Exhibit 3.1
BYLAWS
OF
SOUTHWESTERN ENERGY COMPANY
(A Delaware Corporation)
As Amended and Restated Effective February 23, 2012
BYLAWS
OF
SOUTHWESTERN ENERGY COMPANY
(hereinafter called the “Corporation”)
ARTICLE I
OFFICES
1.1
Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
1.2
Other Offices. The Corporation may also have offices
at such other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1
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.
2.2
Annual Meetings. The Annual Meeting of Stockholders
of the Corporation (the “Annual Meeting”) for the election of directors shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors. Any other proper business may be transacted at the
Annual Meeting.
2.3
Nature of Business at Meetings of Stockholders. No
business may be transacted at an Annual Meeting, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the Annual Meeting by
or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the Annual Meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 2.3 and on the record date
for the determination of stockholders entitled to notice of and to vote at such
Annual Meeting and (ii) who complies with the notice procedures set forth in
this Section 2.3. Clause (c) of the immediately preceding sentence
shall be the exclusive means for a stockholder to make business proposals (other
than director nominations made in accordance with Section 2.4 and other than
matters properly brought under Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and included
in the Corporation’s notice of meeting) before an Annual Meeting.
At any meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. For
business to be properly brought before a meeting by a stockholder, the
stockholder must have given timely notice thereof (and timely updates and
supplements thereto) in proper written form to the Secretary of the Corporation
and such other business must otherwise be a proper matter for stockholder
action. To be timely, such notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
fifty (50) nor more than seventy-five (75) days prior to the meeting date;
provided, however, that in the event that less than forty-five
(45) days' notice of the meeting date is given to stockholders, notice by the
stockholder must be so received no later than the close of business on the 15th
day following the day on which notice of the meeting date was first mailed.
In no event shall any adjournment or postponement of a meeting, or the
giving of any notice thereof, commence a new time period for the giving of a
stockholder’s notice as described above.
In addition, to be timely, a stockholder’s notice shall further be
updated and supplemented, if necessary, so that the information provided or
required to be provided in such notice shall be true and correct as of the
record date for the meeting and as of the date that is ten (10) business days
prior to the meeting or any adjournment or postponement thereof, and such update
and supplement shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than 5 business days after the record date
for the meeting in the case of the update and supplement required to be made as
of the record date, and not later than eight (8) business days prior to the date
for the meeting, or any adjournment or postponement thereof, in the case of the
update and supplement required to be made as of ten (10) business days prior to
the meeting or any adjournment or postponement thereof.
To be in proper form, a stockholder's notice given pursuant to
this Section 2.3 shall set forth, as to the stockholder giving the notice and
each beneficial owner, if any, on whose behalf the proposal is made: (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting and the text of the proposal
or business (including the text of any resolutions proposed for consideration
and, in the event that such business includes a proposal to amend the Bylaws,
the language of the proposed amendment), (ii) the name and address of the
stockholder proposing such business, as they appear on the Corporation’s books,
and of such beneficial owner, (iii) (A) the class and number of shares of
capital stock of the Corporation that are, directly or indirectly, owned
beneficially or of record by such stockholder, such beneficial owner or any of
their respective affiliates or associates or others acting in concert therewith,
(B) any option, warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a settlement payment
or mechanism at a price related to any class or series of shares of the
Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, or any derivative or synthetic
arrangement having the characteristics of a long position in any class or series
of shares of the Corporation, or any contract, derivative, swap or other
transaction or series of transactions designed to produce economic benefits and
risks that correspond substantially to the ownership of any class or series of
shares of the Corporation, including due to the fact that the value of such
contract, derivative, swap or other transaction or
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series of transactions is determined by reference to the
price, value or volatility of any class or series of shares of the Corporation,
whether or not such instrument, contract or right shall be subject to settlement
in the underlying class or series of shares of the Corporation, through the
delivery of cash or other property, or otherwise, and without regard of whether
the stockholder of record, the beneficial owner, if any, or any affiliates or
associates or others acting in concert therewith, may have entered into
transactions that hedge or mitigate the economic effect of such instrument,
contract or right or any other direct or indirect opportunity to profit or share
in any profit derived from any increase or decrease in the value of shares of
the Corporation (any of the foregoing, a “Derivative Instrument”) directly or
indirectly owned beneficially by such stockholder or beneficial owner, or any of
their respective affiliates or associates or others acting in concert therewith,
(C) any proxy, contract, arrangement, understanding, or relationship pursuant to
which such stockholder or beneficial owner, or any of their respective
affiliates or associates or others acting in concert therewith has a right to
vote any class or series of shares of the Corporation, (D) any agreement,
arrangement, understanding, relationship or otherwise, including any repurchase
or similar so-called “stock borrowing” agreement or arrangement, engaged in,
directly or indirectly, by such stockholder or beneficial owner, or any of their
respective affiliates or associates or persons acting in concert therewith, the
purpose or effect of which is to mitigate loss to, reduce the economic risk (of
ownership or otherwise) of any class or series of the shares of the Corporation
by, manage the risk of share price changes for, or increase or decrease the
voting power of, such stockholder with respect to any class or series of the
shares of the Corporation, or which provides, directly or indirectly, the
opportunity to profit or share in any profit derived from any decrease in the
price or value of any class or series of the shares of the Corporation (any of
the foregoing, “Short Interests”), (E) any rights to dividends on the shares of
the Corporation owned beneficially by such stockholder or beneficial owner that
are separated or separable from the underlying shares of the Corporation, (F)
any proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited partnership in
which such stockholder or beneficial owner, or any of their respective
affiliates or associates or others acting in concert therewith, is a general
partner or, directly or indirectly, beneficially owns an interest in a general
partner of such general or limited partnership, and (G) any performance-related
fees (other than an asset-based fee) that such stockholder or beneficial owner,
or any of their respective affiliates or associates or others acting in concert
therewith is entitled to based on any increase or decrease in the value of
shares of the Corporation or Derivative Instruments, if any, including any such
interests held by members of such person’s immediate family sharing the same
household, (iv) a description of all arrangements or understandings between such
stockholder or beneficial owner, or any of their respective affiliates or
associates or others acting in concert therewith, and any other person or
persons (including their names) in connection with the proposal of such business
and any material interest of such stockholder or beneficial owner, or any of
their respective affiliates or associates or others acting in concert therewith,
in such business, (v) to the extent not required by clauses (ii) through (iv),
any disclosures that would be required pursuant to Item 5 or Item 6 of Schedule
13D under the Exchange Act if the requirements therein were applicable to such
stockholder and such beneficial owner and any other information relating to such
stockholder and beneficial owner that would be required to be disclosed in a
proxy statement and form of proxy or other filings required to be made in
connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder and (vi) a
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representation that such stockholder intends to appear in
person or by proxy at the meeting to bring such business before the meeting.
The presiding officer of the meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting in
accordance with the foregoing procedure and, if he should so determine, he may
so declare to the meeting and any such business not properly brought shall not
be transacted. Notwithstanding the provisions of this paragraph or of
Section 2.14, so long as the Corporation is subject to Rule 14a-8 under the
Exchange Act, business consisting of a proposal properly included in the
Corporation's proxy statement with respect to a meeting pursuant to such Rule
may be transacted at a meeting, provided that the stockholder making such
proposal complies with the requirements of such rule, including paragraph (h)
thereof.
2.4
Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Corporation, except as may be otherwise provided in
the Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances and except as provided in Section 3.2 of
these Bylaws. Nominations of persons for election to the Board of
Directors at any Annual Meeting, or at any Special Meeting of Stockholders
called for the purpose of electing directors, may be made (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the Corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 2.4 and on
the record date for the determination of stockholders entitled to notice of and
to vote at such meeting and (ii) who complies with the notice procedures set
forth in this Section 2.4. Clause (b) of the immediately preceding
sentence shall be the exclusive means for a stockholder to make director
nominations before an Annual Meeting or Special Meeting of stockholders.
At any meeting of stockholders, only such director nominations
shall be considered as shall have been properly brought before the meeting.
In addition to any other applicable requirements, for a nomination to be
properly brought before a meeting of stockholders by a stockholder pursuant to
clause (b) of the immediately preceding paragraph, such stockholder must have
given timely notice thereof (and timely updates and supplements thereto) in
proper written form to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than fifty (50) nor more
than seventy-five (75) days prior to the meeting date; provided,
however, that in the event that less than forty-five (45) days’ notice of
the meeting date is given to stockholders, notice by the stockholder must be so
received no later than the close of business on the fifteenth (15th)
day following the day on which notice of the meeting date was first mailed.
In no event shall any adjournment or postponement of a meeting, or the
giving of any notice thereof, commence a new time period for the giving of a
stockholder’s notice as described above.
In addition, to be timely, a stockholder’s notice shall further be
updated and supplemented, if necessary, so that the information provided or
required to be provided in such notice shall be true and correct as of the
record date for the meeting and as of the date that is ten (10) business days
prior to the meeting or any adjournment or postponement thereof, and such
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update and supplement shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than 5 business
days after the record date for the meeting in the case of the
update
and supplement required to be made as of the record date, and not later than
eight (8) business days prior to the date for the meeting, or any adjournment or
postponement thereof, in the case of the update and supplement required to be
made as of ten (10) business days prior to the meeting or any adjournment or
postponement thereof.
To be in proper form, a stockholder's notice given pursuant to
this Section 2.4 shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (i) the name,
age, business address and residence address of the nominee, (ii) the principal
occupation or employment of the nominee, (iii) the class and number of shares of
capital stock of the Corporation that are owned beneficially or of record by the
nominee, (iv) any other information relating to the person 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 election of directors in a
contested election pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder and (v) 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 such stockholder, or any beneficial owner on
whose behalf the nomination is made, or any of their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand; and (b) as to the stockholder
giving the notice and each beneficial owner, if any, on whose behalf the
nomination is made, (i) the name and address of the stockholder, as they appear
on the Corporation’s books, and of such beneficial owner, (ii) the information
required by clauses (iii)(A) through (iii)(G) of the fourth paragraph of Section
2.3, (iii) a description of all arrangements or understandings between such
stockholder or beneficial owner, or any of their respective affiliates or
associates or others acting in concert therewith, and each proposed nominee or
any other person or persons (including their names) pursuant to which the
nomination(s) are to be made and any material interest of such stockholder or
beneficial owner, or any of their respective affiliates or associates or others
acting in concert therewith, in such nomination, (iv) to the extent not required
by clauses (b)(ii) and (b)(iii), any disclosures that would be required pursuant
to Item 5 or Item 6 of Schedule 13D under the Exchange Act if the requirements
therein were applicable to such stockholder and such beneficial owner and any
other information relating to such stockholder and beneficial owner that would
be required to be disclosed in a proxy statement and form of proxy or other
filings required to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in a contested
election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder and (v) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the persons named in its notice. Such notice must be accompanied by (x) a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected and (y) a completed and signed questionnaire,
representation and agreement required by the next succeeding paragraph of this
Section 2.4. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as an independent
director of the Corporation or that could be material to a reasonable
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stockholder’s understanding of the independence, or lack thereof,
of such nominee. The presiding officer of the meeting shall, if the facts
warrant, determine that a nomination was not
made in
accordance with the foregoing procedure, and if he should so determine, he may
so declare to the meeting and the defective nomination shall be disregarded.
To be eligible to be a nominee for election or re-election by the
stockholders as a director of the Corporation, a person must deliver (not later
than the deadline prescribed for delivery of notice under the second paragraph
of this Section 2.4) to the Secretary of the Corporation a written questionnaire
with respect to the background and qualification of such person and, if
applicable, the background of any other person on whose behalf the nomination is
being made (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in the form provided by the
Secretary upon written request) that such person: (i) is not and will not become
a party to (A) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person as to how such person, if
elected as a director, will act or vote (in his or her capacity as a director of
the Corporation) on any issue or question (a “Voting Commitment”) that has not
been disclosed in such questionnaire; or (B) any Voting Commitment that could
limit or interfere with such person’s ability to comply, if elected as a
director, with such person’s duties under applicable law , as a director of the
Corporation ; (ii) is not and will not become a party to any agreement,
arrangement or understanding with any person other than the Corporation with
respect to any direct or indirect compensation, reimbursement or indemnification
in connection with service or action as a director that has not been disclosed
in such questionnaire; and (iii) in such person’s individual capacity and on
behalf of any person on whose behalf the nomination is being made, would be in
compliance, if elected as a director, and will comply with, applicable law and
all conflict of interest, confidentiality and other policies and guidelines of
the Corporation (including the Corporation’s Corporate Governance Guidelines)
applicable to directors generally and publicly available (whether on the
Corporation’s website or otherwise) as of the date of such representation and
agreement.
2.5
Special Meetings. Unless otherwise required by law or
by the Certificate of Incorporation, Special Meetings of Stockholders, for any
purpose or purposes, may be called by either (i) the Chairman, (ii) the
President, (iii) the Secretary, (iv) the Board of Directors or (v) the written
request of holders having an aggregate “net long position” of not less than twenty percent (20%) of the outstanding
shares of the Corporation’s common stock as of the date of such request
(“Special Meeting Request”). “Net long position” shall be determined with
respect to each requesting holder in accordance with the definition thereof set
forth in Rule 14e-4 under the Securities Exchange Act of 1934, provided that (x)
for purposes of such definition, in determining such holder’s “short position,”
the reference in such Rule to “the date the tender offer is first publicly
announced or otherwise made known by the bidder to the holders of the security
to be acquired” shall be the date of the relevant Special Meeting Request and
the reference to the “highest tender offer price or stated amount of the
consideration offered for the subject security” shall refer to the closing sales
price of the Corporation’s common stock on the New York Stock Exchange on such
date (or, if such date is not a trading day, the next succeeding trading day)
and (y) the net long position of such holder shall be reduced by the number of
shares as to which such holder does not, or will not, have the right to vote or
direct the vote at the Special Meeting or as to which such holder has entered
into any derivative or other agreement,
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arrangement or understanding that hedges or transfers, in
whole or in part, directly or indirectly, any of the economic consequences of
ownership of such shares. Whether the requesting holders have complied with the
requirements of this Article and related provisions of the By-laws shall be
determined in good faith by the Board, which determination shall be conclusive
and binding on the Corporation and the stockholders. At a Special Meeting
of Stockholders, only such business shall be conducted as shall be specified in
the notice of meeting (or any supplement thereto); provided, that nothing
herein shall prohibit the Board of Directors from submitting matters to the
stockholders at any Special Meeting.
Notwithstanding the foregoing, a Special Meeting shall not be held
if (i) the Special Meeting request relates to an item of business that is not a
proper subject for stockholder action under applicable law, (ii) the Special
Meeting request is delivered during the period commencing ninety (90) days prior
to the first anniversary of the date of the notice of annual meeting for the
immediately preceding annual meeting and ending on the earlier of (x) the date
of the next annual meeting and (y) thirty (30) calendar days after the first
anniversary of the date of the immediately preceding annual meeting, (iii) an
identical or substantially similar item (as determined in good faith by the
Board of Directors, a “Similar Item”), other than the election of
directors, was presented at a meeting of the stockholders held not more than
twelve (12) months before the Special Meeting request is delivered, (iv) a
Similar Item was presented at a meeting of the stockholders held not more than
ninety (90) days before the Special Meeting request is delivered (and, for
purposes of this clause (iv), the election of directors shall be deemed a
“Similar Item” with respect to all items of business involving the election or
removal of directors) or (v) a Similar Item is included in the Corporation’s
notice as an item of business to be brought before a Stockholder meeting that
has been called by the time the Special Meeting request is delivered but not yet
held.
Upon the written request of any stockholders who have called a
Special Meeting, it shall be the duty of the Secretary of the Corporation to fix
the date of the Special Meeting, which shall be held at such date and time as
the Secretary may fix, not less than fifteen (15) nor more than sixty (60) days
after the receipt of the request (provided that such request complies with all
applicable provisions of these Bylaws), and to give due notice thereof in
accordance with the applicable provisions of these Bylaws.
2.6
Notice. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a Special Meeting, the purpose or purposes for which the meeting is
called. Unless otherwise required by law, written notice of any meeting
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to notice of and to vote at
such meeting. Whenever any notice is required by these Bylaws to be given,
personal notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by (i) depositing the same in
a post office box in a sealed postage paid wrapper, addressed to the person
entitled thereto at his last known post office address, and such notice shall be
deemed to have been given on the date of such mailing or (ii) by electronic
transmission to the extent permitted by the General Corporation Laws of the
State of Delaware (the “DGCL”). Any notice required to be given under these
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Bylaws may be waived by the person entitled thereto.
Stockholders not entitled to vote shall not be entitled to receive notice
of any meetings except as otherwise provided by statute.
2.7
Adjournments. Any meeting of the stockholders may be
adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting in accordance
with the requirements of Article VI hereof shall be given to each stockholder of
record entitled to notice of and to vote at the meeting.
2.8
Quorum. Unless otherwise required by applicable law
or the Certificate of Incorporation, the holders of a majority of the
Corporation's 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. A quorum,
once established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the presiding officer of the
meeting or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
in the manner provided in Section 2.7 hereof, until a quorum shall be present or
represented.
2.9
Voting. (a) Unless otherwise required by law,
the Certificate of Incorporation or these Bylaws, any question, with the
exception of the election of directors, brought before any meeting of the
stockholders shall be decided by the vote of the holders of a majority of the
total number of votes of the Corporation’s capital stock represented and
entitled to vote thereat, voting as a single class. Unless otherwise
provided in the Certificate of Incorporation, and subject to Section 2.12 of
this Article II, each stockholder represented at a meeting of the stockholders
shall be entitled to cast one (1) 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 as provided in Section 2.11 of this Article II. The
Board of Directors, in its discretion, or the officer of the Corporation
presiding at a meeting of the stockholders, in such officer's discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
(b)
Except as otherwise provided in the Certificate of Incorporation,
a nominee for director shall be elected to the Board of Directors by
stockholders if the votes cast for such nominee’s election exceed the votes cast
against such nominee’s election; provided, however, that directors
shall be elected by a plurality of the votes cast in any “contested election.”
A “contested election” means any election of directors by the stockholders
for which (i) the Corporation receives a notice that a stockholder has nominated
a person for election to the Board of Directors that was timely made in
accordance with the applicable nomination periods provided in these Bylaws, and
(ii) such nomination has not been withdrawn on or before the 10th day before the
Corporation first mails its initial proxy statement in connection with such
election of directors; provided, however, that the determination
that an election is a contested election
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shall
be determinative only as to the timeliness of a notice of nomination and not
otherwise as to its validity. If directors are to be elected by a
plurality of the votes cast, stockholders shall not be permitted to vote against
a nominee but instead will be permitted to withhold a vote from a nominee.
2.10
Proxies. Each stockholder entitled to vote at a
meeting of the stockholders may authorize another person or persons to act for
such stockholder as proxy, but no such proxy shall be voted upon after three
years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another
person or persons to act for such stockholder as proxy, the following shall
constitute a valid means by which a stockholder may grant such authority:
(i)
A stockholder may execute a writing authorizing another person or
persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder's authorized officer,
director, employee or agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable means, including, but
not limited to, by facsimile signature.
(ii)
A stockholder may authorize another person or persons to act for
such stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such telegram, cablegram or transmission,
provided that any such telegram or cablegram must either set forth or be
submitted with information from which it can be determined that the telegram,
cablegram or electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or electronic transmissions are
valid, the inspectors or, if there are no inspectors, such other persons making
that determination shall specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing, telegram, cablegram or transmission authorizing
another person or persons to act as proxy for a stockholder may be substituted
or used in lieu of the original writing, telegram, cablegram or transmission for
any and all purposes for which the original writing, telegram, cablegram or
transmission could be used; provided, however, that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing, telegram, cablegram or
transmission.
2.11
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 (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of
at least ten (10) days prior to the meeting (i) either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the
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meeting, or, if not so specified, at the place where the
meeting is to be held or (ii) 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.
2.12
Record Date. (a) In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of the stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of the 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.
(b)
The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting shall be established
pursuant to this Section 2.12(b). In order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice delivered to the Secretary at the principal executive
offices of the Corporation, request that the Board of Directors fix a record
date. To be valid and effective, the written notice must set forth the action or
actions proposed to be taken by written consent and must be received by the
Secretary at the principal executive offices of the Corporation. The Board
of Directors shall promptly, but in all events within ten (10) days after the
date on which such written notice is received, adopt a resolution fixing the
record date (unless a record date has previously been fixed by the Board of
Directors pursuant to the first sentence of this Section 2.12(b)). If no
record date has been fixed by the Board of Directors within ten (10) days after
the date on which such written notice is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date after the expiration of such ten day
time period on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
the DGCL. If no record date has been fixed by the Board of Directors, and
prior action by the Board of Directors is required by applicable law, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the date on which
the Board of Directors adopts the resolution taking such prior action.
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2.13
Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 2.11 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
2.14
Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of any meeting of the stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the Chairman of the Board or the presiding officer of any meeting of
the 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
presiding officer, 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 Board or the presiding officer of
the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) the
determination of when the polls shall open and close for any given matter to be
voted on at the meeting; (iii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iv) 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 the presiding
officer of the meeting shall determine; (v) restrictions on entry to the meeting
after the time fixed for the commencement thereof; and (vi) limitations on the
time allotted to questions or comments by participants.
2.15
Inspectors of Election. In advance of any meeting of
the stockholders, the Board of Directors, by resolution, the Chairman of the
Board of Directors or the President shall appoint one or more inspectors 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 able to act at a meeting of
the stockholders, the presiding officer of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by applicable
law, inspectors may be officers, employees or agents of the Corporation.
Each inspector, before entering upon the discharge of the duties of
inspector, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of such inspector's
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 applicable law.
2.16
Certain Matters Relating to Stockholder Proposals.
Without limiting the applicability of Sections 2.3 and 2.4, a stockholder
who seeks to have any proposal included in the Corporation’s proxy materials
must provide notice as required by and otherwise comply with the applicable
requirements of the rules and regulations under the Exchange Act. Except
for the immediately preceding sentence, nothing in Section 2.3 or 2.4 shall be
deemed to affect any rights of (i) stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act; or (ii) the holders of any class or series of preferred stock of
the Corporation, voting as a class separately from the holders of common stock,
to elect directors pursuant to any applicable provisions of such class or series
preferred stock or the Certificate of Incorporation. Subject to Rule 14a-8
under the Exchange Act, nothing
11
in
these Bylaws shall be construed to permit any stockholder, or give any
stockholder the right, to include or have disseminated or described in the
Corporation’s proxy statement any nomination of director or directors or any
other business proposal.
2.17
Inspectors of Written Consent. In the event of the
delivery, in the manner provided by Section 2.12(b) of these Bylaws and
applicable law, to the Corporation of the requisite written consent or consents
to take corporate action and/or any related revocation or revocations, the
Corporation shall engage nationally recognized independent inspectors of
elections for the purpose of promptly performing a ministerial review of the
validity of the consents and revocations. For the purpose of permitting
the inspectors to perform such review, no action by written consent and without
a meeting shall be effective until such inspectors have completed their review,
determined that the requisite number of valid and unrevoked consents delivered
to the Corporation in accordance with Section 2.12(b) and applicable law have
been obtained to authorize or take the action specified in the consents, and
certified such determination for entry in the records of the Corporation kept
for the purpose of recording the proceedings of meetings of stockholders.
Nothing contained in this Section 2.17 shall in any way be construed to
suggest or imply that the Board of Directors or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive relief in such
litigation).
ARTICLE III
DIRECTORS
3.1
Number, Quorum, Qualifications and Retirement. (a)
The Board of Directors shall consist of not less than six (6) nor more
than ten (10) members. The number of directors shall be fixed from time to
time by resolution of a majority of the entire Board, provided that changes
in the size of the Board of more than thirty percent (30%) above or below the
established range may only be adopted with the approval of holders of a majority
of the Corporation’s outstanding voting stock. A majority of the directors
shall constitute a quorum for the transaction of business. Directors need
not be stockholders.
(b)
The directors shall be elected in the manner provided in the
Delaware General Corporation Law and the provisions of these Bylaws (including
Section 2.9 hereof). Any nominee for director in an uncontested election
(as defined in Section 2.9 hereof) who receives a greater number of votes
“against” his or her election than votes “for” such election shall, to the
extent not previously provided, promptly (and in any event no later than the
first regularly scheduled meeting of the Board of Directors following
certification of the stockholders’ vote) submit his or her resignation
conditioned upon the acceptance of such resignation by the Nominating and
Governance Committee. The Nominating and Governance Committee of the Board of
Directors shall consider all of the relevant facts and circumstances and
recommend to the Board of Directors the action to be taken with respect to such
conditional resignation. The Board of Directors will consider the Nominating and
Governance Committee’s recommendation
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and
decide whether to accept or reject any tendered resignation no later than ninety
(90) days following certification of the stockholders’ vote. Following the
Board’s decision on such recommendation, the Corporation will promptly publicly
disclose the Board’s decision and process (including, if applicable, the reason
or reasons for rejecting the tendered resignation(s)) in a periodic or current
report filed with the Commission.
To the extent that one or more directors’ resignations are
accepted by the Board of Directors, the Nominating and Governance Committee will
recommend to the Board of Directors whether to fill such vacancy or vacancies
or, to the extent permitted by the Certificate of Incorporation or these Bylaws,
to reduce the size of the Board.
Any director whose resignation is being considered pursuant to
this provision will not participate in the Nominating and Governance Committee
recommendation or Board consideration regarding whether or not to accept such
director’s resignation. If the resignation of a member of the Nominating
and Governance Committee is under consideration with respect to the same
election, then the independent directors who were elected at such election will
appoint a Board of Directors committee amongst themselves solely for the purpose
of considering the tendered resignations and will recommend to the Board of
Directors whether to accept or reject them. Such committee may, but need
not, consist of all of the independent directors who were elected. If less than
three (3) independent directors were re-elected, then the entire Board of
Directors shall consider the tendered resignations, provided,
however, that a director may not participate in the consideration of his
or her own resignation.
(c)
Retired directors may be appointed to the position of director
emeritus by the unanimous vote of the board or after having twenty (20) years of
service and shall be invited, but not required, to attend the Annual Meeting and
shall be available for consultation with management as required. Only existing
non-employee members of the board of directors are eligible to become directors
emeriti. Employee members of the board of directors will become eligible
for the position of director emeritus after their employee status has ended.
Any director becoming a director emeritus is no longer eligible for
election as a director. A director emeritus may resign at any time.
3.2
Vacancies. Any vacancy on the Board of Directors that
results from an increase in the number of directors may be filled by a majority
of the Board of Directors then in office, provided that a quorum is present, and
any other vacancy occurring on the Board of Directors may be filled by a
majority of the Board of Directors then in office, even if less than a quorum,
or by a sole remaining director. Any director elected to fill a vacancy
resulting from an increase in the number of directors shall hold office for a
term that shall coincide with the remaining term of other directors. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his or her
predecessor.
3.3
Duties and Powers. The business and affairs 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 required to be exercised or done by the stockholders.
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3.4
Meetings. The Board of Directors 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 by any two directors.
Notice thereof 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 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.
3.5
Organization. At each meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her absence, a
director chosen by a majority of the directors present, shall act as chairman.
The Secretary of the Corporation shall act as secretary at each meeting of
the Board of Directors. In case the Secretary shall be absent from any
meeting of the Board of Directors, an Assistant Secretary shall perform the
duties of secretary at such meeting; and in the absence from any such meeting of
the Secretary and all the Assistant Secretaries, the presiding officer of the
meeting may appoint any person to act as secretary of the meeting.
3.6
Resignations and Removals of Directors. Any director
of the Corporation may resign at any time, by giving notice in writing to the
Chairman of the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time therein
specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective. Except as otherwise required by applicable
law and subject to the rights, if any, of the holders of shares of preferred
stock then outstanding, any director or the entire Board of Directors may be
removed from office at any time, with or without cause, by the affirmative vote
of the holders of at least a majority in voting power of the issued and
outstanding capital stock of the Corporation entitled to vote in the election of
directors.
3.7
Quorum. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the entire Board of Directors 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 of the time and
place of the adjourned meeting, until a quorum shall be present.
3.8
Actions of the Board by Written Consent. Unless
otherwise provided in 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, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
3.9
Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation or these Bylaws, members
of the Board of Directors of the
14
Corporation, or any committee thereof, may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or other 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 3.9 shall constitute presence in person at such
meeting.
3.10
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. 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 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 absent or disqualified
member. Any committee, to the extent permitted by 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, and may authorize the seal of the Corporation to
be affixed to all papers which may require it. Each committee shall keep regular
minutes and report to the Board of Directors when required.
3.11
Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
and a stated salary for service as director, payable in cash and/or securities.
A director emeritus shall receive an annual fee of $2,000 for the
remainder of his life and such health care benefits as the Corporation provides
to its full time employees. No such payment shall preclude any director or
director emeritus from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for service as committee members.
3.12
Executive Committee. The directors may appoint from
their number an executive committee which may make its own rules of procedure
and shall meet where and as provided by such rules, or by a resolution of the
directors. A majority shall constitute a quorum, and in every case the
affirmative vote of a majority of all the members of the committee shall be
necessary to the adoption of any resolution. During the intervals between the
meetings of the directors the executive committee shall have and may exercise
all the powers of the directors in the management of the business and affairs of
the Corporation, including power to authorize the seal of the Corporation to be
affixed to all papers which may require it, in such manner as such committee
shall deem best for the interests of the Corporation, in all cases in which
specific directions shall not have been given by the directors.
3.13
Chairman of the Board of Directors. The directors
shall appoint from their number a Chairman of the Board of Directors, who shall
preside at all meetings of the stockholders and of the Board of Directors and
shall be a member of the executive committee, if any. The Chairman of the
Board of Directors shall have supervision of such matters as may be designated
to him by the Board of Directors or the executive committee.
15
3.14
Vice Chairman of the Board of Directors. The
directors may appoint from their number a Vice Chairman, who shall be vested
with all the powers and perform all of the duties of the Chairman of the Board
of Directors in the absence or disability of the latter unless or until the
Board of Directors shall otherwise determine.
ARTICLE IV
OFFICERS
4.1
General. The officers of the Corporation shall be a
President, one or more Vice Presidents, one or more of whom may be designated as
Executive Vice President and shall have senior authority, a Secretary, a
Treasurer, and such assistants and other officers as may from time to time be
elected or appointed by the Board of Directors. The Board of Directors, by
resolution, may also designate the Chairman and the Vice Chairman of the Board
of Directors as officers. Two or more offices may be held by the same
person.
4.2
Chairman of the Board of Directors. If designated as
an officer of the Corporation, the Chairman of the Board of Directors, in
addition to his responsibilities as a director, shall have supervision of such
matters as may be designated to him by the Board of Directors or the executive
committee.
4.3
Vice Chairman of the Board of Directors. If the
Chairman and the Vice Chairman of the Board of Directors are designated as an
officer of the Corporation, the Vice Chairman of the Board of Directors shall be
vested with all the powers and shall perform all the duties of the Chairman in
the absence or disability of the latter unless or until the Board of Directors
shall otherwise determine. He shall have such other powers and perform
such other duties as shall be prescribed by the Board of Directors.
4.4
President. The President shall, in the absence of a
Chairman of the Board, preside at all meetings of the directors, and act as
Chairman at, and call to order all meetings of the stockholders; and he shall
have power to call special meetings of the stockholders and directors for any
purpose or purposes, appoint and discharge, subject to the approval of the
directors, employees and agents of the Corporation, make and sign contracts and
agreements in the name and behalf of the Corporation, except that he be not
authorized to dispose or encumber material assets of the Corporation without the
authority of the Board of Directors, and while the directors and/or committees
are not in session he shall have general management and control of the business
and affairs of the Corporation; he shall see that the books, reports, statements
and certificates required by the statute under which this Corporation is
organized or any other laws applicable thereto are properly kept, made and filed
according to law; and he shall generally do and perform all acts incident to the
office of President, or which are authorized or required by law.
4.5
Vice President. The Vice Presidents in the order of their
seniority shall be vested with all the powers and shall perform all the duties
of the President in the absence or disability of
16
the
latter, unless or until the directors shall otherwise determine. They
shall have such other powers and perform such other duties as shall be
prescribed by the directors.
4.6
Secretary. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and directors, and all other
notices required by law or by these Bylaws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chairman of the Board of Directors, the President, or
by the directors or stockholders upon whose requisition the meeting is called as
provided in these Bylaws. He shall record all proceedings of the meetings
of the Corporation and of the directors in a book to be kept for that purpose,
and shall perform such other duties as may be assigned to him by the directors
or the President. He shall have custody of the seal of the Corporation and
shall affix the same to all instruments requiring it, when authorized by the
directors or the President, and attest the same. He shall be sworn to the
faithful discharge of his duties.
4.7
Assistant Secretary. The Assistant Secretary shall be
vested with the powers and shall perform all the duties of Secretary in the
absence or disability of the latter, unless or until the directors shall
otherwise determine. He shall have such other powers and perform such
other duties as shall be prescribed by the directors.
4.8
Treasurer. The Treasurer shall have the custody of
all funds, securities, evidences of indebtedness and other valuable documents of
the Corporation; he shall receive and give or cause to be given receipts and
acquittances for moneys paid in on account of the Corporation and shall pay out
of the funds on hand all just debts of the Corporation of whatever nature upon
maturity of the same; he shall enter or cause to be entered in books of the
Corporation to be kept for that purpose full and accurate accounts of all monies
received and paid out on account of the Corporation, and, whenever required by
the President or the Board of Directors, he shall render a statement of his cash
accounts. He shall, unless otherwise determined by the Board of Directors,
have charge of the original stock books, transfer books and stock ledgers and
act as transfer agent in respect of the stock and securities of the Corporation;
he shall prepare and submit from time to time to the Board of Directors
financial, cash and operating budgets or estimates; he shall prepare and submit
such other financial data and information as he shall be directed to by the
Board of Directors; and he shall perform all of the other duties incident to the
office of Treasurer. He shall give the Corporation a bond for the faithful
discharge of his duties in such amount and with such surety as the Board of
Directors shall prescribe.
4.9
Assistant Treasurer. The Assistant Treasurer shall be
vested with all the powers and shall perform all the duties of Treasurer in the
absence or disability of the latter, unless or until the directors shall
otherwise determine. He shall have such other powers and perform such
other duties as shall be prescribed by the directors.
4.10
Controller. The Corporate Controller shall be
responsible for directing the Corporation's accounting functions. Specific
areas include the development and maintenance of planning and budgeting systems,
analysis and interpretation of trends requiring management's attention, the
preparation of financial and management reports and procedures, and senior
management. Ancillary responsibilities include the supervision of external
auditors, and participation in the planning and execution of the utility rate
cases.
17
4.11
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.
4.12
Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President or any
other officer authorized to do so by the Board of Directors 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 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.
ARTICLE V
STOCK
5.1
Form of Certificates. The shares of the Corporation
may be represented by certificates or may be uncertificated. Every holder
of stock in the Corporation shall be entitled to have a certificate signed by,
or in the name of the Corporation (i) by the Chairman of the Board of Directors,
or the President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation.
Absent a specific request for such a certificate by the registered owner
or transferee thereof, all shares may be uncertificated upon the original
issuance thereof by the Corporation or upon surrender or any certificate
representing such shares to the Corporation or its transfer agent.
5.2
Signatures. Any or all of the signatures on a
certificate may be 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.
5.3
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 such owner's legal representative, to advertise the
same in such manner as the Board of Directors shall require
18
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 on account of the alleged
loss, theft or destruction of such certificate or the issuance of such new
certificate.
5.4
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 by the
Corporation or the Corporation’s transfer agent and upon the surrender of a
certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; provided, however, that such surrender and endorsement
or payment of taxes shall not be required in any case in which the officers of
the Corporation shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the Corporation shall be
marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent thereof. Within a
reasonable time after the transfer of uncertificated stock, 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, 156, 202(a) or 218(a) of the General Corporation Law of the State
of Delaware. Subject to the provisions of the Certificate of Incorporation
and these By-Laws, the Board of Directors may prescribe such additional rules
and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation. No transfer of stock shall be
valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
5.5
Dividend Record Date. In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders 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 a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is
fixed, the record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
5.6
Record 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 required by
law.
5.7
Transfer and Registry Agents. The Corporation may
from time to time maintain one or more transfer offices or agencies and registry
offices or agencies at such place or places as may be determined from time to
time by the Board of Directors.
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ARTICLE VI
NOTICES
6.1
Notices. Whenever written notice is required by law,
the Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, telex, cable or otherwise
electronically as permitted by law.
6.2
Waivers of Notice. Whenever any notice is required by
applicable law, the Certificate of Incorporation or these Bylaws, to be given to
any director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. Attendance of a person
at a meeting, present in person or represented by proxy, shall constitute a
waiver of notice of such meeting, except where the person attends the 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 Annual or Special Meeting or any regular or special meeting of the directors
or members of a committee of directors need be specified in any written waiver
of notice unless so required by law, the Certificate of Incorporation or these
Bylaws.
ARTICLE VII
GENERAL PROVISIONS
7.1
Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the DGCL and the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors (or any action by
written consent in lieu thereof in accordance with Section 3.8 hereof), and may
be paid in cash, in property, or in shares of the Corporation's capital stock.
Before payment of any dividend, there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for purchasing any of the shares
of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or
other securities or evidences of indebtedness of the Corporation, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors may modify or
abolish any such reserve.
7.2
Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
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7.3
Fiscal Year. The fiscal year of the Corporation shall
end on December 31 of each year unless changed by resolution of the Board of
Directors.
7.4
Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words “Corporate Seal, Delaware”. The seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
INDEMNIFICATION
8.1
Power to Indemnify in Actions, Suits or Proceedings other than
Those by or in the Right of the Corporation. Subject to Section 8.3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation 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 expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
8.2
Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 8.3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation 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 expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
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Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
8.3
Authorization of Indemnification. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Sections 8.1 and 8.2, as the case may be. Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders. Such determination shall be made, with respect
to former directors and officers, by any person or persons having the authority
to act on the matter on behalf of the Corporation. To the extent, however,
that a present or former director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, without
the necessity of authorization in the specific case.
8.4
Good Faith Defined. For purposes of any determination
under Section 8.3, a person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person's conduct was
unlawful, if such person's action is based on the records or books of account of
the Corporation or another enterprise, or on information supplied to such person
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The provisions of this Section 8.4 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Sections
8.1 and 8.2, as the case may be.
8.5
Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 8.3, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to
the extent otherwise permissible under Sections 8.1 and 8.2. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Sections 8.1 and 8.2, as the case may be. Neither a contrary determination
in the specific case
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under
Section 8.3 nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to this Section 8.5 shall be given
to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such
application.
8.6
Expenses Payable in Advance. Expenses (including
attorneys' fees) incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article VIII. Such expenses (including attorneys’ fees) incurred by
former directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation deems appropriate.
8.7
Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under the Certificate of Incorporation, these Bylaws, any
agreement, a vote of stockholders or disinterested directors or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 8.1 and 8.2 shall be made
to the fullest extent permitted by law. The provisions of this Article
VIII shall not be deemed to preclude the indemnification of any person who is
not specified in Sections 8.1 and 8.2 but whom the Corporation has the power or
obligation to indemnify under the provisions of the DGCL, or otherwise.
8.8
Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation 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 such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article VIII.
8.9
Certain Definitions. For purposes of this Article
VIII, references to “the Corporation” shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article VIII with respect to the resulting or surviving
corporation as such
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person
would have with respect to such constituent corporation if its separate
existence had continued. The term “other enterprise” as used in this
Article VIII shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer, employee or
agent. For purposes of this Article VIII, references to “fines” shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to “serving at the request of the Corporation”
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred to in this Article
VIII.
8.10
Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
8.11
Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
9.1
Amendments. These Bylaws may be altered, amended or
repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such meeting of the stockholders or Board of Directors, as the case
may be. All such amendments must be approved by either the holders of at least a
majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
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9.2
Entire Board of Directors. As used in this Article IX
and in these Bylaws generally, the term “entire Board of Directors” means the
total number of directors which the Corporation would have if there were no
vacancies.
*
* *
Adopted as of:
February 23, 2012
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