BYLAWS
Published on December 15, 1999
EXHIBIT 3.2
BYLAWS
OF
KORN/FERRY INTERNATIONAL,
A DELAWARE CORPORATION
INDEX
i
ii
BYLAWS
FOR THE REGULATION, EXCEPT
AS OTHERWISE PROVIDED BY STATUTE OR
ITS CERTIFICATE OF INCORPORATION,
OF
KORN/FERRY INTERNATIONAL
ARTICLE I. OFFICES.
Section 1. Registered Office.
The registered office of the corporation in the State of Delaware shall be
fixed in the Certificate of Incorporation of the corporation.
Section 2. Principal Executive Office.
The corporation's principal executive office shall be fixed and located at
such place, either within or without the State of Delaware, as the Board of
Directors of the corporation (the "Board") shall determine. The Board is
granted full power and authority to change said principal executive office
from one location to another.
Section 3. Other Offices.
The corporation may have such other offices, either within or without the
State of Delaware, as the Board may designate or the business of the
corporation may from time to time require.
ARTICLE II. STOCKHOLDERS.
Section 1. Place of Meetings.
Meetings of the stockholders shall be held either at the principal
executive office of the corporation or at any other place within or without
the State of Delaware as may be designated by the Board and filed with the
Secretary of the corporation.
Section 2. Annual Meetings.
The annual meetings of the stockholders shall be held at such time, date
and place, either within or without the State of Delaware, as may be fixed by
the Board. At such meetings, directors shall be elected and any other proper
business may be transacted.
Section 3. Business Which May Be Conducted at Meetings of the Stockholders.
(a) Annual Meetings of the Stockholders.
(i) Nominations of persons for election to the Board and the proposal
of business to be considered by the stockholders may be made at an annual
meeting of the stockholders only (A) pursuant to the corporation's notice
of meeting (or any supplement thereto), (B) by or at the direction of the
Board or (C) by any stockholder of the corporation who was a stockholder of
record of the corporation at the time the notice provided for in this
Section 3 is delivered to the Secretary of the corporation, who is entitled
to vote at the meeting and who complies with the notice procedures set
forth in this Section 3.
(ii) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this Section 3, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation and any such
proposed business other than the nominations of persons for election to the
Board must constitute a proper matter for stockholder action. To be timely,
a stockholder's notice shall be delivered to the Secretary at the principal
executive
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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 70 days after such anniversary date, notice by
the stockholder 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 by the corporation). In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above. Such stockholder's notice shall
set forth: (A) as to each person whom the stockholder proposes to nominate
for election as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors in an election contest, 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 (and such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the text of the
proposal or business (including the text of any resolutions proposed for
consideration and, in the event that such business includes a proposal to
amend the Bylaws of the corporation, the language of the proposed
amendment), the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (C) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (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 capital stock of
the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (3) a representation that the
stockholder is a holder of record of stock of the corporation entitled to
vote at such meeting and intends to appear in person or by proxy at such
meeting to propose such business or nomination, and (4) a representation
whether the stockholder or beneficial owner, if any, intends or is part of
a group which intends (x) to deliver a proxy statement and/or form of proxy
to holders of at least the percentage of the corporation's outstanding
capital stock required to approve or adopt the proposal or elect the
nominee and/or (y) otherwise to solicit proxies from stockholders in
support of such proposal or nomination. The corporation may require any
proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as a
director of the corporation.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 3 to the contrary, in the event that the number of
directors to be elected to the Board of the corporation at the annual
meeting is increased and there is no public announcement by the corporation
naming the nominees for the additional directorships at least 100 days
prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 3 shall also be considered
timely, but only with respect to nominees for the additional directorships,
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 10th day following the day on which such public
announcement is first made by the corporation.
(b) Special Meetings of the Stockholders. Only such business shall be
conducted at a special meeting of the stockholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the Board may be made at a special
meeting of the stockholders at which directors are to be elected pursuant to
the corporation's notice of meeting (i) by or at the direction of the Board
or (ii) provided that the Board 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 the notice provided for in this Section 3
is delivered to the Secretary of the corporation, who is entitled to vote at
the meeting and upon such election, and who complies with the notice
procedures set forth in this Section 3. In the event the corporation calls a
special meeting of the stockholders for the purpose of electing one or more
directors to the Board, any stockholder entitled to vote in such election of
directors may nominate a person or persons (as the
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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)(ii) of this Section 3 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 to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence
a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(c) General.
(i) Only persons who are nominated in accordance with the procedures set
forth in this Section 3 shall be eligible to be elected at an annual or
special meeting of the stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of the
stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 3. Except as otherwise
provided by law, the Chair of the Board, as chair of the meeting, shall
have the power and duty (A) 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
Section 3 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made or solicited (or is part
of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such stockholder's nominee or proposal in compliance
with such stockholder's representation as required by clause (a)(ii)(C)(4)
of this Section 3) and (B) if any proposed nomination or business was not
made or proposed in compliance with the Section 3, to declare that such
nomination shall be disregarded or that such proposed business shall not be
transacted.
(ii) For purposes of this Section 3, "public announcement" shall include
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 3, 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 3. Nothing in this Section 3 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 to
elect directors pursuant to any applicable provisions of the Certificate of
Incorporation of the corporation.
Section 4. Special Meetings.
Special meetings of the stockholders may be called only by the Board, the
Chair of the Board, the Chief Executive Officer or the President, and may not
be called by any other person or persons. Upon written request delivered to
the Secretary of the corporation by any person or persons (other than the
Board) entitled to call a special meeting of the stockholders, the Secretary
shall cause notice to be given to the stockholders entitled to vote that a
meeting will be held at the time requested by the person or persons calling
the meeting. If notice of a special meeting of the stockholders is not given
within 20 days after the Secretary's receipt of the request, the person or
persons entitled to call the meeting may give the notice. Subject to the
provisions of applicable law, only such business shall be considered at a
special meeting of the stockholders as shall have been stated in the notice
for such meeting.
Section 5. Notice of Annual or Special Meetings.
(a) Time Periods. Written notice of each annual or special meeting of the
stockholders shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. Such
notice shall state the place, date and hour of the meeting and (i) in the case
of the annual meeting, those matters which the Board, at the time of the
mailing of the notice, intends to present for action by the stockholders (but,
subject to Section 3 of this Article II and the provisions of applicable law,
any other matters
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properly brought may be presented at the meeting for action) or (ii) in the
case of a special meeting, the purpose or purposes for which the meeting was
called. The notice of any meeting at which directors are to be elected shall
include the names of nominees intended at the time of the notice to be
presented by the Board for election.
(b) Method. Notice of a stockholders' meeting shall be given: (i) in
writing or (ii) by United States mail, addressed to the stockholder at the
address of such stockholder appearing on the books of the corporation or given
by the stockholder to the corporation for the purpose of notice.
Notice by mail shall be deemed to have been given at the time written
notice is deposited in the United States mail, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient, delivered to a common carrier for transmission or
actually transmitted by the person giving the notice by electronic means to
the recipient.
Section 6. Quorum--Required Votes.
Except as otherwise provided by law, the Certificate of Incorporation of
the corporation or these bylaws, at each meeting of the stockholders the
presence in person or by proxy of the holders of a majority in voting power of
the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. In the absence of a quorum,
the stockholders so present may, by a majority in voting power thereof,
adjourn the meeting from time to time in the manner provided in Section 7 of
this Article II until a quorum shall attend.
Section 7. Adjourned Meetings and Notice Thereof.
Any meeting of the stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 8. Voting.
The stockholders entitled to notice of any meeting or to vote at any such
meeting shall be only those persons in whose name shares stand on the stock
records of the corporation on the record date determined in accordance with
Section 9 of this Article II.
Voting at meetings of the stockholders need not be by written ballot. At
all meetings of the stockholders for the election of directors, a plurality of
the votes cast shall be sufficient to elect. All other elections and questions
shall, unless otherwise provided by the Certificate of Incorporation of the
corporation, these bylaws, the rules or regulations of any stock exchange
applicable to the corporation or as otherwise provided by law or pursuant to
any regulation applicable to the corporation, be decided by the affirmative
vote of the holders of a majority in voting power of the shares of stock of
the corporation which are present in person or by proxy and entitled to vote
thereon.
Voting shall in all cases be subject to the following provisions:
(a) The stockholders of the corporation shall not have the right to
cumulate their votes for the election of directors of the corporation.
(b) Shares held by an administrator, executor, guardian, conservator or
custodian may be voted by such holder either in person or by proxy, without
a transfer of such shares into the holder's name; and shares standing in
the name of a trust may be voted by the trustee of such trust, either in
person or by proxy, but no trustee shall be entitled to vote shares held by
such trust without a transfer of such shares into the trust's name.
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(c) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into the receiver's
name if authority to do so is contained in the order of the court by which
such receiver was appointed.
(d) Except where otherwise agreed in writing between the parties, a
stockholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
(e) Shares standing in the name of a minor may be voted by, and the
corporation may treat all rights incident thereto as exercisable by, the
minor, in person or by proxy, whether or not the corporation has notice,
actual or constructive, of the minor's actual age, unless a guardian of the
minor's property has been appointed and written notice of such appointment
has been given to the corporation.
(f) Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxyholder of such other
corporation as the bylaws of such other corporation may prescribe or, in
the absence of such provision, as the board of directors of such other
corporation may determine or, in the absence of such determination, by the
chair of the board of directors, president or any vice president of such
other corporation, or by any other person authorized to do so by the chair
of the board, president or any vice president of such other corporation.
Shares which are purported to be voted or any proxy purported to be
executed in the name of a corporation (whether or not any title of the
person signing is indicated) shall be presumed to be voted or the proxy
executed in accordance with the provisions of this clause, unless the
contrary is shown.
(g) Shares of the corporation owned by its subsidiaries shall not be
entitled to vote on any matter.
(h) If shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a stockholder voting
agreement or otherwise, or if two or more persons (including proxyholders)
have the same fiduciary relationship respecting the same shares, unless the
Secretary of the corporation is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them or
creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority so voting binds
all; or
(iii) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionately.
If the instrument so filed or the registration of the shares shows that any
such tenancy is held in unequal interests, a majority or even split for the
purpose of this Section 8 shall be a majority or even split in interest.
Section 9. Record Date.
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of the stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board 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, and which record date: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than 60 nor less
than 10 days before the date of such meeting; (b) in the case of determination
of stockholders entitled to express consent to corporate action in writing
without a meeting, shall not be more than 10 days from the date upon which the
resolution fixing the record date is adopted by the Board and (c) in the case
of any other action, shall not be more than 60 days prior to such other action.
If no record date is fixed: (a) the record date for determining stockholders
entitled to notice of or to vote at a meeting of
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stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held; (b)
the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action of the
Board is required by law or the Certificate of Incorporation of the
corporation, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the corporation
in accordance with applicable law, or, if prior action by the Board is
required by law or the Certificate of Incorporation of the corporation, shall
be at the close of business on the day on which the Board adopts the
resolution taking such prior action and (c) the record date for determining
stockholders for any other purpose shall be at the close of business on the
day on which the Board adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
Section 10. Consent of Absentees.
The transactions of any meeting of the stockholders, however called and
noticed, and wherever held, are as valid as though conducted at a meeting duly
held after regular call and notice, if a quorum is present either in person or
by proxy, and if, either before or after the meeting, each of the persons
entitled to vote, not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of the meeting or an approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Attendance
of a person at a meeting shall constitute a waiver of notice of and presence
at such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters required by the
General Corporation Law of the State of Delaware to be included in the notice
but not so included, if such objection is expressly made at the meeting.
Neither the business to be transacted at nor the purpose of any regular or
special meeting of the stockholders need be specified in any written waiver of
notice, consent to the holding of the meeting or approval of the minutes
thereof, except as provided in the General Corporation Law of the State of
Delaware.
Section 11. Proxies.
Each stockholder entitled to vote at a meeting of the stockholders or to
express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for such stockholder by proxy,
but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by delivering a proxy in accordance with
applicable law bearing a later date to the Secretary of the corporation.
A proxy or consent validly delivered to the corporation shall mean any
written authorization which is signed by the person executing the proxy, as
well as any electronic transmission (to include without limitation
transmissions by facsimile and by computer messaging systems), which is
authorized by a stockholder or the stockholder's attorney in fact, which gives
another person or persons power to vote with respect to the shares of such
stockholder. A stockholder may authorize another person or persons to act for
such stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission, provided that
any such telegram, cablegram or other means of 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. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that determination shall
specify the information upon which they relied. Any copy, facsimile
telecommunication
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or other reliable reproduction of the writing or transmission created pursuant
to this Section 11 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 12. Inspectors of Election.
(a) Appointment of Inspectors. In advance of any meeting of the
stockholders, the Board shall appoint inspectors of election to act at such
meeting and any adjournment thereof. If inspectors of election are not so
appointed, or if any persons so appointed fail to appear or refuse to act, the
Chair of the Board presiding at any such meeting may, and on the request of
any stockholder or stockholder's proxy shall, make such appointment at the
meeting. The number of inspectors shall be either one or three. If appointed
at a meeting on the request of one or more stockholders' proxies, the majority
of shares present shall determine whether one or three inspectors are to be
appointed.
(b) Duties of Inspectors. The duties of such inspectors shall include:
determining the number of shares outstanding and the voting power of each;
determining the shares represented at the meeting; determining the existence
of a quorum; determining the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges
and questions in any way arising in connection with the right to vote;
counting and tabulating all votes or consents; determining when the polls
shall close; determining the result; and doing such acts as may be proper to
conduct the election or vote with fairness to all stockholders. If there are
three inspectors, the decision, act or certificate of a majority is in all
respects the decision, act or certificate of all.
Section 13. Conduct of Meeting
The Chair of the Board shall preside at all meetings of the stockholders.
The Chair shall conduct each such meeting in a businesslike and fair manner,
but shall not be obligated to follow any technical, formal or parliamentary
rules or principles of procedure. The Chair's rulings on procedural matters
shall be conclusive and binding on all stockholders, unless at the time of a
ruling a request for a vote is made to the stockholders holding shares
entitled to vote and which are represented in person or by proxy at the
meeting, in which case the decision of a majority of such shares shall be
conclusive and binding on all stockholders. Without limiting the generality of
the foregoing, the Chair shall have all of the powers usually vested in the
chair of a meeting of stockholders.
Section 14. List of Stockholders Entitled to Vote.
The Secretary of the corporation shall prepare and make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing
the address of each stockholder and the number of shares registered in the
name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. Upon the willful neglect or
refusal of the directors to produce such a list at any meeting for the
election of directors, such directors shall be ineligible for election to any
office at such meeting. Except as otherwise provided by law, the stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list of stockholders or the books of the corporation, or
to vote in person or by proxy at any meeting of the stockholders.
Section 15. Consent of Stockholders in Lieu of Meeting.
(a) Any action required to be taken at any annual or special meeting of the
stockholders of the corporation, or any action which may be taken at any
annual or special meeting of the stockholders duly called in accordance with
the Certificate of Incorporation of the corporation, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting for the action so taken, shall be signed by the
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holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of the
stockholders are recorded. Delivery made to the corporation's registered
office shall be made by hand or by certified or registered mail, return
receipt requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
date the earliest dated consent is delivered to the corporation, a written
consent or consents signed by a sufficient number of holders to take action
are delivered to the corporation in the manner prescribed in paragraph (c) of
this Section 15.
(c) In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board 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, 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. 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 to fix a record
date. The Board 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 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 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 in
accordance with paragraphs (a) and (b) of this Section 15. If no record date
has been fixed by the Board and prior action by the Board 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 adopts the resolution taking such
prior action.
(d) Within 5 business days after receipt of the earliest dated consent
delivered to the corporation in the manner provided in this Section 15, the
corporation, shall retain nationally recognized independent inspectors of
elections for the purposes of performing a ministerial review of the validity
of consents and any revocations thereof. The cost of retaining inspectors of
election shall be borne by the corporation.
(e) At any time that stockholders soliciting consents in writing to
corporate action have a good faith belief that the requisite number of valid
and unrevoked consents to authorize or take the action specified has been
received by them, the consents shall be delivered by the soliciting
stockholders of the corporation's registered office in the State of Delaware
or principal place of business or to the Secretary of the corporation,
together with a certificate stating their belief that the requisite number of
valid and unrevoked consents has been received as of a specific date, which
date shall be identified in the certificate. In the event that delivery shall
be made to the corporation's registered office in Delaware, such delivery
shall be made by hand or by certified or registered mail, return receipt
requested. Upon receipt of such consents, the corporation shall cause the
consents to be delivered promptly to the inspectors of election. The
corporation also shall deliver promptly to the inspectors of election any
revocations of consents in its possession, custody or control as of the time
of receipt of the consents.
(f) As promptly as practicable after the consents and revocations are
received by them, the inspectors of election shall issue a preliminary report
to the corporation stating: (i) the number of shares represented by valid and
unrevoked consents; (ii) the number of shares represented by invalid consents;
(iii) the number of shares represented by invalid revocations and (iv) the
number of shares entitled to submit consents as of the record date. Unless the
corporation and the soliciting stockholders agree to a shorter or longer
period, the corporation and the soliciting stockholders shall have 5 business
days to review the consents and revocations and to advise the inspectors and
the opposing party in writing as to whether they intend to challenge the
preliminary report. If no timely written notice of an intention to challenge
the preliminary report is received, the inspectors shall certify
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the preliminary report (as corrected or modified by virtue or the detection by
the inspectors of clerical errors) as their final report and deliver it to the
corporation. If the corporation or the soliciting stockholders give timely
written notice of an intention to challenge the preliminary report, a
challenge session shall be scheduled by the inspectors as promptly as
practicable. A transcript of the challenge session shall be recorded by a
certified court reporter. Following completion of the challenge session, the
inspectors shall issue as promptly as practicable their final report and
deliver it to the corporation. A copy of the final report shall be included in
the book in which the proceedings of meetings of the stockholders are
required.
(g) The corporation shall give prompt notice to the stockholders of the
results of any consent solicitation or the taking of corporate action without
a meeting by less than unanimous written consent.
(h) This Section 15 shall in no way impair or diminish the right of any
stockholder or director, or any officer whose title to office is contested, to
contest the validity of any consent or revocation thereof, or to take any
other action with respect thereto.
ARTICLE III. DIRECTORS.
Section 1. Powers.
Subject to limitations of the Certificate of Incorporation of the
corporation, of these bylaws and of the General Corporation Law of the State
of Delaware relating to action required to be approved by the stockholders or
by the outstanding shares, the business and affairs of the corporation shall
be managed by or under the direction of the Board and it shall have the final
authority in matters of strategy and policy matters for the corporation.
The Board may delegate management duties for the operation of the business
of the corporation to those persons to whom authority is properly delegated by
the Board, including officers of the company, provided that the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the Board. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared that the Board shall have the following powers in addition to the
other powers enumerated in these bylaws:
(a) To select and remove all the other officers (in accordance with the
provisions of these bylaws), agents and employees of the corporation;
prescribe the powers and duties for them as may not be inconsistent with
law, the Certificate of Incorporation of the corporation or these bylaws;
fix their compensation and require from them an affidavit providing for the
good faith exercise of their duties only in the best interests of the
corporation.
(b) To conduct, manage and control the affairs and business of the
corporation and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation of the corporation
or these bylaws, as they may deem best.
(c) To adopt, alter, amend and repeal these bylaws from time to time as
they may deem best.
(d) To adopt, make and use a corporate seal, and to prescribe the forms
of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as they may deem best.
(e) To authorize the issuance of shares of stock of the corporation from
time to time, upon such terms and for such consideration as may be lawful.
(f) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations or other evidences of debt and securities therefor.
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Section 2. Number of Directors.
The authorized number of directors shall be as set forth in the Certificate
of Incorporation of the corporation. The Board shall fix the exact number of
directors by resolution duly adopted by the Board.
Section 3. Nomination, Election, Qualification and Term of Office.
(a) Eligibility for Election as Director. Only persons who are nominated
by, or at the direction of the Board or the Chair of the Board, or by a
stockholder who has given timely written notice to the Secretary of the
corporation in accordance with Section 3 of Article II of these bylaws, will
be eligible for election as directors of the corporation.
(b) Meetings at which Directors May Be Elected. The directors shall be
elected at each annual meeting of the stockholders, but if any such annual
meeting is not held or the directors are not elected thereat, the directors
may be elected at any special meeting of the stockholders called for that
purpose.
(c) Classes of the Board of Directors. The Board shall be divided into
three classes in accordance with the provisions of the Certificate of
Incorporation of the corporation.
(d) Qualified Directors. For a person to be qualified to serve as a
director of the corporation, such person need not be an employee or
stockholder of the corporation during his or her directorship.
(e) Length of Term for Directors. At each annual meeting of the
stockholders beginning with the first annual meeting of the stockholders, 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 to be held in the third year following the year of their
election, with each director in each class to hold office until his or her
successor is duly elected and qualified or until his or her earlier death,
resignation or removal.
(f) Removal of Directors. Any director, or the entire Board, may be removed
only for cause, by the affirmative vote of a majority of the shares then
entitled to vote at the election of directors.
Section 4. Vacancies.
Any director may resign, to be effective upon giving written notice to the
Board or to the Chair of the Board, President or Secretary of the corporation,
unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Any newly-created directorship resulting from an increase in the authorized
number of directors or any vacancies in the Board occurring by reason of
death, resignation, retirement, disqualification or removal may be filled by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director, and each director so elected shall hold office until the
next annual meeting at which the class of which he is a member becomes subject
to re-election and until such director's successor has been elected and
qualified.
A vacancy or vacancies in the Board shall be deemed to exist in case of the
death, resignation or removal of any director, or if the authorized number of
directors is increased, or if the stockholders fail, at any annual or special
meeting of the stockholders at which any director or directors are elected, to
elect the full authorized number of directors to be voted for at that meeting.
The stockholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of the director's term of
office.
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Section 5. Place of Meeting.
Regular or special meetings of the Board shall be held at any place within
or without the State of Delaware which has been designated from time to time
by the Board. In the absence of such designation, regular meetings shall be
held at the principal executive office of the corporation.
Section 6. Regular Meetings.
Following each annual meeting of the stockholders, the Board shall hold a
regular meeting for the purpose of organization, election of officers and the
transaction of other business.
Other regular meetings of the Board shall be held without call on such
dates and at such times as may be fixed by the Board. Call and notice of all
regular meetings of the Board are hereby dispensed with.
Section 7. Special Meetings.
Special meetings of the Board for any purpose or purposes may be called at
any time by the Chair, the Chief Executive Officer, any Vice Chair, the
President, the Secretary of the corporation or by any two directors.
Special meetings of the Board shall be held upon four days' written notice
or at least twenty-four hours' notice given 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 of communication. Any written notice shall be addressed
or delivered to each director at such director's address as it is shown upon
the records of the corporation or as may have been given to the corporation by
the director for purposes of notice or, if such address is not shown on such
records or is not readily ascertainable, at the place in which the meetings of
the directors are regularly held.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless,
to the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient.
Section 8. Quorum.
A majority of the whole Board constitutes a quorum of the Board for the
transaction of business, except to adjourn as provided in Section 11 of this
Article III. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present shall be regarded
as the act of the Board, unless a greater number is required by law or by the
Certificate of Incorporation of the corporation. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for such meeting.
Section 9. Participation in Meetings By Communications Equipment.
(a) Participation by Conference Telephone. Members of the Board, or any
committee thereof, may participate in a meeting through the use of conference
telephones. Participation in such a meeting shall constitute presence in
person at that meeting as long as all members participating in such meeting
are able to hear one another.
(b) Participation by Electronic Video Screen Equipment or Other Similar
Communications Equipment. Members of the Board may participate in a meeting
through the use of electronic video screen equipment or other similar
communications equipment. Participation in such a meeting shall constitute
presence in person at that meeting by a member of the Board if all of the
following apply:
(i) each member participating in the meeting can communicate with all of
the other members concurrently;
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(ii) each member is provided the means of participating in all matters
before the Board, including, without limitation, the capacity to propose,
or to interpose an objection to, a specific action to be taken by the
corporation; and
(iii) the corporation adopts and implements some means of verifying both
of the following: (x) a person participating in the meeting is a director
or other person entitled to participate in the Board meeting, and (y) all
actions of, or votes by, the Board are taken or cast only by the directors
and not by persons who are not directors.
Section 10. Waiver of Notice.
Notice of a meeting need not be given to any director who signs a waiver of
notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice
to such director. All such waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
Section 11. Adjournment.
A majority of the directors present, whether or not a quorum is present,
may adjourn any directors' meeting to another time and place. Notice of the
time and place of an adjourned meeting need not be given to absent directors
if the time and place has been fixed at the meeting adjourned, except as
provided in the next sentence. If the meeting is adjourned for more than 24
hours, notice of any adjournment to another time or place shall be given prior
to the time of the commencement of the adjourned meeting to the directors who
were not present at the time of the adjournment.
Section 12. Fees and Compensation.
Directors and members of committees may receive such compensation, if any,
for their services, and such reimbursement for expenses, as may be fixed or
determined by the Board. The corporation shall not compensate directors or
committee members who are also employees of the corporation.
Section 13. Action Without Meeting.
Any action required or permitted to be taken by the Board may be taken
without a meeting if all members of the Board shall consent in writing to such
action. Such consent or consents shall have the same effect as a unanimous
vote of the Board and shall be filed with the minutes of the proceedings of
the Board.
Section 14. Rights of Inspection.
Every director shall have the right at any reasonable time to examine the
corporation's stock ledger, a list of the stockholders of the corporation and
the corporation's other books and records for any purpose reasonably related
to such director's position as a director and to make copies or extracts
therefrom. Such inspection by a director may be made in person or by such
director's agent or attorney.
Section 15. Committees.
The Board may appoint one or more committees, each consisting of one or
more directors, and delegate to such committees any of the powers and
authority of the Board, except no such committee shall have power or authority
in reference to the following:
(a) Approving, adopting or recommending to the stockholders any action
or matter expressly required by the General Corporation Law of the State of
Delaware to be submitted to the stockholders for approval; or
(b) Adopting, altering, amending or repealing these bylaws or any of
them.
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Any such committee must be designated, and the members or alternate members
thereof appointed, by resolution adopted by a majority of the whole Board and
any such committee may be designated an Executive Committee or by such other
name as the Board shall specify. Alternate members of a committee may replace
any absent member at any meeting of the committee. The Board shall have the
power to prescribe the manner in which proceedings of any such committee shall
be conducted. In the absence of any such prescription, such committee shall
have the power to prescribe the manner in which its proceedings shall be
conducted. Unless the Board or such committee shall otherwise provide, the
regular and special meetings and other action of any such committee shall be
governed by the provisions of this Article III applicable to meetings and
actions of the Board. Minutes shall be kept of each meeting of each committee.
Section 16. Standing Committees.
The Board may have the following standing committees: Audit, Executive,
Nominating and Compensation and Personnel.
(a) Audit Committee. The Audit Committee shall be responsible for reviewing
the activities of the corporation to ensure that such activities are being
conducted within the boundaries of corporate policy and appropriate regulatory
and legal requirements and for ensuring the integrity of financial information
supplied to the stockholders. The Audit Committee also shall make
recommendations to the Board after consultation with the Chief Financial
Officer as to the selection of independent public accountants to examine the
consolidated financial statements of the corporation and its subsidiaries. The
Audit Committee also shall discuss with the independent public accountants the
scope of their examination, recommend supplemental audit reviews or audit
steps as deemed desirable, and review the accounting policies of the
corporation. The Audit Committee also shall be available to receive reports,
suggestions, questions and recommendations from the independent public
accountants, the Chief Financial Officer and the General Counsel. It also
shall confer with those parties in order to assure the sufficiency and
effectiveness of the programs being followed by corporate officers in the area
of compliance with the law and conflicts of interest.
(b) Executive Committee of the Board. The Executive Committee of the Board
shall have all of the authority of the Board, except with respect to the
approval of any action which requires stockholder approval under the General
Corporation Law of the State of Delaware.
(c) Nominating Committee. The Nominating Committee shall recommend to the
Board criteria for the selection of candidates to serve on the Board, evaluate
all proposed candidates, recommend to the Board nominees to fill vacancies on
the Board, and prior to the annual meeting of the stockholders recommend to
the Board a slate of nominees for election to the Board by the stockholders of
the Corporation at the annual meeting. In carrying out its duties, the
committee shall seek possible candidates for the Board and otherwise aid in
attracting qualified candidates to the Board. The committee shall be available
to the Chair or President and other members of the Board for consultation
concerning candidates for the Board. The committee shall periodically review,
assess and make recommendations to the Board with regard to the size and
composition of the Board. The committee shall have all additional powers
necessary to carry out its responsibilities and such other duties as may be
assigned by the Board from time to time.
The Nominating Committee also shall have the authority to administer a
self-appraisal process by members of the Board and make a report thereon to
the Board, from time to time, or as designated by the Board.
(d) Compensation and Personnel Committee. The Compensation and Personnel
Committee shall have the responsibility for the compensation of the senior
executives of the Corporation including salaries and benefits. In carrying out
its duties, the committee shall review and approve overall executive
compensation programs which are market competitive for the officers of the
Corporation, and shall review the specific salaries of Executive Vice
Presidents and senior vice presidents subject to the ratification of the
salary programs established for the Chair and the Chief Executive Officer of
the Corporation by the Board acting as a whole. The committee shall also
review and make recommendations to the Board with respect to the Corporation's
overall compensation
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program for directors and officers, including salaries, employee benefit
plans, stock options granted, equity incentive plans and payment of bonuses.
The committee shall also have all additional powers necessary to carry out its
responsibilities and such other duties as may be assigned by the Board from
time to time.
ARTICLE IV. OFFICERS.
Section 1. Officers.
The senior officers of the corporation shall be a Chair of the Board, a
Chief Executive Officer, a Chief Operating Officer, a Chief Financial Officer
and a Secretary. The corporation may also have, at the discretion of the
Board, a President, a Chief Administrative Officer, one or more Vice Chairs of
the Board, one or more Vice Presidents, one or more Assistant Secretaries,
Treasurers, Assistant Treasurers, and such other officers as may be elected or
appointed in accordance with the provisions of Section 2 of this Article IV.
Section 2. Election or Appointment.
The senior officers of the corporation shall be elected by the Board on an
annual basis. In addition, other officers may be elected or appointed in
accordance with the provisions of Section 5 of this Article IV. All officers,
whether elected or appointed, shall be chosen annually by, and shall serve at
the pleasure of, the Board, and shall hold their respective offices until
their resignation, removal or other disqualification from service, or until
their respective successors shall be elected.
The Board may elect, and may empower the Chair or the Chief Executive
Officer to appoint, such other subordinate officers as the business of the
corporation may require, each of whom shall hold office for such period and
shall have such authority and perform such duties as are provided in these
bylaws or as the Board may from time to time determine.
Section 3. Elected Senior Officers.
The elected senior officers of the corporation shall have those positions
and those duties named below in this Section 3. Further, in each case, the
named officer also shall have the general powers and duties of governance or
management usually vested in that office and such other powers and duties as
may be prescribed by the Board.
In the case of the Chair of the Board, the Chair shall, if present, preside
at all meetings of the Board and shall preside at all meetings of the
stockholders. The Chair of the Board has the general powers and duties of
management usually vested in the office of chair of the board of a corporation
and such other powers and duties as may be prescribed by the Board. The Chief
Executive Officer shall be the senior executive officer of the corporation.
The President has the general powers and duties of management of the
corporation. The Chief Operating Officer shall have the general powers and
duties to carry out general administrative and financial management of the
corporation. The Board also may elect one or more Vice Chairs of the Board
who, in the absence of the Chair, will assume the duties of that position.
In the absence or disability of the Chief Executive Officer, the President,
the Chief Operating Officer, the Vice Chair, or any Executive Vice President
designated by the Board, shall perform all the duties of the Chief Executive
Officer and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Chief Executive Officer.
The Secretary shall keep or cause to be kept, at the principal executive
office and such other place as the Board may order, a book of minutes of all
meetings of stockholders, the Board and its committees, with the time and
place of holding, whether regular or special, and if special, how authorized,
the notice thereof given, the names of those present at Board and committee
meetings, the number of shares present or represented at stockholders'
meetings, and the proceedings thereof. The Secretary shall keep, or cause to
be kept, a copy of these bylaws of the corporation at the principal executive
office or such other place as the Board may order.
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The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, if
one has been appointed, a share register, or a duplicate share register,
showing the names of the stockholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board and any committees thereof required by these
bylaws or by law to be given, shall keep the seal of the corporation in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board.
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the corporation, and shall send or cause to be sent to the
stockholders of the corporation such financial statements and reports as are
by law or these bylaws required to be sent to them. The books of account shall
at all times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board. The Chief Financial Officer shall disburse the funds
of the corporation as may be ordered by the Board, shall render to the Chair
of the Board, the Chief Executive Officer, the President and the directors,
whenever they request it, an account of all transactions as Chief Financial
Officer and of the financial condition of the corporation, and shall have such
other powers and perform such other duties as may be prescribed by the Board.
Section 4. Removal and Resignation.
Any officer elected by the Board may be removed only by the Board, either
with or without cause, at any time. In the case of an officer not elected by
the Board, such an officer may be removed by another officer upon whom such
power of removal may be conferred by the Board. Any removal shall be without
prejudice to the rights, if any, of the officer under any contract of
employment of the officer.
Any officer may resign at any time by giving written notice to the
corporation, subject to the rights of the corporation under any contract
between the corporation and the officer. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. Vacancies.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed
in these bylaws for regular election or appointment to such office.
ARTICLE V. OTHER PROVISIONS.
Section 1. Inspection of Corporate Records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books
and records and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a stockholder.
In every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed
to the corporation at its registered office in the State of Delaware or at its
principal executive office.
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Section 2. Inspection of Bylaws.
The corporation shall keep in its principal executive office in the State
of California, or if its principal executive office is not in such State at
its principal business office in such State, the original or a copy of these
bylaws as amended to date, which shall be open to inspection by stockholders
at all reasonable times during office hours. If the principal executive office
of the corporation is located outside the State of California and the
corporation has no principal business office in such state, it shall upon the
written request of any stockholder furnish to such stockholder a copy of these
bylaws as amended to date.
Section 3. Endorsement of Documents; Contracts.
Subject to the provisions of applicable law, any note, mortgage, evidence
of indebtedness, contract, share certificate, conveyance or other instrument
in writing and any assignment or endorsements thereat executed or entered into
between the corporation and any other person, when signed by the Chair of the
Board, the Chief Executive Officer, the Chief Operating Officer, the
President, the Vice Chair, an Executive Vice President, or any senior vice
president and the Secretary, any Assistant Secretary, the Chief Financial
Officer or any Assistant Treasurer of the corporation shall be valid and
binding on the corporation in the absence of actual knowledge on the part of
the other person that the signing officers had no authority to execute the
same. Any such instruments may be signed by any other person or persons and in
such manner as from time to time shall be determined by the Board, and, unless
so authorized by the Board, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or amount.
Section 4. Certificates of Stock.
Every holder of shares of the corporation shall be entitled to have a
certificate signed in the name of the corporation by the Chair of the Board,
the President, the Vice Chair and by the Chief Financial Officer or an
Assistant Treasurer or the Secretary or an Assistant Secretary, certifying the
number of shares and the class or series of shares owned by the stockholder.
Any or all of the signatures on the certificate may be facsimile. If any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if such person were an
officer, transfer agent or registrar at the date of issue.
Certificates for shares may be issued prior to full payment under such
restrictions and for such purposes as the Board may provide; provided,
however, that on any certificate issued to represent any partly paid shares,
the total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated.
Except as provided in this Section 4, no new certificate for shares shall
be issued in lieu of an old one unless the latter is surrendered and cancelled
at the same time. The Board may, however, if any certificate for shares is
alleged to have been lost, stolen or destroyed, authorize the issuance of a
new certificate in lieu thereof, and the corporation may require that the
corporation be given a bond or other adequate security sufficient to indemnify
it against any claim that may be made against it (including expense or
liability) on account of the alleged loss, theft or destruction of such
certificate or the issuance of such new certificate.
The Company shall not register the transfer of any securities issued in
reliance on Regulation S promulgated under the Securities Act of 1933, as
amended, unless the Company has received such assurances as it may reasonably
request that the transfer of such securities was made in accordance with the
provisions of such Regulation S.
Section 5. Representation of Shares of Other Corporations.
The Chair of the Board or any other officer or officers authorized by the
Board or the Chair of the Board are each authorized to vote, represent and
exercise on behalf of the corporation all rights incident to any and all
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shares of any other corporation or corporations standing in the name of the
corporation. The authority herein granted may be exercised either by any such
officer in person or by any other person authorized so to do by proxy or power
of attorney duly executed by said officer.
Section 6. Stock Purchase Plans.
The corporation may adopt and carry out a stock purchase plan or agreement
or stock option plan or agreement providing for the issue and sale for such
consideration as may be fixed of its unissued shares, or of issued shares
acquired or to be acquired, to one or more of the employees or directors of
the corporation or of a subsidiary or to a trustee on their behalf and for the
payment for such shares in installments or at one time, and may provide for
aiding any such persons in paying for such shares by compensation for services
rendered, promissory notes or otherwise.
Any such stock purchase plan or agreement or stock option plan or agreement
may include, among other features, the fixing of eligibility for participation
therein, the class and price of shares to be issued or sold under the plan or
agreement, the number of shares which may be subscribed for, the method of
payment therefor, the reservation of title until full payment therefor, the
effect of the termination of employment, an option or obligation on the part
of the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination
of the plan, and any other matters, not in violation of applicable law, as may
be included in the plan as approved or authorized by the Board or any
committee of the Board.
Section 7. Election of Fiscal Year.
Upon the election of the Board, the Board may authorize the change of the
current Fiscal Year of the Corporation to begin on January 1 of each year and
end on December 31 of each subsequent year.
Section 8. Construction and Definitions.
Unless the context otherwise requires, the general provisions, rules of
construction and definitions contained in the General Corporation Law of the
State of Delaware shall govern the construction of these bylaws.
Section 9. Amendments.
These bylaws may be altered, amended or repealed either by the approval of
66 and 2/3 percent of the outstanding shares of the corporation entitled to
vote on such action or, subject to the provisions of the General Corporation
Law of the State of Delaware, by the approval of the Board.
Section 10. Loans to Officers and Other Employees.
The corporation may lend money to, guarantee any obligation of or otherwise
assist any officer or other employee of the corporation or of any of its
subsidiaries, including any officer or employee who is director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
Board, such loan, guaranty or assistance may reasonably be expected to benefit
the corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured or secured in such manner as the Board shall
approve, including, without limitation, a pledge of shares of stock of the
corporation.
Section 11. Emergency Bylaws.
(a) The Board may adopt emergency bylaws, subject to repeal or change by
action of the stockholders, which shall, notwithstanding any different
provision in the General Corporation Law of the State of Delaware, the
Certificate of Incorporation of the corporation or these bylaws, be operative
during any emergency resulting from an attack on the United States or on a
locality in which the corporation conducts its business or customarily holds
meetings of the Board or its stockholders, or during any nuclear or atomic
disaster, or during the existence
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of any catastrophe, or other similar emergency condition, as a result of which
a quorum of the Board or a standing committee thereof cannot readily be
convened for action. The emergency bylaws may make any provision that may be
practical and necessary for the circumstances of the emergency, including
provisions that:
(i) A meeting of the Board or a committee thereof may be called by any
officer or director in such manner and under such conditions as shall be
prescribed in the emergency bylaws;
(ii) The director or directors in attendance at the meeting, or any
greater number fixed by the emergency bylaws, shall constitute a quorum;
and
(iii) The officers or other persons designated on a list approved by the
Board before the emergency, all in such order of priority and subject to
such conditions and for such period of time (not longer than reasonably
necessary after the termination of the emergency) as may be provided in the
emergency bylaws or in the resolution approving the list, shall, to the
extent required to provide a quorum at any meeting of the Board, be deemed
directors for such meeting.
(b) The Board, either before or during any such emergency, may provide, and
from time to time modify, lines of succession in the event that during such
emergency any or all officers or agents of the corporation shall for any
reason be rendered incapable of discharging their duties.
(c) The Board, either before or during any such emergency, may, effective
in the emergency, change the head office or designate several alternative head
offices or regional offices, or authorize the officers so to do.
(d) No officer, director or employee acting in accordance with any
emergency bylaws shall be liable except for willful misconduct.
(e) To the extent not inconsistent with any emergency bylaws so adopted,
these bylaws shall remain in effect during any emergency and upon its
termination the emergency bylaws shall cease to be operative.
(f) Unless otherwise provided in emergency bylaws, notice of any meeting of
the Board during such an emergency may be given only to such of the directors
as it may be feasible to reach at the time and by such means as may be
feasible at the time, including publication or radio.
(g) To the extent required to constitute a quorum at any meeting of the
Board during such an emergency, the officers of the corporation who are
present shall, unless otherwise provided in emergency bylaws, be deemed, in
order of rank and within the same rank in order of seniority, directors for
such meeting.
(h) Nothing contained in this Section 11 shall be deemed exclusive of any
other provisions for emergency powers consistent with the General Corporation
Law of the State of Delaware.
ARTICLE VI. INDEMNIFICATION.
Section 1. Right to Indemnification.
The corporation shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be
amended, any person (an "Indemnitee") who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding"), by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director or officer of the corporation or, while a
director or officer of the corporation, is or was serving at the written
request of the corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust, enterprise or
non-profit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys'
fees) reasonably incurred by such Indemnitee. Notwithstanding the preceding
sentence, except as otherwise provided in Section 3 of this Article VI, the
corporation shall be required to indemnify an Indemnitee in
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connection with a proceeding (or part thereof) commenced by such Indemnitee
only if the commencement of such proceeding (or part thereof) by the
Indemnitee was authorized by the Board.
Section 2. Prepayment of Expenses.
The corporation shall pay the expenses (including attorneys' fees) incurred
by an Indemnitee in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Indemnitee to repay
all amounts advanced if it should be ultimately determined that the Indemnitee
is not entitled to be indemnified under this Article VI or otherwise.
Section 3. Claims.
If a claim for indemnification of advancement of expenses under this
Article VI is not paid in full within 60 days after a written claim therefor
by the Indemnitee has been received by the corporation, the Indemnitee may
file suit to recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action the corporation shall have the burden of proving
that the Indemnitee is not entitled to the requested indemnification or
advancement of expenses under applicable law.
Section 4. Non-Exclusivity of Rights.
The rights conferred on any Indemnitee by this Article VI shall not be
exclusive of any other rights which such Indemnitee may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation of
the corporation, these bylaws, agreement, vote of the stockholders or
disinterested directors or otherwise.
Section 5. Other Sources.
The corporation's obligation, if any, to indemnify or to advance expenses
to any Indemnitee who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise or non-profit entity shall be reduced by any amount such Indemnitee
may collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit
entity.
Section 6. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of this Article VI
shall not adversely affect any right or protection hereunder of any Indemnitee
in respect of any act or omission occurring prior to the time of such repeal
or modification.
Section 7. Other Indemnification and Prepayment of Expenses.
This Article VI shall not limit the right of the corporation, to the extent
and in the manner permitted by law, to indemnify and to advance expenses to
persons other than Indemnitees when and as authorized by appropriate corporate
action.
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