SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: MAY 22, 2007
(Date of earliest event reported)
PRINCIPAL FINANCIAL GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-16725 42-1520346
(State or other jurisdiction (Commission file number) (I.R.S. Employer
of incorporation) Identification Number)
711 HIGH STREET, DES MOINES, IOWA 50392
(Address of principal executive offices)
(515) 247-5111 (Registrant's
telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN
FISCAL YEAR
On May 22, 2007, the board of directors (the "Board") of Principal Financial
Group, Inc. (the "Company"), upon the recommendation of the nominating and
governance committee of the Board (the "Committee"), voted to amend the
Company's by-laws to change the voting standard for the election of directors.
The changes are described below. The description is qualified in its entirety by
reference to the Company's amended and restated by-laws, an exhibit to this
report and incorporated by reference into this Item 5.03.
Effective May 23, 2007, the voting standard for director elections was changed
in uncontested elections from a plurality to a majority standard. Under the new
majority standard, a nominee in an uncontested election will be elected if the
number of votes cast "for" such nominee exceeds 50% of the number of votes cast
with respect to that nominee's election. In contested director elections, the
plurality voting standard is retained.
Changes were also made to the director nomination procedures. To be eligible to
be a nominee for election as a director, a person must deliver to the Company's
corporate secretary a written questionnaire, including with respect to the
background and qualification of such person and the background of any other
person or entity on whose behalf the nomination was made. Also, the person must
deliver to the Company's corporate secretary a written representation and
agreement, and if an incumbent director, the person's irrevocable resignation,
given in advance, to be effective if the person does not receive a majority of
the votes cast in an uncontested election and no successor is elected.
If a nominee who is an incumbent director is not elected in an uncontested
election and no successor has been elected, the Board must take action on the
resignation tendered in advance by the director. The Committee shall make a
recommendation to the Board whether to accept or reject the tendered
resignation, or whether other action should be taken. The Board must then act on
the tendered resignation, publicly disclosing its decision, within 90 days from
the date election results were certified. An incumbent director whose tendered
resignation is not accepted shall continue to serve until the next annual
meeting and until the person's successor is elected. The director who tenders
his or her resignation may not participate in the recommendation of the
Committee or the decision of the Board.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT NUMBER DESCRIPTION
3.2 Amended and Restated By-laws of Principal Financial Group, Inc.
effective May 23, 2007.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRINCIPAL FINANCIAL GROUP, INC.
By: /S/ JOYCE N. HOFFMAN
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Name: Joyce N. Hoffman
Title: Senior Vice President and Corporate
Secretary
Date: May 29, 2007
EXHIBIT 3.2
PRINCIPAL FINANCIAL GROUP, INC.
AMENDED AND RESTATED BY-LAWS
Effective May 23, 2007
ARTICLE I
STOCKHOLDERS
Section 1.01. ANNUAL MEETINGS. The annual meeting of the stockholders of the
Corporation for the election of Directors and for the transaction of such other
business as properly may come before such meeting shall be held at such place,
either within or without the State of Delaware, or, within the sole discretion
of the Board of Directors, by remote electronic communication technologies and
at such date and at such time, as may be fixed from time to time by resolution
of the Board of Directors and set forth in the notice or waiver of notice of the
meeting.
Section 1.02. SPECIAL MEETINGS. Special meetings of the stockholders may be
called at any time by the Chairman of the Board, Chief Executive Officer (or, in
the event of his or her absence or disability, by the President or any Executive
Vice President), or by the Board of Directors. A special meeting shall be called
by the Chairman of the Board, Chief Executive Officer (or, in the event of his
or her absence or disability, by the President or any Executive Vice President),
or by the Secretary of the Corporation pursuant to a resolution approved by a
majority of the entire Board of Directors. Such special meetings of the
stockholders shall be held at such places, within or without the State of
Delaware, or, within the sole discretion of the Board of Directors, by remote
electronic communication technologies, as shall be specified in the respective
notices or waivers of notice thereof. Any power of the stockholders of the
Corporation to call a special meeting is specifically denied.
Section 1.03. NOTICE OF MEETINGS; WAIVER.
(a) The Secretary of the Corporation or any Assistant Secretary shall cause
written notice of the place, if any, date and hour of each meeting of the
stockholders, and, in the case of a special meeting, the purpose or purposes for
which such meeting is called, 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, to be given personally by mail or by electronic
transmission, not fewer than ten (10) nor more than sixty (60) days prior to the
meeting, to each stockholder of record entitled to vote at such meeting. If such
notice is mailed, it shall be deemed to have been given personally to a
stockholder when deposited in the United States mail, postage prepaid, directed
to the stockholder at his or her address as it appears on the record of
stockholders of the Corporation, or, if a stockholder shall have filed with the
Secretary of the Corporation a written request that notices to such stockholder
be mailed to some other address, then directed to such stockholder at such other
address. Such further notice shall be given as may be required by law.
(b) A written waiver of any notice of any annual or special meeting signed by
the person entitled thereto, or a waiver by electronic transmission by the
person entitled to notice, shall be deemed equivalent to notice. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of the stockholders need be specified in a written waiver of notice. Attendance
of a stockholder at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
(c) For notice given by electronic transmission to a stockholder to be
effective, such stockholder must consent to the Corporation's giving notice by
that particular form of electronic transmission. A stockholder may revoke
consent to receive notice by electronic transmission by written notice to the
Corporation. A stockholder's consent to notice by electronic transmission is
automatically revoked if the Corporation is unable to deliver two consecutive
electronic transmission notices and such inability becomes known to the
Secretary of the Corporation, any Assistant Secretary, the transfer agent or
other person responsible for giving notice.
(d) Notices are deemed given (i) if by facsimile, when faxed to a number where
the stockholder has consented to receive notice; (ii) if by electronic mail,
when mailed electronically to an electronic mail address at which the
stockholder has consented to receive such notice; (iii) if by posting on an
electronic network (such as a website or chatroom) together with a separate
notice to the stockholder of such specific posting, upon the later to occur of
(A) such posting or (B) the giving of the separate notice of such posting; or
(iv) if by any other form of electronic communication, when directed to the
stockholder in the manner consented to by the stockholder.
(e) If a stockholder meeting is to be held via electronic communications and
stockholders will take action at such meeting, the notice of such meeting must:
(i) specify the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present and vote at such meeting; and (ii)
provide the information required to access the stockholder list. A waiver of
notice may be given by electronic transmission.
Section 1.04. QUORUM. Except as otherwise required by law or by the Certificate
of Incorporation, the presence in person or by proxy of the holders of record of
one-third of the shares entitled to vote at a meeting of stockholders shall
constitute a quorum for the transaction of business at such meeting.
Section 1.05. VOTING. If, pursuant to Section 5.05 of these By-Laws, a record
date has been fixed, every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one (1) vote for each share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one (1) vote for each share of stock standing in his or her name
on the books of the Corporation at the close of business on the day next
preceding the day on which notice of the meeting 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.
Section 1.06. REQUIRED VOTE FOR DIRECTORS AND OTHER MATTERS. Each Director to be
elected by stockholders shall be elected by the vote of the majority of the
votes cast at any meeting for the election of Directors at which a quorum is
present, provided that if the number of persons properly nominated to serve as
Directors of the Corporation exceeds the number of Directors to be elected (a
"Contested Election"), the Directors shall be elected by the vote of a plurality
of the votes cast at any such meeting and entitled to vote on the election of
Directors. For purposes of this section, 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. In all other
matters, the affirmative vote of the majority of votes cast at a meeting and
voting on the subject matter shall be the act of the stockholders. Votes cast in
each case shall include votes to withhold authority for the election of
Directors and exclude abstentions.
Section 1.07. RESIGNATION IF NOT ELECTED. If a nominee for Director who is an
incumbent Director is not elected at a meeting for the election of Directors and
no successor has been elected at such meeting, the Board of Directors shall act
on the resignation that was tendered by the incumbent nominee for Director under
the provisions of Section 1.08 of these By-Laws. The Nominating and 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 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 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 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 section, 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 2.14 of these By-Laws or may decrease the
size of the Board of Directors pursuant to the provisions of Section 2.02 of
these By-Laws.
Section 1.08. SUBMISSION OF QUESTIONNAIRE, REPRESENTATION AND AGREEMENT. To be
eligible to be a nominee for election or reelection as a Director of the
Corporation, a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 1.13 of these By-Laws) to the
Secretary at the principal executive offices of the Corporation a written
questionnaire with respect to the background and qualification 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) will and
therewith does tender for action by the Board an advance, irrevocable
resignation in the event such person is an incumbent nominee for Director and is
not elected at a meeting for the election of Directors and no successor has been
elected at such meeting, (B) 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, (C) 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, and (D) 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.
Section 1.09. VOTING BY BALLOT. No vote of the stockholders on an election of
Directors need be taken by written ballot or by electronic transmission unless
otherwise required by law. Any vote not required to be taken by ballot or by
electronic transmission may be conducted in any manner approved by the Board of
Directors prior to the meeting at which such vote is taken.
Section 1.10. ADJOURNMENT. If a quorum is not present at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the place, if any, date and hour thereof are announced at the
meeting at which the adjournment is taken, provided, however, that if the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date for the adjourned meeting is fixed pursuant to Section 5.05 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.03 hereof, shall be given to each stockholder of record entitled to
vote at such meeting. At any adjourned meeting at which a quorum is present, any
business may be transacted that might have been transacted on the original date
of the meeting.
Section 1.11. PROXIES. Any stockholder entitled to vote at any meeting of the
stockholders may authorize another person or persons to vote at any such meeting
and express such consent or dissent for him or her by proxy. A stockholder may
authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing by
any reasonable means including, but not limited to, by facsimile signature, or
by transmitting or authorizing the transmission of a telegram, cablegram or
other means of electronic transmission to the person designated as the holder of
the proxy, a proxy solicitation firm or a like authorized agent. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy shall
be revocable at the pleasure of the stockholder executing it, except in those
cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing with the Secretary of the Corporation
either an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date. Proxies by telegram, cablegram or other electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. Any copy, facsimile
telecommunication or other reliable reproduction of a writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section 1.12. ORGANIZATION; PROCEDURE. At every meeting of stockholders the
presiding officer shall be the Chairman of the Board or, in the event of his or
her absence or disability, a presiding officer chosen by the Board of Directors.
The Secretary of the Corporation, or in the event of his or her absence or
disability, an Assistant Secretary, if any, or if there be no Assistant
Secretary, in the absence of the Secretary of the Corporation, an appointee of
the presiding officer, shall act as Secretary of the meeting. The order of
business and all other matters of procedure at every meeting of stockholders may
be determined by such presiding officer.
Section 1.13. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(i) 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 or the Chairman of the Board, or (B) by any stockholder
of the Corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in clauses (ii) and (iii) of this paragraph and who
was a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation and at the time of the annual meeting.
(ii) For nominations or other business to be properly brought before an annual
meeting by a stockholder, pursuant to clause (B) of paragraph (a)(i) of this
Section 1.13, the stockholder must have given timely notice thereof in writing
or by electronic transmission to the Secretary of the Corporation and such other
business must otherwise be 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 fewer than ninety (90)
days nor more than one hundred twenty (120) days prior to the first anniversary
of the preceding year's annual meeting and in any event at least forty-five (45)
days prior to the first anniversary of the date on which the registrant first
mailed its proxy materials for the prior year's annual meeting of stockholders;
PROVIDED, that if the date of the annual meeting is advanced by more than thirty
(30) days or delayed by more than seventy (70) days from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than one
hundred twenty (120) days prior to such annual meeting and not later than the
close of business on the later of the ninetieth day prior to such annual meeting
or the tenth day following the day on which public announcement of the date of
such meeting is first made. In no event shall the adjournment 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 (A) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is being made (1) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (2) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, and
(3) all information relating to such stockholder and beneficial owner that would
be required to be disclosed in solicitations of proxies for, as applicable, the
proposal and/or the 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"), and Rule 14a-11 thereunder, or any successor
provisions, including, in the case of nominations for Director, 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 each person whom the stockholder
proposes to nominate for election or reelection as a Director, (1) 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 beneficial owner,
if any, 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 of Regulation S-K promulgated by
the Securities and Exchange Commission if the stockholder making the nomination
and any beneficial owner on whose behalf the nomination is made, if any, or any
affiliate or associate thereof or person acting in concert therewith, were the
"registrant" for purposes of such rule and the nominee were a director or
executive officer of such registrant, and (2) 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; and (C) as to any other business
that the stockholder proposes to bring before the meeting, (1) a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and of any beneficial owner on whose behalf
the proposal is made, and (2) a description of all agreements, arrangements and
understandings between such stockholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal
of such business by such stockholder.
(iii) Notwithstanding anything in the second sentence of paragraph (a)(ii) of
this Section 1.13 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
one hundred (100) days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice under this paragraph 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 of the
Corporation at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business as shall have been
brought before the special meeting of the stockholders pursuant to the
Corporation's notice of meeting pursuant to Section 1.03 of these By-Laws shall
be conducted at such 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) by or at
the direction of the Board of Directors or (2) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this Section 1.13 and who is a stockholder of record at
the time such notice is delivered to the Secretary of the Corporation and at the
time of the special meeting. Nominations by stockholders of persons for election
to the Board of Directors may be made at such special meeting of stockholders if
the stockholder's notice as required by paragraph (a)(ii) of this Section 1.13
(including the completed and signed questionnaire, representation and agreement
required by Section 1.08 of these By-Laws) shall be delivered to the Secretary
of the Corporation at the principal executive offices of the Corporation not
earlier than the one hundred and twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting or the tenth (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 adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(c) GENERAL.
(i) Only persons who are nominated in accordance with the procedures set forth
in this Section 1.13 and Section 1.08 of these By-Laws shall be eligible 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 1.13. 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 in accordance with
the procedures set forth in this Section 1.13 and, if any proposed nomination or
business is not in compliance with this Section 1.13, to declare that such
defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 1.13, "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.
(iii) Notwithstanding the foregoing provisions of this Section 1.13, 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 1.13. Nothing in this Section 1.13 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 series of Preferred Stock, if any, to elect Directors
if so provided under any applicable Preferred Stock Certificate of Designation
(as defined in the Certificate of Incorporation).
Section 1.14. INSPECTORS OF ELECTIONS. Preceding any meeting of the
stockholders, the Board of Directors shall appoint one (1) or more persons to
act as Inspectors of Elections, and may designate one (1) or more alternate
inspectors. In the event no inspector or alternate is able to act, the person
presiding at the meeting shall appoint one (1) or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of the duties of an
inspector, 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 inspector shall:
(a) ascertain the number of shares outstanding and the voting power of each;
(b) determine the shares represented at a meeting and the validity of proxies
and ballots;
(c) specify the information relied upon to determine the validity of electronic
transmissions in accordance with Section 1.09 hereof;
(d) count all votes and ballots;
(e) determine and retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors; and
(f) certify his or her determination of the number of shares represented at the
meeting, and his or her count of all votes and ballots;
(g) appoint or retain other persons or entities to assist in the performance of
the duties of inspector; and
(h) when determining the shares represented and the validity of proxies and
ballots, be limited to an examination of the proxies, any envelopes submitted
with those proxies, any information provided in accordance with Section 1.09 of
these By-Laws, ballots and the regular books and records of the Corporation. The
inspector may consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks, brokers or
their nominees or a similar person which represent more votes than the holder of
a proxy is authorized by the record owner to cast or more votes than the
stockholder holds of record. If the inspector considers other reliable
information as outlined in this section, the inspector, at the time of his or
her certification pursuant to paragraph (f) of this section, shall specify the
precise information considered, the person or persons from whom the information
was obtained, when this information was obtained, the means by which the
information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable.
Section 1.15. OPENING AND CLOSING OF POLLS. The date and time for the opening
and the closing of the polls for each matter to be voted upon at a stockholder
meeting shall be announced at the meeting. The inspector shall be prohibited
from accepting any ballots, proxies or votes or any revocations thereof or
changes thereto after the closing of the polls, unless the Court of Chancery
upon application by a stockholder shall determine otherwise.
Section 1.16. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Effective as of the time
the Common Stock shall be registered pursuant to the provisions of the Exchange
Act, any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of the
stockholders of the Corporation, and the ability of the stockholders to consent
in writing to the taking of any action is specifically denied.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. GENERAL POWERS. Except as may otherwise be provided by law, the
Certificate of Incorporation or these By-Laws, the property, affairs and
business of the Corporation shall be managed by or under the direction of the
Board of Directors and the Board of Directors may exercise all the powers of the
Corporation.
Section 2.02. NUMBER OF DIRECTORS. Subject to the rights of the holders of any
class or series of Preferred Stock, if any, the number of Directors shall be
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the entire Board of Directors; provided, however, that the Board of
Directors shall at no time consist of fewer than three (3) Directors.
Section 2.03. CLASSIFIED BOARD OF DIRECTORS; ELECTION OF DIRECTORS. The
Directors of the Corporation, subject to the rights of the holders of shares of
any class or series of Preferred Stock, shall be classified with respect to the
time for which they severally hold office, into three (3) classes, as nearly
equal in number as possible, one class ("CLASS I") whose initial term expires at
the 2002 annual meeting of stockholders, another class ("CLASS II") whose
initial term expires at the 2003 annual meeting of stockholders, and another
class ("CLASS III") whose initial term expires at the 2004 annual meeting of
stockholders, with each class to hold office until its successors are elected
and qualified. Except as otherwise provided in Sections 2.12 and 2.13 of these
By-Laws, at each annual meeting of stockholders of the Corporation, and subject
to the rights of the holders of shares of any class or series of Preferred
Stock, the successors of the class of Directors whose term expires at that
meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election.
Section 2.04. THE CHAIRMAN OF THE BOARD. The Directors shall elect from among
the members of the Board a "Chairman of the Board". The Chairman of the Board
shall be deemed an officer of the Corporation and shall have such duties and
powers as set forth in these By-Laws or as shall otherwise be conferred upon the
Chairman of the Board from time to time by the Board of Directors. The Chairman
of the Board shall, if present, preside over all meetings of the Stockholders
and of the Board of Directors. The Board of Directors shall by resolution
establish a procedure to provide for an acting Chairman of the Board in the
event the current Chairman of the Board is unable to serve or act in that
capacity.
Section 2.05. ANNUAL AND REGULAR MEETINGS. The annual meeting of the Board of
Directors for the purpose of electing officers and for the transaction of such
other business as may come before the meeting shall be held as soon as
reasonably practicable following adjournment of the annual meeting of the
stockholders at the place of such annual meeting of the stockholders. Notice of
such annual meeting of the Board of Directors need not be given. The Board of
Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or without the State of
Delaware) and the date and hour of such meetings. Notice of regular meetings
need not be given, provided, however, that if the Board of Directors shall fix
or change the time or place of any regular meeting, notice of such action shall
be mailed promptly, or sent by telephone, including a voice messaging system or
other system or technology designed to record and communicate messages,
telegraph, facsimile, electronic mail or other electronic means, to each
Director who shall not have been present at the meeting at which such action was
taken, addressed to him or her at his or her usual place of business, or shall
be delivered to him or her personally. Notice of such action need not be given
to any Director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him or her, prior to or at the
commencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting.
Section 2.06. SPECIAL MEETINGS; NOTICE. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, Chief
Executive Officer (or, in the event of his or her absence or disability, by the
President or any Executive Vice President), or by the Board of Directors, at
such place (within or without the State of Delaware), date and hour as may be
specified in the respective notices or waivers of notice of such meetings.
Special meetings of the Board of Directors also may be held whenever called
pursuant to a resolution approved by a majority of the entire Board of
Directors. Special meetings of the Board of Directors may be called on
twenty-four (24) hours' notice, if notice is given to each Director personally
or by telephone, including a voice messaging system, or other system or
technology designed to record and communicate messages, telegraph, facsimile,
electronic mail or other electronic means, or on five (5) days' notice, if
notice is mailed to each Director, addressed to him or her at his or her usual
place of business or to such other address as any Director may request by notice
to the Secretary. Notice of any special meeting need not be given to any
Director who attends such meeting without protesting the lack of notice to him
or her, prior to or at the commencement of such meeting, or to any Director who
submits a signed waiver of notice, whether before or after such meeting, and any
business may be transacted thereat.
Section 2.07. QUORUM; VOTING. At all meetings of the Board of Directors, the
presence of at least a majority of the total authorized number of Directors
shall constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of at least a majority of the Directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.08. ADJOURNMENT. A majority of the Directors present, whether or not a
quorum is present, may adjourn any meeting of the Board of Directors to another
time or place. No notice need be given of any adjourned meeting unless the time
and place of the adjourned meeting are not announced at the time of adjournment,
in which case notice conforming to the requirements of Section 2.05 of these
By-Laws shall be given to each Director.
Section 2.09. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing or by
electronic transmission, and such writing, writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board of
Directors. Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 2.10. REGULATIONS; MANNER OF ACTING. To the extent consistent with
applicable law, the Certificate of Incorporation and these By-Laws, the Board of
Directors may adopt by resolution such rules and regulations for the conduct of
meetings of the Board of Directors and for the management of the property,
affairs and business of the Corporation as the Board of Directors may deem
appropriate. The Directors shall act only as a Board of Directors and the
individual Directors shall have no power in their individual capacities unless
expressly authorized by the Board of Directors.
Section 2.11. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 2.12. RESIGNATIONS. Any Director may resign at any time by submitting an
electronic transmission or by delivering a written notice of resignation, signed
by such Director, to the Chairman of the Board or the Secretary. Unless
otherwise specified therein, such as an advance resignation tendered for action
under Section 1.07 of these By-Laws, such resignation shall take effect upon
delivery.
Section 2.13. REMOVAL OF DIRECTORS. Subject to the rights of the holders of any
class or series of Preferred Stock, if any, to elect additional Directors under
specified circumstances, any Director may be removed at any time, but only for
cause, upon the affirmative vote of the holders of a majority of the combined
voting power of the then outstanding stock of the Corporation entitled to vote
generally in the election of Directors. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders
entitled to vote for the election of the Director so removed. If such
stockholders do not fill such vacancy at such meeting, such vacancy may be
filled in the manner provided in Section 2.14 of these By-Laws.
Section 2.14. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject to the rights
of the holders of any class or series of Preferred Stock, if any, to elect
additional Directors under specified circumstances, and except as provided in
Section 2.13, if any vacancies shall occur in the Board of Directors, by reason
of death, resignation, removal or otherwise, or if the authorized number of
Directors shall be increased, the Directors then in office shall continue to
act, and such vacancies and newly created Directorships may be filled by a
majority of the Directors then in office, although less than a quorum. Any
Director filling a vacancy shall be of the same class as that of the Director
whose death, resignation, removal or other event caused the vacancy, and any
Director filling a newly created Directorship shall be of the class specified by
the Board of Directors at the time the newly created Directorships were created.
A Director elected to fill a vacancy or a newly created Directorship shall hold
office until his or her successor has been elected and qualified or until his or
her earlier death, resignation or removal.
Section 2.15. COMPENSATION. The amount, if any, which each Director shall be
entitled to receive as compensation for such Director's services as such shall
be fixed from time to time by resolution of the Board of Directors.
Section 2.16. RELIANCE ON ACCOUNTS AND REPORTS, ETC. A Director, or a member of
any committee designated by the Board of Directors shall, in the performance of
such Director's or member's duties, be fully protected in relying in good faith
upon the records of the Corporation and upon information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, or committees designated by the Board of Directors, or by any other
person as to the matters the Director or the member reasonably believes are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Corporation.
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.01. EXECUTIVE COMMITTEE. The Board of Directors shall appoint an
Executive Committee consisting of five (5) Directors. Members of the Executive
Committee shall be appointed by and serve at the pleasure of the Board of
Directors. The Chairman of the Board shall be a member of the Executive
Committee and shall, if present, preside at each meeting of the Executive
Committee. The Chief Executive Officer, if different than the Chairman of the
Board, shall be a member of the Executive Committee and in the event of an
absence or vacancy in the office of the Chairman of the Board, shall preside at
meetings of the Executive Committee. If the Chairman of the Board is also the
Chief Executive Officer, any other member of the Executive Committee, as
determined by the members of the Executive Committee present, shall preside at a
meeting of the Executive Committee in the absence of the Chairman of the Board.
The Secretary shall act as secretary of the Executive Committee and shall keep a
record of all proceedings of the Executive Committee. A majority of the members
of the Executive Committee shall constitute a quorum.
Section 3.02. POWERS OF EXECUTIVE COMMITTEE. The Executive Committee shall have
and, to the extent permitted by law, may exercise all of the powers of the Board
of Directors in the management and affairs of the Corporation except when the
Board of Directors is in session.
Section 3.03. OTHER COMMITTEES. The Board of Directors, by resolution adopted by
the affirmative vote of a majority of Directors then in office, may establish
one (1) or more other committees of the Board of Directors, each committee to
consist of such number of Directors as from time to time may be fixed by the
Board of Directors. Any such committee shall serve at the pleasure of the Board
of Directors. Each such committee shall have the powers and duties delegated to
it by the Board of Directors, subject to the limitations set forth in applicable
Delaware law. The Board of Directors may elect one or more of its members as
alternate members of any such committee who may take the place of any absent
member or members at any meeting of such committee, upon request of the Chairman
of the Board or the Chairman of such committee.
Section 3.04. POWERS. Each committee, except as otherwise provided in this
section, shall have and may exercise such powers of the Board of Directors as
may be provided by resolution or resolutions of the Board of Directors. Neither
the Executive Committee nor any other committee shall have the power or
authority:
(a) to approve or adopt, or recommend to the stockholders, any action or matter
expressly required by the General Corporation Law to be submitted to the
stockholders for approval; or
(b) to adopt, amend or repeal the By-Laws of the Corporation.
Section 3.05. PROCEEDINGS. Each such committee may fix its own rules of
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Each such committee shall keep minutes of its proceedings and shall report
such proceedings to the Board of Directors at the meeting of the Board of
Directors next following any such proceedings.
Section 3.06. QUORUM AND MANNER OF ACTING. Except as may be otherwise provided
in the resolution creating such committee, at all meetings of any committee, the
presence of members (or alternate members) constituting a majority of the total
authorized membership of such committee shall constitute a quorum for the
transaction of business. The act of the majority of the members present at any
meeting at which a quorum is present shall be the act of such committee. Any
action required or permitted to be taken at any meeting of any such committee
may be taken without a meeting, if all members of such committee shall consent
to such action in writing or by electronic transmission and such writing,
writings or electronic transmission or transmissions are filed with the minutes
of the proceedings of the committee. Such filing shall be in paper form if the
minutes are in paper form and shall be in electronic form if the minutes are
maintained in electronic form. The members of any such committee shall act only
as a committee, and the individual members of such committee shall have no power
in their individual capacities unless expressly authorized by the Board of
Directors.
Section 3.07. ACTION BY TELEPHONIC COMMUNICATIONS. Unless otherwise provided by
the Board of Directors, members of any committee may participate in a meeting of
such committee by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
Section 3.08. ABSENT OR DISQUALIFIED MEMBERS. In the absence or disqualification
of a member of any committee, if no alternate member is present to act in his or
her stead, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she 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.
Section 3.09. RESIGNATIONS. Any member (and any alternate member) of any
committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Board of Directors or the Chairman of the Board.
Unless otherwise specified therein, such resignation shall take effect upon
delivery.
Section 3.10. REMOVAL. Any member (and any alternate member) of any committee
may be removed at any time, either for or without cause, by resolution adopted
by a majority of the whole Board of Directors.
Section 3.11. VACANCIES. If any vacancy shall occur in any committee, by reason
of disqualification, death, resignation, removal or otherwise, the remaining
members (and any alternate members) shall continue to act, and any such vacancy
may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. CHIEF EXECUTIVE OFFICER. The Board of Directors shall elect a
Chief Executive Officer to serve at the pleasure of the Board of Directors who
shall (a) supervise the carrying out of policies adopted or approved by the
Board of Directors, (b) exercise a general supervision and superintendence over
all the business and affairs of the Corporation, and (c) possess such other
powers and perform such other duties as may be assigned to him or her by these
By-Laws, as may from time to time be assigned by the Board of Directors and as
may be incident to the office of Chief Executive Officer.
Section 4.02. SECRETARY OF THE CORPORATION. The Board of Directors shall appoint
a Secretary of the Corporation to serve at the pleasure of the Board of
Directors. The Secretary of the Corporation shall (a) keep minutes of all
meetings of the stockholders and of the Board of Directors, (b) authenticate
records of the Corporation and (c) in general, have such powers and perform such
other duties as may be assigned to him or her by these By-Laws, as may from time
to time be assigned to him or her by the Board of Directors or the Chief
Executive Officer and as may be incident to the office of Secretary of the
Corporation.
Section 4.03. OTHER OFFICERS ELECTED BY BOARD OF DIRECTORS. At any meeting of
the Board of Directors, the Board of Directors may elect a President, Vice
Presidents, a Chief Financial Officer, a Treasurer, Assistant Treasurers,
Assistant Secretaries, or such other officers of the Corporation as the Board of
Directors may deem necessary, to serve at the pleasure of the Board of
Directors. Other officers elected by the Board of Directors shall have such
powers and perform such duties as may be assigned to such officers by or
pursuant to authorization of the Board of Directors or by the Chief Executive
Officer.
Section 4.04. OTHER OFFICERS. The Board of Directors may authorize the
Corporation to elect or appoint other officers, each of whom shall serve at the
pleasure of the Corporation. Officers elected or appointed by the Corporation
shall have such powers and perform such duties as may be assigned to them by the
Corporation.
Section 4.05. SALARIES. The salaries of all officers and agents of the
Corporation shall be fixed by or pursuant to authorization of the Board of
Directors.
Section 4.06. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be removed for
or without cause at any time by the Board of Directors. Any officer may resign
at any time by delivering a written notice of resignation, signed by such
officer, to the Board of Directors or the Chief Executive Officer. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by or pursuant to authorization of the
Board of Directors.
Section 4.07. AUTHORITY AND DUTIES OF OFFICERS. The officers of the Corporation
shall have such authority and shall exercise such powers and perform such duties
as may be specified in these By-Laws, except that in any event each officer
shall exercise such powers and perform such duties as may be required by law.
ARTICLE V
CAPITAL STOCK
Section 5.01. CERTIFICATES OF STOCK, UNCERTIFICATED SHARES. The shares 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 stock of the Corporation shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until each such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock in the Corporation represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of, the Corporation, by the Chairman of
the Board, the Chief Executive Officer or the President, and by the Chief
Financial Officer, the Treasurer or an Assistant Treasurer, or the Secretary of
the Corporation or an Assistant Secretary, representing the number of shares
registered in certificate form. Such certificate shall be in such form as the
Board of Directors may determine, to the extent consistent with applicable law,
the Certificate of Incorporation and these By-Laws.
Section 5.02. SIGNATURES; FACSIMILE. All signatures on the certificate referred
to in Section 5.01 of these By-Laws may be in facsimile, engraved or printed
form, to the extent permitted by law. In case any officer, transfer agent or
registrar who has signed, or whose facsimile, engraved or printed signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 5.03. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may
direct that a new certificate be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
delivery to the Corporation of an affidavit of the owner or owners of such
certificate, setting forth such allegation. The Corporation may require the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of any such new
certificate.
Section 5.04. TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to the laws of the General Corporation Law of the State of Delaware.
Subject to the provisions of the Certificate of Incorporation and these By-Laws,
the Board of Directors may prescribe such additional rules and regulations as it
may deem appropriate relating to the issue, transfer and registration of shares
of the Corporation.
Section 5.05. RECORD DATE. In order to determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix, in advance, a record date, which record date
shall not precede the date on which the resolution fixing the record date is
adopted by the Board of Directors, and which shall not be more than sixty (60)
nor fewer than ten (10) days before the date of such meeting. 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.
In order that the Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights of the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5.06. REGISTERED STOCKHOLDERS. Prior to due surrender of a certificate
for registration of transfer, the Corporation may treat the registered owner as
the person exclusively entitled to receive dividends and other distributions, to
vote, to receive notice and otherwise to exercise all the rights and powers of
the owner of the shares represented by such certificate, and the Corporation
shall not be bound to recognize any equitable or legal claim to or interest in
such shares on the part of any other person, whether or not the Corporation
shall have notice of such claim or interests. 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
to the Corporation for transfer or uncertificated shares are requested to be
transferred, both the transferor and transferee request the Corporation to do
so.
Section 5.07. TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint
one (1) or more transfer agents and one (1) or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. NATURE OF INDEMNITY. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (a "Proceeding"), whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving or has agreed to serve at the request of the Corporation as a
Director or officer, of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such a Proceeding by reason of the fact that
he or she is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her or on his or her behalf in connection with such
Proceeding and any appeal therefrom, if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal Proceeding, had
no reasonable cause to believe his or her conduct was unlawful; except that in
the case of a Proceeding by or in the right of the Corporation to procure a
judgment in its favor (1) such indemnification shall be limited to expenses
(including attorneys' fees) actually and reasonably incurred by such person in
the defense or settlement of such Proceeding, and (2) 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 Delaware Court of Chancery or the court in which such Proceeding was
brought 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 which the Delaware
Court of Chancery or such other court shall deem proper. Notwithstanding the
foregoing, but subject to Section 6.05 of these By-Laws, the Corporation shall
not be obligated to indemnify a Director or officer of the Corporation in
respect of a Proceeding (or part thereof) instituted by such Director or
officer, unless such Proceeding (or part thereof) has been authorized by the
Board of Directors.
The termination of any Proceeding by judgment, order settlement, 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 he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had reasonable cause
to believe that his or her conduct was unlawful.
Section 6.02. SUCCESSFUL DEFENSE. To the extent that a present or former
Director or officer of the Corporation has been successful on the merits or
otherwise in defense of any Proceeding referred to in Section 6.01 hereof or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
Section 6.03. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification
of a present or former Director or officer of the Corporation under Section 6.01
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the present or former Director or
officer is not proper in the circumstances because he or she has not met the
applicable standard of conduct set forth in Section 6.01 hereof. Any
indemnification of a present or former employee or agent of the Corporation
under Section 6.01 hereof (unless ordered by a court) may be made by the
Corporation upon a determination that indemnification of the present or former
employee or agent is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 6.01 hereof. Any such
determination shall be made, with respect to a person who is a Director or
officer at the time of such determination, (1) by a majority vote of the
Directors who are not parties to such Proceeding, even though less than a
quorum, or (2) by a committee of such Directors designated by majority vote of
such Directors, even though less than a quorum, or (3) if there are no such
Directors, or if such Directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders.
Section 6.04. ADVANCE PAYMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by a Director or officer in defending any civil, criminal,
administrative or investigative Proceeding shall be paid by the Corporation in
advance of the final disposition of such Proceeding upon receipt of an
undertaking by or on behalf of the Director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article. Such expenses
(including attorneys' fees) incurred by former Directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate. The Board of Directors may authorize the
Corporation's counsel to represent such Director, officer, employee or agent in
any Proceeding, whether or not the Corporation is a party to such Proceeding.
Section 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any
indemnification of a Director or officer of the Corporation under Sections 6.01
and 6.02, or advance of costs, charges and expenses to a Director or officer
under Section 6.04 of these By-Laws, shall be made promptly, and in any event
within thirty (30) days, upon the written request of the Director or officer. If
a determination by the Corporation that the Director or officer is entitled to
indemnification pursuant to this Article VI is required, and the Corporation
fails to respond within thirty (30) days to a written request for indemnity, the
Corporation shall be deemed to have approved such request. If the Corporation
denies a written request for indemnity or advancement of expenses, in whole or
in part, or if payment in full pursuant to such request is not made within
thirty (30) days, the right to indemnification or advances as granted by this
Article VI shall be enforceable by the Director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such Proceeding shall also be indemnified by the Corporation. It
shall be a defense to any such Proceeding (other than an action brought to
enforce a claim for the advance of costs, charges and expenses under Section
6.04 of these By-Laws where the required undertaking, if any, has been received
by the Corporation) that the claimant has not met the standard of conduct set
forth in Section 6.01 of these By-Laws, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in Section 6.01 of these
By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each Director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such Director, officer, employee or agent.
The indemnification provided by this Article VI shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a Director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Section 6.07. INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director or officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person or on such person's
behalf 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 him or her
against such liability under the provisions of this Article VI.
Section 6.08. SEVERABILITY. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to a Proceeding, whether civil, criminal, administrative
or investigative, including a Proceeding by or in the right of the Corporation,
to the fullest extent permitted by any applicable portion of this Article VI
that shall not have been invalidated and to the fullest extent permitted by
applicable law.
ARTICLE VII
OFFICES
Section 7.01. INITIAL REGISTERED OFFICE. The initial registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 N. Orange Street in the City of Wilmington, County of New Castle.
Section 7.02. OTHER OFFICES. The Corporation may maintain offices or places of
business at such other locations within or without the State of Delaware as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. DIVIDENDS. Subject to any applicable provisions of law and the
Certificate of Incorporation, dividends upon the shares of the Corporation may
be declared by the Board of Directors at any regular or special meeting of the
Board of Directors and any such dividend may be paid in cash, property, or
shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any committee designated by
the Board of Directors shall be fully protected in relying in good faith upon
the records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors, or by any other person as to matters the
Director reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Corporation, as to the value and amount of the assets, liabilities and/or
net profits of the Corporation, or any other facts pertinent to the existence
and amount of surplus or other funds from which dividends might properly be
declared and paid.
Section 8.02. RESERVES. There may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, thinks proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall think conducive to the interest of the Corporation, and
the Board of Directors may similarly modify or abolish any such reserve.
Section 8.03. EXECUTION OF INSTRUMENTS. The Board of Directors may authorize, or
provide for the authorization of, officers, employees or agents to enter into
any contract or execute and deliver any instrument in the name and on behalf of
the Corporation. Any such authorization must be in writing or by electronic
transmission and may be general or limited to specific contracts or instruments.
Section 8.04. CORPORATE INDEBTEDNESS. No loan shall be contracted on behalf of
the Corporation, and no evidence of indebtedness shall be issued in its name,
unless authorized by the Board of Directors. Such authorization may be general
or confined to specific instances. Loans so authorized may be effected at any
time for the Corporation from any bank, trust company or other institution, or
from any firm, corporation or individual. All bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation issued for such
loans shall be made, executed and delivered as the Board of Directors shall
authorize. When so authorized by the Board of Directors, any part of or all the
properties, including contract rights, assets, business or good will of the
Corporation, whether then owned or thereafter acquired, may be mortgaged,
pledged, hypothecated or conveyed or assigned in trust as security for the
payment of such bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, and of the interest thereon, by instruments
executed and delivered in the name of the Corporation.
Section 8.05. DISPOSITION OF FUNDS. The funds of the Corporation shall be paid
out, transferred or otherwise disposed of only in such manner and under such
controls as may be authorized by resolution of the Board of Directors or as may
be authorized by such officers of the Corporation as the Board of Directors
designates.
Section 8.06. SALE, TRANSFER, ETC. OF SECURITIES. To the extent authorized by
the Board of Directors or by the Chief Executive Officer, the President, any
Vice President, the Secretary of the Corporation, the Chief Financial Officer or
the Treasurer or any other officers designated by the Board of Directors or the
Chief Executive Officer may sell, transfer, endorse, and assign any shares of
stock, bonds or other securities owned by or held in the name of the
Corporation, and may make, execute and deliver in the name of the Corporation,
under its corporate seal, any instruments that may be appropriate to effect any
such sale, transfer, endorsement or assignment.
Section 8.07. VOTING AS STOCKHOLDER. Unless otherwise determined by resolution
of the Board of Directors, the Chief Executive Officer, the President, any
Executive Vice President or any Senior Vice President shall have full power and
authority on behalf of the Corporation to attend any meeting of stockholders of
any corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 8.08. FISCAL YEAR. The fiscal year of the Corporation shall commence on
the first day of January of each year (except for the Corporation's first fiscal
year which shall commence on the date of incorporation) and shall terminate in
each case on December 31.
Section 8.09. SEAL. The seal of the Corporation shall be in such form as the
Board of Directors may from time to time determine and shall contain the name of
the Corporation, the year of its incorporation and the words "Corporate Seal"
and "Delaware". The form of such seal shall be subject to alteration by the
Board of Directors. The seal may be used by causing it or a facsimile thereof to
be impressed, affixed or reproduced, or may be used in any other lawful manner.
Section 8.10. BOOKS AND RECORDS; INSPECTION. Except to the extent otherwise
required by law, the books and records of the Corporation shall be kept at such
place or places within or without the State of Delaware as may be determined
from time to time by the Board of Directors.
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.01. AMENDMENT. These By-Laws may be amended, altered or repealed:
(a) by resolution adopted by a majority of the Board of Directors at any special
or regular meeting of the Board of Directors if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained in the
notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders upon the affirmative
vote of the holders of three-fourths (3/4) or more of the combined voting power
of the outstanding shares of the Corporation entitled to vote generally in the
election of Directors if, in the case of such special meeting only, notice of
such amendment, alteration or repeal is contained in the notice or waiver of
notice of such meeting.
ARTICLE X
CONSTRUCTION
Section 10.01. CONSTRUCTION. In the event of any conflict between the provisions
of these By-Laws as in effect from time to time and the provisions of the
Certificate of Incorporation of the Corporation as in effect from time to time,
the provisions of such Certificate of Incorporation shall be controlling.