such annual meeting. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(B)
Special
Meetings of Stockholders
. 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 of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation’s notice of meeting (1) as provided in the Shareholders
Agreement, (2) by or at the direction of the Board of Directors or
(3) provided that the Board of Directors has determined that directors
shall be elected at such meeting, by any stockholder of the Corporation who is
entitled to vote at the meeting, who (subject to paragraph (C)(4) of this
Section 2.03) complies with the notice procedures set forth in this
Section 2.03 and who is a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Corporation’s notice of
meeting, if the stockholder’s notice as required by paragraph (A)(2)
of this Section 2.03 shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the close of business on
the 120th day prior to such special meeting and not later than the close of
business on the later of the 90th 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 the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholders’ notice as described above.
(C)
General
. (1) Except
as provided in paragraph (C)(4) of this Section 2.03, only such
persons who are nominated in accordance with the procedures set forth in this
Section 2.03 shall be eligible for election to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section. Except as otherwise provided by law, the Certificate of Incorporation
or these By-laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in these By-laws and, if any proposed nomination or
business is not in compliance with these By-laws, to declare that such defective
proposal or nomination shall be disregarded. The chairman of the meeting of
stockholders shall, if the facts warrant, determine and declare to the
meeting that any nomination or business was not properly brought before the
meeting and in accordance with the provisions of these By-laws, and if he or she
should so determine, the chairman shall so declare to the meeting, and any such
nomination or business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 2.03,
if the stockholder (or a qualified representative of the stockholder) does not
appear at the annual or special meeting of stockholders of the Corporation to
present a nomination or business, such nomination shall be disregarded and such
proposed business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. For purposes of
this Section 2.03, to be considered a qualified representative of the
stockholder, a person must be authorized by a writing executed by such
stockholder or an electronic transmission delivered by such stockholder to act
for such stockholder as proxy at the meeting of stockholders and such person
must produce such writing or electronic transmission, or a reliable reproduction
of the writing or electronic transmission, at the meeting of
stockholders.
(2) Whenever
used in these By-laws, “public announcement” shall mean disclosure (a) in a
press release released by the Corporation, provided such press release is
released by the Corporation following its customary procedures, is reported by
the Dow Jones News Service, Associated Press or comparable national news
service, or is generally available on internet news sites, or (b) 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.
(3) Notwithstanding
the foregoing provisions of this Section 2.03, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this
Section 2.03. Nothing in these By-laws shall be deemed to affect any
rights (a) of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange
Act, or (b) of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to
elect directors under specified circumstances.
(4) Notwithstanding
anything to the contrary contained in this Section 2.03, for as long as the
Shareholders Agreement remains in effect with respect to Blackstone Capital
Partners (Cayman) Ltd. 1, Blackstone Capital Partners (Cayman) Ltd. 2 or
Blackstone Capital Partners (Cayman) Ltd. 3 (or their respective successors or
Permitted Assigns (as defined in the Shareholders Agreement)) (the “
Blackstone
Entities
”), no Blackstone Entity then subject to the Shareholders
Agreement shall be subject to the notice procedures set forth in
paragraphs (A)(2), (A)(3) or (B) of this Section 2.03 to nominate
any person for election to the Board of Directors or to propose any business to
be considered by the stockholders at an annual meeting of
stockholders.
Section 2.04.
Notice
of Meetings
. Whenever stockholders are required or permitted
to take any action at a meeting, a timely written notice or electronic
transmission, in the manner provided in Section 232 of the DGCL, of the
meeting, which shall state the place, if any, date and time of the meeting, and
the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting,
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be mailed to or transmitted electronically by the Secretary of the
Corporation to each stockholder of record entitled to vote thereat. Unless
otherwise provided by law, the certificate of incorporation or these by-laws,
the notice of any
meeting
shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 2.05.
Quorum
. Unless
otherwise required by law or the Certificate of Incorporation, the holders of a
majority of the voting power of the outstanding shares of stock entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
for the transaction of business at all meetings of stockholders. When a quorum
is once present to organize a meeting, the quorum is not broken by the
subsequent withdrawal of any stockholders.
Section 2.06.
Voting
. At
all meetings of the stockholders, each stockholder shall be entitled to vote, in
person or by proxy, the shares of voting stock owned by such stockholder of
record on the record date for the meeting. When a quorum is present or
represented at any meeting, the vote of the holders of a majority of the voting
power of the shares of stock present in person or represented by proxy and
entitled to vote thereon shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of law, the rules or
regulations of any stock exchange applicable to the Corporation, or applicable
law or pursuant to any regulation applicable to the Corporation or its
securities, of the Certificate of Incorporation or of these By-laws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. Notwithstanding the foregoing sentence, at each
meeting of the stockholders for the election of directors at which a quorum is
present, each director shall be elected by the vote of the majority of the votes
cast; provided, that if as of a date that is ten (10) days in advance of the
date the corporation files its definitive proxy statement (regardless of whether
or not thereafter revised or supplemented) with the Securities and Exchange
Commission the number of nominees exceeds the number of directors to be elected,
the directors, not exceeding the authorized number of directors as fixed by the
Board of Directors in accordance with the Certificate of Incorporation, shall be
elected by a plurality of the shares represented in person or by proxy at any
such meeting and entitled to vote on the election of directors. For
purposes of this Section, a majority of the votes cast means that the number of
shares voted ‘for’ a director must exceed the number of shares voted ‘against’
that director. If, for any cause, the Board of Directors shall not
have been elected at an annual meeting, they may be elected as soon thereafter
as convenient at a special meeting of the stockholders called for that purpose
in the manner provided in these By-laws.
Section 2.07.
Chairman
of Meetings
. The Chairman of the Board of Directors, if one is
elected, or, in his absence or disability, the President of the Corporation,
shall preside at all meetings of the stockholders.
Section 2.08.
Secretary
of Meeting
. The Secretary of the Corporation shall act as
Secretary at all meetings of the stockholders. In the absence or disability of
the Secretary, the Chairman of the Board of Directors or the President shall
appoint a person to act as Secretary at such meetings.
Section 2.09.
Consent
of Stockholders in Lieu of Meeting
. Except as otherwise
provided in the Certificate of Incorporation, any action required to be taken at
any annual or special meeting of stockholders of the Corporation, or any action
which may be taken at any annual or special meeting of the stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation’s registered office shall be made by
hand or by certified or registered mail, return receipt
requested.
Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the date the earliest
dated consent is delivered to the Corporation, a written consent or consents
signed by a sufficient number of holders to take action are delivered to
the Corporation in the manner prescribed in the first paragraph of this
Section 2.09. A telegram, cablegram or other electronic transmission
consenting to an action to be taken and transmitted by a stockholder or
proxyholder, or by a person or persons authorized to act for a stockholder or
proxyholder, shall be deemed to be written, signed and dated for the purposes of
this Section 2.09 to the extent permitted by law. Any such consent shall be
delivered in accordance with Section 228(d)(1) of the DGCL. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing or electronic transmission and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date of
such meeting had been the date that written consents signed by a sufficient
number of stockholders or members to take the action were delivered to the
Corporation as provided by law.
Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used, provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire original
writing.
Section 2.10.
Adjournment
. At
any meeting of stockholders of the Corporation, if less than a quorum be
present, a majority of the stockholders entitled to vote thereat, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time without notice other than announcement at the meeting until a quorum shall
be present. Any business may be transacted at the adjourned meeting that might
have been transacted at the meeting originally noticed. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each stockholder of record entitled to vote at the
meeting.
Section 2.11.
Remote Communication
. If
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxy holders not physically present at a meeting of stockholders may, by means
of remote communication:
(a) participate
in a meeting of stockholders; and
(b) 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,
(i) the
Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxyholder;
(ii) the
Corporation shall implement reasonable measures to provide such stockholders and
proxyholders 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
(iii) if
any stockholder or proxyholder votes or takes other action at the meeting by
means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
Section 3.01.
Powers
. The
business and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors. The Board of Directors shall exercise all
of the powers and duties conferred by law except as provided by the Certificate
of Incorporation or these By-laws.
Section 3.02.
Number
and Term
. Subject to the Certificate of Incorporation, the
number of directors shall be fixed by resolution of the Board of Directors. The
Board of Directors shall be elected by the stockholders at their annual meeting,
and the term of each elected director shall be as set forth in the Certificate
of Incorporation. Directors need not be stockholders.
Section 3.03.
Resignations
. Any
director may resign at any time upon notice given in writing or by electronic
transmission. The resignation shall take effect at the time specified therein,
and if no time is specified, at the time of its receipt by the President or
Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
Section 3.04.
Removal
. Directors
of the Corporation may be removed in the manner provided in the Certificate of
Incorporation.
Section 3.05.
Vacancies
and Newly Created Directorships
. Vacancies occurring on the
Board of Directors and newly created directorships resulting from any increase
in the number of directors shall be filled in accordance with the Certificate of
Incorporation.
Section 3.06.
Meetings
. Regular
meetings of the Board of Directors may be held at such places and times as shall
be determined from time to time by the Board of Directors or as may be specified
in a notice of meeting. Special meetings of the Board of Directors may be called
by the President, and shall be called by the President or the Secretary if
directed by the Board of Directors. Notice need not be given of regular meetings
of the Board of
Directors.
At least one business day before each special meeting of the Board of Directors,
written or oral (either in person or by telephone), notice of the time, date and
place of the meeting and the purpose or purposes for which the meeting is
called, shall be given to each director.
Section 3.07.
Quorum,
Voting and Adjournment
. One-third of the total number of
directors or any committee thereof shall constitute a quorum for the transaction
of business. Except as otherwise provided by law, the Certificate of
Incorporation, these By-laws or any contract or agreement to which the
Corporation is a party, the act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
In the absence of a quorum, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of such adjourned
meeting need not be given if the time and place of such adjourned meeting
are announced at the meeting so adjourned.
Section 3.08.
Committees
. The
Board of Directors may by resolution designate one or more committees, including
but not limited to an Audit Committee, each such committee to consist of one or
more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee to replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members present at
any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors establishing such committee, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to the following
matters: (a) approving or adopting, or recommending to the stockholders,
any action or matter (other than the election or removal of directors) expressly
required by the DGCL to be submitted to stockholders for approval or
(b) adopting, amending or repealing any by-law of the Corporation. All
committees of the Board of Directors shall keep minutes of their meetings and
shall report their proceedings to the Board of Directors when requested or
required by the Board of Directors.
Section 3.09.
Action
Without a Meeting
. Unless otherwise restricted by the
Certificate of Incorporation, 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 any committee
thereof, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed in the minutes of proceedings of the Board of Directors.
Such filing shall be in paper form if the minutes are maintained in paper form
or shall be in electronic form if the minutes are maintained in electronic
form.
Section 3.10.
Compensation
. The
Board of Directors shall have the authority to fix the compensation of directors
for their services. A director may also serve the Corporation in other
capacities and receive compensation therefore.
Section 3.11.
Remote Meeting
. Unless
otherwise restricted by the Certificate of Incorporation, members of the Board
of Directors, or any committee designated by the Board of Directors, may
participate in a meeting by means of conference telephone or other
communications equipment in which all persons participating in the meeting can
hear each other. Participation in a meeting by means of conference telephone or
other communications equipment shall constitute the presence in person at such
meeting.
Section 4.01.
Number
. The
officers of the Corporation shall include a President and a Secretary, both of
whom shall be elected by the Board of Directors and who shall hold office for
such terms as shall be determined by the Board of Directors and until their
successors are elected and qualify or until their earlier resignation or
removal. In addition, the Board of Directors may elect a Chairman of the Board
of Directors, one or more Vice Presidents, including an Executive Vice
President, a Treasurer and one or more Assistant Treasurers and one or more
Assistant Secretaries, who shall hold their office for such terms and shall
exercise such powers and perform such duties as
shall be
determined from time to time by the Board of Directors. The initial officers
shall be elected at the first meeting of the Board of Directors and, thereafter,
at the annual organizational meeting of the Board of Directors. Any number of
offices may be held by the same person.
Section 4.02.
Other
Officers and Agents
. The Board of Directors may appoint such
other officers and agents as it deems advisable, who shall hold their office for
such terms and shall exercise and perform such powers and duties as shall be
determined from time to time by the Board of Directors.
Section 4.03.
Chairman
. The
Chairman of the Board of Directors shall be a member of the Board of Directors
and shall preside at all meetings of the Board of Directors and of the
stockholders. In addition, the Chairman of the Board of Directors shall have
such powers and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
Section 4.04.
President
. The
President shall be the Chief Executive Officer of the Corporation. He shall
exercise such duties as customarily pertain to the office of President and Chief
Executive Officer, and shall have general and active management of the property,
business and affairs of the Corporation, subject to the supervision and control
of the Board of Directors. He shall perform such other duties as prescribed from
time to time by the Board of Directors or these By-laws.
In the
absence, disability or refusal of the Chairman of the Board of Directors to act,
or the vacancy of such office, the President shall preside at all meetings of
the stockholders and of the Board of Directors. Except as the Board of Directors
shall otherwise authorize, the President shall execute bonds, mortgages and
other contracts on behalf of the Corporation, and shall cause the seal to be
affixed to any instrument requiring it and, when so affixed, the seal shall be
attested by the signature of the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer.
Section 4.05.
Vice
Presidents
. Each Vice President, if any are elected, of whom
one or more may be designated an Executive Vice President, shall have such
powers and shall perform such duties as shall be assigned to him by the
President or the Board of Directors.
Section 4.06.
Treasurer
. The
Treasurer shall have custody of the corporate funds, securities, evidences of
indebtedness and other valuables of the Corporation and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation. He shall deposit all moneys and other valuables in the name and to
the credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers therefore. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board of Directors shall
prescribe.
The
Treasurer shall have such further powers and perform such other duties incident
to the office of Treasurer as from time to time are assigned to him by the Board
of Directors.
Section 4.07.
Secretary
. The
Secretary shall: (a) cause minutes of all meetings of the stockholders and
directors to be recorded and kept; (b) cause all notices required by these
By-laws or otherwise to be given properly; (c) see that the minute books,
stock books, and other nonfinancial books, records and papers of the Corporation
are kept properly; and (d) cause all reports, statements, returns,
certificates and other documents to be prepared and filed when and as required.
The Secretary shall have such further powers and perform such other duties as
prescribed from time to time by the Board of Directors.
Section 4.08.
Assistant
Treasurers and Assistant Secretaries
. Each Assistant Treasurer
and each Assistant Secretary, if any are elected, shall be vested with all the
powers and shall perform all the duties of the Treasurer and Secretary,
respectively, in the absence or disability of such officer, unless or until the
Board of Directors shall otherwise determine. In addition, Assistant Treasurers
and Assistant Secretaries shall have such powers and shall perform such duties
as shall be assigned to them by the Board of Directors.
Section 4.09.
Corporate
Funds and Checks
. The funds of the Corporation shall be kept
in such depositories as shall from time to time be prescribed by the Board of
Directors. All checks or other orders for the payment
of money
shall be signed by the President or the Secretary or such other person or agent
as may from time to time be authorized and with such countersignature, if any,
as may be required by the Board of Directors.
Section 4.10.
Contracts
and Other Documents
. The President and the Secretary, or such
other officer or officers as may from time to time be authorized by the Board of
Directors or any other committee given specific authority in the premises by the
Board of Directors during the intervals between the meetings of the Board of
Directors, shall have power to sign and execute on behalf of the Corporation
deeds, conveyances and contracts, and any and all other documents requiring
execution by the Corporation.
Section 4.11.
Compensation
. The
compensation of the officers of the Corporation shall be fixed from time to time
by the Board of Directors (subject to any employment agreements that may then be
in effect between the Corporation and the relevant officer). None of such
officers shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the Corporation. Nothing contained herein
shall preclude any officer from serving the Corporation, or any subsidiary,
in any other capacity and receiving such compensation by reason of the fact that
he is also a director of the Corporation.
Section 4.12.
Ownership
of Stock of Another Corporation
. Unless otherwise directed by
the Board of Directors, the President or the Secretary, or such other officer or
agent as shall be authorized by the Board of Directors, shall have the power and
authority, on behalf of the Corporation, to attend and to vote at any meeting of
stockholders of any corporation in which the Corporation holds stock and may
exercise, on behalf of the Corporation, any and all of the rights and powers
incident to the ownership of such stock at any such meeting, including the
authority to execute and deliver proxies and consents on behalf of the
Corporation.
Section 4.13.
Delegation
of Duties
. In the absence, disability or refusal of any
officer to exercise and perform his duties, the Board of Directors may delegate
to another officer such powers or duties.
Section 4.14.
Resignation
and Removal
. Any officer of the Corporation may be removed
from office for or without cause at any time by the Board of Directors. Any
officer may resign at any time in the same manner prescribed under
Section 3.03 of these By-laws.
Section 4.15.
Vacancies
. The
Board of Directors shall have power to fill vacancies occurring in any
office.
Section 5.01.
Certificates
of Stock
. The shares of stock of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation’s stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock represented by
certificates shall be entitled to have a certificate signed by, or in the name
of the Corporation by, the Chairman of the Board of Directors or the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, certifying the number and class of shares
of stock in the Corporation owned by him. Any or all of the signatures on the
certificate may be a facsimile. The Board of Directors shall have the power to
appoint one or more transfer agents and/or registrars for the transfer or
registration of certificates of stock of any class, and may require stock
certificates to be countersigned or registered by one or more of such transfer
agents and/or registrars.
Section 5.02.
Transfer
of Shares
. Shares of stock of the Corporation shall be
transferable upon its books by the holders thereof, in person or by their duly
authorized attorneys or legal representatives, upon surrender to the Corporation
by delivery thereof to the person in charge of the stock and transfer books and
ledgers. Such certificates shall be cancelled and new certificates shall
thereupon be issued. A record shall be made of each transfer. Whenever any
transfer of shares shall be made for collateral security, and not absolutely, it
shall be so expressed in the entry of the transfer if, when the
certificates are presented, both the transferor and transferee request the
Corporation to do so. The Board of Directors shall have power and authority to
make such rules and regulations as it may deem necessary or proper concerning
the issue, transfer and registration of certificates for shares of stock of the
Corporation.
Section 5.03.
Lost,
Stolen, Destroyed or Mutilated Certificates
. A new certificate
of stock may be issued in the place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed, and the Board of
Directors may, in their discretion, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond, in such sum as the Board of Directors may direct, in order to indemnify
the Corporation against any claims that may be made against it in connection
therewith. A new certificate of stock may be issued in the place of any
certificate previously issued by the Corporation that has become mutilated
without the posting by the owner of any bond upon the surrender by such owner of
such mutilated certificate.
Section 5.04.
Fixing
Date for Determination of Stockholders o
f
Record
. 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 to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, 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 of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (a) in the
case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law,
not be more than sixty (60) nor less than ten (10) days before the
date of such meeting; (b) in the case of determination of stockholders
entitled to express consent to corporate action in writing without a meeting,
shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors; and
(3) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed:
(x) 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; (y) the record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action of the Board of Directors is required by law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by
law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (z) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors 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 of Directors may
fix a new record date for the adjourned meeting.
Section 5.05.
Registered
Stockholders
. Prior to the surrender to the Corporation of the
certificate or certificates for a share or shares of stock with a request to
record the transfer of such share or shares, the Corporation may treat the
registered owner as the person entitled to receive dividends, to vote, to
receive notifications, and otherwise to exercise all the rights and powers of an
owner. To the fullest extent permitted by law, the Corporation shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof.
NOTICE
AND WAIVER OF NOTICE
Section 6.01.
Notice
. If
mailed, notice to stockholders shall be deemed given when deposited in the mail,
postage prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the Corporation. Without limiting the manner by which
notice otherwise may be given effectively to stockholders, any notice to
stockholders may be given by electronic transmission in the manner provided in
Section 232 of the DGCL.
Section 6.02.
Waiver
of Notice
. A written waiver of any notice, signed by a
stockholder or director, or waiver by electronic transmission by such person,
whether given before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to such
person. Neither the business nor the purpose of any meeting need be specified in
such a waiver. Attendance at any meeting (in person or by remote communication)
shall constitute waiver of notice except attendance 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 7.01.
Indemnification
Respecting Third Party Claims
.
(A)
Indemnification
of Directors and Officers
. The Corporation, to the fullest
extent permitted and in the manner required, by the laws of the State of
Delaware as in effect from time to time shall indemnify in accordance with the
following provisions of this Article any person who was or is made a party to or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (including any appeal thereof), whether civil, criminal,
administrative, regulatory or investigative in nature (other than an action by
or in the right of the Corporation), by reason of the fact that such person is
or was a director or officer of the Corporation, or, if at a time when he or she
was a director or officer of the Corporation, is or was serving at the request
of, or to represent the interests of, the Corporation as a director, officer,
partner, member, trustee, fiduciary, employee or agent (a “
Subsidiary Officer
”)
of another corporation, partnership, joint venture, limited liability company,
trust, employee benefit plan or other enterprise including any charitable or
not-for-profit public service organization or trade association (an “
Affiliated Entity
”),
against expenses (including attorneys’ fees and disbursements), costs,
judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful; provided, however,
that the Corporation shall not be obligated to indemnify against any amount paid
in settlement unless the Corporation has consented to such settlement. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, that such person had reasonable cause to believe that his or her
conduct was unlawful. Notwithstanding anything to the contrary in the foregoing
provisions of this paragraph, a person shall not be entitled, as a matter of
right, to indemnification pursuant to this paragraph against costs or expenses
incurred in connection with any action, suit or proceeding commenced by such
person against the Corporation or any Affiliated Entity or any person who is or
was a director, officer, partner, member, fiduciary, employee or agent of the
Corporation or a Subsidiary Officer of any Affiliated Entity in their capacity
as such, but such indemnification may be provided by the Corporation in a
specific case as permitted by Section 7.06 of this
Article.
(B)
Indemnification
of Employees and Agents
. The Corporation may indemnify any
employee or agent of the Corporation in the manner and to the same or a lesser
extent that it shall indemnify any director or officer under
paragraph (A) above in this Section 7.01.
Section 7.02.
Indemnification
Respecting Derivative Claims
.
(A)
Indemnification
of Directors and Officers
. The Corporation, to the fullest
extent permitted and in the manner required, by the laws of the State of
Delaware as in effect from time to time shall indemnify, in accordance with the
following provisions of this Article, any person who was or is made a party to
or is threatened to be made a party to any threatened, pending or completed
action or suit (including any appeal thereof) brought by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or, if at a time when
he or she was a director or officer to the Corporation, is or was serving at the
request of, or to represent the interests of, the Corporation as a Subsidiary
Officer of an Affiliated Entity against expenses (including attorneys’ fees and
disbursements) and costs actually and reasonably incurred by such person in
connection with such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless, and only to the extent
that, the Court of Chancery of the State of Delaware or the court
in
which
such judgment was rendered shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses and
costs as the Court of Chancery of the State of Delaware or such other court
shall deem proper. Notwithstanding anything to the contrary in the foregoing
provisions of this paragraph, a person shall not be entitled, as a matter of
right, to indemnification pursuant to this paragraph against costs and expenses
incurred in connection with any action or suit in the right of the Corporation
commenced by such Person, but such indemnification may be provided by the
Corporation in any specific case as permitted by Section 7.06 of this
Article.
(B)
Indemnification
of Employees and Agents
. The Corporation may indemnify any
employee or agent of the Corporation in the manner and to the same or a lesser
extent that it shall indemnify any director or officer under
paragraph (A) above in this Section 7.02.
Section 7.03.
Determination
of Entitlement to Indemnification
. Any indemnification to be
provided under Section 7.01 or 7.02 of this Article (unless ordered by a
court of competent jurisdiction) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification is
proper under the circumstances because such person has met the applicable
standard of conduct set forth in such paragraph. Such determination shall be
made in accordance with any applicable procedures authorized by the Board of
Directors and in accordance with the DGCL. In the event a request for
indemnification is made by any person referred to in paragraph (a) of
Section 7.01 or 7.02 of this Article, the Corporation shall use its best
efforts to cause such determination to be made not later than 90 days after
such request is made.
Section 7.04.
Right to Indemnification in Certain
Circumstances.
(A)
Indemnification
Upon Successful
Defense
. Notwithstanding
the other provisions of this Article, to the extent that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in any of paragraphs (A) or
(B) of Section 7.01 or 7.02 of this Article, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees and disbursements) and costs actually and
reasonably incurred by such person in connection therewith.
(B)
Indemnification
for Service As a Witness
. To the extent any person who is or
was a director or officer of the Corporation has served or prepared to serve as
a witness in any action, suit or proceeding (whether civil, criminal,
administrative, regulatory or investigative in nature), including any
investigation by any legislative body or any regulatory or self-regulatory body
by which the Corporation’s business is regulated, by reason of his or her
services as a director or officer of the Corporation or his or her service as a
Subsidiary Officer of an Affiliated Entity at a time when he or she was a
director or officer of the Corporation (assuming such person is or was serving
at the request of, or to represent the interests of, the Corporation as a
Subsidiary Officer of such Affiliated Entity) but excluding service as a witness
in an action or suit commenced by such person (unless such expenses were
incurred with the approval of the Board of Directors, a committee thereof or the
Chairman, a Vice Chairman or the Chief Executive Officer of the Corporation),
the Corporation shall indemnify such person against out-of-pocket costs and
expenses (including attorneys’ fees and disbursements) actually and reasonably
incurred by such person in connection therewith and shall use its best efforts
to provide such indemnity within 45 days after receipt by the Corporation
from such person of a statement requesting such indemnification, averring such
service and reasonably evidencing such expenses and costs; it being understood,
however, that the Corporation shall have no obligation under this Article to
compensate such person for such person’s time or efforts so expended. The
Corporation may indemnify any employee or agent of the Corporation to
the same or a lesser extent as it may indemnify any director or officer of
the Corporation pursuant to the foregoing sentence of this
paragraph.
Section 7.05.
Advances
of Expenses
.
(A)
Advances
to Directors and Officers
. To the fullest extent not
prohibited by applicable law, expenses and costs, incurred by any person
referred to in paragraph (a) of Section 7.01 or 7.02 of this
Article in defending a civil, criminal, administrative, regulatory or
investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking in writing by or on
behalf of
such person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified in respect of such costs and expenses
by the Corporation as authorized by this Article.
(B)
Advances
to Employees and Agents
. To the fullest extent not prohibited
by applicable law, expenses and costs incurred by any person referred to in
paragraph (b) of Section 7.01 or 7.02 of this Article in
defending a civil, criminal, administrative, regulatory or investigative action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors, a committee thereof or an officer of the Corporation authorized to so
act by the Board of Directors upon receipt of an undertaking in writing by or on
behalf of such person to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Corporation in respect
of such costs and expenses as authorized by this Article.
Section 7.06.
Indemnification
Not Exclusive
. The provision of indemnification to or the
advancement of expenses and costs to any person under this Article, or the
entitlement of any person to indemnification or advancement of expenses and
costs under this Article, shall not limit or restrict in any way the power of
the Corporation to indemnify or advance expenses and costs to such person in any
other way permitted by law or be deemed exclusive of, or invalidate, any right
to which any person seeking indemnification or advancement of expenses and costs
may be entitled under any law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s capacity as an
officer, director, employee or agent of the Corporation and as to action in any
other capacity.
Section 7.07.
Corporate
Obligations; Reliance
. The provisions of this Article shall be
deemed to create a binding obligation on the part of the Corporation to the
persons who from time to time are elected officers or directors of the
Corporation, and such persons in acting in their capacities as officers or
directors of the Corporation or Subsidiary Officers of any Affiliated Entity
shall be entitled to rely on such provisions of this Article, without giving
notice thereof to the Corporation.
Section 7.08.
Accrual
of Claims; Successors
. The indemnification provided or
permitted under the foregoing provisions of this Article shall or may, as the
case may be, apply in respect of any expense, cost, judgment, fine, penalty or
amount paid in settlement, whether or not the claim or cause of action in
respect thereof accrued or arose before or after the effective date of such
provisions of this Article. The right of any person who is or was a director,
officer, employee or agent of the Corporation to indemnification or advancement
of expenses as provided under the foregoing provisions of this Article shall
continue after he or she shall have ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, distributees,
executors, administrators and other legal representatives of such
person.
Section 7.09.
Insurance
. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of, or to represent the interests of, the Corporation as
a Subsidiary Officer of any Affiliated Entity, against any liability asserted
against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of this Article or applicable law.
Section 7.10.
Definitions
of Certain Terms
. For purposes of this Article,
(i) references to “the Corporation” shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed into the Corporation in a consolidation or merger if
such corporation would have been permitted (if its corporate existence had
continued) under applicable law to indemnify its directors, officers, employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request, or
to represent the interests of, such constituent corporation as a director,
officer, employee or agent of any Affiliated Entity shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued; (ii) references to
“fines” shall include any excise taxes assessed on a person with respect to an
employee benefit plan; (iii) references to “serving at the request of the
Corporation” shall include any service as a director, officer, partner, member,
trustee, fiduciary, employee or agent of the Corporation or any Affiliated
Entity which service imposes duties on, or involves services by, such
director, officer, partner, member, trustee, fiduciary, employee or agent with
respect to an employee benefit plan, its
participants,
or beneficiaries and (iv) a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interest of the Corporation” as referred to in
this Article.
Section 8.01.
Electronic
Transmission
. For purposes of these By-laws, “
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 such a recipient through an automated
process.
Section 8.02.
Corporate
Seal
. The Board of Directors may provide a suitable seal,
containing the name of the Corporation, which seal shall be in charge of the
Secretary. If and when so directed by the Board of Directors or a committee
thereof, duplicates of the seal may be kept and used by the Treasurer or by an
Assistant Secretary or Assistant Treasurer.
Section 8.03.
Fiscal
Year
. The fiscal year of the Corporation shall end on
December 31 of each year, or such other twelve consecutive months as the
Board of Directors may designate.
Section 8.04.
Section H
eadings
. Section
headings in these By-laws are for convenience of reference only and shall not be
given any substantive effect in limiting or otherwise construing any provision
herein.
Section 8.05.
Inconsistent
Provisions
. In the event that any provision of these By-laws
is or becomes inconsistent with any provision of the Certificate of
Incorporation, the DGCL or any other applicable law, the provision of these
By-laws shall not be given any effect to the extent of such inconsistency but
shall otherwise be given full force and effect.
Section 9.01.
Amendments
. Subject
to the Certificate of Incorporation these By-laws may be amended, added to,
rescinded or repealed at any meeting of the Board of Directors or of the
stockholders; provided, however, that, notwithstanding any other provisions of
these By-laws or any provision of law which might otherwise permit a lesser vote
of the stockholders, the affirmative vote of the holders of at least 80% in
voting power of all shares of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required in
order for the stockholders to alter, amend or repeal Sections 2.02, 2.03,
3.02, 3.03, 3.04, 3.05 or this proviso of Section 9.01 of the By-laws or to
adopt provisions inconsistent therewith.