<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
VERITAS SOFTWARE CORPORATION
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(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 94-2823068
- --------------------------------------------------------- ---------------------------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification Number)
1600 PLYMOUTH STREET
MOUNTAIN VIEW, CALIFORNIA 94043
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of If this Form relates to the registration of a class
securities pursuant to Section 12(b) of the Exchange Act of securities pursuant to Section 12(g) of the
and is effective pursuant to General Instruction A. (c), Exchange Act and is effective pursuant to General
please check the following box. [ ] Instruction A. (d), please check the following box. [X]
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act: NONE.
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.001 PAR VALUE
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(Title of Class)
Page 1 of 29
Exhibit Index is on Page 4.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the Common Stock of Registrant set forth under the
caption "Description of New VERITAS Capital Stock" in Registrant's Registration
Statement on Form S-4 as originally filed or as subsequently amended (the
"Registration Statement"), which Registration Statement was originally filed on
April 19, 1999 (File No. 333-76531) and was declared effective April 22, 1999,
is hereby incorporated by reference in response to this item.
ITEM 2. EXHIBITS.
The following exhibits are filed herewith or incorporated herein by
reference:
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Exhibit
Number Exhibit Title or Description
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3.01 Registrant's Restated Certificate of Incorporation.
3.02 Registrant's Bylaws.
4.01 Form of Specimen Certificate for Registrant's Common Stock
(incorporated by reference to Exhibit 4.01 of VERITAS
Software Corporation registration statement on Form S-1
(File No. 33-70726) dated October 22, 1993, as amended).
</TABLE>
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: June 1, 1999 VERITAS SOFTWARE CORPORATION
By: /s/ Jay A. Jones
---------------------------------
Jay A. Jones
Senior Vice President
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INDEX TO EXHIBITS
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Exhibit Sequentially
Number Exhibit Title or Description Numbered Page
- ------- ---------------------------- -------------
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3.01 Registrant's Restated Certificate of Incorporation. 5
3.02 Certificate of Amendment of Registrant's Amended and 10
Restated Certificate of Incorporation.
3.03 Registrant's Bylaws. 11
</TABLE>
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EXHIBIT 3.01
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VERITAS HOLDING CORPORATION
(Originally Incorporated October 2, 1998)
ARTICLE I
The name of the Corporation is VERITAS Holding Corporation.
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 15 E. North Street, City of Dover, County of Kent. The name of its
registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
4.1 Classes of Stock. The total number of shares of all classes of stock
which the Corporation has authority to issue is five hundred ten million and one
(510,000,001) shares, consisting of three classes: five hundred million
(500,000,000) shares of Common Stock, $0.001 par value per share, ten million
(10,000,000) shares of Preferred Stock, $0.001 par value per share, and one (1)
share of Special Voting Stock, $1.00 par value.
4.2 Preferred Stock Series Determination. The Board of Directors is
authorized, subject to any limitations prescribed by the law of the State of
Delaware, to provide for the issuance of the shares of Preferred Stock in one or
more series, and, by filing a certificate of designation pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, to fix the designation,
powers, preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof, and to increase or decrease
the number of shares of any such series (but not below the number of shares of
such series then outstanding). The number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote, unless a vote of any other holders is
required pursuant to a certificate or certificates establishing a series of
Preferred Stock.
4.3 Rights, Privileges and Restrictions. The rights, privileges and
restrictions of the Common Stock and the Special Voting Stock shall be set forth
in this Article IV.
<PAGE> 2
4.4 Voting Rights.
4.4.1 General. Except as otherwise required by law or this Amended
and Restated Certificate of Incorporation, (i) each holder of record of Common
Stock shall have one vote in respect of each share of stock held by the holder
on the books of the Corporation, and (ii) the holder of record of the share of
Special Voting Stock shall have a number of votes equal to the number of
Exchangeable Non-Voting Shares ("EXCHANGEABLE SHARES") of Telebackup Systems,
Inc., an Alberta corporation, from time to time which are not owned by the
Corporation, any of its subsidiaries or any person directly or indirectly
controlled by or under common control of the Corporation, in each case for the
election of directors and on all matters submitted to a vote of stockholders of
the Corporation. For the purpose hereof, "control" (including the correlative
meanings, the terms "controlled by" and "under common control of") as applied to
any person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that person through the
ownership of voting securities, by contract or otherwise.
4.4.2 Common Stock and Special Voting Stock Identical in Voting. In
respect of all matters concerning the voting of shares, the Common Stock and the
Special Voting Stock shall vote as a single class and such voting rights shall
be identical in all respects.
4.5 Liquidation. In the event of any liquidation, dissolution or winding
up of the Corporation, the holders of Common Stock shall be entitled to receive,
pro rata, all of the remaining assets of the Corporation available for
distribution to its stockholders and the holders of Special Voting Stock shall
not be entitled to receive any such assets.
4.6 Dividends. The holders of shares of Common Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Corporation which are by law available therefor, dividends payable either
in cash, in property or in shares of capital stock and the holders of Special
Voting Stock shall not be entitled to receive any such dividends.
4.7 Special Voting Stock.
4.7.1 Issuance. Pursuant to the terms of that certain Amended and
Restated Combination Agreement, dated as of April 12, 1999, by and among the
Corporation, VERITAS Software Corporation, and Telebackup Systems, Inc., an
Alberta corporation, one share of Special Voting Stock is being issued to the
trustee (the "TRUSTEE") under the Voting, Support and Exchange Trust Agreement,
to be entered into in or about May 1999, by and between the Corporation, VERITAS
Software Corporation, Telebackup Exchangeco, Inc. and the Trustee.
4.7.2 Exercise of Voting Rights. The holder of the share of Special
Voting Stock is entitled to exercise the voting rights attendant thereto in such
manner as such holder desires.
4.7.3 Cancellation of Shares. At such time as the Special Voting
Stock has no votes attached to it because there are no Exchangeable Shares of
Telebackup Systems, Inc. outstanding which are not owned by the Corporation, any
of its subsidiaries or any person directly
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<PAGE> 3
or indirectly controlled by or under common control of the Corporation, and
there are no shares of stock, debt, options or other agreements of Telebackup
Systems, Inc. which could give rise to the issuance of any Exchangeable Shares
of Telebackup Systems, Inc. to any person (other than the Corporation, any of
its subsidiaries or any person directly or indirectly controlled by or under
common control of the Corporation), the Special Voting Stock shall be
automatically canceled.
ARTICLE V
5.1 Number of Directors; Classes. Subject to the rights of the holders of
any series of Preferred Stock then outstanding to elect additional directors
under specified circumstances, the number of directors shall be fixed from time
to time exclusively by the Board of Directors of the Corporation pursuant to a
resolution adopted by a majority vote of the Whole Board. For the purposes of
this Amended and Restated Certificate of Incorporation, the term "WHOLE BOARD"
shall mean the total number of authorized directors whether or not there exist
any vacancies in previously authorized directorships. As soon as there is more
than one (1) member of the Board of Directors, the directors shall be divided
into three classes, A, B and C, as nearly equal in number as reasonably
possible, with the term of office of the first class ("CLASS A") to expire at
the first annual meeting of stockholders, the term of office of the second class
("CLASS B") to expire at the annual meeting of stockholders one year thereafter
and the term of office of the third class ("CLASS C") to expire at the annual
meeting of stockholders two years thereafter with each director to hold office
until his or her successor shall have been duly elected and qualified. At each
annual meeting of stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of stockholders after their election with each director to hold office until his
or her successor shall have been duly elected and qualified.
5.2 Board Vacancies; Increase in Size of the Board. Subject to the rights
of holders of any series of Preferred Stock outstanding, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, though less than a
quorum, or by a sole remaining director; and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been chosen expires. In the event
of any increase or decrease in the authorized number of directors, (i) each
director then serving as such shall nevertheless continue as a director of the
class of which he or she is a member until the expiration of such director's
current term or his or her prior death, retirement, removal or resignation and
(ii) the newly created or eliminated directorships resulting from such increase
or decrease shall, if reasonably possible, be apportioned by the Board of
Directors among the three classes of directors so as to ensure that no one class
has more than one director more than any other class. To the extent reasonably
possible, consistent with the foregoing rule, any newly created directorships
shall be added to those classes whose terms of office are to expire at the
latest dates following such allocation and newly eliminated directorships shall
be subtracted from those classes whose terms of office are to expire at the
earliest dates following such allocation, unless otherwise provided for from
time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum. In the event of a vacancy in
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the Board of Directors, the remaining directors, except as otherwise provided or
limited by law or this Amended and Restated Certificate of Incorporation, may
exercise the powers of the full Board of Directors until the vacancy is filled.
5.3 Stockholder Nominations. Advance notice of stockholder nominations for
the election of directors and of business to be brought by stockholders before
any meeting of the stockholders of the Corporation shall be given in the manner
provided by the Bylaws of the Corporation.
5.4 Removal. Subject to the rights of holders of any series of Preferred
Stock then outstanding, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least two-thirds of the affirmative voting power of
all of the then outstanding shares of the Corporation entitled to vote generally
in the election of directors, voting together as a single class.
ARTICLE VI
The Board of Directors of the Corporation shall have the power to adopt,
amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal
of the Bylaws of the Corporation by the Board of Directors shall require the
approval of a majority of the Whole Board. The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the Corporation; provided,
however, that, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Amended and Restated
Certificate of Incorporation, the affirmative vote of the holders of at least
two-thirds of the voting power of all of the then outstanding shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of the Bylaws of the Corporation.
ARTICLE VII
Election of directors need not be by written ballot unless the Bylaws of
the Corporation shall so provide.
ARTICLE VIII
To the fullest extent permitted by law, no director of the Corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VIII, nor the adoption of
any provision of this Certificate of Incorporation inconsistent with this
Article VIII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
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ARTICLE IX
Actions shall be taken by the Corporation's stockholders only at annual or
special meetings of stockholders, and the Corporation's stockholders shall not
be able to act by written consent.
ARTICLE X
The Corporation reserves the right to amend or repeal any provision
contained in this Amended and Restated Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all rights conferred
upon stockholders are granted subject to this reservation; provided, however,
that in addition to the vote of the holders of any class or series of stock of
the Corporation required by law or by this Amended and Restated Certificate of
Incorporation, the affirmative vote of the holders of at least two-thirds of the
voting power of all of the then outstanding shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class, shall be required to amend or repeal, or adopt any provision inconsistent
with Articles FIFTH, SIXTH, NINTH and this Article TENTH of this Amended and
Restated Certificate of Incorporation.
IN WITNESS WHEREOF, VERITAS Software Corporation, before receipt of any
payment for its capital stock, has caused this Amended and Restated Certificate
of Incorporation, which restated, integrates and further amends the certificate
of incorporation of the Corporation and which has been duly adopted in
accordance with Section 241 and 245 of the Delaware General Corporation Law, to
be signed by Jay Jones, its Vice President and Secretary, this 28th day of May,
1999.
VERITAS SOFTWARE CORPORATION
By: /s/ Jay A. Jones
------------------------------------
Jay Jones, Vice President
and Secretary
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EXHIBIT 3.02
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VERITAS HOLDING CORPORATION
VERITAS Holding Corporation, a Delaware corporation (the "Corporation"),
does hereby certify that the following amendment to the Corporation's Amended
and Restated Certificate of Incorporation has been duly adopted in accordance
with the provisions of Section 241 of the Delaware General Corporation Law, and
that the Corporation has not received any payment for any of its capital stock
as of the time this Certificate is filed with the Office of the Secretary of
the State of Delaware:
Effective at 11:59 p.m. on the day this certificate is filed with the
Office of the Secretary of the State of Delaware, Article I of the
Corporation's Amended and Restated Certificate of Incorporation, relating to
the name of the Corporation, is amended to read in its entirety as follows:
"ARTICLE I
The name of this Corporation is VERITAS Software Corporation."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its duly authorized officer this 28th day of May
1999, the foregoing facts stated herein being true and correct.
VERITAS HOLDING CORPORATION
By:/s/ Jay A. Jones
---------------------------------------
Jay Jones, Vice President and Secretary
<PAGE> 1
EXHIBIT 3.03
================================================================================
AMENDED AND RESTATED BYLAWS
OF
VERITAS SOFTWARE CORPORATION
(a Delaware corporation)
As Adopted October 2, 1998
and Amended Effective May 28, 1999
================================================================================
<PAGE> 2
AMENDED AND RESTATED BYLAWS
OF
VERITAS SOFTWARE CORPORATION
A Delaware Corporation
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
ARTICLE I - STOCKHOLDERS......................................................... 1
Section 1.1: Annual Meetings............................................ 1
Section 1.2: Special Meetings........................................... 1
Section 1.3: Notice of Meetings......................................... 1
Section 1.4: Adjournments............................................... 1
Section 1.5: Quorum..................................................... 2
Section 1.6: Organization............................................... 2
Section 1.7: Voting; Proxies............................................ 2
Section 1.8: Fixing Date for Determination of Stockholders of Record.... 3
Section 1.9: List of Stockholders Entitled to Vote...................... 3
Section 1.10: Inspectors of Elections................................... 3
Section 1.11: Notice of Stockholder Business; Nominations............... 4
ARTICLE II - BOARD OF DIRECTORS................................................. 6
Section 2.1: Number; Qualifications................................... 6
Section 2.2: Election; Resignation; Removal; Vacancies................ 7
Section 2.3: Regular Meetings......................................... 7
Section 2.4: Special Meetings......................................... 7
Section 2.5: Telephonic Meetings Permitted............................ 8
Section 2.6: Quorum; Vote Required for Action......................... 8
</TABLE>
i
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<TABLE>
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PAGE
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Section 2.7: Organization............................................... 8
Section 2.8: Written Action by Directors................................ 8
Section 2.9: Powers..................................................... 8
Section 2.10: Compensation of Directors.................................. 8
ARTICLE III - COMMITTEES......................................................... 9
Section 3.1: Committees................................................. 9
Section 3.2: Committee Rules............................................ 9
ARTICLE IV - OFFICERS............................................................ 9
Section 4.1: Generally.................................................. 9
Section 4.2: Chief Executive Officer.................................... 10
Section 4.3: Chairman of the Board...................................... 10
Section 4.4: President.................................................. 10
Section 4.5: Vice President............................................. 11
Section 4.6: Chief Financial Officer.................................... 11
Section 4.7: Treasurer.................................................. 11
Section 4.8: Secretary.................................................. 11
Section 4.9: Delegation of Authority.................................... 11
Section 4.10: Removal.................................................... 11
ARTICLE V - STOCK................................................................ 11
Section 5.l: Certificates............................................... 11
Section 5.2: Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificate................................ 12
Section 5.3: Other Regulations.......................................... 12
</TABLE>
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<TABLE>
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PAGE
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ARTICLE VI - INDEMNIFICATION..................................................... 12
Section 6.1: Indemnification of Officers and Directors.................. 12
Section 6.2: Advance of Expenses........................................ 12
Section 6.3: Non-Exclusivity of Rights.................................. 13
Section 6.4: Indemnification Contracts.................................. 13
Section 6.5: Effect of Amendment........................................ 13
ARTICLE VII - NOTICES............................................................ 13
Section 7.l: Notice..................................................... 13
Section 7.2: Waiver of Notice........................................... 13
ARTICLE VIII - INTERESTED DIRECTORS.............................................. 14
ARTICLE IX - MISCELLANEOUS....................................................... 14
Section 9.1: Fiscal Year................................................ 14
Section 9.2: Seal....................................................... 14
Section 9.3: Form of Records............................................ 14
Section 9.4: Reliance Upon Books and Records............................ 15
Section 9.5: Certificate of Incorporation Governs....................... 15
Section 9.6: Severability............................................... 15
ARTICLE X - AMENDMENT............................................................ 15
Section 10.1: Amendments................................................. 15
</TABLE>
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AMENDED AND RESTATED BYLAWS
OF
VERITAS SOFTWARE CORPORATION
(a Delaware corporation)
As Adopted October 2, 1998
and Amended Effective May 28, 1999
ARTICLE I
STOCKHOLDERS
Section 1.1: Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as the Board of Directors shall each year fix.
Any other proper business may be transacted at the annual meeting.
Section 1.2: Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board, the
Chief Executive Officer or by a majority of the members of the Board of
Directors. Special meetings may not be called by any other person or persons. If
a special meeting of stockholders is called by any person or persons other than
by a majority of the members of the Board of Directors, then such person or
persons shall call such meeting by delivering a written request to call such
meeting to each member of the Board of Directors, and the Board of Directors
shall then determine the time, date and place of such special meeting, which
shall be held not more than one hundred twenty (120) nor less than thirty-five
(35) days after the written request to call such special meeting was delivered
to each member of the Board of Directors.
Section 1.3: Notice of Meetings. Written notice of all meetings of
stockholders shall be given stating the place, date and time of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise required by applicable law or the Certificate of
Incorporation of the Corporation, such notice shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 1.4: Adjournments. Any meeting of stockholders may adjourn from
time to time to reconvene at the same or another place, and notice need not be
given of any such adjourned meeting if the time, date and place 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 is fixed for the adjourned meeting, then a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at
<PAGE> 6
the meeting. At the adjourned meeting the Corporation may transact any business
that might have been transacted at the original meeting.
Section 1.5: Quorum. At each meeting of stockholders the holders of a
majority of the shares of stock entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the transaction of
business, except if otherwise required by applicable law. If a quorum shall fail
to attend any meeting, the chairman of the meeting or the holders of a majority
of the shares entitled to vote who are present, in person or by proxy, at the
meeting may adjourn the meeting. Shares of the Corporation's stock belonging to
the Corporation (or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation are held,
directly or indirectly, by the Corporation), shall neither be entitled to vote
nor be counted for quorum purposes; provided, however, that the foregoing shall
not limit the right of the Corporation or any other corporation to vote any
shares of the Corporation's stock held by it in a fiduciary capacity.
Section 1.6: Organization. Meetings of stockholders shall be presided
over by such person as the Board of Directors may designate, or, in the absence
of such a person, the Chief Executive Officer, or, in the absence of such
person, the President of the Corporation, or, in the absence of such person,
such person as may be chosen by the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, at the meeting. Such person
shall be chairman of the meeting and, subject to Section 1.10 hereof, shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seems to him
or her to be in order. The Secretary of the Corporation shall act as secretary
of the meeting, but in his or her absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7: Voting; Proxies. Unless otherwise provided by law or the
Certificate of Incorporation, and subject to the provisions of Section 1.8 of
these Bylaws, each stockholder shall be entitled to one (1) vote for each share
of stock held by such stockholder. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy. Such a proxy may be prepared, transmitted and delivered in
any manner permitted by applicable law. Voting at meetings of stockholders need
not be by written ballot unless such is demanded at the meeting before voting
begins by a stockholder or stockholders holding shares representing at least one
percent (1%) of the votes entitled to vote at such meeting, or by such
stockholder's or stockholders' proxy; provided, however, that an election of
directors shall be by written ballot if demand is so made by any stockholder at
the meeting before voting begins. If a vote is to be taken by written ballot,
then each such ballot shall state the name of the stockholder or proxy voting
and such other information as the chairman of the meeting deems appropriate.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Unless otherwise provided by applicable law, the
Certificate of Incorporation or these Bylaws, every matter other than the
election of directors shall be decided by the affirmative vote of the holders of
a majority of the shares of stock entitled to vote thereon that are present in
person or represented by proxy at the meeting and are voted for or against the
matter.
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Section 1.8: Fixing Date for Determination of Stockholders of Record.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. If no record date is fixed by the Board of
Directors, then the record date shall be as provided by applicable law. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.9: List of Stockholders Entitled to Vote. A complete list of
stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder, 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 ten (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 at the meeting.
Section 1.10: Inspectors of Elections.
(a) Applicability. Unless otherwise provided in the Corporation's
Certificate of Incorporation or required by the Delaware General Corporation
Law, the following provisions of this Section 1.10 shall apply only if and when
the Corporation has a class of voting stock that is: (i) listed on a national
securities exchange; (ii) authorized for quotation on an interdealer quotation
system of a registered national securities association; or (iii) held of record
by more than 2,000 stockholders; in all other cases, observance of the
provisions of this Section 1.10 shall be optional, and at the discretion of the
Corporation.
(b) Appointment. The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting.
(c) Inspector's Oath. Each inspector of election, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his ability.
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(d) Duties of Inspectors. At a meeting of stockholders, the inspectors
of election shall (i) ascertain the number of shares outstanding and the voting
power of each share, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period of time a record of the disposition
of any challenges made to any determination by the inspectors, and (v) certify
their determination of the number of shares represented at the meeting, and
their count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
(e) Opening and Closing of Polls. The date and time of the opening and
the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced by the inspectors at the meeting. No ballot,
proxies or votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery upon application by a stockholder shall determine otherwise.
(f) Determinations. In determining the validity and counting of proxies
and ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in
connection with proxies in accordance with Section 212(c)(2) of the Delaware
General Corporation Law, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons 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 inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification of their determinations
pursuant to this Section 1.11 shall specify the precise information considered
by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.11: Notice of Stockholder Business; Nominations.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders shall be made
at an annual meeting of stockholders (A) pursuant to the Corporation's notice of
such meeting, (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of the notice provided for in this Section 1.11, who is entitled to vote
at such meeting and who complies with the notice procedures set forth in this
Section 1.11.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of subparagraph
(a)(i) of this Section 1.11, the stockholder must have given timely notice
thereof in writing 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 must be delivered to the Secretary at the principal
executive offices of the
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Corporation not later than the close of business on the sixtieth (60th) day nor
earlier than the close of business on the ninetieth (90th) 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 thirty (30)
days before or more than sixty (60) days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. Such stockholder's notice shall set forth: (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the 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, and (2) the class and number of shares of the Corporation that are owned
beneficially and held of record by such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
subparagraph (a)(ii) of this Section 1.11 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 by the Corporation naming all
of the nominees for director or specifying the size of the increased board of
directors at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting (or, if the annual meeting is held more than
thirty (30) days before or sixty (60) days after such anniversary date, at least
seventy (70) days prior to such annual meeting), a stockholder's notice required
by this Section 1.11 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 office
of the Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of 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 such meeting (i) by or at the direction of the Board of
Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice of
the special meeting, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.11. In the event
the Cor-
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poration calls a special meeting of stockholders for the purpose of electing one
or more directors to the Board of Directors, any such stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by subparagraph (a)(ii) of this Section 1.11 shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not earlier than the ninetieth (90th) day prior to such special
meeting and not later than the close of business on the later of the sixtieth
(60th) 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.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.11 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 1.11. Except as otherwise provided by law or these
Bylaws, the chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 1.11 and, if any proposed nomination or business is not in
compliance herewith, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 1.11, the term "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
1.11, 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 herein. Nothing in this Section 1.11 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1: Number; Qualifications. The Board of Directors shall
consist of one or more members. The initial number of directors shall be one
(1), until the Corporation first has more than one stockholder, at which time
the number of directors shall be ten (10), and thereafter shall be fixed from
time to time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority vote of the Whole Board. For the purposes of these Bylaws,
the term "WHOLE BOARD" shall mean the total number of authorized directors
whether or not there exist any vacancies in previously authorized directorships.
Directors need not be stockholders of the Corporation.
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Section 2.2: Election; Classes; Resignation; Removal; Vacancies. The
Board of Directors shall initially consist of the person elected by the
incorporator. As provided in the Corporation's Certificate of Incorporation, as
soon as there is more than one member of the Board of Directors, the Board of
Directors shall be divided into three classes, A, B and C, as nearly equal in
number as reasonably possible, with the term of office of the first class
("CLASS A"), which class shall initially consist of three (3) directors, to
expire at the first annual meeting of stockholders; the term of office of the
second class ("CLASS B"), which class shall initially consist of four (4)
directors, to expire at the annual meeting of stockholders one year thereafter;
and the term of office of the third class ("CLASS C"), which class shall
initially consist of three (3) directors, to expire at the annual meeting of
stockholders two years thereafter with each director to hold office until his or
her successor shall have been duly elected and qualified. Any director may
resign at any time upon written notice to the Corporation. Subject to the rights
of holders of any series of Preferred Stock then outstanding, any director, or
the entire Board of Directors, may be removed from office at any time, but only
for cause and only by the affirmative vote of the holders of at least two-thirds
of the affirmative voting power of all of the then outstanding shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class. Subject to the rights of holders of any series of
Preferred Stock outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, or by a sole remaining
director; and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
they have been chosen expires. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he or she is a member
until the expiration of such director's current term or his or her prior death,
retirement, removal or resignation and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall, if reasonably
possible, be apportioned by the Board of Directors among the three classes of
directors so as to ensure that no one class has more than one director more than
any other class. To the extent reasonably possible, consistent with the
foregoing rule, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such
allocation and newly eliminated directorships shall be subtracted from those
classes whose terms of office are to expire at the earliest dates following such
allocation, unless otherwise provided for from time to time by resolution
adopted by a majority of the directors then in office, although less than a
quorum. In the event of a vacancy in the Board of Directors, the remaining
directors, except as otherwise provided or limited by law, the Corporation's
Certificate of Incorporation or these Bylaws, may exercise the powers of the
full Board of Directors until the vacancy is filled.
Section 2.3: Regular Meetings. Regular meetings of the Board of
Directors may be held at such places, within or without the State of Delaware,
and at such times as the Board of Directors may from time to time determine.
Notice of regular meetings need not be given if the date, times and places
thereof are fixed by resolution of the Board of Directors.
Section 2.4: Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or a majority of the members
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of the Board of Directors then in office and may be held at any time, date or
place, within or without the State of Delaware, as the person or persons calling
the meeting shall fix. Notice of the time, date and place of such meeting shall
be given, orally or in writing, by the person or persons calling the meeting to
all directors at least four (4) days before the meeting if the notice is mailed,
or at least twenty-four (24) hours before the meeting if such notice is given by
telephone, hand delivery, telegram, telex, mailgram, facsimile or similar
communication method. Unless otherwise indicated in the notice, any and all
business may be transacted at a special meeting.
Section 2.5: Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee of the Board, may participate in a meeting of the
Board or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to
conference telephone or similar communications equipment shall constitute
presence in person at such meeting.
Section 2.6: Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the total number of authorized directors shall
constitute a quorum for the transaction of business. Except as otherwise
provided herein or in the Certificate of Incorporation, or required by law, the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7: Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his or her absence by the
Chief Executive Office, or in his or her absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.8: Written Action by Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
such committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or committee,
respectively.
Section 2.9: Powers. The Board of Directors may, except as otherwise
required by law or the Certificate of Incorporation, exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation.
Section 2.10: Compensation of Directors. Directors, as such, may
receive, pursuant to a resolution of the Board of Directors, fees and other
compensation for their services as directors, including without limitation their
services as members of committees of the Board of Directors.
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ARTICLE III
COMMITTEES
Section 3.1: Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting of such committee who are 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 place of any such absent or disqualified member. Any such committee,
to the extent provided in a resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in subsection (a) of
Section 151 of the Delaware General Corporation Law, fix the designations and
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation, or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation, or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation under Sections 251 or 252 of the Delaware
General Corporation Law, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and
unless the resolution of the Board of Directors expressly so provides, no such
committee shall have the power or authority to declare a dividend, authorize the
issuance of stock or adopt a certificate of ownership and merger pursuant to
section 253 of the Delaware General Corporation Law.
Section 3.2: Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1: Generally. The officers of the Corporation shall consist of
a Chief Executive Officer, a President, one or more Vice Presidents, a
Secretary, a Treasurer and such other officers, including a Chairman of the
Board of Directors and/or Chief Financial Officer, as may
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from time to time be appointed by the Board of Directors. All officers shall be
elected by the Board of Directors; provided, however, that the Board of
Directors may empower the Chief Executive Officer of the Corporation to appoint
officers other than the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or the Treasurer. Each officer shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any number of offices may be held by the same
person. Any officer may resign at any time upon written notice to the
Corporation. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2: Chief Executive Officer. Subject to the control of the
Board of Directors and such supervisory powers, if any, as may be given by the
Board of Directors, the powers and duties of the Chief Executive Officer of the
Corporation are:
(a) To act as the general manager and, subject to the control of the
Board of Directors, to have general supervision, direction and control of the
business and affairs of the Corporation;
(b) To preside at all meetings of the stockholders;
(c) To call meetings of the stockholders to be held at such times and,
subject to the limitations prescribed by law or by these Bylaws, at such places
as he or she shall deem proper; and
(d) To affix the signature of the Corporation to all deeds, conveyances,
mortgages, guarantees, leases, obligations, bonds, certificates and other papers
and instruments in writing which have been authorized by the Board of Directors
or which, in the judgment of the Chief Executive Officer, should be executed on
behalf of the Corporation; and, subject to the direction of the Board of
Directors, to have general charge of the property of the Corporation and to
supervise and control all officers, agents and employees of the Corporation.
Section 4.3: Chairman of the Board. The Chairman of the Board shall have
the power to preside at all meetings of the Board of Directors and shall have
such other powers and duties as provided in these Bylaws and as the Board of
Directors may from time to time prescribe.
Section 4.4: President. Subject to the provisions of these Bylaws and to
the direction of the Board of Directors, and subject to the supervisory powers
of the Chief Executive Officer, and subject to such supervisory powers and
authority as may be given by the Board of Directors to the Chairman of the Board
and/or to any other officer, the President shall have responsibility for the
management of the business and affairs of the Corporation and the general
supervision and direction of all of the officers, employees and agents of the
Corporation (other than the Chief Executive Officer), and shall perform all
duties and have all powers that are commonly incident to the office of President
or that are delegated to the President by the Board of Directors or the Chief
Executive Officer. The President may be designated by the Board to perform the
duties and exercise the powers of the Chief Executive Office in the event of the
Chief Executive Officer's absence or disability.
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Section 4.5: Vice President. Each Vice President shall have all such
powers and duties as are commonly incident to the office of Vice President, or
that are delegated to him or her by the Board of Directors or the Chief
Executive Officer. A Vice President may be designated by the Board to perform
the duties and exercise the powers of the Chief Executive Officer and/or the
President in the event of the Chief Executive Officer's and/or the President's
absence or disability.
Section 4.6: Chief Financial Officer. Subject to the direction of the
Board of Directors and the Chief Executive Officer, the Chief Financial Officer
shall perform all duties and have all powers that are commonly incident to the
office of chief financial officer.
Section 4.7: Treasurer. The Treasurer shall have custody of all monies
and securities of the Corporation. The Treasurer shall make such disbursements
of the funds of the Corporation as are authorized and shall render from time to
time an account of all such transactions. The Treasurer shall also perform such
other duties and have such other powers as are commonly incident to the office
of Treasurer, or as the Board of Directors or the Chief Executive Officer may
from time to time prescribe.
Section 4.8: Secretary. The Secretary shall issue or cause to be issued
all authorized notices for, and shall keep, or cause to be kept, minutes of all
meetings of the stockholders and the Board of Directors. The Secretary shall
have charge of the corporate minute books and similar records and shall perform
such other duties and have such other powers as are commonly incident to the
office of Secretary, or as the Board of Directors or the Chief Executive Officer
may from time to time prescribe.
Section 4.9: Delegation of Authority. The Board of Directors may from
time to time delegate the powers or duties of any officer to any other officers
or agents, notwithstanding any provision hereof.
Section 4.10: Removal. Any officer of the Corporation shall serve at the
pleasure of the Board of Directors and may be removed at any time, with or
without cause, by the Board of Directors. Such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation.
ARTICLE V
STOCK
Section 5.1: Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
or Vice-Chairman of the Board of Directors, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation, certifying the number of shares
owned by such stockholder in the Corporation. Any or all of the signatures on
the certificate may be a facsimile.
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Section 5.2: Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The Corporation may issue a new certificate of stock in the
place of any certificate previously issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or such owner's legal representative, to agree
to indemnify the Corporation and/or to give the Corporation a bond sufficient to
indemnify it, against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
Section 5.3: Other Regulations. The issue, transfer, conversion and
registration of stock certificates shall be governed by such other regulations
as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification of Officers and Directors. Each person who
was or is made a party to, or is threatened to be made a party to, or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he
or she (or a person of whom he or she is the legal representative) is or was a
director or officer of the Corporation or a Reincorporated Predecessor (as
defined below) or is or was serving at the request of the Corporation or a
Reincorporated Predecessor (as defined below) as a director or officer of
another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by the Delaware General Corporation Law, against all expenses, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes and
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the Corporation shall indemnify any such person seeking
indemnity in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. As used herein, the term "REINCORPORATED
PREDECESSOR" means a corporation that is merged with and into the Corporation in
a statutory merger where (a) the Corporation is the surviving corporation of
such merger; or (b) the primary purpose of such merger is to change the
corporate domicile of the Reincorporated Predecessor to Delaware.
Section 6.2: Advance of Expenses. The Corporation shall pay all expenses
(including attorneys' fees) incurred by such a director or officer in defending
any such proceeding as they are incurred in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by such a director or officer in
advance of the final disposition of such proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it should be determined
ultimately that such director or officer is not entitled to be indemnified under
this Article VI or otherwise; and provided, further, that the Cor-
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poration shall not be required to advance any expenses to a person against whom
the Corporation directly brings a claim, in a proceeding, alleging that such
person has breached his or her duty of loyalty to the Corporation, committed an
act or omission not in good faith or that involves intentional misconduct or a
knowing violation of law, or derived an improper personal benefit from a
transaction.
Section 6.3: Non-Exclusivity of Rights. The rights conferred on any
person in this Article VI shall not be exclusive of any other right that such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaw, agreement, vote or consent of stockholders
or disinterested directors, or otherwise. Additionally, nothing in this Article
VI shall limit the ability of the Corporation, in its discretion, to indemnify
or advance expenses to persons whom the Corporation is not obligated to
indemnify or advance expenses pursuant to this Article VI.
Section 6.4: Indemnification Contracts. The Board of Directors is
authorized to cause the Corporation to enter into indemnification contracts with
any director, officer, employee or agent of the Corporation, or any person
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing indemnification rights
to such person. Such rights may be greater than those provided in this Article
VI.
Section 6.5: Effect of Amendment. Any amendment, repeal or modification
of any provision of this Article VI shall be prospective only, and shall not
adversely affect any right or protection conferred on a person pursuant to this
Article VI and existing at the time of such amendment, repeal or modification.
ARTICLE VII
NOTICES
Section 7.1: Notice. Except as otherwise specifically provided herein or
required by law, all notices required to be given pursuant to these Bylaws shall
be in writing and may in every instance be effectively given by hand delivery
(including use of a delivery service), by depositing such notice in the mail,
postage prepaid, or by sending such notice by prepaid telegram, telex, overnight
express courier, mailgram or facsimile. Any such notice shall be addressed to
the person to whom notice is to be given at such person's address as it appears
on the records of the Corporation. The notice shall be deemed given (i) in the
case of hand delivery, when received by the person to whom notice is to be given
or by any person accepting such notice on behalf of such person, (ii) in the
case of delivery by mail, upon deposit in the mail, (iii) in the case of
delivery by overnight express courier, on the first business day after such
notice is dispatched, and (iv) in the case of delivery via telegram, telex,
mailgram, or facsimile, when dispatched.
Section 7.2: Waiver of Notice. Whenever notice is required to be given
under any provision of these Bylaws, a written waiver of notice, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance
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of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting at
the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1: Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board or committee thereof that authorizes
the contract or transaction, or solely because his, her or their votes are
counted for such purpose, if: (i) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; (ii) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IX
MISCELLANEOUS
Section 9.1: Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 9.2: Seal. The Board of Directors may provide for a corporate
seal, which shall have the name of the Corporation inscribed thereon and shall
otherwise be in such form as may be approved from time to time by the Board of
Directors.
Section 9.3: Form of Records. Any records maintained by the Corporation
in the regular course of its business, including its stock ledger, books of
account and minute books, may be kept on, or be in the form of, magnetic tape,
diskettes, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into
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clearly legible form within a reasonable time. The Corporation shall so convert
any records so kept upon the request of any person entitled to inspect the same.
Section 9.4: Reliance Upon Books and Records. A member of the Board of
Directors, or a member of any committee designated by the Board of Directors
shall, in the performance of his or her duties, be fully protected in relying in
good faith upon records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of the Corporation's
officers or employees, or committees of the Board of Directors, or by any other
person as to matters 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.
Section 9.5: Certificate of Incorporation Governs. In the event of any
conflict between the provisions of the Corporation's Certificate of
Incorporation and Bylaws, the provisions of the Certificate of Incorporation
shall govern.
Section 9.6: Severability. If any provision of these Bylaws shall be
held to be invalid, illegal, unenforceable or in conflict with the provisions of
the Corporation's Certificate of Incorporation, then such provision shall
nonetheless be enforced to the maximum extent possible consistent with such
holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such
provision held to be invalid, illegal, unenforceable or in conflict with the
Certificate of Incorporation, that are not themselves invalid, illegal,
unenforceable or in conflict with the Certificate of Incorporation) shall remain
in full force and effect.
ARTICLE X
AMENDMENT
Section 10.1: Amendments. The stockholders shall have power to adopt,
amend or repeal these Bylaws; provided, however, that, in addition to any vote
of the holders of any class or series of stock of the Corporation required by
law or by these Bylaws, the affirmative vote of the holders of at least
two-thirds of the voting power of all of the then outstanding shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provision of these Bylaws. To the extent provided in the Corporation's
Certificate of Incorporation, the Board of Directors of the Corporation shall
also have the power to adopt, amend or repeal Bylaws of the Corporation, except
insofar as Bylaws adopted by the stockholders shall otherwise provide. Any
adoption, amendment or repeal of the Bylaws of the Corporation by the Board of
Directors shall require the approval of a majority of the Whole Board.
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