Exhibit 3.3
AMENDED AND RESTATED BY-LAWS
OF
AMERESCO, INC.
TABLE OF CONTENTS
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ARTICLE I |
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STOCKHOLDERS |
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1.1 |
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Place of Meetings |
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1 |
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1.2 |
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Annual Meeting |
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1 |
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1.3 |
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Special Meetings |
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1 |
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1.4 |
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Notice of Meetings |
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1 |
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1.5 |
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Voting List |
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2 |
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1.6 |
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Quorum |
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2 |
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1.7 |
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Adjournments |
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3 |
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1.8 |
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Voting and Proxies |
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3 |
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1.9 |
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Action at Meeting |
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3 |
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1.10 |
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Nomination of Directors |
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4 |
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1.11 |
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Notice of Business at Annual Meetings |
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8 |
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1.12 |
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Conduct of Meetings |
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11 |
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1.13 |
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No Action by Consent in Lieu of a Meeting |
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12 |
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ARTICLE II |
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DIRECTORS |
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2.1 |
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General Powers |
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2.2 |
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Number, Election and Qualification |
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13 |
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2.3 |
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Chairman of the Board; Vice Chairman of the Board |
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13 |
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2.4 |
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Classes of Directors |
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13 |
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2.5 |
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Terms of Office |
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13 |
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2.6 |
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Quorum |
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14 |
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2.7 |
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Action at Meeting |
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14 |
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2.8 |
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Removal |
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14 |
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2.9 |
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Vacancies |
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14 |
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2.10 |
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Resignation |
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15 |
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2.11 |
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Regular Meetings |
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15 |
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2.12 |
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Special Meetings |
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15 |
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2.13 |
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Notice of Special Meetings |
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15 |
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2.14 |
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Meetings by Conference Communications Equipment |
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15 |
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2.15 |
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Action by Consent |
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16 |
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2.16 |
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Committees |
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2.17 |
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Compensation of Directors |
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17 |
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ARTICLE III |
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OFFICERS |
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3.1 |
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Titles |
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3.2 |
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Election |
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3.3 |
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Qualification |
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17 |
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3.4 |
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Tenure |
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17 |
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3.5 |
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Resignation and Removal |
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3.6 |
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Vacancies |
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18 |
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3.7 |
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President; Chief Executive Officer |
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18 |
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3.8 |
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Vice Presidents |
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3.9 |
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Secretary and Assistant Secretaries |
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3.10 |
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Treasurer and Assistant Treasurers |
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3.11 |
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Salaries |
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20 |
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3.12 |
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Delegation of Authority |
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20 |
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ARTICLE IV |
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CAPITAL STOCK |
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4.1 |
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Issuance of Stock |
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4.2 |
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Stock Certificates; Uncertificated Shares |
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20 |
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4.3 |
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Transfers |
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21 |
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4.4 |
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Lost, Stolen or Destroyed Certificates |
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4.5 |
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Record Date |
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4.6 |
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Regulations |
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ARTICLE V |
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GENERAL PROVISIONS |
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5.1 |
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Fiscal Year |
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5.2 |
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Corporate Seal |
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5.3 |
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Waiver of Notice |
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5.4 |
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Voting of Securities |
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23 |
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5.5 |
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Evidence of Authority |
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5.6 |
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Certificate of Incorporation |
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5.7 |
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Severability |
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5.8 |
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Pronouns |
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24 |
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ARTICLE VI |
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AMENDMENTS |
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ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such place as
may be designated from time to time by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President or, if not so designated, at the principal office of the
corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of directors
to succeed those whose terms expire and for the transaction of such other business as may properly
be brought before the meeting shall be held on a date and at a time designated by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the President (which date
shall not be a legal holiday in the place where the meeting is to be held).
1.3 Special Meetings. Special meetings of stockholders for any purpose or purposes
may be called at any time by only the Board of Directors, the Chairman of the Board or the Chief
Executive Officer, and may not be called by any other person or persons. The Board of Directors
may postpone or reschedule any previously scheduled special meeting of stockholders. Business
transacted at any special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, notice of each meeting
of stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder entitled to vote at such meeting. Without
limiting the manner by which notice otherwise may be given to stockholders, any notice shall be
effective if given by a form of electronic transmission consented to (in a manner consistent with
the General Corporation Law of the State of Delaware) by the stockholder to whom the notice is
given. The notices of all meetings shall state the place, date and time of the meeting and the
means of remote communications, if any, by which stockholders and proxyholders may be deemed to be
present in person and vote at such meeting. The notice of a special meeting shall state, in
addition, the purpose or purposes for which the meeting is called. If notice is given by mail,
such notice shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholders address as it appears on the
records of the corporation. If notice is given by electronic transmission, such notice shall be
deemed given at the time specified in Section 232 of the General Corporation Law of the State of
Delaware.
1.5 Voting List. The Secretary shall prepare, at least 10 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 10 days prior to the meeting: (a)
on a reasonably accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or (b) during ordinary business
hours, at the principal place of business of the corporation. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. The list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by each of them.
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or
these By-laws, the holders of a majority in voting power of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote at the meeting, present in person, present
by means of remote communication in a manner, if any, authorized by the Board of Directors in its
sole discretion, or represented by proxy, shall constitute a quorum for the transaction of
business; provided, however, that where a separate vote by a class or classes or series of capital
stock is required by law or the Certificate of Incorporation, the holders of a majority in voting
power of the shares of such class or classes or series of the capital stock of the corporation
issued and outstanding and entitled to vote on such matter, present in person, present by means of
remote communication in a manner, if any, authorized by the Board of Directors in its sole
discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect
to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the
withdrawal of enough votes to leave less than a quorum.
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1.7 Adjournments. Any meeting of stockholders may be adjourned from time to time to
any other time and to any other place at which a meeting of stockholders may be held under these
By-laws by the chairman of the meeting or by the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum. It shall not be necessary to notify any
stockholder of any adjournment of less than 30 days if the time and place of the adjourned meeting,
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 adjourned meeting, are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the corporation may transact any business which might have been
transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share of stock
entitled to vote held of record by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided by law or the Certificate of Incorporation. Each
stockholder of record entitled to vote at a meeting of stockholders may vote in person (including
by means of remote communications, if any, by which stockholders may be deemed to be present in
person and vote at such meeting) or may authorize another person or persons to vote for such
stockholder by a proxy executed or transmitted in a manner permitted by the General Corporation Law
of the State of Delaware by the stockholder or such stockholders authorized agent and delivered
(including by electronic transmission) to the Secretary of the corporation. No such proxy shall be
voted upon after three years from the date of its execution, unless the proxy expressly provides
for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, any matter other than
the election of directors to be voted upon by the stockholders at such meeting shall be decided by
the vote of the holders of shares of stock having a majority in voting power of the votes cast by
the holders of all of the shares of stock present or represented at the meeting and voting
affirmatively or negatively on such matter (or if there are two or more classes or series of stock
entitled to vote as separate classes, then in the case of each such class or series, the holders of
a majority in voting power of the shares of stock of that class or series present or represented at
the meeting and voting affirmatively or negatively on such matter), except when a different vote is
required by law, the Certificate of Incorporation or these By-laws. When a quorum is
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present at any meeting, any election by stockholders of directors shall be determined by a
plurality of the votes cast by the stockholders entitled to vote on the election.
1.10 Nomination of Directors.
(a) Except for (1) any directors entitled to be elected by the holders of preferred stock,
(2) any directors elected in accordance with Section 2.9 hereof by the Board of Directors to fill
a vacancy or newly-created directorship or (3) as otherwise required by applicable law or stock
exchange regulation, at any meeting of stockholders, only persons who are nominated in accordance
with the procedures in this Section 1.10 shall be eligible for election as directors. Nomination
for election to the Board of Directors at a meeting of stockholders may be made (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the corporation who (x) timely
complies with the notice procedures in Section 1.10(b), (y) is a stockholder of record on the date
of the giving of such notice and on the record date for the determination of stockholders entitled
to vote at such meeting and (z) is entitled to vote at such meeting.
(b) To be timely, a stockholders notice must be received in writing by the Secretary at the
principal executive offices of the corporation as follows: (i) in the case of an election of
directors at an annual meeting of stockholders, not less than 90 days nor more than 120 days prior
to the first anniversary of the preceding years annual meeting; provided, however, that (x) in
the case of the annual meeting of stockholders of the corporation to be held in 2011 or (y) in the
event that the date of the annual meeting in any other year is advanced by more than 20 days, or
delayed by more than 60 days, from the first anniversary of the preceding years annual meeting, a
stockholders notice must be so received not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of (A) the 90th day prior to such
annual meeting and (B) the tenth day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was made, whichever
first occurs; or (ii) in the case of an election of directors at a special meeting of
stockholders, provided that the Board of Directors, the Chairman of the Board or the Chief
Executive Officer has determined, in accordance with Section 1.3, that directors shall be elected
at such special meeting and provided further that the nomination made by the
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stockholder is for one of the director positions that the Board of Directors, the Chairman of
the Board or the Chief Executive Officer, as the case may be, has determined will be filled at
such special meeting, not earlier than the 120th day prior to such special meeting and not later
than the close of business on the later of (x) the 90th day prior to such special meeting and (y)
the tenth day following the day on which notice of the date of such special meeting was mailed or
public disclosure of the date of such special meeting was made, whichever first occurs. In no
event shall the adjournment or postponement of a meeting (or the public disclosure thereof)
commence a new time period (or extend any time period) for the giving of a stockholders notice.
The stockholders notice to the Secretary shall set forth: (A) as to each proposed nominee (1)
such persons name, age, business address and, if known, residence address, (2) such persons
principal occupation or employment, (3) the class and series and number of shares of stock of the
corporation that are, directly or indirectly, owned, beneficially or of record, by such person, (4)
a description of all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and any other material relationships,
between or among (x) the stockholder, the beneficial owner, if any, on whose behalf the nomination
is being made and the respective affiliates and associates of, or others acting in concert with,
such stockholder and such beneficial owner, on the one hand, and (y) each proposed nominee, and his
or her respective affiliates and associates, or others acting in concert with such nominee(s), on
the other hand, including all information that would be required to be disclosed pursuant to Item
404 of Regulation S-K if the stockholder making the nomination and any beneficial owner on whose
behalf the nomination is made or any affiliate or associate thereof or person acting in concert
therewith were the registrant for purposes of such Item and the proposed nominee were a director
or executive officer of such registrant, and (5) any other information concerning such person that
must be disclosed as to nominees in proxy solicitations pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the Exchange Act); and (B) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the nomination is being made
(1) the name and address of such stockholder, as they appear on the corporations books, and of
such beneficial owner, (2) the class and series and number of shares of stock of the corporation
that are, directly or indirectly, owned, beneficially or of record, by such stockholder and such
beneficial owner, (3) a
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description of any agreement, arrangement or understanding between or among such stockholder
and/or such beneficial owner and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are being made or who may participate in the
solicitation of proxies in favor of electing such nominee(s), (4) a description of any agreement,
arrangement or understanding (including any derivative or short positions, swaps, profit interests,
options, warrants, convertible securities, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into by, or on behalf of, such
stockholder or such beneficial owner, the effect or intent of which is to mitigate loss to, manage
risk or benefit of share price changes for, or increase or decrease the voting power of, such
stockholder or such beneficial owner with respect to shares of stock of the corporation, (5) any
other information relating to such stockholder and such beneficial owner that would be required to
be disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for the election of directors in a contested election pursuant to Section
14 of the Exchange Act and the rules and regulations promulgated thereunder, (6) a representation
that such stockholder intends to appear in person or by proxy at the meeting to nominate the
person(s) named in its notice and (7) a representation whether such stockholder and/or such
beneficial owner intends or is part of a group which intends (x) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the corporations outstanding capital
stock reasonably believed by such stockholder or such beneficial owner to be sufficient to elect
the nominee (and such representation shall be included in any such proxy statement and form of
proxy) and/or (y) otherwise to solicit proxies from stockholders in support of such nomination (and
such representation shall be included in any such solicitation materials). Not later than 10 days
after the record date for the meeting, the information required by Items (A)(1)-(5) and (B)(1)-(5)
of the prior sentence shall be supplemented by the stockholder giving the notice to provide updated
information as of the record date. In addition, to be effective, the stockholders notice must be
accompanied by the written consent of the proposed nominee to serve as a director if elected. The
corporation may require any proposed nominee to furnish such other information as the corporation
may reasonably require to determine the eligibility of such proposed nominee to serve as a director
of the corporation or whether such nominee would be independent under applicable Securities and
Exchange Commission and stock exchange rules and the corporations publicly disclosed
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corporate governance guidelines. A stockholder shall not have complied with this Section
1.10(b) if the stockholder (or beneficial owner, if any, on whose behalf the nomination is made)
solicits or does not solicit, as the case may be, proxies in support of such stockholders nominee
in contravention of the representations with respect thereto required by this Section 1.10.
(c) The chairman of any meeting shall have the power and duty to determine whether a
nomination was made in accordance with the provisions of this Section 1.10 (including whether the
stockholder or beneficial owner, if any, on whose behalf the nomination is made solicited (or is
part of a group which solicited) or did not so solicit, as the case may be, proxies in support of
such stockholders nominee in compliance with the representations with respect thereto required by
this Section 1.10), and if the chairman should determine that a nomination was not made in
accordance with the provisions of this Section 1.10, the chairman shall so declare to the meeting
and such nomination shall not be brought before the meeting.
(d) Except as otherwise required by law, nothing in this Section 1.10 shall obligate the
corporation or the Board of Directors to include in any proxy statement or other stockholder
communication distributed on behalf of the corporation or the Board of Directors information with
respect to any nominee for director submitted by a stockholder.
(e) Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required
by law, if the stockholder (or a qualified representative of the stockholder) does not appear at
the meeting to present a nomination, such nomination shall not be brought before the meeting,
notwithstanding that proxies in respect of such nominee may have been received by the corporation.
For purposes of this Section 1.10, to be considered a qualified representative of the
stockholder, a person must be authorized by a written instrument executed by such stockholder or
an electronic transmission delivered by such stockholder to act for such stockholder as proxy at
the meeting of stockholders and such person must produce such written instrument or electronic
transmission, or a reliable reproduction of the written instrument or electronic transmission, at
the meeting of stockholders.
(f) For purposes of this Section 1.10, public disclosure shall include disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
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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.
1.11 Notice of Business at Annual Meetings.
(a) At any annual meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (1) specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (2) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (3) properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a stockholder, (i)
if such business relates to the nomination of a person for election as a director of the
corporation, the procedures in Section 1.10 must be complied with and (ii) if such business
relates to any other matter, the business must constitute a proper matter under Delaware law for
stockholder action and the stockholder must (x) have given timely notice thereof in writing to the
Secretary in accordance with the procedures in Section 1.11(b), (y) be a stockholder of record on
the date of the giving of such notice and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (z) be entitled to vote at such annual meeting.
(b) To be timely, a stockholders notice must be received in writing by the Secretary at the
principal executive offices of the corporation not less than 90 days nor more than 120 days prior
to the first anniversary of the preceding years annual meeting; provided, however, that (x) in
the case of the annual meeting of stockholders of the corporation to be held in 2011 or (y) in the
event that the date of the annual meeting in any other year is advanced by more than 20 days, or
delayed by more than 60 days, from the first anniversary of the preceding years annual meeting, a
stockholders notice must be so received not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of (A) the 90th day prior to such
annual meeting and (B) the tenth day following the day on which notice of the date of such annual
meeting was mailed or public disclosure of the date of such annual meeting was made, whichever
first occurs. In no event shall the adjournment or postponement of an
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annual meeting (or the public disclosure thereof) commence a new time period (or extend any
time period) for the giving of a stockholders notice.
The stockholders notice to the Secretary shall set forth: (A) as to each matter the
stockholder proposes to bring before the annual meeting (1) a brief description of the business
desired to be brought before the annual meeting, (2) the text of the proposal (including the exact
text of any resolutions proposed for consideration and, in the event that such business includes a
proposal to amend the By-laws, the exact text of the proposed amendment), and (3) the reasons for
conducting such business at the annual meeting, and (B) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the proposal is being made (1) the name and address
of such stockholder, as they appear on the corporations books, and of such beneficial owner, (2)
the class and series and number of shares of stock of the corporation that are, directly or
indirectly, owned, beneficially or of record, by such stockholder and such beneficial owner, (3) a
description of any material interest of such stockholder or such beneficial owner and the
respective affiliates and associates of, or others acting in concert with, such stockholder or such
beneficial owner in such business, (4) a description of any agreement, arrangement or understanding
between or among such stockholder and/or such beneficial owner and any other person or persons
(including their names) in connection with the proposal of such business or who may participate in
the solicitation of proxies in favor of such proposal, (5) a description of any agreement,
arrangement or understanding (including any derivative or short positions, swaps, profit interests,
options, warrants, convertible securities, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into by, or on behalf of, such
stockholder or such beneficial owner, the effect or intent of which is to mitigate loss to, manage
risk or benefit of share price changes for, or increase or decrease the voting power of, such
stockholder or such beneficial owner with respect to shares of stock of the corporation, (6) any
other information relating to such stockholder and such beneficial owner that would be required to
be disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for the business proposed pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder, (7) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such business before the
meeting and (8) a representation whether such stockholder and/or such beneficial owner intends or
is part of a group which intends (x) to deliver a proxy statement
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and/or form of proxy to holders of at least the percentage of the corporations outstanding
capital stock required to approve or adopt the proposal (and such representation shall be included
in any such proxy statement and form of proxy) and/or (y) otherwise to solicit proxies from
stockholders in support of such proposal (and such representation shall be included in any such
solicitation materials). Not later than 10 days after the record date for the meeting, the
information required by Items (A)(3) and (B)(1)-(6) of the prior sentence shall be supplemented by
the stockholder giving the notice to provide updated information as of the record date.
Notwithstanding anything in these By-laws to the contrary, no business shall be conducted at any
annual meeting of stockholders except in accordance with the procedures in this Section 1.11;
provided that any stockholder proposal which complies with Rule 14a-8 of the proxy rules (or any
successor provision) promulgated under the Exchange Act and is to be included in the corporations
proxy statement for an annual meeting of stockholders shall be deemed to comply with the notice
requirements of this Section 1.11. A stockholder shall not have complied with this Section 1.11(b)
if the stockholder (or beneficial owner, if any, on whose behalf the proposal is made) solicits or
does not solicit, as the case may be, proxies in support of such stockholders proposal in
contravention of the representations with respect thereto required by this Section 1.11.
(c) The chairman of any annual meeting shall have the power and duty to determine whether
business was properly brought before the annual meeting in accordance with the provisions of this
Section 1.11 (including whether the stockholder or beneficial owner, if any, on whose behalf the
proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholders proposal in compliance with the
representation with respect thereto required by this Section 1.11), and if the chairman should
determine that business was not properly brought before the annual meeting in accordance with the
provisions of this Section 1.11, the chairman shall so declare to the meeting and such business
shall not be brought before the annual meeting.
(d) Except as otherwise required by law, nothing in this Section 1.11 shall obligate the
corporation or the Board of Directors to include in any proxy statement or other stockholder
communication distributed on behalf of the corporation or the Board of Directors information with
respect to any proposal submitted by a stockholder.
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(e) Notwithstanding the foregoing provisions of this Section 1.11, unless otherwise
required by law, if the stockholder (or a qualified representative of the stockholder) does not
appear at the annual meeting to present business, such business shall not be considered,
notwithstanding that proxies in respect of such business may have been received by the
corporation.
(f) For purposes of this Section 1.11, the terms qualified representative of the
stockholder and public disclosure shall have the same meaning as in Section 1.10.
1.12 Conduct of Meetings.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or
in the Chairmans absence by the Vice Chairman of the Board, if any, or in the Vice Chairmans
absence by the Chief Executive Officer, or in the Chief Executive Officers absence, by the
President, or in the Presidents absence by a Vice President, or in the absence of all of the
foregoing persons by a chairman designated by the Board of Directors. The Secretary shall act as
secretary of the meeting, but in the Secretarys absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
(b) The Board of Directors may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the corporation as it shall deem appropriate
including, without limitation, such guidelines and procedures as it may deem appropriate regarding
the participation by means of remote communication of stockholders and proxyholders not physically
present at a meeting. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall
have the right and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to stockholders of record of the corporation, their duly
authorized and constituted proxies or such other persons as
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shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
(c) The chairman of the meeting shall announce at the meeting when the polls for each matter
to be voted upon at the meeting will be opened and closed. After the polls close, no ballots,
proxies or votes or any revocations or changes thereto may be accepted.
(d) In advance of any meeting of stockholders, the Board of Directors, the Chairman of the
Board, the Chief Executive Officer or the President shall appoint one or more inspectors of
election to act at the meeting and make a written report thereof. One or more other persons may
be designated as alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is present, ready and willing to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required
by law, inspectors may be officers, employees or agents of the corporation. Each inspector,
before entering upon the discharge of such inspectors duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best
of such inspectors ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the vote is completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by law. Every vote taken by ballots shall
be counted by a duly appointed inspector or duly appointed inspectors.
1.13 No Action by Consent in Lieu of a Meeting. Stockholders of the corporation may
not take any action by written consent in lieu of a meeting.
ARTICLE II
DIRECTORS
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2.1 General Powers. The business and affairs of the corporation shall be managed by
or under the direction of a Board of Directors, who may exercise all of the powers of the
corporation except as otherwise provided by law or the Certificate of Incorporation.
2.2 Number, Election and Qualification. Subject to the rights of holders of any
series of Preferred Stock to elect directors, the number of directors of the corporation shall be
established by the Board of Directors. Election of directors need not be by written ballot.
Directors need not be stockholders of the corporation.
2.3 Chairman of the Board; Vice Chairman of the Board. The Board of Directors may
appoint from its members a Chairman of the Board and a Vice Chairman of the Board, neither of whom
need be an employee or officer of the corporation. If the Board of Directors appoints a Chairman
of the Board, such Chairman shall perform such duties and possess such powers as are assigned by
the Board of Directors and, if the Chairman of the Board is also designated as the corporations
Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed
in Section 3.7 of these By-laws. If the Board of Directors appoints a Vice Chairman of the Board,
such Vice Chairman shall perform such duties and possess such powers as are assigned by the Board
of Directors. Unless otherwise provided by the Board of Directors, the Chairman of the Board or,
in the Chairmans absence, the Vice Chairman of the Board, if any, shall preside at all meetings of
the Board of Directors.
2.4 Classes of Directors. Subject to the rights of holders of any series of Preferred
Stock to elect directors, the Board of Directors shall be and is divided into three classes: Class
I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors. The allocation of
directors among classes shall be determined by resolution of the Board of Directors.
2.5 Terms of Office. Subject to the rights of holders of any series of Preferred
Stock to elect directors, each director shall serve for a term ending on the date of the third
annual meeting of stockholders following the annual meeting of stockholders at which such director
was elected; provided that each director initially assigned to Class I shall serve for a term
expiring at the corporations first annual meeting of stockholders held after the effectiveness of
these Amended and Restated By-laws; each director initially assigned to Class II shall serve for a
term
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expiring at the corporations second annual meeting of stockholders held after the
effectiveness of these Amended and Restated By-laws; and each director initially assigned to Class
III shall serve for a term expiring at the corporations third annual meeting of stockholders held
after the effectiveness of these Amended and Restated By-laws; provided further, that the term of
each director shall continue until the election and qualification of his or her successor and be
subject to his or her earlier death, resignation or removal.
2.6 Quorum. The greater of (a) a majority of the directors at any time in office and
(b) one-third of the number of directors established by the Board of Directors pursuant to Section
2.2 of these By-laws shall constitute a quorum of the Board of Directors. If at any meeting of the
Board of Directors there shall be less than such a quorum, a majority of the directors present may
adjourn the meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.7 Action at Meeting. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be regarded as the act
of the Board of Directors, unless a greater number is required by law or by the Certificate of
Incorporation.
2.8 Removal. Subject to the rights of holders of any series of Preferred Stock,
directors of the corporation may be removed only for cause and only by the affirmative vote of the
holders of at least 75% of the votes which all the stockholders would be entitled to cast in any
annual election of directors or class of directors.
2.9 Vacancies. Subject to the rights of holders of any series of Preferred Stock, any
vacancy or newly-created directorship on the Board of Directors, however occurring, shall be filled
only by vote of a majority of the directors then in office, although less than a quorum, or by a
sole remaining director and shall not be filled by the stockholders. A director elected to fill a
vacancy shall hold office until the next election of the class for which such director shall have
been chosen, subject to the election and qualification of a successor or until such directors
earlier death, resignation or removal.
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2.10 Resignation. Any director may resign by delivering a resignation in writing or
by electronic transmission to the corporation at its principal office or to the Chairman of the
Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be
effective upon delivery unless it is specified to be effective at some later time or upon the
happening of some later event.
2.11 Regular Meetings. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall be given notice of
the determination. A regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of stockholders.
2.12 Special Meetings. Special meetings of the Board of Directors may be held at any
time and place designated in a call by the Chairman of the Board, the Chief Executive Officer, the
President, two or more directors, or by one director in the event that there is only a single
director in office.
2.13 Notice of Special Meetings. Notice of the date, place and time of any special
meeting of directors shall be given to each director by the Secretary or by the officer or one of
the directors calling the meeting. Notice shall be duly given to each director (a) in person or by
telephone at least 24 hours in advance of the meeting, (b) by sending written notice by reputable
overnight courier, telecopy, facsimile or electronic transmission, or delivering written notice by
hand, to such directors last known business, home or electronic transmission address at least 48
hours in advance of the meeting, or (c) by sending written notice by first-class mail to such
directors last known business or home address at least 72 hours in advance of the meeting. A
notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of
the meeting.
2.14 Meetings by Conference Communications Equipment. Directors may participate in
meetings of the Board of Directors or any committee thereof by means of conference telephone or
other communications equipment by means of which all persons participating in the meeting can hear
each other, and participation by such means shall constitute presence in person at such meeting.
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2.15 Action by Consent. Any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a meeting, if all
members of the Board of Directors or committee, as the case may be, consent to the action in
writing or by electronic transmission, and the written consents or electronic transmissions are
filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
2.16 Committees. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the corporation with such lawfully
delegable powers and duties as the Board of Directors thereby confers, to serve at the pleasure of
the Board of Directors. 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 the
committee. In the absence or disqualification of a member of a committee, the member or members of
the committee present at any meeting and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member. Any such committee, to
the extent provided in the resolution of the Board of Directors and subject to the provisions of
law, shall have and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation and may authorize the seal of the
corporation to be affixed to all papers which may require it. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time request. Except as
the Board of Directors may otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its business shall be
conducted as nearly as possible in the same manner as is provided in these By-laws for the Board of
Directors. Except as otherwise provided in the Certificate of Incorporation, these By-laws, or the
resolution of the Board of Directors designating the committee, a committee may create one or more
subcommittees, each subcommittee to consist of one or more members of the committee, and delegate
to a subcommittee any or all of the powers and authority of the committee.
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2.17 Compensation of Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the Board of Directors
may from time to time determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary entities in any other capacity and receiving
compensation for such service.
ARTICLE III
OFFICERS
3.1 Titles. The officers of the corporation shall consist of a Chief Executive
Officer, a President, a Secretary, a Treasurer and such other officers with such other titles as
the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers
and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem
appropriate.
3.2 Election. The Chief Executive Officer, President, Treasurer and Secretary shall
be elected annually by the Board of Directors at its first meeting following the annual meeting of
stockholders. Other officers may be appointed by the Board of Directors at such meeting or at any
other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices may be
held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of Incorporation
or by these By-laws, each officer shall hold office until such officers successor is elected and
qualified, unless a different term is specified in the resolution electing or appointing such
officer, or until such officers earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering a written
resignation to the corporation at its principal office or to the Chief Executive Officer, the
President or the Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some later time or upon the happening of some later event. Any
officer may be removed at any time, with or without cause, by vote of a majority of the directors
then in office.
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Except as the Board of Directors may otherwise determine, no officer who resigns or is removed
shall have any right to any compensation as an officer for any period following such officers
resignation or removal, or any right to damages on account of such removal, whether such officers
compensation be by the month or by the year or otherwise, unless such compensation is expressly
provided for in a duly authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any office
for any reason and may, in its discretion, leave unfilled for such period as it may determine any
offices other than those of Chief Executive Officer, President, Treasurer and Secretary. Each such
successor shall hold office for the unexpired term of such officers predecessor and until a
successor is elected and qualified, or until such officers earlier death, resignation or removal.
3.7 President; Chief Executive Officer. Unless the Board of Directors has designated
another person as the corporations Chief Executive Officer, the President shall be the Chief
Executive Officer of the corporation. The Chief Executive Officer shall have general charge and
supervision of the business of the corporation subject to the direction of the Board of Directors,
and shall perform all duties and have all powers that are commonly incident to the office of chief
executive or that are delegated to such officer by the Board of Directors. The President shall
perform such other duties and shall have such other powers as the Board of Directors or the Chief
Executive Officer (if the President is not the Chief Executive Officer) may from time to time
prescribe. In the event of the absence, inability or refusal to act of the Chief Executive Officer
or the President (if the President is not the Chief Executive Officer), the Vice President (or if
there shall be more than one, the Vice Presidents in the order determined by the Board of
Directors) shall perform the duties of the Chief Executive Officer and when so performing such
duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive
Officer.
3.8 Vice Presidents. Each Vice President shall perform such duties and possess such
powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
The Board of Directors may assign to any Vice President the title of Executive Vice President,
Senior Vice President or any other title selected by the Board of Directors.
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3.9 Secretary and Assistant Secretaries. The Secretary shall perform such duties and
shall have such powers as the Board of Directors or the Chief Executive Officer may from time to
time prescribe. In addition, the Secretary shall perform such duties and have such powers as are
incident to the office of the secretary, including without limitation the duty and power to give
notices of all meetings of stockholders and special meetings of the Board of Directors, to attend
all meetings of stockholders and the Board of Directors and keep a record of the proceedings, to
maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be
custodian of corporate records and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and possess such powers as the Board of
Directors, the Chief Executive Officer or the Secretary may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if
there shall be more than one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or
directors, the chairman of the meeting shall designate a temporary secretary to keep a record of
the meeting.
3.10 Treasurer and Assistant Treasurers. The Treasurer shall perform such duties and
shall have such powers as may from time to time be assigned by the Board of Directors or the Chief
Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as
are incident to the office of treasurer, including without limitation the duty and power to keep
and be responsible for all funds and securities of the corporation, to deposit funds of the
corporation in depositories selected in accordance with these By-laws, to disburse such funds as
ordered by the Board of Directors, to make proper accounts of such funds, and to render as required
by the Board of Directors statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess such powers as the Board of
Directors, the Chief Executive Officer or the Treasurer may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if
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there shall be more than one, the Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Treasurer.
3.11 Salaries. Officers of the corporation shall be entitled to such salaries,
compensation or reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
3.12 Delegation of Authority. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officer or agent, notwithstanding any provision
hereof.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. Subject to the provisions of the Certificate of Incorporation,
the whole or any part of any unissued balance of the authorized capital stock of the corporation or
the whole or any part of any shares of the authorized capital stock of the corporation held in the
corporations treasury may be issued, sold, transferred or otherwise disposed of by vote of the
Board of Directors in such manner, for such lawful consideration and on such terms as the Board of
Directors may determine.
4.2 Stock Certificates; Uncertificated Shares. The shares of the corporation shall be
represented by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of the corporations stock shall be
uncertificated shares. Every holder of stock of the corporation represented by certificates shall
be entitled to have a certificate, in such form as may be prescribed by law and by the Board of
Directors, representing the number of shares held by such holder registered in certificate form.
Each such certificate shall be signed in a manner that complies with Section 158 of the General
Corporation Law of the State of Delaware.
Each certificate for shares of stock which are subject to any restriction on transfer pursuant
to the Certificate of Incorporation, these By-laws, applicable securities laws or any agreement
among any number of stockholders or among such holders and the corporation shall
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have conspicuously noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
If the corporation shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative participating, optional or
other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights shall be set forth in full or summarized on the
face or back of each certificate representing shares of such class or series of stock, provided
that in lieu of the foregoing requirements there may be set forth on the face or back of each
certificate representing shares of such class or series of stock a statement that the corporation
will furnish without charge to each stockholder who so requests a copy of the full text of the
powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated shares, the
corporation shall send to the registered owner thereof a written notice containing the information
required to be set forth or stated on certificates pursuant to Sections 151, 202(a) or 218(a) of
the General Corporation Law of the State of Delaware or, with respect to Section 151 of General
Corporation Law of the State of Delaware, a statement that the corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
4.3 Transfers. Shares of stock of the corporation shall be transferable in the manner
prescribed by law and in these By-laws. Transfers of shares of stock of the corporation shall be
made only on the books of the corporation or by transfer agents designated to transfer shares of
stock of the corporation. Subject to applicable law, shares of stock represented by certificates
shall be transferred only on the books of the corporation by the surrender to the corporation or
its transfer agent of the certificate representing such shares properly endorsed or accompanied by
a written assignment or power of attorney properly executed, and with such proof of authority or
the authenticity of signature as the corporation or its transfer agent may reasonably require.
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Except as may be otherwise required by law, by the Certificate of Incorporation or by these
By-laws, the corporation shall be entitled to treat the record holder of stock as shown on its
books as the owner of such stock for all purposes, including the payment of dividends and the right
to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such
stock until the shares have been transferred on the books of the corporation in accordance with the
requirements of these By-laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to have been lost,
stolen or destroyed, upon such terms and conditions as the Board of Directors may prescribe,
including the presentation of reasonable evidence of such loss, theft or destruction and the giving
of such indemnity and posting of such bond as the Board of Directors may require for the protection
of the corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a record date
for the determination of the stockholders entitled to notice of or to vote at any meeting of
stockholders, or entitled to receive payment of any dividend or other distribution or allotment of
any rights in respect of any change, conversion or exchange of stock, or for the purpose of any
other lawful action. Such record date shall not precede the date on which the resolution fixing
the record date is adopted, and such record date shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other action to which such
record date relates.
If no record date is fixed, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the day before the day
on which notice is given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. If no record date is fixed, the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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4.6 Regulations. The issue, transfer, conversion and registration of shares of stock
of the corporation shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE V
GENERAL PROVISIONS
5.1 Fiscal Year. Except as from time to time otherwise designated by the Board of
Directors, the fiscal year of the corporation shall begin on the first day of January of each year
and end on the last day of December in each year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be approved by
the Board of Directors.
5.3 Waiver of Notice. Whenever notice is required to be given by law, by the
Certificate of Incorporation or by these By-laws, a written waiver signed by the person entitled to
notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at
or after the time of the event for which notice is to be given, shall be deemed equivalent to
notice required to be given to such person. Neither the business nor the purpose of any meeting
need be specified in any such waiver. 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.
5.4 Voting of Securities. Except as the Board of Directors may otherwise designate,
the Chief Executive Officer, the President or the Treasurer may waive notice of, vote, or appoint
any person or persons to vote, on behalf of the corporation at, and act as, or appoint any person
or persons to act as, proxy or attorney-in-fact for this corporation (with or without power of
substitution) at, any meeting of stockholders or securityholders of any other entity, the
securities of which may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary,
or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or
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any officer or representative of the corporation shall as to all persons who rely on the
certificate in good faith be conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-laws to the Certificate
of Incorporation shall be deemed to refer to the Certificate of Incorporation of the corporation,
as amended and in effect from time to time.
5.7 Severability. Any determination that any provision of these By-laws is for any
reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of
these By-laws.
5.8 Pronouns. All pronouns used in these By-laws shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person or persons may
require.
ARTICLE VI
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or new By-laws may be
adopted by the Board of Directors or by the stockholders as provided in the Certificate of
Incorporation.
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