Section
1. Place of Meetings.
Meetings
of the stockholders for the election of directors or for any other
purpose shall be held at such time and place, either within or without the
State
of Delaware as shall be designated from time to time by the Board of Directors.
The Board may, in its sole discretion, determine that a meeting of stockholders
shall not be held at any place, but may instead be held solely by means of
remote communication as authorized by Section 211(a)(2) of the Delaware
General Corporation Law (the “DGCL”). In the absence of any such
designation or determination, stockholders’ meetings shall be held at the
Corporation’s principal executive office.
Section
2. Annual Meetings.
The Annual
Meeting of stockholders shall be held each year on such date and at
such place and time as may be fixed by resolution of the Board of
Directors.
Section
3. Special Meetings.
Unless otherwise
prescribed by applicable law or by the Certificate of
Incorporation, and subject to the rights of the holders of any series of
preferred stock of the Corporation, Special Meetings of stockholders may
be
called by a majority of the Board of Directors, the Chairman of the Board,
the
President or by the holders of shares of capital stock entitled to cast not
less
than ten percent (10%) of the votes entitled to be cast at the meeting.
Any Special Meeting of stockholders shall be held on such date and at such
place
and time as may be fixed by resolution of the Board of Directors.
Section
4. Notice of Meetings;
Waiver of
Notice. Written or printed notice, stating the place, if any,
date and hour of the meeting, the purpose or purposes for which the meeting
is
called, and the means of remote communication, if any, by which stockholders
and
proxyholders may be deemed to be present in person and vote at such meeting,
shall be given by the Corporation not less than ten nor more than sixty days
before the date of the meeting, either personally, by mail or by electronic
transmission in accordance with Section 2 of Article VI of these Bylaws,
to each
stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States
mail
with postage thereon prepaid, addressed to the stockholder at his address
as it
appears on the stock transfer books of the Corporation. Only such further
notice shall be given as may be required by applicable law. Meetings may
be held without notice if all stockholders entitled to vote thereat are present,
or if notice is waived by those not present in accordance with Section 3
of
Article VI of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and any Special Meeting of the stockholders
may
be cancelled, by resolution of the Board of Directors upon public notice
given
prior to the time previously scheduled for such meeting of
stockholders.
Section
5. Nominations and
Proposals. Nominations of persons for election to the Board
of Directors of the Corporation and the proposal of business to be considered
by
the stockholders may be made at any Annual Meeting of stockholders only
(a) pursuant to the Corporation’s notice of 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 notice
provided for in these Bylaws, who is entitled to vote at the meeting and
who
complies with the notice procedures set forth in this Section 5.
For
nominations or other business to be properly brought before an Annual Meeting
of
stockholders by a stockholder pursuant to clause (c) of the preceding
sentence, the stockholder must have given timely notice thereof in writing
to
the Secretary of the Corporation and such other business (a) must otherwise
be a proper matter for stockholder action under applicable law, (b) must
not, if implemented, cause the Corporation to violate any applicable state,
federal or foreign law or regulation, each as determined in good faith by
the
Board of Directors and (c) if the stockholder, or the beneficial owner on
whose behalf any such proposal or nomination is made, has provided the
Corporation with a Solicitation Notice (as defined below), such stockholder
or
beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation’s voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination(s), have delivered a proxy statement
and form of proxy to holders of a percentage of the Corporation’s voting shares
reasonably believed by such stockholder or beneficial holder to be sufficient
to
elect the nominee(s) proposed to be nominated by such stockholder, and must,
in
either case, have included in such materials the Solicitation Notice; and
(d) if no Solicitation Notice relating thereto has been timely provided
pursuant to this Section 5, the stockholder or beneficial owner proposing
such
business or nomination must not have solicited a number of proxies sufficient
to
have required the delivery of such a Solicitation Notice under this
Section. No person may be appointed, nominated or elected a director of
the Corporation unless such person, as of the time of the notice of nomination
provided for pursuant to this Section 5 and as of the time of appointment
or
election, would then be able to serve as a director without conflicting in
any
manner with any applicable state, federal or foreign law or regulation, as
determined in good faith by the Board of Directors.
To
be
timely, a stockholder’s notice shall be delivered to and received by the
Secretary at the principal executive offices of the Corporation (a) not later
than the close of business on the 90th day nor earlier than the close of
business on the 120th day prior to the first anniversary of the preceding
year’s
annual meeting, or (b) not later than the close of business on the
45th calendar day, nor earlier than the close of business on the
75th calendar day, prior to the first anniversary of the date on which the
Corporation first mailed its proxy materials for the preceding year’s annual
meeting, whichever period described in clause (a) or (b) of this sentence
occurs
first; provided, however, that in the event that the date of the annual meeting
is more than 30 days before or more than 60 days after the anniversary of
the
preceding year’s annual meeting, any notice by the stockholder of business or
the nomination of directors for election or reelection to be brought before
the
annual meeting to be timely must be so delivered not earlier than the close
of
business on the 120th day prior to such annual meeting and not later than
the
close of business on the later of the 90th day prior to such annual meeting
or
the 10th day following the day on which public announcement of the date of
such
meeting is first made; provided, further, that in the event the number of
directors constituting the entire Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees
for
director or specifying the size of the increased Board of Directors made
by the
Corporation at least 70 days prior to the first anniversary of the date on
which
the Corporation first mailed to stockholders notice of the preceding year’s
annual meeting, a stockholder’s notice required under this Section 5 shall also
be considered timely, but only with respect to nominees for new directorships
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public
announcement is first made by the Corporation. In no event shall the
public announcement of an adjournment or postponement of a stockholder meeting
commence a new time period for the giving of a stockholder’s notice as described
above.
Such
stockholder’s notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director,
(i)
all information relating to such person that is required to be disclosed
in
solicitations of proxies for election of directors in an election contest,
or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (or any successor thereto) (the “Exchange Act”)
and Rule 14a-11 thereunder (or any successor thereto) (including such person’s
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), (ii) a written statement executed by such
person acknowledging that as a director of the Corporation, such person will
owe
a fiduciary duty under the DGCL exclusively to the Corporation and its
stockholders and (iii) such other information as the Corporation may reasonably
require to determine the qualifications of such proposed nominee to serve
as a
director of the Corporation, (b) as to each person whom the stockholder proposes
to nominate for election or reelection as a director, a certification by
such
stockholder and such nominee that such nominee is eligible to serve as a
director in accordance with this Section 5 as of the date of the notice of
nomination and will be eligible to serve as a director in accordance with
this
Section 5 as of the time of the election, (c) 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 (d) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i) the
name and address, as they appear on the Corporation’s books, of the stockholder,
such beneficial owner, and any other stockholders and beneficial owners known
by
such stockholder or such beneficial owner to be supporting such proposed
business or nominees, (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder
and
such beneficial owner, (iii) whether either such stockholder or beneficial
owner
intends to deliver a proxy statement and form of proxy to holders of, in
the
case of a proposal, at least the percentage of the Corporation’s voting shares
required under applicable law to carry the proposal or, in the case of a
nomination(s), a sufficient number of holders of the Corporation’s voting shares
to elect such nominee(s) (an affirmative statement of such intent, a
“Solicitation Notice”) and (iv) a copy of any such Solicitation
Notice.
For
purposes of this Section 5, “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.
At
a
Special Meeting of stockholders, only such business as is set forth in the
Corporation’s notice of meeting shall be conducted at the meeting.
Nominations of persons for election to the Board of Directors may be made
at a
Special Meeting of stockholders at which directors are to be elected pursuant
to
the Corporation’s notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is a stockholder
of
record at the time of giving of notice provided for in this paragraph and
who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this paragraph. In the event the Corporation calls
a Special Meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a
person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation’s notice of meeting, if the stockholder’s notice required by
the fourth paragraph of this Section 5 shall be delivered to the Secretary
at
the principal executive offices of the Corporation not earlier than the close
of
business on the 120th day prior to such Special Meeting and not later than
the
close of business on the later of the 90th day prior to such Special Meeting
or
the 10th day following the day on which public announcement is first made
of the
date of the Special Meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a Special Meeting commence
a
new time period for the giving of a stockholder’s notice.
Notwithstanding
any provision herein to the contrary, (a) no business shall be conducted
at a
stockholders meeting except in accordance with the procedures set forth in
this
Section 5 and (b) only persons nominated in accordance with the procedures
set
forth in this Section 5, and who meet the eligibility requirements set forth
in
this Section 5, shall be eligible for election as directors. The officer
of the Corporation presiding at a meeting of stockholders shall, if the facts
warrant, determine that the business or the nomination, as the case may be,
was
not properly brought before the meeting in accordance with the procedures
prescribed by these Bylaws and, if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted and any such nomination shall not stand for election
or
reelection.
In
addition to and not to the exclusion of the foregoing provisions of this
Section
5, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations promulgated thereunder with respect
to matters set forth in this Section 5. Nothing in this Section 5 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.
Section
6. Quorum;
Adjournment. Except as otherwise provided by applicable law
or by the Certificate of Incorporation, the holders of a majority of the
capital
stock issued and outstanding and entitled to vote thereat, present in person
or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice
other than announcement at the meeting, until a quorum shall be present or
represented. The Chairman of the Board of Directors, or in his absence or
disability an officer of the Corporation presiding at a meeting of stockholders
may adjourn any meeting of stockholders from time to time, whether or not
there
is such a quorum. In the absence of a quorum, a meeting of the
stockholders may be adjourned by the vote of a majority of the shares
represented either in person or by proxy at said meeting. No notice
of the time and place of adjourned meetings need be given except as required
by
applicable law unless any additional items of business are to be considered
or
the Corporation becomes aware of an intervening event materially affecting
any
matter to be voted on more than ten (10) days prior to the date which the
meeting is adjourned. Any business which might have been transacted at the
meeting as originally noticed may be deferred and transacted at any such
adjourned meeting at which a quorum shall be present. The stockholders
present at a duly called meeting at which a quorum is present may continue
to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section
7. Voting. Unless
otherwise required by applicable law, the Certificate of Incorporation or
these
Bylaws, any question brought before any meeting of stockholders shall be
decided
by the vote of the holders of a majority of the stock represented and entitled
to vote thereat. Unless otherwise required by applicable law, the
Certificate of Incorporation or these Bylaws, each stockholder represented
at a
meeting of stockholders shall be entitled to cast one vote for each share
of the
capital stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy but no proxy shall be valid more
than 11
months after its date, unless such proxy provides for a longer period. A
stockholder may authorize another person to act as proxy by transmitting,
or
authorizing the transmission of, a telegram, cablegram or other means of
electronic transmission to the person authorized to act as proxy or to a
proxy
solicitation firm, proxy support service organization, or other person
authorized by the person who will act as proxy to receive the transmission,
in
each case as the Board of Directors, the Chairman of the Board of Directors
or
the presiding officer of the meeting may determine from time to
time.
Section
8. List of Stockholders
Entitled to
Vote. The officer of the Corporation who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days
before
every meeting of stockholders, a complete list of the stockholders entitled
to
vote at the meeting, arranged in alphabetical order, and showing the address
of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period of at least
ten days prior to the meeting, either (i) during ordinary business hours
at the
principal place of business of the Corporation, (ii) on a reasonably accessible
electronic network, provided that the information required to gain access
to
such list is provided with the notice of meeting, or (iii) at such other
place
as may be permitted by applicable law and the Certificate of
Incorporation. If the meeting is to be held at a designated physical
location, 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
of the Corporation who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to
access
such list shall be provided with the notice of the meeting.
Section
9. Stock Ledger. The
stock ledger of the Corporation shall be the only evidence as to who the
stockholders entitled to examine the stock ledger are, shall be included
on the
list required by Section 8 of this Article II, or shall be entitled to vote
in
person or by proxy at any meeting of stockholders.
Section
10. Stockholder
Action. Subject to rights, if any, of any series of preferred
stock then outstanding, any action required or permitted to be taken by the
stockholders must be effected at an annual or special meeting of stockholders
and may not be effected by any consent in writing of such
stockholders.
Section
11. Conduct of Voting.
At all meetings
of stockholders, unless the voting is conducted by inspectors,
the proxies and ballots shall be received, and all questions relating to
the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided, in accordance with such procedures as shall from
time
to time be determined by the officer of the Corporation presiding at the
meeting
of stockholders. If ordered by the presiding officer or required by
applicable law, the vote upon any election or question shall be taken by
written
ballot. Unless so ordered or required, no vote need be by written
ballot.
The
officer of the Corporation presiding at a meeting of stockholders shall fix
and
announce at the meeting the date and time of the opening and the closing
of the
polls for each matter upon which the stockholders will vote at such
meeting.
The
Board
of Directors shall appoint one or more inspectors, which inspector or inspectors
may be individuals who serve the Corporation in other capacities, including,
without limitation, as officers, employees, agents or representatives, to
act at
the meetings of stockholders and make a written report thereof. One or
more persons may be designated as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate has been appointed to act
or is able to act at a meeting of stockholders, the officer of the Corporation
presiding at a meeting of stockholders shall appoint one or more inspectors
to
act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector
with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by applicable law.
ARTICLE
III
Section
1. Number and Election
of
Directors. Subject to the rights of the holders of any series
of preferred stock of the Corporation to elect directors as provided for
in the
Certificate of Incorporation, the Board of Directors shall consist of at
least
one (1), but no more than twenty-five (25), members. The exact number of
authorized directors shall be fixed by resolution of the Board of Directors
or
by the vote of a majority of the shares represented either in person or by
proxy
at a meeting of the stockholders.
The
Board
shall consist of no more than two inside directors who do not meet the
definition of “Outside Directors”. An “Outside Director” is any director
of the Corporation or its subsidiaries, which, in the opinion of the Board,
would not interfere with the exercise of independent judgment in carrying
out
the responsibilities of a Director, and which meets the independence and
experience requirements of the Securities and Exchange Commission (“SEC”) and
the Nasdaq National Market (“Nasdaq”) applicable to independent directors as in
effect from time to time when and as required by SEC and Nasdaq.
Subject
to the Certificate of Incorporation, and Section 2 of this Article and the
rights of the holders of any series of preferred stock of the Corporation
to
elect directors under specified circumstances, directors shall be elected
by a
plurality of the votes cast at Annual Meetings of stockholders, and each
director so elected shall hold office until the next Annual Meeting and until
his or her successor is duly elected and qualified, or until his or her earlier
death, resignation or removal.
Any
director may resign at any time upon notice to the Corporation in writing
or by
electronic transmission. Directors need not be stockholders.
Section
2. Removal. Except
for directors elected by a series of preferred stock then outstanding, any
director or the entire Board of Directors may be removed, but only for cause,
and only by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all of the then outstanding
shares of the capital stock of the Corporation then entitled to vote at an
election of directors, voting together as a single class. Nothing in
this Section 2 shall be deemed to affect any rights of the holders of any
series
of preferred stock to remove directors pursuant to any applicable provisions
of
the Certificate of Incorporation.
Section
3. Vacancies. Subject
to the rights, if any, of any series of preferred stock then outstanding,
and
except as otherwise provided in the Certificate of Incorporation, any vacancy,
whether arising through death, resignation, retirement, removal or
disqualification of a director, and any newly created directorship resulting
from an increase in the number of directors, shall be filled solely by a
majority vote of the remaining directors even though less than a quorum of
the
Board of Directors. A director so elected to fill a vacancy or newly
created directorship shall serve until the next annual meeting of the
stockholders, or until his or her successor shall have been duly elected
and
qualified or until such director’s death, resignation or removal. No
decrease in the number of directors shall shorten the term of any incumbent
director.
Section
4. Duties and Powers.
The business
of the Corporation shall be managed by or under the direction of
the Board of Directors which may exercise all such powers of the Corporation
and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws directed or required to be exercised
or done
by the stockholders.
Section
5. Meetings. The
Board of Directors of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware. Regular meetings
of the Board of Directors may be held without notice at such time and at
such
place as may from time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman,
if
there be one, the President, or a majority of the entire Board of Directors
then
in office. Notice of such special meeting stating the place, date and hour
of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, hand,
courier, facsimile, electronic mail or telegram on twenty-four (24) hours’
notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting
of the Board of Directors need be specified in the notice of such meeting.
A meeting may be held at any time without notice if all the directors are
present or if those not present waive notice of the meeting in accordance
with
Section 3 of Article VI of these Bylaws.
Section
6. Quorum. Except as
may be otherwise specifically provided by applicable law, the Certificate
of
Incorporation or these Bylaws, at all meetings of the Board of Directors,
a
majority of the entire Board of Directors then in office shall constitute
a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the
act of
the Board of Directors. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until
a quorum shall be present. Notwithstanding the withdrawal of enough
directors to leave less than a quorum, the directors present at a duly organized
meeting may continue to transact business until adjournment.
Section
7. Actions of Board.
Unless otherwise
provided by the Certificate of Incorporation or these Bylaws,
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 the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing or by electronic transmission, and the writing or writings
or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee.
Section
8. Meetings by Means
of Conference
Telephone. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors of the
Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means
of
a 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 this Section 8 shall constitute presence in person at
such
meeting.
Section
9. Committees. The
Board of Directors may, by resolution passed by a majority of the entire
Board
of Directors, designate one or more committees, each committee to consist
of one
or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who
may
replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee,
and in the absence of a designation by the Board of Directors of an alternate
member to replace the absent or disqualified member, the member or members
thereof present at any meeting and not disqualified from voting, whether
or not
they constitute a quorum, may unanimously appoint another member of the Board
of
Directors to act at the meeting in the place of any absent or disqualified
member. Any committee, to the extent allowed by applicable law and
provided in the resolution establishing such committee, 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. Each committee
shall keep regular minutes and report to the Board of Directors when
required.
Section
10. Compensation. The
directors may be paid their expenses, if any, of attendance at each meeting
of
the Board of Directors and may be paid such compensation for their service
on
the Board of Directors as may be determined by resolution of the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed additional compensation
for their service on such committees.
ARTICLE
IV
Section
1. General. The
officers of the Corporation shall be chosen by the Board of Directors and
shall
be a Chairman of the Board of Directors (who must be a director), Chief
Executive Officer, President and Chief Operating Officer, Chief Financial
Officer and Treasurer, Controller and a Secretary. The Board of Directors,
in its discretion, may also choose one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by
applicable law, the Certificate of Incorporation or these Bylaws. The
officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section
2.
Election. The
Board of Directors shall elect the officers of the Corporation who shall
hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors;
and
all officers of the Corporation shall hold office until their successors
are
chosen and qualified, or until their earlier death, resignation or
removal. Any officer elected by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors.
Any vacancy occurring in any office of the Corporation shall be filled by
the
Board of Directors. The salaries of all officers of the Corporation shall
be fixed by the Board of Directors or by such persons or committee as the
Board
of Directors delegates.
Section
3. Voting Securities
Owned by the
Corporation. Powers of attorney, proxies, waivers of notice
of meeting, consents and other instruments relating to securities of any
other
corporation (or other business entity) owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the Chief Executive Officer,
President and Chief Operating Officer, Chief Financial Officer and Treasurer,
Secretary or any Vice President and any such officer may, in the name of
and on
behalf of the Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security holders
of
any corporation (or other business entity) in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and
all
rights and power incident to the ownership of such securities and which,
as the
owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time
confer like powers upon any other person or persons.
Section
4. Chairman of the
Board of
Directors. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and of the Board of
Directors. Except where by applicable law the signature of the President is
required, the Chairman of the Board of Directors shall possess the same power
as
the President to sign all contracts, certificates and other instruments of
the
Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall also perform such
other duties and may exercise such other powers as from time to time may
be
assigned to him or her by these Bylaws or by the Board of
Directors.
Section 5. Chief
Executive
Officer. The Chief Executive Officer shall have
general supervision of all property of the Corporation and all of its
departments and business units and shall have full authority over all officers
and employees, subject to the provisions of these Bylaws and the control
of the
Board of Directors. The Chief Executive Officer shall have the power
to sign, executed and deliver on behalf of the Corporation all bonds, mortgages,
contracts and other instruments of the Corporation, except where required
or
permitted by applicable law to be otherwise signed, executed and delivered
and
except that the other officers of the Corporation may sign, execute and deliver
documents when so authorized by these Bylaws, the Board of Directors or the
President and Chief Operating Officer. In the absence or disability
of the Chairman of the Board of Directors, the Chief Executive Officer shall
preside at all meetings of the stockholders and the Board of Directors.
The Chief Executive Officer shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by
these
Bylaws or by the Board of Directors.
Section
6. President and Chief
Operating
Officer. The President and Chief Operating Officer shall,
subject to the control of the Board of Directors and the Chairman of the
Board
of Directors, have general supervision of the business of the Corporation
and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President and Chief Operating Officer shall sign, execute
and deliver on behalf of the Corporation all bonds, mortgages, contracts
and
other instruments of the Corporation, except where required or permitted
by
applicable law to be otherwise signed, executed and delivered and except
that
the other officers of the Corporation may sign and execute documents when
so
authorized by these Bylaws, the Board of Directors, the Chief Executive Officer
or the President and Chief Operating Officer. In the absence or disability
of the Chairman of the Board of Directors and the Chief Executive Officer,
the
President and Chief Operating Officer shall preside at all meetings of the
stockholders and the Board of Directors. The President and Chief Operating
Officer shall also perform such other duties and may exercise such other
powers
as from time to time may be assigned to him by these Bylaws or by the Board
of
Directors.
Section 7. Chief
Financial Officer and
Treasurer. The Chief Financial Officer and Treasurer
shall consider the adequacy of, and make recommendations to the Board of
Directors concerning, the capital resources available to the Corporation
to meet
its projected obligations and business plans; report periodically to the
Board
of Directors the financial results and trends affecting the business of the
Corporation; and shall have such other powers and perform such other duties
as
may from time to time be granted or assigned to him or her by the Board of
Directors or, subject to the control of the Board of Directors, by a committee
thereof. The Chief Financial Officer and Treasurer shall have the
power to sign, executed and deliver on behalf of the Corporation all bonds,
mortgages, contracts and other instruments of the Corporation, except where
required or permitted by applicable law to be otherwise signed, executed
and
delivered and except that the other officers of the Corporation may sign
and
executed documents when so authorized by these Bylaws, the Board of Directors,
the Chief Executive Officer or the President and Chief Operating
Officer. The Chief Financial Officer and Treasurer shall supervise
the Controller.
Section 8. Controller. The
Controller shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories
as
may be designated by the Board of Directors or its designee(s). The
Controller shall disburse the funds of the Corporation as may be ordered
by the
Board of Directors or its designee(s), taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer, President
and
Chief Operating Officer, Chief Financial Officer and Treasurer and the Board
of
Directors, at its regular meetings, or when the Board of Directors so requires,
an account of all his or her transactions as Controller and of the financial
condition of the Corporation. If required by the Board of Directors or its
designee(s), the Controller shall give the Corporation a bond in such sum
and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and
other property of whatever kind in his or her possession or under his or
her
control belonging to the Corporation.
Section
9. Secretary. The
Secretary shall give, or cause to be given, notice of and attend all meetings
of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. If the Secretary shall be unable or shall refuse to give notice
of and attend and record the proceedings of all meetings of the stockholders
and
special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors or the President and Chief
Operating Officer may choose another officer to cause such notice to be given
and to attend and record the proceedings of such meetings. The Secretary
shall perform such other duties as may be prescribed by the Board of Directors
or President and Chief Operating Officer, under whose supervision the Secretary
shall be. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by applicable
law to be kept or filed are properly kept or filed, as the case may be.
Such books, reports, statements, certificates and other documents and records
may be kept within or without the State of Delaware as the Board of Directors
may from time to time determine.
Section
10. Other Officers.
Such other
officers as the Board of Directors may choose shall perform such
duties and have such powers as from time to time may be assigned to them
by the
Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE
V
Section
1.
Stock
Certificates. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide
by
resolution or resolutions that some or all of any or all classes or series
of
the Corporation’s stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such certificate
is
surrendered to the Corporation. Every holder of stock of the Corporation
represented by certificates shall be entitled to have a certificate signed
by,
or in the name of the Corporation by the Chairman or vice-chairperson of
the
Board of Directors, or the President or vice-president and by the Treasurer
or
an assistant treasurer or the Secretary or an assistant secretary of the
Corporation representing the number of shares registered in certificate form.
The Corporation shall not have power to issue a certificate in bearer
form.
Section
2. Signatures. Any or
all of the signatures on the certificate may be by a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may
be issued by the Corporation with the same effect as if such person were
such
officer, transfer agent or registrar at the date of issue.
Section
3. Lost Certificates.
The Board
of Directors may direct a new certificate to be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may,
in its
discretion and as a condition precedent to the issuance thereof, require
the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Corporation a bond in such sum as it may
direct
as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or
destroyed.
Section
4.
Transfers. Stock
of the Corporation shall be transferable in the manner prescribed by applicable
law and in these Bylaws. Transfers of stock shall be made on the books of
the Corporation only at the direction of the record holder of such stock
or by
his or her attorney lawfully constituted in writing and, if such stock is
certificated, upon the surrender of the certificate therefor, which shall
be
canceled before a new certificate shall be issued.
Section
5. Record Date. 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
be
more than sixty days nor less than ten days before the date of such meeting,
nor
more than sixty days prior to any other action. Except to the extent
otherwise required 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
in its discretion fix a new record date for the adjourned meeting.
Section
6. Beneficial Owners.
The Corporation
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and
to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize
any
equitable or other claim to or interest in such share or shares on the part
of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by applicable law.
ARTICLE
VI
Section
1. Notices. Whenever
written notice is required by applicable law, the Certificate of
Incorporation or these Bylaws, to be given to any stockholder, such notice
may
be given (i) by mail, addressed to such stockholder, at his or her address
as it
appears on the records of the Corporation, with postage thereon prepaid or
(ii)
except as provided in the DGCL, by electronic transmission in accordance
with
Section 2 of this Article VI. If given by mail, such notice shall be
deemed delivered at the time when the same shall be deposited in the United
States mail.
Section
2. Notices by Electronic
Transmission. Without limiting the manner by which notice
otherwise may be given effectively to stockholders pursuant to applicable
law,
the Certificate of Incorporation or these Bylaws, any notice to stockholders
given by the Corporation under any applicable law, the Certificate of
Incorporation or these Bylaws shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom the notice
is
given. Any such consent shall be revocable by the stockholder by written
notice to the Corporation. Any such consent shall be deemed revoked
if:
(i)
the Corporation is unable to deliver by electronic transmission two consecutive
notices given by the Corporation in accordance with such consent;
and
(ii) such
inability becomes known to the Secretary or an assistant secretary of the
Corporation or to the transfer agent, or other person responsible for the
giving
of notice.
However,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(i) if
by
facsimile telecommunication, when directed to a number at which the stockholder
has consented to receive notice;
(ii) if
by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice;
(iii)
if
by a
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and
(iv)
if
by any
other form of electronic transmission, when directed to the
stockholder.
An
affidavit of the Secretary or an assistant secretary or of the transfer agent
or
other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
For
the
purpose of these Bylaws, an “electronic transmission” means any form of
communication, not directly involving the physical transmission of paper,
that
creates a record that may be retained, retrieved, and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
Section
3. Waivers of Notice.
Whenever
notice is required to be given by applicable law, the Certificate of
Incorporation or these Bylaws, a written waiver, signed by the person entitled
to notice, or a waiver by electronic transmission by the person entitled
to
notice, whether before or after the time of the event for which notice is
to be
given, shall be deemed equivalent to notice. Attendance 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 need be
specified in any written waiver of notice or any waiver by electronic
transmission unless so required by the Certificate of Incorporation or these
Bylaws.
ARTICLE
VII
Section
1. Indemnification
of Directors and
Officers. Each person who was or is made a party or is
threatened to be made a party to or is involved in any, suit, or proceeding,
whether civil, criminal, administrative or investigative (hereinafter 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 any predecessor) or is or was serving at the request of the
Corporation (or any predecessor) as a director, officer, employee or agent
of
another Corporation or of a partnership, joint venture, trust or other
enterprise (or any predecessor of any of such entities), including service
with
respect to employee benefit plans maintained or sponsored by the Corporation
(or
any predecessor), whether the basis of such proceeding is alleged action
in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL as the same exists or may hereafter be amended (but,
in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA
excise taxes or 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,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided
in
Section 2 of this Article VIII, the Corporation shall indemnify any such
person
seeking indemnification 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. The right to indemnification
conferred in this Article VIII shall be a contract right and shall include
the
right to be paid by the Corporation the expenses incurred in defending any
such
proceeding in advance of its final disposition, such advances to be paid
by the
Corporation within sixty days after the receipt by the Corporation of a
statement or statements from the claimant requesting such advance or advances
from time to time; provided, however, that if the DGCL requires, the payment
of
such expenses incurred by a director or officer in his or her capacity as
a
director or officer (and not in any other capacity in which service was or
is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a 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 shall ultimately be determined that such director
or
officer is not entitled to be indemnified under these Bylaw or
otherwise.
Section
2. Claims. To obtain
indemnification under this Article VIII, a claimant shall submit to the
Corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled
to
indemnification. Upon written request by a claimant for indemnification
pursuant to the preceding sentence, a determination, if required by applicable
law, with respect to the claimant’s entitlement thereto shall be made as
follows: (a) if requested by the claimant, by Independent Counsel (as
hereinafter defined), or (b) if no request is made by the claimant for a
determination by Independent Counsel, (i) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (ii) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum
of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to the claimant,
or (iii) if a quorum of Disinterested Directors so directs, by the stockholders
of the Corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification
is
claimed a “Change in Control” as defined below, in which case the Independent
Counsel shall be selected by the claimant unless the claimant shall request
that
such selection be made by the Board of Directors. If it is so determined
that the claimant is entitled to indemnification, payment to the claimant
shall
be made within sixty days after such determination.
If
a
claim for indemnification under this Article VIII is not paid in full by
the
Corporation within sixty days after a written claim pursuant to the preceding
paragraph of this Section 2 has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover
the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance
of
its final disposition where the required undertaking, if any is required,
has
been tendered to the Corporation) that the claimant has not met the standard
of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving
such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, Independent Counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
the
DGCL, nor an actual determination by the Corporation (including its Board
of
Directors, Independent Counsel or stockholders) that the claimant has not
met
such applicable standard of conduct, shall be a defense to the action or
create
a presumption that the claimant has not met the applicable standard of
conduct.
If
a
determination shall have been made pursuant to this Section 2 that the claimant
is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to the preceding
paragraph of this Section 2. The Corporation shall be precluded from
asserting in any judicial proceeding commenced pursuant to the second paragraph
of this Section 2 that the procedures and presumptions of this Article VIII
are
not valid, binding and enforceable and shall stipulate in such proceeding
that
the Corporation is bound by all the provisions of this Article VIII. The
right to indemnification and the payment of expenses incurred in defending
a
proceeding in advance of its final disposition conferred in this Article
VIII
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
these
Bylaws, agreement, vote of stockholders or Disinterested Directors or
otherwise. No repeal or modification of this Article VIII shall in any way
diminish or adversely affect the rights of any director, officer, employee
or
agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
Section
3. Construction. If
any provision or provisions of this Article VIII shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article VIII
(including, without limitation, each portion of any paragraph of this Article
VIII containing any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable) shall not
in
any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Article VIII (including, without limitation, each
such
portion of any paragraph of this Article VIII containing any such provision
held
to be invalid, illegal or unenforceable) shall be construed so as to give
effect
such that the Corporation may indemnify to the full extent required by any
applicable part of this Article VIII that shall not have been invalidated
and as permitted by applicable law.
Section
4. Indemnification
of
Others. The Corporation shall have the power, to the extent
and in the manner permitted by the DGCL, to indemnify each of its employees
and
agents (other than directors and officers) against expenses (including
attorneys’ fees), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding, arising by reason
of the
fact that such person is or was an agent of the Corporation. For purposes
of
this Section 4, an “employee” or “agent” of the Corporation (other than a
director or officer) includes any person (a) who is or was an employee or
agent
of the Corporation, (b) who is or was serving at the request of the Corporation
as an employee or agent of another Corporation, partnership, joint venture,
trust or other enterprise, or (c) who was an employee or agent of a Corporation
which was a predecessor Corporation of the Corporation or of another enterprise
at the request of such predecessor Corporation.
Section
5. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who
is
or was a director, officer, employee or agent of the Corporation, or is or
was
serving at the request of the Corporation as a director, officer, employee
or
agent of another Corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred by him
in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under
the provisions of the DGCL.
Section 6. Other
Sources. The
Corporation’s obligation, if any, to indemnify or advance expenses to any person
who was or is serving at the Corporation’s request as a director or officer of
another corporation or a partnership, joint venture, trust, enterprise or
non-profit entity, including service with respect to employee benefit plans,
shall be reduced by any amount such person may collect as indemnification
or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit entity
Section
7. Miscellaneous. For
purposes of this Article VIII:
“Change
in Control” means the consummation of any of the following
transactions:
(1)
a
merger or consolidation of 1st Century Bank, N.A. (the “Bank”) or the
Corporation with any other corporation, other than a merger or consolidation
which would result in beneficial owners of the total voting power in the
election of directors represented by the voting securities (“Voting Securities”)
of the Bank or the Corporation (as the case may be) outstanding immediately
prior thereto continuing to beneficially own securities representing (either
by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total Voting Securities
of
the Bank or the Corporation, or of such surviving entity, outstanding
immediately after such merger or consolidation;
(2)
the
filing of a plan of liquidation or dissolution of the Bank or the closing
of the
sale, lease, exchange or other transfer or disposition by the Bank or the
Corporation of all or substantially all of the Corporation’s
assets;
(3) any
person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act),
other than (A) a trustee or other fiduciary holding securities under an employee
benefit plan of the Bank or the Corporation, (B) a corporation owned directly
or
indirectly by the stockholders of the Corporation in substantially the same
proportions as their beneficial ownership of stock in the Corporation, or
(C)
the Corporation (with respect to the Corporation’s ownership of the stock of
Bank), is or becomes the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act), directly or indirectly, of the securities of the
Bank
or the Corporation representing 50% or more of the Voting Securities;
or
(4)
any
person (as such term is used in Sections 13(d) or 14(d) of the Exchange Act),
other than (a) a trustee or other fiduciary holding securities under an employee
benefit plan of the Bank or the Corporation, (b) a corporation owned directly
or
indirectly by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock in the Corporation, or (c) the
Corporation (with respect to the Corporation’s ownership of the stock of the
Bank) is or becomes the beneficial owner (within the meaning or Rule 13d-3
under
the Exchange Act), directly or indirectly, of the securities of the Bank
or the
Corporation representing 25% or more of the Voting Securities of such
corporation, and within twelve (12) months of the occurrence of such event,
a
change in the composition of the Board of Directors of the Corporation occurs
as
a result of which sixty percent (60%) or fewer of the directors are incumbent
directors.
“Disinterested
Director” means a director of the Corporation who is not and was not a party to
the matter in respect of which indemnification is sought by the
claimant.
“Independent
Counsel” means a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of corporation law and shall
include any person who, under the applicable standards of professional conduct
then prevailing, would not have a conflict of interest in representing either
the Corporation or the claimant in an action to determine the claimant’s rights
under this Article VIII.
Any
notice, request or other communication required or permitted to be given
to the
Corporation under this Bylaw shall be in writing and either delivered in
person
or sent by telecopy, telex, telegram, overnight mail or courier service,
or
certified or registered mail, postage prepaid, return receipt requested,
to the
Secretary of the Corporation and shall be effective only upon receipt by
the
Secretary.
ARTICLE
IX