\nSECTION 5.1 IN GENERAL…………………………………………………………………11
\nSECTION 5.2 ELECTION…………………………………………………………………..11
\nSECTION 5.3 OTHER OFFICERS AND AGENTS……………………………………………………11
\nSECTION 5.4 COMPENSATION……………………………………………………………….11
\nSECTION 5.5 TERM OF OFFICE AND REMOVAL…………………………………………………..11
\nSECTION 5.6 EMPLOYMENT AND OTHER CONTRACTS……………………………………………….12
\nSECTION 5.7 CHAIRMAN OF THE BOARD OF DIRECTORS……………………………………………12
\nSECTION 5.8 CHIEF EXECUTIVE OFFICER……………………………………………………..12
\nSECTION 5.9 CHIEF OPERATING OFFICER……………………………………………………..12
\nSECTION 5.10 CHIEF FINANCIAL OFFICER……………………………………………………..12
\nSECTION 5.11 SECRETARY………………………………………………………………….13
\nSECTION 5.12 BONDING……………………………………………………………………13<\/p>\n ARTICLE VI
\n CERTIFICATES REPRESENTING SHARES<\/p>\n
SECTION 6.1 FORM OF CERTIFICATES………………………………………………………..13
\nSECTION 6.2 LOST CERTIFICATES…………………………………………………………..13
\nSECTION 6.3 TRANSFER OF SHARES………………………………………………………….14
\nSECTION 6.4 REGISTERED STOCKHOLDERS……………………………………………………..14<\/p>\n
ARTICLE VII
\n INDEMNIFICATION<\/p>\n
SECTION 7.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS……………………………………..14<\/p>\n
ARTICLE VIII
\n GENERAL PROVISIONS<\/p>\n
SECTION 8.1 DIVIDENDS………………………………………………………………….17
\nSECTION 8.2 RESERVES…………………………………………………………………..18
\nSECTION 8.3 TELEPHONE AND SIMILAR MEETINGS……………………………………………….18
\nSECTION 8.4 BOOKS AND RECORDS…………………………………………………………..18
\nSECTION 8.5 FISCAL YEAR………………………………………………………………..18
\nSECTION 8.6 SEAL………………………………………………………………………18
\nSECTION 8.7 INSURANCE………………………………………………………………….18
\nSECTION 8.8 RESIGNATION………………………………………………………………..18
\nSECTION 8.9 AMENDMENT OF BYLAWS…………………………………………………………18
\nSECTION 8.10 INVALID PROVISIONS………………………………………………………….18
\nSECTION 8.11 RELATION TO THE CERTIFICATE OF INCORPORATION…………………………………..18
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
-ii-
\n 4<\/p>\n
AMENDED AND RESTATED BYLAWS<\/p>\n
OF<\/p>\n
QUANTA SERVICES, INC.<\/p>\n
ARTICLE I<\/p>\n
OFFICES<\/p>\n
SECTION 1.1 REGISTERED OFFICE. The registered office and registered agent
\nof Quanta Services, Inc. (the “Corporation”) required to be maintained in the
\nState of Delaware by the General Corporation Law of the State of Delaware (the
\n“DGCL”), will be as from time to time set forth in the Corporation’s Certificate
\nof Incorporation (as may be amended from time to time) or in any certificate
\nfiled with the Secretary of State of the State of Delaware, and the appropriate
\ncounty Recorder or Recorders, as the case may be, to amend such information.<\/p>\n
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such
\nother places both within and without the State of Delaware as the Board of
\nDirectors may from time to time determine or the business of the Corporation may
\nrequire.<\/p>\n
ARTICLE II<\/p>\n
STOCKHOLDERS<\/p>\n
SECTION 2.1 PLACE OF MEETINGS. All meetings of the stockholders for the
\nelection of Directors will be held at such place, within or without the State of
\nDelaware, or, if so determined by the Board in its sole discretion, at no place
\n(but rather by means of remote communication), as may be fixed from time to time
\nby the Board of Directors. Meetings of stockholders for any other purpose may be
\nheld at such time and place, within or without the State of Delaware or, if so
\ndetermined by the Board in its sole discretion, at no place (but rather by means
\nof remote communication), as may be stated in the notice of the meeting or in a
\nduly executed waiver of notice thereof.<\/p>\n
SECTION 2.2 ANNUAL MEETING. An annual meeting of the stockholders will be
\nheld at such time as may be determined by the Board of Directors, at which
\nmeeting the stockholders will elect a Board of Directors, and transact such
\nother business as may properly be brought before the meeting pursuant to these
\nBylaws.<\/p>\n
SECTION 2.3 LIST OF STOCKHOLDERS. At least ten days before each meeting of
\nstockholders, a complete list of the stockholders entitled to vote at said
\nmeeting, arranged in alphabetical order, with the address of and the number of
\nvoting shares registered in the name of each, will be prepared by the officer or
\nagent having charge of the stock transfer books. Such list will be open to the
\nexamination of any stockholder, for any purpose germane to the meeting, as
\nrequired by applicable law. If the meeting is to be held at a place, such list
\nwill be produced and kept open at the time and place of the meeting during the
\nwhole time thereof, and will be subject to the inspection of any stockholder who
\nmay be present. If the meeting is to be held solely by means of remote
\ncommunication, then the list shall also be open to the examination of any<\/p>\n
1
\n 5<\/p>\n
stockholder during the whole time of the meeting on a reasonably accessible
\nelectronic network, and the information required to access such list shall be
\nprovided with the notice of the meeting.<\/p>\n
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the stockholders of the
\nCorporation may be called only by the Chairman of the Board of Directors and
\nshall be called within ten (10) days after receipt of the written request of the
\nBoard of Directors, pursuant to a resolution approved by a majority of the whole
\nBoard of Directors. Business transacted at all special meetings will be confined
\nto the purpose stated in the notice of the meeting. The Board of Directors or,
\nin the absence of action by the Board of Directors, the Chairman of the Board
\nshall have the sole power to determine the date, time and place for any special
\nmeeting of stockholders. Following such determination, it shall be the duty of
\nthe Secretary to cause notice to be given to the stockholders entitled to vote
\nat such meeting, that a meeting will be held at the place, time and date and in
\naccordance with the record date determined by the Board of Directors or the
\nChairman of the Board. Except to the extent specified in the Certificate of
\nIncorporation or the resolutions of the Board of Directors creating any class or
\nseries of preferred stock of the Corporation, stockholders of the Corporation
\nmay not call a special meeting.<\/p>\n
SECTION 2.5 NOTICE. Notice stating the place, if any, day, the means of
\nremote communications, if any, by which stockholders and proxy holders may be
\ndeemed to be present in person and vote at such meeting and hour of any meeting
\nof the stockholders and, in case of a special meeting, the purpose or purposes
\nfor which the meeting is called, will be delivered not less than ten nor more
\nthan sixty days before the date of the meeting, in accordance with applicable
\nlaw, by or at the direction of the Chairman of the Board, the Chief Executive
\nOfficer, the Secretary, or the officer or person calling the meeting, to each
\nstockholder of record entitled to vote at the meeting. If mailed, such notice
\nwill be deemed to be delivered when deposited in the United States mail,
\naddressed to the stockholder at his address as it appears on the stock transfer
\nbooks of the Corporation, with the postage thereon prepaid.<\/p>\n
SECTION 2.6 QUORUM OF STOCKHOLDERS. Except as otherwise provided by any
\nstatute, the Certificate of Incorporation or these Bylaws, the holders of a
\nmajority of all outstanding shares of stock entitled to vote at any meeting of
\nstockholders, present in person or represented by proxy, shall constitute a
\nquorum for the transaction of any business at such meeting. Shares of its own
\nstock belonging to the Corporation or to another corporation, if a majority of
\nthe shares entitled to vote in the election of directors of such other
\ncorporation is held, directly or indirectly, by the Corporation, shall neither
\nbe entitled to vote nor be counted for quorum purposes; provided, however, that
\nthe foregoing shall not limit the right of the Corporation or any subsidiary of
\nthe Corporation to vote stock, including but not limited to its own stock, held
\nby it in a fiduciary capacity. The chair of the meeting shall have the power and
\nduty to determine whether a quorum is present at any stockholder meeting.<\/p>\n
SECTION 2.7 CONDUCT OF MEETINGS. Meetings of stockholders shall be presided
\nover by the Chairman or by another chair designated by the Board. The date and
\ntime of the opening and the closing of the polls for each matter upon which the
\nstockholders will vote at a meeting shall be determined by the chair of the
\nmeeting and announced at the meeting. The Board may adopt by<\/p>\n
2
\n 6
\nresolution such rules and regulations for the conduct of the meeting of
\nstockholders as it shall deem appropriate. Except to the extent inconsistent
\nwith such rules and regulations as adopted by the Board, the chair of any
\nmeeting of stockholders shall have the exclusive right and authority to
\nprescribe such rules, regulations and procedures and to do all such acts as, in
\nthe judgment of such chair, are appropriate for the proper conduct of the
\nmeeting. Such rules, regulations or procedures, whether adopted by the Board or
\nprescribed by the chair of the meeting, may include, without limitation, the
\nfollowing: (i) the establishment of an agenda or order of business for the
\nmeeting; (ii) rules and procedures for maintaining order at the meeting and the
\nsafety of those present; (iii) limitations on attendance at or participation in
\nthe meeting to stockholders of record of the Corporation, their duly authorized
\nand constituted proxies or such other persons as the chair of the meeting shall
\ndetermine; (iv) restrictions on entry to the meeting after the time fixed for
\nthe commencement thereof; and (v) limitations on the time allotted to questions
\nor comments by participants. Unless and to the extent determined by the Board or
\nthe chair of the meeting, meetings of stockholders shall not be required to be
\nheld in accordance with the rules of parliamentary procedure.<\/p>\n
SECTION 2.8 ADJOURNMENT OF MEETING. Any meeting of stockholders, annual or
\nspecial, may be adjourned solely by the chair of the meeting from time to time
\nto reconvene at the same or some other time, date and place. The stockholders
\npresent at a meeting shall not have authority to adjourn the meeting. Notice
\nneed not be given of any such adjourned meeting if the time, date and place, if
\nany, thereof and the means of remote communications, if any, by which the
\nstockholders and proxy holders may be deemed to be present in person and vote at
\nsuch adjourned meeting are announced at the meeting at which the adjournment is
\ntaken. If the time, date and place of the adjourned meeting are not announced at
\nthe meeting at which the adjournment is taken, if the adjournment is for more
\nthan 30 days or if after the adjournment a new record date is fixed for the
\nadjourned meeting, then the Secretary shall give notice of the adjourned meeting
\nas provided in Section 2.5, not less than ten (10) days prior to the date of the
\nadjourned meeting.<\/p>\n
SECTION 2.9 VOTING. When a quorum is present at any meeting of the
\nCorporation’s stockholders, the vote of the holders of a majority of the shares
\nentitled to vote on any matter will decide any questions brought before such
\nmeeting, unless the question is one upon which, by express provision of law, the
\nCertificate of Incorporation, or these Bylaws, the rules or regulations of any
\nstock exchange applicable to the Corporation or pursuant to any regulation
\napplicable to the Corporation or its securities, a different vote is required,
\nin which case such express provision will govern and control the decision of
\nsuch question. The stockholders present in person or by proxy at a duly
\norganized meeting may continue to transact business until adjournment,
\nnotwithstanding the withdrawal of enough stockholders to leave less than a
\nquorum.<\/p>\n
SECTION 2.10 METHOD OF VOTING. Each outstanding share of the Corporation’s
\ncapital stock, regardless of class, will be entitled to one vote on each matter
\nsubmitted to a vote at a meeting of stockholders, except to the extent that the
\nvoting rights of the shares of any class or classes are limited or denied by the
\nCertificate of Incorporation, as amended from time to time. At any meeting of
\nthe stockholders, every stockholder having the right to vote will be entitled to
\nvote in person or by proxy. Each proxy will be revocable unless expressly
\nprovided therein to be irrevocable and if, and only as long as, it is coupled
\nwith an interest sufficient in law to support an irrevocable power. A proxy may
\nbe made irrevocable regardless of whether the interest with which it is coupled
\nis an<\/p>\n
3
\n 7<\/p>\n
interest in the stock itself or an interest in the Corporation generally. Voting
\nat meetings of stockholders need not be by written ballot.<\/p>\n
SECTION 2.11 RECORD DATE. In order that the Corporation may determine the
\nstockholders entitled to notice of or to vote at any meeting of stockholders or
\nany adjournment thereof or entitled to receive payment of any dividend or other
\ndistribution or allotment of any rights, or entitled to exercise any rights in
\nrespect of any change, conversion or exchange of stock or for the purpose of any
\nother lawful action other than stockholder action by written consent, the Board
\nof Directors may fix a record date, which record date shall not precede the date
\nupon which the resolution fixing the record date is adopted by the Board of
\nDirectors, and which record date: (i) in the case of determination of
\nstockholders entitled to vote at any meeting of stockholders or adjournment
\nthereof, shall, unless otherwise required by law, not be more than sixty (60)
\nnor less than ten (10) days before the date of such meeting, and (ii) in the
\ncase of any other lawful action other than stockholder action by written
\nconsent, shall not be more than sixty days prior to such other action. If no
\nrecord date is fixed by the Board of Directors: (i) the record date for
\ndetermining stockholders entitled to notice of or to vote at a meeting of
\nstockholders shall be at the close of business on the day next preceding the day
\non which notice is given, or, if notice is waived, at the close of business on
\nthe day next preceding the day on which the meeting is held, and (ii) the record
\ndate for determining stockholders for any other purpose (other than stockholder
\naction by written consent) shall be at the close of business on the day on which
\nthe Board of Directors adopts the resolution relating thereto. A determination
\nof stockholders of record entitled to notice of or to vote at a meeting of
\nstockholders shall apply to any adjournment of the meeting; provided, however,
\nthat the Board of Directors may fix a new record date for the adjourned meeting.<\/p>\n
SECTION 2.12 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.<\/p>\n
(a) Annual Meetings of Stockholders.<\/p>\n
(1) Annual Meetings of Stockholders. (1) Nominations of
\n persons for election to the Board of Directors of the Corporation and
\n the proposal of business to be considered by the stockholders may be
\n made at an annual meeting of stockholders only (a) pursuant to the
\n Corporation’s notice of meeting (or any supplement thereto), (b) by or
\n at the direction of the Board of Directors or (c) by any stockholder of
\n the Corporation who was a stockholder of record of the Corporation at
\n the time the notice provided for in this Section 2.12 is delivered to
\n the Secretary of the Corporation, who is entitled to vote at the
\n meeting and who complies with the notice procedures set forth in this
\n Section 2.12.<\/p>\n
(2) For nominations or other business to be properly brought
\n before an annual meeting by a stockholder pursuant to clause (c) of
\n paragraph (A)(1) of this Section 2.12, the stockholder must have given
\n timely notice thereof in writing to the Secretary of the Corporation
\n and any such proposed business other than the nominations of persons
\n for election to the Board of Directors must<\/p>\n
4
\n 8<\/p>\n
constitute a proper matter for stockholder action. To be timely, a
\n stockholder’s notice shall be delivered to the Secretary at the
\n principal executive offices of the Corporation not later than the close
\n of business on the ninetieth day nor earlier than the close of business
\n on the one hundred twentieth day prior to the first anniversary of the
\n preceding year’s annual meeting (provided, however, that in the event
\n that the date of the annual meeting is more than thirty days before or
\n more than seventy days after such anniversary date, notice by the
\n stockholder must be so delivered not earlier than the close of business
\n on the one hundred twentieth day prior to such annual meeting and not
\n later than the close of business on the later of the ninetieth day
\n prior to such annual meeting or the tenth day following the day on
\n which public announcement of the date of such meeting is first made by
\n the Corporation). In no event shall the public announcement of an
\n adjournment or postponement of an annual meeting commence a new time
\n period (or extend any time period) for the giving of a stockholder’s
\n notice as described above. Such stockholder’s notice shall set forth:
\n (a) as to each person whom the stockholder proposes to nominate for
\n election as a director all information relating to such person that is
\n required to be disclosed in solicitations of proxies for election of
\n directors in an election contest, or is otherwise required, in each
\n case pursuant to Regulation 14A under the Securities Exchange Act of
\n 1934, as amended (the “Exchange Act”) and Rule 14a-11 thereunder (and
\n such person’s written consent to being named in the proxy statement as
\n a nominee and to serving as a director if elected); (b) as to any other
\n business that the stockholder proposes to bring before the meeting, a
\n brief description of the business desired to be brought before the
\n meeting, the text of the proposal or business (including the text of
\n any resolutions proposed for consideration and in the event that such
\n business includes a proposal to amend the Bylaws of the Corporation,
\n the language of the proposed amendment), the reasons for conducting
\n such business at the meeting and any material interest in such business
\n of such stockholder and the beneficial owner, if any, on whose behalf
\n the proposal is made; and (c) as to the stockholder giving the notice
\n and the beneficial owner, if any, on whose behalf the nomination or
\n proposal is made (i) the name and address of such stockholder, as they
\n appear on the Corporation’s books, and of such beneficial owner, (ii)
\n the class and number of shares of capital stock of the Corporation
\n which are owned beneficially and of record by such stockholder and such
\n beneficial owner, (iii) a representation that the stockholder is a
\n holder of record of stock of the Corporation entitled to vote at such
\n meeting and intends to appear in person or by proxy at the meeting to
\n propose such business or nomination, and (iv) a representation whether
\n the stockholder or the beneficial owner, if any, intends or is part of
\n a group which intends (a) to deliver a proxy<\/p>\n
5
\n 9<\/p>\n
statement and\/or form of proxy to holders of at least the percentage of
\n the Corporation’s outstanding capital stock required to approve or
\n adopt the proposal or elect the nominee and\/or (b) otherwise to solicit
\n proxies from stockholders in support of such proposal or nomination.
\n The foregoing notice requirements shall be deemed satisfied by a
\n stockholder if the stockholder has notified the Corporation of his or
\n her intention to present a proposal at an annual meeting in compliance
\n with Rule 14a-8 (or any successor thereof) promulgated under the
\n Exchange Act and such stockholder’s proposal has been included in a
\n proxy statement that has been prepared by the Corporation to solicit
\n proxies for such annual meeting. The Corporation may require any
\n proposed nominee to furnish such other information as it may reasonably
\n require to determine the eligibility of such proposed nominee to serve
\n as a director of the Corporation.<\/p>\n
(3) Notwithstanding anything in the second sentence of
\n paragraph (A)(2) of this Section 2.12 to the contrary, in the event
\n that the number of directors to be elected to the Board of Directors of
\n the Corporation at an annual meeting is increased and there is no
\n public announcement by the Corporation naming the nominees for the
\n additional directorships at least one hundred days prior to the first
\n anniversary of the preceding year’s annual meeting, a stockholder’s
\n notice required by this Section 2.12 shall also be considered timely,
\n but only with respect to nominees for the additional directorships, if
\n it shall be delivered to the Secretary at the principal executive
\n offices of the Corporation not later than the close of business on the
\n tenth day following the day on which such public announcement is first
\n made by the Corporation.<\/p>\n
(b) Special Meetings of Stockholders. Only such business shall be
\nconducted at a special meeting of stockholders as shall have been brought before
\nthe meeting pursuant to the Corporation’s notice of meeting. Nominations of
\npersons for election to the Board of Directors may be made at a special meeting
\nof stockholders at which directors are to be elected pursuant to the
\nCorporation’s notice of meeting (1) by or at the direction of the Board of
\nDirectors or (2) provided that the Board of Directors has determined that
\ndirectors shall be elected at such meeting, by any stockholder of the
\nCorporation who is a stockholder of record at the time the notice provided for
\nin this Section 2.12 is delivered to the Secretary of the Corporation, who is
\nentitled to vote at the meeting and upon such election and who complies with the
\nnotice procedures set forth in this Section 2.12. In the event the Corporation
\ncalls a special meeting of stockholders for the purpose of electing one or more
\ndirectors to the Board of Directors, any such stockholder entitled to vote in
\nsuch election of directors may nominate a person or persons (as the case may be)
\nfor election to such position(s) as specified in the Corporation’s notice of
\nmeeting, if the stockholder’s notice required by paragraph (A)(2) of this
\nSection 2.12 shall be delivered to the Secretary at the principal executive
\noffices of the Corporation not<\/p>\n
6
\n 10<\/p>\n
earlier than the close of business on the one hundred twentieth day prior to
\nsuch special meeting and not later than the close of business on the later of
\nthe ninetieth day prior to such special meeting or the tenth day following the
\nday on which public announcement is first made of the date of the special
\nmeeting and of the nominees proposed by the Board of Directors to be elected at
\nsuch meeting. In no event shall the public announcement of an adjournment or
\npostponement of a special meeting commence a new time period (or extend any time
\nperiod) for the giving of a stockholder’s notice as described above.<\/p>\n
(c) General.<\/p>\n
(1) Only such persons who are nominated in accordance with the
\n procedures set forth in this Section 2.12 shall be eligible to be
\n elected at an annual or special meeting of stockholders of the
\n Corporation to serve as directors and only such business shall be
\n conducted at a meeting of stockholders as shall have been brought
\n before the meeting in accordance with the procedures set forth in this
\n Section 2.12. Except as otherwise provided by law, the chairman of the
\n meeting shall have the power and duty (a) to determine whether a
\n nomination or any business proposed to be brought before the meeting
\n was made or proposed, as the case may be, in accordance with the
\n procedures set forth in this Section 2.12 (including whether the
\n stockholder or beneficial owner, if any, on whose behalf the nomination
\n or proposal is made solicited (or is part of a group which solicited)
\n or did not so solicit, as the case may be, proxies in support of such
\n stockholder’s nominee or proposal in compliance with such stockholder’s
\n representation as required by clause (A)(2)(c)(iv) of this Section
\n 2.12) and (b) if any proposed nomination or business was not made or
\n proposed in compliance with this Section 2.12, to declare that such
\n nomination shall be disregarded or that such proposed business shall
\n not be transacted. Notwithstanding the foregoing provisions of this
\n Section 2.12, if the stockholder (or a qualified representative of the
\n stockholder) does not appear at the annual or special meeting of
\n stockholders of the Corporation to present a nomination or business,
\n such nomination shall be disregarded and such proposed business shall
\n not be transacted, notwithstanding that proxies in respect of such vote
\n may have been received by the Corporation.<\/p>\n
(2) For purposes of this Section 2.12, “public announcement”
\n shall include disclosure in a press release reported by the Dow Jones
\n News Service, Associated Press or comparable national news service or
\n in a document publicly filed by the Corporation with the Securities and
\n Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
\n Act.<\/p>\n
7
\n 11<\/p>\n
(3) Notwithstanding the foregoing provisions of this Section
\n 2.12, a stockholder shall also comply with all applicable
\n requirements of the Exchange Act and the rules and regulations
\n thereunder with respect to the matters set forth in this Section
\n 2.12. Nothing in this Section 2.12 shall be deemed to affect any
\n rights (a) of stockholders to request inclusion of proposals in
\n the Corporation’s proxy statement pursuant to Rule 14a-8 under the
\n Exchange Act or (b) of the holders of any series of Preferred
\n Stock to elect directors pursuant to any applicable provisions of
\n the Restated Certificate of Incorporation.<\/p>\n
SECTION 2.13 INSPECTORS OF ELECTION. Before any meeting of
\nstockholders, the Board of Directors may, and if required by law shall, appoint
\none or more persons to act as inspectors of election as such meeting or any
\nadjournment thereof. If any person appointed as inspector fails to appear or
\nfails or refuses to act, the chairman of the meeting may, and if required by law
\nor requested by any stockholder entitled to vote or his proxy shall, appoint a
\nsubstitute inspector. If no inspectors are appointed by the Board of Directors,
\nthe chairman of the meeting may, and if required by law or requested by any
\nstockholder entitled to vote or his proxy shall, appoint one or more inspectors
\nat the meeting. Notwithstanding the foregoing, inspectors shall be appointed
\nconsistent with Section 231 of the DGCL. Inspectors may include individuals who
\nserve the Corporation in other capacities (including as officers, employees,
\nagents or representatives); PROVIDED, HOWEVER, that no Director or candidate for
\nthe office of Director shall act as an inspector. Inspectors need not be
\nstockholders. The inspectors shall (i) determine the number of shares of capital
\nstock of the Corporation outstanding and the voting power of each, the number of
\nshares represented at the meeting, and the validity and effect of proxies and
\n(ii) receive votes or ballots, hear and determine all challenges and questions
\narising in connection with the right to vote, count and tabulate all votes and
\nballots, determine the results and do such acts as are proper to conduct the
\nelection or vote with fairness to all stockholders. On request of the chairman
\nof the meeting, the inspectors shall make a report in writing of any challenge,
\nrequest or matter determined by them and shall execute a certificate of any fact
\nfound by them. The inspectors shall have such other duties as may be prescribed
\nby Section 231 of the DGCL.<\/p>\n
SECTION 2.14 POSTPONEMENT AND CANCELLATION OF MEETING. Any previously
\nscheduled annual or special meeting of the stockholders may be postponed, and
\nany previously scheduled annual or special meeting of the stockholders called by
\nthe Board may be canceled, by resolution of the Board upon public notice given
\nprior to the time previously scheduled for such meeting of stockholders.<\/p>\n
ARTICLE III<\/p>\n
BOARD OF DIRECTORS<\/p>\n
SECTION 3.1 MANAGEMENT. The business and affairs of the Corporation
\nwill be managed by or under the direction of its Board of Directors who may
\nexercise all such powers of the Corporation and do all such lawful acts and
\nthings as are not by law, by the Certificate of Incorporation or by these Bylaws
\ndirected or required to be exercised or done by the stockholders.<\/p>\n
8
\n 12<\/p>\n
SECTION 3.2 QUALIFICATION; ELECTION; TERM. None of the Directors need
\nbe a stockholder of the Corporation or a resident of the State of Delaware.
\nDirectors shall be elected at the annual meeting of the stockholders and each
\ndirector shall be elected to serve until his successor shall be elected and
\nshall qualify. Directors shall be elected by a plurality of the votes of the
\nshares present in person or represented by proxy and entitled to vote on the
\nelection of Directors at any annual or special meeting of stockholders.<\/p>\n
SECTION 3.3 NUMBER. The number of Directors of the Corporation will be
\nat least one and not more than nineteen; provided that, effective upon
\nconsummation of the Corporation’s initial public offering of Common Stock, so
\nlong as any shares of Limited Vote Common Stock (as such term is defined in the
\nCertificate of Incorporation) are outstanding, the number of Directors shall not
\nbe less than five. The number of Directors authorized will be fixed as the Board
\nof Directors may from time to time designate.<\/p>\n
SECTION 3.4 REMOVAL. Any Director may be removed, only for cause, at
\nany special meeting of stockholders by the affirmative vote of the holders of a
\nmajority in number of all outstanding voting stock entitled to vote; provided
\nthat notice of the intention to act upon such matter has been given in the
\nnotice calling such meeting.<\/p>\n
SECTION 3.5 VACANCIES. Newly created directorships resulting from any
\nincrease in the authorized number of Directors and any vacancies occurring in
\nthe Board of Directors caused by death, resignation, retirement,
\ndisqualification or removal from office of any Directors or otherwise, may be
\nfilled by the vote of a majority of the Directors then in office, though less
\nthan a quorum, or a successor or successors may be chosen at a special meeting
\nof the stockholders called for that purpose, and each successor Director so
\nchosen will hold office until whichever of the following occurs first: his
\nsuccessor is elected and qualified, his resignation, his removal from office by
\nthe stockholders or his death.<\/p>\n
SECTION 3.6 PLACE OF MEETINGS. Meetings of the Board of Directors,
\nregular or special, may be held at such place within or without the State of
\nDelaware as may be fixed from time to time by the Board of Directors.<\/p>\n
SECTION 3.7 ANNUAL MEETING. The annual meeting of each newly elected
\nBoard may be held at a time convenient to the Board. The annual meeting may be
\nheld immediately following the annual meeting of stockholders, and if so held,
\nno notice of such meeting shall be necessary to the newly elected directors in
\norder to constitute the meeting legally, provided a quorum shall be present.<\/p>\n
SECTION 3.8 REGULAR MEETINGS. Regular meetings of the Board of
\nDirectors may be held without notice at such time and place as is from time to
\ntime determined by resolution of the Board of Directors.<\/p>\n
SECTION 3.9 SPECIAL MEETINGS. Special meetings of the Board of
\nDirectors may be called by the Chairman of the Board, or the Chief Executive
\nOfficer or by any two members of the Board of Directors. Notice of a special
\nmeeting of the Board of Directors shall be delivered to each member of the Board
\nby the person or persons calling the meeting, at least twenty-four hours before<\/p>\n
9
\n 13<\/p>\n
the special meeting. The purpose or purposes of any special meeting will be
\nspecified in the notice relating thereto.<\/p>\n
SECTION 3.10 QUORUM. At all meetings of the Board of Directors the
\npresence of a majority of the number of Directors fixed by these Bylaws will be
\nnecessary and sufficient to constitute a quorum for the transaction of business,
\nand the affirmative vote of at least a majority of the Directors present at any
\nmeeting at which there is a quorum will be the act of the Board of Directors,
\nexcept as may be otherwise specifically provided by law, the Certificate of
\nIncorporation or these Bylaws. If a quorum is not present at any meeting of the
\nBoard of Directors, the Directors present thereat may adjourn the meeting from
\ntime to time without notice other than announcement at the meeting, until a
\nquorum is present.<\/p>\n
SECTION 3.11 COMMITTEES. The Board of Directors may designate
\ncommittees, each committee to consist of one or more Directors of the
\nCorporation. Any such committee, to the extent permitted by law and to the
\nextent provided in the resolution of the Board of Directors, shall have and may
\nexercise all the powers and authority of the Board of Directors in the
\nmanagement of the business and affairs of the corporation. Such committee or
\ncommittees will have such name or names as may be designated by the Board and
\nwill keep regular minutes of their proceedings and report the same to the Board
\nof Directors when required. The Board of Directors may designate one or more
\ndirectors as alternate members of any committee, who may replace any absent or
\ndisqualified member at any meeting of the committee. In the absence or
\ndisqualification of a member of the committee, the member or members thereof
\npresent at any meeting and not disqualified from voting, whether or not he or
\nthey constitute a quorum, may unanimously appoint another member of the Board of
\nDirectors to act at the meeting in place of any such absent or disqualified
\nmember.<\/p>\n
SECTION 3.12 ACTION BY CONSENT. Any action required or permitted to be
\ntaken at any meeting of the Board of Directors or any committee of the Board of
\nDirectors may be taken without such a meeting if all the members of the Board of
\nDirectors or such committee consent thereto in writing or by electronic
\ntransmission, as the case may be.<\/p>\n
SECTION 3.13 COMPENSATION OF DIRECTORS. Directors will receive such
\ncompensation for their services and reimbursement for their expenses as the
\nBoard of Directors, by resolution, may establish; provided that nothing herein
\ncontained will be construed to preclude any Director from serving the
\nCorporation in any other capacity and receiving compensation therefor.<\/p>\n
SECTION 3.14 CONDUCT OF MEETINGS. At each meeting of the Board, the
\nChairman, or in the absence of the Chairman the Vice Chairman, or in the absence
\nof the Vice Chairman a chairman chosen by a majority of the Directors present,
\nshall preside.<\/p>\n
ARTICLE IV<\/p>\n
NOTICE<\/p>\n
SECTION 4.1 FORM OF NOTICE. Whenever by law, the Certificate of
\nIncorporation or these Bylaws, notice is to be given to any Director or
\nstockholder, and no provision is made as to how<\/p>\n
10
\n 14<\/p>\n
such notice will be given, such notice may be given in writing, by mail, postage
\nprepaid, addressed to such Director or stockholder at such address as appears on
\nthe books of the Corporation. Any notice required or permitted to be given by
\nmail will be deemed to be given at the time the same is deposited in the United
\nStates mails. Notice to stockholders may be given by a form of electronic
\ntransmission if consented to by the stockholders to whom the notice is given.
\nNotice to directors may be given by telegram, telecopier, telephone or other
\nmeans of electronic transmission.<\/p>\n
SECTION 4.2 WAIVER. Whenever any notice is required to be given to any
\nstockholder or Director of the Corporation as required by law, the Certificate
\nof Incorporation or these Bylaws, a waiver thereof in writing signed by the
\nperson or persons entitled to such notice or a waiver of notice by electronic
\ntransmission, whether before or after the time stated in such notice, will be
\nequivalent to the giving of such notice. Attendance of a stockholder or Director
\nat a meeting will constitute a waiver of notice of such meeting, except where
\nsuch a stockholder or Director attends for the express purpose of objecting, at
\nthe beginning of the meeting, to the transaction of any business on the ground
\nthat the meeting has not been lawfully called or convened.<\/p>\n
ARTICLE V<\/p>\n
OFFICERS AND AGENTS<\/p>\n
SECTION 5.1 IN GENERAL. The officers of the Corporation will consist of
\na Chief Executive Officer, Chief Financial Officer and Secretary and such other
\nofficers as shall be elected by the Board of Directors or appointed by the Chief
\nExecutive Officer (except the Board of Directors alone shall have authority to
\nelect a Chief Executive Officer or President). Any two or more offices may be
\nheld by the same person.<\/p>\n
SECTION 5.2 ELECTION. The Board of Directors, at its first meeting
\nafter each annual meeting of stockholders, will elect the officers, none of whom
\nneed be a member of the Board of Directors.<\/p>\n
SECTION 5.3 OTHER OFFICERS AND AGENTS. Except as set forth in Section
\n5.1 hereof, the Board of Directors and Chief Executive Officer may also elect
\nand appoint such other officers and agents as it or he deems necessary, who will
\nbe elected and appointed for such terms and will exercise such powers and
\nperform such duties as may be determined from time to time by the Board or the
\nChief Executive Officer.<\/p>\n
SECTION 5.4 COMPENSATION. The compensation of all officers and agents
\nof the Corporation will be fixed by the Board of Directors or any committee of
\nthe Board, if so authorized by the Board.<\/p>\n
SECTION 5.5 TERM OF OFFICE AND REMOVAL. Each officer of the Corporation
\nwill hold office until his death, his resignation or removal from office, or the
\nelection and qualification of his successor, whichever occurs first. Any officer
\nor agent elected or appointed by the Board of Directors or the Chief Executive
\nOfficer may be removed at any time, for or without cause, by the affirmative
\nvote of a majority of the entire Board of Directors or at the discretion of the
\nChief Executive Officer (without regard to how the agent or officer was
\nelected), but such removal will not prejudice the contract rights, if any, of
\nthe person so removed. If the office of any officer becomes vacant for any
\nreason, the vacancy may be filled by the Board of Directors or, in the case<\/p>\n
11
\n 15<\/p>\n
of a vacancy in the office of officer other than Chief Executive Officer and
\nChief Operating Officer, such vacancy may be filled by the Chief Executive
\nOfficer.<\/p>\n
SECTION 5.6 EMPLOYMENT AND OTHER CONTRACTS. The Board of Directors may
\nauthorize any officer or officers or agent or agents to enter into any contract
\nor execute and deliver any instrument in the name or on behalf of the
\nCorporation, and such authority may be general or confined to specific
\ninstances. The Board of Directors may, when it believes the interest of the
\nCorporation will best be served thereby, authorize executive employment
\ncontracts that will have terms no longer than ten years and contain such other
\nterms and conditions as the Board of Directors deems appropriate. Nothing herein
\nwill limit the authority of the Board of Directors to authorize employment
\ncontracts for shorter terms.<\/p>\n
SECTION 5.7 CHAIRMAN OF THE BOARD OF DIRECTORS. If the Board of
\nDirectors has elected a Chairman of the Board, he will preside at all meetings
\nof the stockholders and the Board of Directors. In addition, the Chairman of the
\nBoard shall perform whatever duties and shall exercise all powers that are given
\nto him by the Board of Directors.<\/p>\n
SECTION 5.8 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will
\nbe the chief executive officer of the Corporation and, subject to the control of
\nthe Board of Directors, will supervise and control all of the business and
\naffairs of the Corporation. The Chief Executive Officer shall have the authority
\nto elect any officer of the Corporation other than the Chief Executive Officer
\nor President. He will, in the absence of the Chairman of the Board, preside at
\nall meetings of the stockholders and the Board of Directors. The Chief Executive
\nOfficer will have all powers and perform all duties incident to the office of
\nChief Executive Officer and will have such other powers and perform such other
\nduties as the Board of Directors may from time to time prescribe. During the
\nabsence or disability of the President, or if no President shall be elected, the
\nChief Executive Officer will exercise the powers and perform the duties of
\nPresident, including, without limitation, execution of certificates representing
\nshares of stock of the Corporation.<\/p>\n
SECTION 5.9 CHIEF OPERATING OFFICER. The Chief Operating Officer, if
\none shall be elected, will have responsibility for oversight of the
\nCorporation’s operating and development activities. In the absence or disability
\nof the Chief Executive Officer and the Chairman of the Board, the Chief
\nOperating Officer will exercise the powers and perform the duties of the Chief
\nExecutive Officer. The Chief Operating Officer will render to the Directors
\nwhenever they may require it an account of the operating and development
\nactivities of the Corporation and will have such other powers and perform such
\nother duties as the Board of Directors may from time to time prescribe or as the
\nChief Executive Officer may from time to time delegate to him.<\/p>\n
SECTION 5.10 CHIEF FINANCIAL OFFICER. The Chief Financial Officer will
\nhave principal responsibility for the financial operations of the Corporation.
\nThe Chief Financial Officer will render to the Directors whenever they may
\nrequire it an account of the operating results and financial condition of the
\nCorporation and will have such other powers and perform such other duties as the
\nBoard of Directors may from time to time prescribe or as the Chief Executive
\nOfficer may from time to time delegate to him.<\/p>\n
12
\n 16<\/p>\n
SECTION 5.11 SECRETARY. The Secretary will attend all meetings of the
\nstockholders and record all votes and the minutes of all proceedings in a book
\nto be kept for that purpose. The Secretary will perform like duties for the
\nBoard of Directors and committees thereof when required. The Secretary will
\ngive, or cause to be given, notice of all meetings of the stockholders and
\nspecial meetings of the Board of Directors. The Secretary will keep in safe
\ncustody the seal of the Corporation. The Secretary will be under the supervision
\nof the Chief Executive Officer. The Secretary will have such other powers and
\nperform such other duties as the Board of Directors may from time to time
\nprescribe or as the Chief Executive Officer may from time to time delegate to
\nhim.<\/p>\n
SECTION 5.12 BONDING. The Corporation may secure a bond to protect the
\nCorporation from loss in the event of defalcation by any of the officers, which
\nbond may be in such form and amount and with such surety as the Board of
\nDirectors may deem appropriate.<\/p>\n
ARTICLE VI<\/p>\n
CERTIFICATES REPRESENTING SHARES<\/p>\n
SECTION 6.1 FORM OF CERTIFICATES. Certificates, in such form as may be
\ndetermined by the Board of Directors, representing shares to which stockholders
\nare entitled will be delivered to each stockholder. Such certificates will be
\nconsecutively numbered and will be entered in the stock book of the Corporation
\nas they are issued. Each certificate will state on the face thereof the holder’s
\nname, the number, class of shares, and the par value of such shares or a
\nstatement that such shares are without par value. They will be signed by the
\nChief Executive Officer, acting in his capacity as President of the Company, or
\nby the President, if one shall be elected, or any Vice President and the
\nSecretary or an Assistant Secretary, and may be sealed with the seal of the
\nCorporation or a facsimile thereof. If any certificate is countersigned by a
\ntransfer agent, or an assistant transfer agent or registered by a registrar,
\neither of which is other than the Corporation or an employee of the Corporation,
\nthe signatures of the Corporation’s officers may be facsimiles. In case any
\nofficer or officers who have signed, or whose facsimile signature or signatures
\nhave been used on such certificate or certificates, ceases to be such officer or
\nofficers of the Corporation, whether because of death, resignation or otherwise,
\nbefore such certificate or certificates have been delivered by the Corporation
\nor its agents, such certificate or certificates may nevertheless be adopted by
\nthe Corporation and be issued and delivered as though the person or persons who
\nsigned such certificate or certificates or whose facsimile signature or
\nsignatures have been used thereon had not ceased to be such officer or officers
\nof the Corporation.<\/p>\n
SECTION 6.2 LOST CERTIFICATES. The Board of Directors may direct that a
\nnew certificate be issued in place of any certificate theretofore issued by the
\nCorporation alleged to have been lost or destroyed, upon the making of an
\naffidavit of that fact by the person claiming the certificate to be lost or
\ndestroyed. When authorizing such issue of a new certificate, the Board of
\nDirectors, in its discretion and as a condition precedent to the issuance
\nthereof, may require the owner of such lost or destroyed certificate, or his
\nlegal representative, to advertise the same in such manner as it may require
\nand\/or to give the Corporation a bond, in such form, in such sum, and with such
\nsurety or sureties as it may direct as indemnity against any claim that may be
\nmade against the Corporation with respect to the certificate alleged to have
\nbeen lost or destroyed. When a certificate has been lost, apparently destroyed
\nor wrongfully taken, and the holder of record fails to notify the<\/p>\n
13
\n 17
\nCorporation within a reasonable time after such holder has notice of it, and the
\nCorporation registers a transfer of the shares represented by the certificate
\nbefore receiving such notification, the holder of record is precluded from
\nmaking any claim against the Corporation for the transfer of a new certificate.<\/p>\n
SECTION 6.3 TRANSFER OF SHARES. Shares of stock will be transferable
\nonly on the books of the Corporation by the holder thereof in person or by such
\nholder’s duly authorized attorney. Upon surrender to the Corporation or the
\ntransfer agent of the Corporation of a certificate representing shares duly
\nendorsed or accompanied by proper evidence of succession, assignment or
\nauthority to transfer, it will be the duty of the Corporation or the transfer
\nagent of the Corporation to issue a new certificate to the person entitled
\nthereto, cancel the old certificate and record the transaction upon its books.<\/p>\n
SECTION 6.4 REGISTERED STOCKHOLDERS. The Corporation will be entitled
\nto treat the holder of record of any share or shares of stock as the holder in
\nfact thereof and, accordingly, will not be bound to recognize any equitable or
\nother claim to or interest in such share or shares on the part of any other
\nperson, whether or not it has express or other notice thereof, except as
\notherwise provided by law.<\/p>\n
ARTICLE VII<\/p>\n
INDEMNIFICATION<\/p>\n
SECTION 7.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.<\/p>\n
(a) The Corporation (i) shall indemnify any person who was or
\n is a party or is threatened to be made a party to any threatened,
\n pending or completed action, suit or proceeding, whether civil,
\n criminal, administrative or investigative (other than an action by or
\n in the right of the Corporation) by reason of the fact that such person
\n is or was, at any time prior to or during which this Article VII is in
\n effect, a director of or officer of the Corporation, or, while a
\n director or officer of the Corporation, is or was, at any time prior to
\n or during which this Article VII is in effect, serving at the request
\n of the Corporation as a director, or officer, employee or agent of
\n another corporation, partnership, joint venture, trust, other
\n enterprises or employee benefit plan and (ii) upon a determination by
\n the Board of Directors that indemnification is appropriate, the
\n Corporation may indemnify any person who was or is a party or is
\n threatened to be made a party to any threatened, pending or completed
\n action, suit or proceedings, whether civil, criminal, administrative or
\n investigative (other than an action by or in the right of the
\n Corporation) by reason of the fact that such person is or was, at any
\n time prior to or during which this Article VII is in effect, an
\n employee or agent of the Corporation or, while an employee or agent of
\n the Corporation, at the request of the Corporation was serving as an a
\n director, officer, employee or agent of any other corporation,
\n partnership, joint venture, trust, other enterprise or employee benefit
\n plan, in the case of (i) and (ii) against reasonable expenses
\n (including attorneys’ fees), judgments, fines, penalties, amounts paid
\n in settlement and other liabilities actually and reasonably incurred by
\n such person in<\/p>\n
14<\/p>\n
18<\/p>\n
connection with such action, suit or proceeding if such person acted in
\n good faith and in a manner he reasonably believed to be in or not
\n opposed to the best interests of the Corporation, and, with respect to
\n any criminal action or proceeding, had no reasonable cause to believe
\n that his conduct was unlawful. The termination of any action, suit or
\n proceeding by judgment, order, settlement, conviction or upon a plea of
\n nolo contendere or its equivalent, shall not, of itself, create a
\n presumption that such person did not act in good faith and in a manner
\n which he reasonably believed to be in or not opposed to the best
\n interests of the Corporation, and, with respect to any criminal action
\n or proceeding, had reasonable cause to believe that his conduct was
\n unlawful.<\/p>\n
(b) The Corporation (i) shall indemnify any person who was or
\n is a party or is threatened to be made a party to any threatened,
\n pending or completed action or suit by or in the right of the
\n Corporation to procure a judgment in its favor by reason of the fact
\n that such person is or was, at any time prior to or during which this
\n Article VII is in effect, a director or officer of the Corporation, or
\n while a director or officer of the Corporation, is or was, at any time
\n prior to or during which this Article VII is in effect, serving at the
\n request of the Corporation as a director, or officer, employee or agent
\n of another corporation, partnership, joint venture, trust, employee
\n benefit plan or other enterprise and (ii) upon a determination by the
\n Board of Directors that indemnification is appropriate, the Corporation
\n may indemnify any person who was or is a party or is threatened to be
\n made a party to any threatened, pending or completed action or suit by
\n or in the right of the Corporation to procure a judgment in its favor
\n by reason of the fact that such person is or was, at any time prior to
\n or during which this Article VII is in effect, an employee or agent of
\n the Corporation or while an employee or agent of the Corporation at the
\n request of the Corporation was serving as an a director, officer,
\n employee or agent of another corporation, partnership, joint venture,
\n trust, employee benefit plan or other enterprise, in the case of (i)
\n and (ii) against expenses (including attorneys’ fees), actually and
\n reasonably incurred by such person in connection with the defense or
\n settlement of such action or suit if such person acted in good faith
\n and in a manner he reasonably believed to be in or not opposed to the
\n best interests of the Corporation; provided, that no indemnification
\n shall be made under this subsection (b) in respect of any claim, issue
\n or matter as to which such person shall have been adjudged to be liable
\n to the Corporation unless and only to the extent that the Delaware
\n Court of Chancery, or other court of appropriate jurisdiction, shall
\n determine upon application that, despite the adjudication of liability
\n but in view of all the circumstances of the case, such person is fairly
\n and reasonably entitled to indemnity of such expenses which the
\n Delaware Court of Chancery, or other court of appropriate jurisdiction,
\n shall deem proper.<\/p>\n
(c) Any indemnification under subsections (a) and (b) (unless
\n ordered by the Delaware Court of Chancery or other court of appropriate
\n jurisdiction) shall be made by the Corporation only as authorized in
\n the specific case upon a determination that indemnification of such
\n person is proper in the circumstances because he has met the applicable
\n standard of conduct set forth in subsections (a) and (b). Such<\/p>\n
15
\n 19<\/p>\n
determination shall be made (1) by a majority vote of directors who are
\n not parties to such action, suit or proceeding, even though less than a
\n quorum; or (2) by a committee of such directors designated by majority
\n vote of such directors, even though less than a quorum; or (3) if there
\n are no such directors, or if such directors so direct, by independent
\n legal counsel, in written opinion; or (4) by the stockholders. In the
\n event a determination is made under this subsection (c) that the
\n director, officer, employee or agent has met the applicable standard of
\n conduct as to some matters but not as to others, amounts to be
\n indemnified may be reasonably prorated.<\/p>\n
(d) Expenses incurred by a person who is or was a director or
\n officer of the Corporation in appearing at, participating in or
\n defending any threatened, pending or completed action, suit or
\n proceeding, whether civil, criminal, administrative or investigative,
\n shall be paid by the Corporation at reasonable intervals in advance of
\n the final disposition of such action, suit or proceeding upon receipt
\n of an undertaking by or on behalf of the director or officer to repay
\n such amount if it shall ultimately be determined that he is not
\n entitled to be indemnified by the Corporation as authorized by this
\n Article VII. In addition, the Corporation shall pay or reimburse
\n expenses incurred by any person who is or was a director or officer of
\n the Corporation in connection with such person’s appearance as a
\n witness or other participant in a proceeding in which such person or
\n the Corporation is not a named party to such proceeding, provided that
\n such appearance or participation is on behalf of the Corporation or by
\n reason of his capacity as a director or officer, or former director or
\n officer of the Corporation.<\/p>\n
(e) If in a suit or proceeding for indemnification required
\n under this Article VII of a director or officer, or former director or
\n officer, of the Corporation of any of its affiliates, a court of
\n competent jurisdiction determines that such person is entitled to
\n indemnification under this Article VII, the court shall award, and the
\n Corporation shall pay, to such person the expenses incurred in securing
\n such judicial determination.<\/p>\n
(f) It is the intention of the Corporation to indemnify the
\n persons referred to in this Article VII to the fullest extent permitted
\n by law and with respect to any action, suit or proceeding arising from
\n events which occur at any time prior to or during which this Article
\n VII is in effect. The indemnification and advancement of expenses
\n provided by this Article VII shall not be deemed exclusive of any other
\n rights to which those seeking indemnification or advancement of
\n expenses may be or become entitled under any law, the Certificate of
\n Incorporation, these Bylaws, agreement, the vote of stockholders or
\n disinterested directors or otherwise, or under any policy or policies
\n of insurance purchased and maintained by the Corporation on behalf of
\n any such person, both as to action in his official capacity and as to
\n action in another capacity while holding such office, and shall
\n continue as to a person who has ceased to be a director, officer,
\n employee or agent and shall inure to the benefit of the heirs,
\n executors and administrators of such person.<\/p>\n
16
\n 20<\/p>\n
(g) Notwithstanding the foregoing, but subject to the
\n immediately succeeding sentence, the Corporation shall be required to
\n indemnify a person in connection with an action, suit or proceeding (or
\n part thereof) commenced by such person only if the commencement of such
\n action, suit or proceeding (or part thereof) by the person was
\n authorized by the Board. If a claim for indemnification or advancement
\n of expenses under this Article VII is not paid in full within thirty
\n (30) days after a written claim therefor by the person seeking
\n indemnification or reimbursement or advancement of expenses has been
\n received by the Corporation, the person may file suit to recover the
\n unpaid amount of such claim and, if successful in whole or in part,
\n shall be entitled to be paid the expense of prosecuting such claim. In
\n any such action the Corporation shall have the burden of proving that
\n the person seeking indemnification or reimbursement or advancement of
\n expenses is not entitled to the requested indemnification,
\n reimbursement or advancement of expenses under applicable law.<\/p>\n
(h) The Corporation’s obligation, if any, to indemnify or to
\n advance expenses to any person who was serving at its request as a
\n director, officer, employee or agent of another corporation,
\n partnership, joint venture, trust, enterprise or nonprofit entity shall
\n be reduced by any amount such person may collect as indemnification or
\n advancement of expenses from such other corporation, partnership, joint
\n venture, trust, enterprise or non-profit enterprise.<\/p>\n
(i) The indemnification provided by this Article VII shall be
\n subject to all valid and applicable laws, and, in the event this
\n Article VII or any other provisions hereof or the indemnification
\n contemplated hereby are found to be inconsistent with or contrary to
\n any such valid laws, the latter shall be deemed to control and this
\n Article VII shall be regarded as modified accordingly, and, as so
\n modified, to continue in full force and effect.<\/p>\n
ARTICLE VIII<\/p>\n
GENERAL PROVISIONS<\/p>\n
SECTION 8.1 DIVIDENDS. Dividends upon the outstanding shares of the
\nCorporation, subject to the provisions of the Certificate of Incorporation, if
\nany, may be declared by the Board of Directors at any regular or special
\nmeeting. Dividends may be declared and paid in cash, in property, or in shares
\nof the Corporation, subject to the provisions of the General Corporation Law of
\nthe State of Delaware and the Certificate of Incorporation. The Board of
\nDirectors may fix in advance a record date for the purpose of determining
\nstockholders entitled to receive payment of any dividend, such record date will
\nnot precede the date upon which the resolution fixing the record date is
\nadopted, and such record date will not be more than sixty days prior to the
\npayment date of such dividend. In the absence of any action by the Board of
\nDirectors, the close of business on the date upon which the Board of Directors
\nadopts the resolution declaring such dividend will be the record date.<\/p>\n
17
\n 21<\/p>\n
SECTION 8.2 RESERVES. There may be created by resolution of the Board
\nof Directors out of the surplus of the Corporation such reserve or reserves as
\nthe Directors from time to time, in their discretion, deem proper to provide for
\ncontingencies, or to equalize dividends, or to repair or maintain any property
\nof the Corporation, or for such other purpose as the Directors may deem
\nbeneficial to the Corporation, and the Directors may modify or abolish any such
\nreserve in the manner in which it was created. Surplus of the Corporation to the
\nextent so reserved will not be available for the payment of dividends or other
\ndistributions by the Corporation.<\/p>\n
SECTION 8.3 TELEPHONE AND SIMILAR MEETINGS. Directors and committee
\nmembers may participate in and hold meetings by means of conference telephone or
\nother communications equipment by which all persons participating in the meeting
\ncan hear each other. Participation in such a meeting will constitute presence in
\nperson at the meeting, except where a person participates in the meeting for the
\nexpress purpose of objecting, at the beginning of the meeting, to the
\ntransaction of any business on the ground that the meeting has not been lawfully
\ncalled or convened.<\/p>\n
SECTION 8.4 BOOKS AND RECORDS. The Corporation will keep correct and
\ncomplete books and records of account and minutes of the proceedings of its
\nstockholders and Board of Directors, and will keep at its registered office or
\nprincipal place of business, or at the office of its transfer agent or
\nregistrar, a record of its stockholders, giving the names and addresses of all
\nstockholders and the number and class of the shares held by each.<\/p>\n
SECTION 8.5 FISCAL YEAR. The fiscal year of the Corporation will be
\nfixed by resolution of the Board of Directors.<\/p>\n
SECTION 8.6 SEAL. The Corporation may have a seal, and the seal may be
\nused by causing it or a facsimile thereof to be impressed or affixed or
\nreproduced or otherwise. Any officer of the Corporation will have authority to
\naffix the seal to any document requiring it.<\/p>\n
SECTION 8.7 INSURANCE. The Corporation may at the discretion of the
\nBoard of Directors purchase and maintain insurance on behalf of the Corporation
\nand any person whom it has the power to indemnify pursuant to law, the
\nCertificate of Incorporation, these Bylaws or otherwise.<\/p>\n
SECTION 8.8 RESIGNATION. Any director, officer or agent may resign by
\ngiving written notice to the President or the Secretary. Such resignation will
\ntake effect at the time specified therein or immediately if no time is specified
\ntherein. Unless otherwise specified therein, the acceptance of such resignation
\nwill not be necessary to make it effective.<\/p>\n
SECTION 8.9 AMENDMENT OF BYLAWS. These Bylaws may be altered, amended,
\nor repealed at any meeting of the Board of Directors at which a quorum is
\npresent, by the affirmative vote of a majority of the Directors present at such
\nmeeting.<\/p>\n
SECTION 8.10 INVALID PROVISIONS. If any part of these Bylaws is held
\ninvalid or inoperative for any reason, the remaining parts, so far as possible
\nand reasonable, will be valid and operative.<\/p>\n
SECTION 8.11 RELATION TO THE CERTIFICATE OF INCORPORATION. These Bylaws
\nare subject to, and governed by, the Certificate of Incorporation of the
\nCorporation as amended from time to time.<\/p>\n
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