| Section |
Article II Shareholders |
| 2.1 |
Annual Meeting. The annual meeting of the
stockholders of the Corporation shall be held on such date and at
such place and time as may be fixed by resolution of the Board of
Directors. |
| 2.2 |
Special Meeting. Subject to the rights of
the holders of any series of stock having a preference over the
Common Stock of the Corporation as to dividends or upon liquidation
("Preferred Stock") with respect to such series of Preferred Stock,
special meetings of the stockholders may be called only by the
Chairman of the Board of Directors ("Chairman of the Board") or by
the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation
would have if there were no vacancies (the "Whole Board"). |
| 2.3 |
Place of Meeting. The Board of Directors,
the Chairman of the Board or, if delegated by the Board of
Directors or the Chairman of the Board, the President, as the case
may be, may designate the place of meeting for any annual meeting
or for any special meeting of the stockholders called by the Board
of Directors or the Chairman of the Board. If no designation is so
made, the place of meeting shall be the principal office of the
Corporation. |
| 2.4 |
Notice of Meeting. Written or printed
notice, stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called, shall be
delivered by the Corporation not less than 10 days nor more than 60
days before the date of the meeting, either personally or by mail
or by such other means as may be permitted by law (including
electronic communication), to each stockholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail with postage
thereon prepaid, addressed to the stockholder at his or her address
as it appears on the stock transfer books of the Corporation. Such
further notice shall be given as may be required by law. 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. Meetings may be held without
notice if all stockholders entitled to vote are present, or if
notice is waived by those not present in accordance with Section
6.4 of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of
Incorporation otherwise provides) any special meeting of the
stockholders may be cancelled, by resolution of the Board of
Directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders. |
| 2.5 |
Quorum; Adjournment and Postponement. Except
as otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the outstanding shares
of the corporation entitled to vote generally in the election of
directors (the "Voting Stock"), represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, except that
when specified business is to be voted on by a class or series of
stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or
series for the transaction of such business. The presiding officer
of the meeting or a majority of the shares so represented may
adjourn or postpone the meeting from time to time, whether or not
there is such a quorum. No notice of the time and place of
adjourned or postponed meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a
quorum is present may continue to transact business until
adjournment or postponement, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. |
| 2.6 |
Voting by Proxy. At all meetings of
stockholders, a stockholder may vote by proxy executed in writing
(or in such manner prescribed by the General Corporation Law of the
State of Delaware) by the stockholder, or by his or her duly
authorized attorney in fact. |
| 2.7 |
Organization. The Chairman of the Board, or,
at the direction of the Chairman of the Board or in the Chairman of
the Board's absence, the President, shall preside at meetings of
stockholders. The Secretary of the Corporation shall act as
Secretary at all meetings of the stockholders, but, in the absence
of the Secretary, the presiding officer may appoint a Secretary of
the meeting. The order of business for such meetings shall be
determined by the Chairman of the Board. |
| 2.8 |
Notice of Stockholder Business and
Nominations.
- Annual Meetings of Stockholders.
- Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders
(a) by or at the direction of the Board of Directors, including
pursuant to the Corporation's notice of meeting, or (b) by any
stockholder of the Corporation who was a stockholder of record at
the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Bylaw. Clause (b) shall be the
exclusive means for a stockholder to make nominations or submit
other business (other than matters properly brought under Rule
14a-8 or Rule 14a-11 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and included in the Corporation's
notice of meeting) before an annual meeting of stockholders.
- Subject to Section 2.8(D)(3) of these Bylaws, for nominations
or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (b) of paragraph (A)(1) of this
Bylaw, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business
must be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the
close of business on the 90th day nor earlier than the close of
business on the 120th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than
the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of the 90th
day prior to such annual meeting or the 10th day following the day
on which public announcement of the date of such meeting is first
made. In no event shall the public announcement of an adjournment
or postponement of an annual meeting commence a new time period for
the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth:
- as to each person whom the stockholder proposes to nominate for
election or reelection as a director (i) all information relating
to such person that is required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for the election of directors in an
election contest, or is otherwise required, in each case pursuant
to Section 14 of the Exchange Act, and the rules and regulations
promulgated thereunder (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a
director if elected), (ii) a description of all direct and indirect
compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other
material relationships, between or among such stockholder and the
beneficial owner, if any, on whose behalf the nomination is made,
and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and
his or her respective affiliates and associates, or others acting
in concert therewith, on the other hand, including, without
limitation all information that would be required to be disclosed
pursuant to Item 404 promulgated under Regulation S-K if the
stockholder making the nomination and the beneficial owner, if any,
on whose behalf the nomination is made or any affiliate or
associate thereof or person acting in concert therewith, were the
"registrant" for purposes of such Item and the nominee were a
director or executive officer of such registrant, (iii) with
respect to each nominee for election or reelection to the Board of
Directors, include a completed and signed questionnaire,
representation and agreement required by Section 2.8(C) of these
Bylaws, and (iv) such other information as may reasonably be
required by the Corporation to determine the eligibility of such
proposed nominee to serve as an independent director of the
Corporation or that could be material to a reasonable stockholder's
understanding of the independence, or lack thereof, of such
nominee;
- 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 Bylaws of the Corporation, the language of the proposed
amendment), the reasons for conducting such business at the
meeting, any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is
made and a description of all agreements, arrangements and
understandings between such stockholder and such beneficial owner,
if any, and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder;
and
- 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) (A) the
class and number of shares of the Corporation which are, directly
or indirectly, owned beneficially and of record by such stockholder
and such beneficial owner, (B) any option, warrant, convertible
security, stock appreciation right, or similar right with an
exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of
the Corporation or with a value derived in whole or in part from
the value of any class of shares of the Corporation or with a value
derived in whole or in part from the value of any class or series
of shares of the Corporation, whether or not such instrument or
right shall be subject to settlement in the underlying class of
capital stock of the Corporation or otherwise (a "Derivative
Instrument") directly or indirectly owned beneficially by such
stockholder and any other direct or indirect opportunity to profit
or share in any profit derived from any increase or decrease in the
value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such
stockholder has a right to vote any shares of any security of the
Company, (D) any short interest in any security of the Company (for
purposes of these Bylaws a person shall be deemed to have a short
interest in a security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or
otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security),
(E) any rights to dividends on the shares of the Corporation owned
beneficially by such stockholder that are separated or separable
from the underlying shares of the Corporation, (F) any
proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or,
directly or indirectly, beneficially owns an interest in a general
partner and (G) any performance-related fees (other than an
asset-based fee) that such stockholder is entitled to based on any
increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of
such stockholder's immediate family sharing the same household
(which information shall be supplemented by such stockholder and
such beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the
record date), (iii) any other information relating to such
stockholder and such beneficial owner, if any, that would be
required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies
for, as applicable, the proposal and/or for the election of
directors in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder,
(iv) a representation that such owner intends to appear in person
or by proxy at the meeting to propose such business or nomination,
and (v) 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.
- Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Bylaw to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the
increased Board of Directors made by the Corporation at least 100
days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Bylaw shall also
be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the 10th day following the day
on which such public announcement is first made by the
Corporation.
- 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 (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at
the time of giving of notice provided for in this Bylaw, who shall
be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Bylaw. 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 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 required by
paragraph (A)(2) of this Bylaw with respect to any nomination
(including the completed and signed questionnaire, representation
and agreement required by Section 2.8(C) of this Bylaw) 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 for
the giving of a stockholder's notice as described above. This
paragraph (B) shall be the exclusive means for a stockholder to
make nominations or other business proposals before a special
meeting of stockholders (other than matters properly brought under
Rule 14a-8 or Rule 14a-11 under the Exchange Act and included in
the Corporation's notice of meeting).
- Submission of Questionnaire, Representation and
Agreement. To be eligible to be a nominee for election or
reelection as a director of the Corporation (or, in the case of a
nomination brought under Rule 14a-11 of the Exchange Act, to serve
as a director of the Corporation), a person must deliver (in
accordance with the time periods prescribed for delivery of notice
under this Section 2.8 of this Bylaw or, in the case of a
nomination brought under Rule 14a-11 of the Exchange Act, prior to
the time such person is to begin service as a director) to the
Secretary at the principal executive offices of the Corporation a
written questionnaire with respect to the background and
qualifications of such person and the background of any other
person or entity on whose behalf the nomination is being made
(which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the
form provided by the Secretary upon written request) that such
person (A) is not and will not become a party to (1) any agreement,
arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any
issue or question (a "Voting Commitment") that has not been
disclosed to the Corporation or (2) any Voting Commitment that
could limit or interfere with such person's ability to comply, if
elected as a director of the Corporation, with such person's
fiduciary duties under applicable law, (B) is not and will not
become a party to any agreement, arrangement or understanding with
any person or entity other than the Corporation with respect to any
direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not
been disclosed therein, (C) in such person's individual capacity
and on behalf of any person or entity on whose behalf the
nomination is being made, would be in compliance, if elected as a
director of the Corporation, and will comply with all applicable
publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and
guidelines of the Corporation and (D) will abide by the
requirements of Section 2.9 of these Bylaws.
- General.
-
- Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to be elected
at an annual meeting of stockholders or special meeting of
stockholders, as applicable, 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 Bylaw. Except as otherwise provided by
law, the Certificate of Incorporation or the Bylaws of the
Corporation, the presiding officer 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
this Bylaw and, if any proposed nomination or business is not in
compliance with this Bylaw, to declare that such defective proposal
or nomination shall be disregarded.
- For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in
a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
- Notwithstanding the foregoing provisions of this Bylaw, 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 Bylaw. Nothing in this
Bylaw shall be deemed to affect any rights of (i) stockholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act, (ii) of stockholders
to request inclusion of nominees in the Corporation's proxy
statement pursuant to Rule 14a-11 under the Exchange Act or (iii)
the holders of any series of Preferred Stock to elect directors
under specified circumstances. Subject to Rule 14a-8 and Rule
14a-11 under the Exchange Act, nothing in these By-laws shall be
construed to permit any stockholder, or give any stockholder the
right, to include or have disseminated or described in the
Corporation's proxy statement any nomination of director or
directors or any other business proposal.
|
| 2.9 |
Procedure for Election of Directors;
Required Vote.
- Except as set forth below, election 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 series of Preferred Stock to elect directors under specified
circumstances, a majority of the votes cast at any meeting for the
election of directors at which a quorum is present shall elect
directors. For purposes of this Bylaw, a majority of votes cast
shall mean that the number of shares voted "for" a director's
election exceeds 50% of the number of votes cast with respect to
that director's election. Votes cast shall include direction to
withhold authority in each case and exclude abstentions with
respect to that director's election. Notwithstanding the foregoing,
in the event of a "contested election" of directors, directors
shall be elected by the vote of a plurality of the votes cast at
any meeting for the election of directors at which a quorum is
present. For purposes of this Bylaw, a "contested election" shall
mean any election of directors in which the number of candidates
for election as directors exceeds the number of directors to be
elected, with the determination thereof being made by the Secretary
as of the close of the applicable notice of nomination period set
forth in Section 2.8 of these Bylaws or under applicable law, based
on whether one or more notice(s) of nomination were timely filed in
accordance with said Section 2.8; provided, however, that the
determination that an election is a "contested election" shall be
determinative only as to the timeliness of a notice of nomination
and not otherwise as to its validity. If, prior to the time the
Corporation mails its initial proxy statement in connection with
such election of directors, one or more notices of nomination are
withdrawn such that the number of candidates for election as
director no longer exceeds the number of directors to be elected,
the election shall not be considered a "contested election," but in
all other cases, once an election is determined to be a contested
election, directors shall be elected by the vote of a plurality of
the votes cast.
- If a nominee for director who is an incumbent director is
not elected and no successor has been elected at such meeting, the
director shall promptly tender his or her resignation to the Board
of Directors. The Nominating and Corporate Governance Committee
shall make a recommendation to the Board of Directors as to whether
to accept or reject the tendered resignation, or whether other
action should be taken. The Board of Directors shall act on the
tendered resignation, taking into account the Nominating and
Corporate Governance Committee's recommendation, and publicly
disclose (by a press release, a filing with the Securities and
Exchange Commission or other broadly disseminated means of
communication) its decision regarding the tendered resignation and
the rationale behind the decision within 90 days from the date of
the certification of the election results. The Nominating and
Corporate Governance Committee in making its recommendation, and
the Board of Directors in making its decision, may each consider
any factors or other information that it considers appropriate and
relevant. The director who tenders his or her resignation shall not
participate in the recommendation of the Nominating and Corporate
Governance Committee or the decision of the Board of Directors with
respect to his or her resignation. If such incumbent director's
resignation is not accepted by the Board of Directors, such
director shall continue to serve until the next annual meeting and
until his or her successor is duly elected, or his or her earlier
resignation or removal. If a director's resignation is accepted by
the Board of Directors pursuant to this Bylaw, or if a nominee for
director is not elected and the nominee is not an incumbent
director, then the Board of Directors, in its sole discretion, may
fill any resulting vacancy pursuant to the provisions of Section
3.9 of these Bylaws or may decrease the size of the Board of
Directors pursuant to the provisions of Section 3.2 of these
Bylaws.
- Except as otherwise provided by law, the Certificate of
Incorporation, or these Bylaws, in all matters other than the
election of directors, the affirmative vote of a majority of the
shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the
stockholders.
|
| 2.10 |
Inspectors of Elections; Opening and Closing
the Polls. The Board of Directors by resolution shall appoint one
or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a
written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders, the presiding officer of the
meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before discharging his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.
The presiding officer of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a
meeting. |
| 2.11 |
Record Date for Action by Written Consent.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, 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
date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall
promptly, but in all events within 10 days after the date on which
such a request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors
within 10 days of the date on which such a request is received, the
record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable 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 by delivery to its registered office in Delaware, its
principal place of business or to any 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 by hand or by certified or
registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board
of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking
such prior action. |
| 2.12 |
Inspectors of Written Consent. In the event
of the delivery, in the manner provided by Section 2.11, to the
Corporation of the requisite written consent or consents to take
corporate action and/or any related revocation or revocations, the
Corporation shall engage nationally recognized independent
inspectors of elections for the purpose of promptly performing a
ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be
effective until such date as the independent inspectors certify to
the Corporation that the consents delivered to the Corporation in
accordance with Section 2.11 represent at least the minimum number
of votes that would be necessary to take the corporate action.
Nothing contained in this paragraph shall in any way be construed
to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification by
the independent inspectors, or to take any other action (including,
without limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive
relief in such litigation). |
| 2.13 |
Effectiveness of Written Consent. 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 earliest dated written consent received in
accordance with Section 2.11, a written consent or consents signed
by a sufficient number of holders to take such action are delivered
to the Corporation in the manner prescribed in Section 2.11. |