BRUNSWICK
CORPORATION
BY-LAWS
AS
AMENDED FEBRUARY 2, 2010
ARTICLE
I
OFFICES
Section 1. The registered office
shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. The corporation may also
have offices in the City of Lake Forest, State of Illinois, and at such other
places as the board of directors may from time to time determine or the business
of the corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
Section 1. Meetings of stockholders
may be held at such time and place, if any, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof. The board of directors may, in its sole discretion,
determine that the meeting shall not be held at any place, but shall be held
solely by means of remote communication, subject to such guidelines and
procedures as the board of directors may adopt, as permitted by applicable
law.
Section 2. (a) An annual meeting of
stockholders shall be held at such time and on such day in the month of April or
in such other month as the board of directors may specify by resolution. At the
annual meeting the stockholders shall elect, by ballot, a board of directors and
transact such other business as may properly be brought before the
meeting.
(b) For business to be properly
brought before the meeting, it must be: (i) authorized by the board of directors
and specified in the notice, or a supplemental notice, of the meeting, (ii)
otherwise brought before the meeting by or at the direction of the board of
directors or the chairman of the meeting, or (iii) otherwise properly brought
before the meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder (other than the nomination of a person for
election as a director, which is governed by Article III, Section 2 of these
by-laws), the stockholder must have given written notice thereof to the
Secretary of the corporation, delivered or mailed to and received at the
principal executive offices of the corporation not less than ninety days nor
more than 120 days prior to the anniversary date of the immediately preceding
annual meeting; provided, however, that in the event that no annual meeting was
held in the previous year or the annual meeting is called for a date that is not
within thirty days from the anniversary date of the preceding year's annual
meeting date, written notice by a stockholder in order to be timely must be
received not later than the close of business on the tenth day following the day
on which the first public disclosure of the date of the annual meeting was made.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. In no event shall the public disclosure of an adjournment of an
annual meeting commence a new time period for the giving of stockholder's notice
as described above. A stockholder's notice to the Secretary shall set
forth as to each item of business the stockholder proposes to bring before the
meeting: (1) a description of such item and the reasons for conducting such
business at the meeting, (2) the name and address, as they appear on the
corporation's records, of the stockholder proposing such business, (3) a
representation that the stockholder is a holder of record of shares of stock of
the corporation entitled to vote with respect to such business and intends to
appear in person or by proxy at the meeting to move the consideration of such
business, (4) the class and number of shares of stock of the corporation which
are owned beneficially or of record by the stockholder (which information shall
be updated by such stockholder as of the record date of the meeting not later
than 10 days after the record date for the meeting), (5) a description of any
agreement, arrangement or understanding with respect to such business between or
among the stockholder and any of its affiliates or associates, and any others
(including their names) acting in concert with any of the foregoing (which
information shall be updated by such stockholder as of the record date of the
meeting not later than 10 days after the record date for the meeting), (6)
whether and the extent to which any hedging or other transaction or series of
transactions has been entered into by or on behalf of, or any other agreement,
arrangement or understanding (including any short position or any borrowing or
lending of shares) has been made, the effect or intent of which is to mitigate
loss to or manage risk or benefit of share price changes for, or to increase or
decrease the voting power of, such stockholder with respect to any share of
stock of the corporation (which information shall be updated by such stockholder
as of the record date of the meeting not later than 10 days after the record
date for the meeting) and (7) any material interest of the stockholder in such
business. No business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this paragraph (b) or, with respect
to the election of directors, the provisions of Article III, Section 2. The
chairman of the meeting at which any business is proposed by a stockholder
shall, if the facts warrant, determine and declare to the meeting that such
business was not properly brought before the meeting in accordance with the
provisions of this paragraph (b), and, in such event, the business not properly
before the meeting shall not be transacted.
Section 3. Written notice of the
annual meeting stating the place, if any, date, hour of 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 shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
corporation.
Section 4. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the Chairman of
the Board and shall be called by the Secretary at the request in writing of a
majority of the board of directors. Such request shall state the purpose or
purposes of the proposed meeting.
Section 5. Written notice of a
special meeting of stockholders stating the place, if any, date, hour of
meeting, 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 and
the purpose or purposes for which the meeting is called shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
corporation.
Section 6. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 7. If authorized by the
board of directors in accordance with these by-laws and applicable law,
stockholders and proxyholders not physically present at a meeting of
stockholders may, by means of remote communication, (1) participate in a meeting
of stockholders and (2) be deemed present in person and vote at a meeting of
stockholders, whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (i) the corporation shall
implement reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the corporation.
Section 8. The Secretary shall
prepare, at least ten days before every meeting of stockholders, a complete list
of the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting for a period of at least ten
days prior to the meeting: (i) 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 (ii) during ordinary business hours, at the
principal place of business of the corporation. In the event that the
corporation determines to make the list available on an electronic network, the
corporation may take reasonable steps to ensure that such information is
available only to stockholders of the corporation. If the meeting is to be held
at a place, 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. If the meeting is to be held solely by means of
remote communication, the list shall be open to the examination of any
stockholder during the whole time thereof on a reasonably accessible electronic
network, and the information required to access such list shall be provided with
the notice of the meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the list of stockholders required by
this section or to vote in person or by proxy at any meeting of
stockholders.
Section 9. The Chairman of the Board
or, in the Chairman’s absence, such other person as the Board of Directors shall
designate shall preside at any annual or special meeting of
stockholders. Such presiding person may adjourn any annual or special
meeting of stockholders from time to time to reconvene at the same or some other
place, if any, and notice need not be given of any such adjourned meeting if the
date, time and place, if any, thereof and the means of remote communication, if
any, by which stockholders and proxyholders may be deemed present in person and
vote at such adjourned meeting are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting in
accordance with Section 3 or Section 5 of this Article II as the case may
be.
Section 10. The holders of a
majority of the shares of the capital stock of the corporation, issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite and shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation or by these by-laws. If a quorum
is present when a meeting is convened, the subsequent withdrawal of
stockholders, even though less than a quorum remains, shall not affect the
ability of the remaining stockholders lawfully to transact business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 11. In matters other than
the election of directors, when a quorum is present or represented at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting. A nominee for director shall be elected to the
board of directors if the votes cast for such nominee’s election exceed the
votes cast against such nominee’s election; provided, that if the number of
nominees for director as of the meeting’s record date exceeds the number of
directors to be elected at such meeting, then each director to be elected shall
be elected by a plurality of the votes cast.
Notwithstanding the foregoing, if
the question to be voted upon is one upon which by express provision of the
statutes or of the certificate of incorporation or of these by-laws, a different
vote is required, such express provisions shall govern and control the decision
of such question.
Section 12. (a) At any meeting of
the stockholders every stockholder having the right to vote shall be entitled to
vote in person. Each stockholder shall have one vote for each share of stock
having voting power, registered in his name on the books of the corporation.
Except where the transfer books of the corporation shall have been closed or a
date shall have been fixed by the board of directors as a record date for the
determination of its stockholders entitled to vote, no share of stock shall be
voted on at any election for directors which shall have been transferred on the
books of the corporation within twenty days next preceding such election of
directors.
(b) Voting at meetings of
stockholders need not be by written ballot and need not be conducted by
inspectors of election unless so required by Section 14 of Article II of these
by-laws or so determined by the holders of stock having a majority of the votes
which could be cast by the holders of all outstanding stock entitled to vote
which are present in person or by proxy at such meeting.
(c) Stock of the corporation
standing in the name of another corporation and entitled to vote may be voted by
such other corporation’s officer, agent or proxy as the by-laws or other
internal regulations of such other corporation may prescribe or, in the absence
of such provision, as the board of directors or comparable body of such other
corporation may determine.
(d) Stock of the corporation
standing in the name of a deceased person, a minor, an incompetent or a debtor
in a case under Title 11, United States Code, and entitled to vote may be voted
by an administrator, executor, guardian, conservator, debtor-in-possession or
trustee, as the case may be, either in person or by proxy, without transfer of
such shares into the name of the official or other person so
voting.
(e) A stockholder whose voting stock
of the corporation is pledged shall be entitled to vote such stock unless on the
transfer records of the corporation the pledgor has expressly empowered the
pledgee to vote such shares, in which case only the pledgee, or such pledgee's
proxy, may represent such shares and vote thereon.
(f) If voting stock is held of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the Secretary is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect: (i) if only one votes, such act binds
all; (ii) if more than one vote, the act of the majority so voting binds all;
and (iii) if more than one votes, but the vote is evenly split on any particular
matter each faction may vote such stock proportionally, or any person
voting the shares, or a beneficiary, if any, may apply to the Court of Chancery
of the State of Delaware or such other court as may have jurisdiction to appoint
an additional person to act with the persons so voting the stock, which shall
then be voted as determined by a majority of such persons and the person
appointed by the Court. If the instrument so filed shows that any such tenancy
is held in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
(g) Stock of the corporation
belonging to the corporation, or to another corporation if a majority of the
shares entitled to vote in the election of directors of such other corporation
are held by the corporation, shall neither be entitled to vote nor be counted
for quorum purposes. Nothing in this Section 12(g) shall limit the right of the
corporation to vote shares of stock of the corporation held by it in a fiduciary
capacity.
Section 13. (a) Each stockholder
entitled to vote at a meeting of stockholders may authorize another person or
persons to act for such stockholder by proxy filed with the Secretary before or
at the time of the meeting. No such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing with the
Secretary an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date.
(b) A stockholder may authorize
another person or persons to act for such stockholder as proxy (i) by executing
a writing authorizing such person or persons to act as such, which execution may
be accomplished by such stockholder or such stockholder's authorized officer,
director, partner, employee or agent (or, if the stock is held in a trust or
estate, by a trustee, executor or administrator thereof) signing such writing or
causing his or her signature to be affixed to such writing by any reasonable
means, including, but not limited to, facsimile signature, or (ii) by
transmitting or authorizing the transmission of a telegram, cablegram or other
means of electronic transmission (a "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 Transmission; provided that any such Transmission
must either set forth or be submitted with information from which it can be
determined that such Transmission was authorized by such
stockholder.
(c) Any inspector or inspectors
appointed pursuant to Section 14 of Article II of these by-laws shall examine
Transmissions to determine if they are valid. If no inspector or inspectors are
so appointed, the Secretary or such other person or persons as shall be
appointed from time to time by the board of directors shall examine
Transmissions to determine if they are valid. If it is determined that a
Transmission is valid, the person or persons making that determination shall
specify the information upon which such person or persons relied. Any copy,
facsimile telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or
Transmission for any and all purposes for which the original writing or
Transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or Transmission.
Section 14. (a) If the corporation
has a class of voting stock that is (i) listed on a national securities
exchange, (ii) authorized for quotation on an interdealer quotation system of a
registered national securities association or (iii) held of record by more than
2,000 stockholders, the board of directors shall, in advance of any meeting of
stockholders, appoint one or more inspectors (individually an "Inspector," and
collectively the "Inspectors") to act at such meeting and make a written report
thereof. The board of directors may designate one or more persons as alternate
Inspectors to replace any Inspector who shall fail to act. If no Inspector or
alternate is able to act at such meeting, the chairman of the meeting shall
appoint one or more other persons to act as Inspectors. Each Inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of Inspector with strict impartiality and
according to the best of his or her ability.
(b) The Inspectors shall (i)
ascertain the number of shares of stock of the corporation outstanding and the
voting power of each, (ii) determine the number of shares of stock of the
corporation present in person or by proxy at such meeting and the validity of
proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period of time a record of the disposition of any
challenges made to any determination by the Inspectors and (v) certify their
determination of the number of such shares present in person or by proxy at such
meeting and their count of all votes and ballots. The Inspectors may appoint or
retain other persons or entities to assist them in the performance of their
duties.
(c) The date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting shall be announced at such meeting. No ballots, proxies or
votes, nor any revocations thereof or changes thereto, shall be accepted by the
Inspectors after the closing of the polls unless the Court of Chancery of the
State of Delaware upon application by any stockholder shall determine
otherwise.
(d) In determining the validity and
counting of proxies and ballots, the Inspectors shall be limited to an
examination of the proxies, any envelopes submitted with such proxies, any
information referred to in paragraphs (b) and (c) of Section 13 of Article II of
these by-laws, ballots and the regular books and records of the corporation,
except that the Inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by a stockholder of record to cast or
more votes than such stockholder holds of record. If the Inspectors consider
other reliable information for the limited purpose permitted herein, the
Inspectors, at the time they make their certification pursuant to paragraph (b)
of this Section 14, shall specify the precise information considered by them,
including the person or persons from whom such information was obtained, when
and the means by which such information was obtained and the basis for the
Inspectors' belief that such information is accurate and reliable.
Section 15. (a) In order that the
corporation may determine the stockholders entitled (i) to notice of or to vote
at any meeting of stockholders or any adjournment thereof, (ii) to receive
payment of any dividend or other distribution or allotment of any rights, (iii)
to exercise any rights in respect of any change, conversion or exchange of stock
or (iv) to take, receive or participate in any other action, the board of
directors may fix a record date, which shall not be earlier than the date upon
which the resolution fixing the record date is adopted by the board of directors
and which (1) in the case of a determination of stockholders entitled to notice
of or to vote at any meeting of stockholders or adjournment thereof, shall,
unless otherwise required by law, be not more than sixty nor less than ten days
before the date of such meeting; and (2) in the case of any other action, shall
be not more than sixty days before such action.
(b) If no record date is fixed, (i)
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 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; and (ii) 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 thereto.
(c) 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, but the board of directors may fix a
new record date for the adjourned meeting.
ARTICLE
III
DIRECTORS
Section 1. The number of directors
shall be ten, or such other number as may, from time to time, be determined by
the board of directors in a manner consistent with the certificate of
incorporation.
Section 2. Subject to the rights of
holders of any class or series of stock having a preference over the common
stock as to dividends or upon liquidation, nominations for the election of
directors may be made by the board of directors or a committee appointed by the
board of directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the corporation
not later than (a) with respect to an election to be held at an annual meeting
of stockholders, not less than ninety days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting; provided, however,
that in the event that no annual meeting was held in the previous year or the
annual meeting is called for a date that is not within thirty days from the
anniversary date of the preceding year's annual meeting date, written notice by
the stockholder in order to be timely must be so received not later than the
close of business on the tenth day following the day on which public disclosure
of the date of the annual meeting was made, and (b) with respect to an election
to be held at a special meeting of stockholders for the election of directors,
the close of business on the tenth day following the date on which public
disclosure of such meeting is first given to stockholders. Delivery shall be by
hand, or by certified or registered mail, return receipt requested. In no event
shall the public announcement of an adjournment of any annual or special meeting
commence a new time period for giving of a stockholder notice as described
above. Each such notice shall set forth: (i) the name and address of the
stockholder who intends to make the nomination; (ii) the name, principal
occupation, age, business address and residence address of the person or persons
to be nominated; (iii) the class and number of shares of stock of the
corporation which are owned beneficially or of record by the stockholder and
each nominee (which information shall be updated by such stockholder as of the
record date of the meeting not later than 10 days after the record date for the
meeting); (iv) a representation that the stockholder is the holder of record of
stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (v) whether and the extent to which any hedging or
other transaction or series of transactions has been entered into by or on
behalf of, or any other agreement, arrangement or understanding (including any
short position or any borrowing or lending of shares) has been made, the effect
or intent of which is to mitigate loss to or manage risk or benefit of share
price changes for, or to increase or decrease the voting power of, such
stockholder with respect to any share of stock of the corporation (which
information shall be updated by such stockholder as of the record date of the
meeting not later than 10 days after the record date for the meeting); (vi) a
description of all arrangements or understandings between the stockholder and
any of its affiliates or associates and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder (which information shall be
updated by such stockholder as of the record date of the meeting not later than
10 days after the record date for the meeting); (vii) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated by the board
of directors; and (viii) the consent of each nominee to serve as a director of
the corporation if so elected. The presiding officer of the meeting may refuse
to acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Section 3. The property and business
of the corporation shall be managed by its 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
by-laws directed or required to be exercised or done by the
stockholders.
MEETINGS
OF THE BOARD OF DIRECTORS
Section 4. The board of directors of
the corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 5. The first meeting of each
newly elected board shall be held immediately after, and at the same place, if
any, as, the annual meeting of stockholders at which such board shall have been
elected or at such other time as the board of directors may determine, for the
purpose of electing officers, and for the consideration of any other business
that may properly be brought before the meeting. No notice of such meeting shall
be necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present.
Section 6. Regular meetings of the
board of directors shall be held on such dates, not less often than once each
calendar quarter, as may be fixed from time to time by the board of directors.
No notice need be given of such regular meetings. Such meetings shall be held at
the Lake Forest office of the corporation or at such other place as the board of
directors may determine. Upon the assent, given either verbally or in writing,
of a majority of the whole board, any regular meeting may be cancelled, the time
changed, or may be held at such other place and time, as a majority of the whole
board may designate, either verbally or in writing, upon reasonable notice given
to each director.
Section 7. Special meetings of the
board of directors may be called by the Chairman of the Board, or by the
Secretary on the written request of two directors, to be held either at the Lake
Forest office of the corporation or at such other place, if any, as may be
convenient and may be designated by the person calling the meeting. Reasonable
notice of such special meeting shall be given to each director.
Section 8. (a) At all meetings of
the board the presence of a majority of the whole board shall be necessary and
sufficient to 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, except as may be otherwise
specifically provided by statute or by the certificate of incorporation or by
these by-laws. If a quorum shall not be present at any meeting of the board of
directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
(b) A director who is directly or
indirectly a party to a contract or transaction with the corporation, or is a
director or officer of or has a financial interest in any other corporation,
partnership, association or other organization which is a party to a contract or
transaction with the corporation, may be counted in determining whether a quorum
is present at any meeting of the board of directors or a committee thereof at
which such contract or transaction is considered or authorized, and such
director may participate in such meeting and vote on such authorization to the
extent permitted by applicable law, including Section 144 of the General
Corporation Law of the State of Delaware.
COMMITTEES
Section 9. The board of directors
may, by resolution passed by a majority of the whole board of directors,
designate one or more committees, each committee to consist of one or more
directors of the corporation or such higher number as shall be required by the
certificate of incorporation. 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 the committee, the member or members present at
any meeting and not disqualified from voting, whether or not a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and provided in these by-laws or in the
resolution of the board of directors designating such committee, or an amendment
to such resolution, 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.
Section 10. Unless the board of
directors otherwise provides, each committee designated by the board of
directors may make, alter and repeal rules for the conduct of its business. In
the absence of such rules each committee shall conduct its business in the same
manner as the board of directors conducts its business pursuant to this Article
III of these by-laws.
COMPENSATION
OF DIRECTORS
Section 11. Directors shall receive
such fees and reimbursement of reasonable expenses as may be fixed from time to
time by resolution of the board. Members of special or standing committees shall
also be allowed such fees and reimbursements for reasonable expenses in
connection with service on such committees as may from time to time be fixed by
resolution of the board. Such fees may be fixed on the basis of meetings
attended or on an annual basis or both and may be payable currently or
deferred.
ACTION BY
WRITTEN CONSENT
Section 12. Any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting if all members of the board or
committee, as the case may be, consent thereto in writing (which may be in
counterparts) or by electronic transmission, and the written consent or consents
or electronic transmission or transmissions are filed with the minutes of
proceedings of the board of directors or such committee. Such filing shall be
made in paper form if the minutes of the corporation are maintained in paper
form and shall be in electronic form if the minutes are maintained in electronic
form.
ACTION BY
TELEPHONE OR OTHER COMMUNICATIONS EQUIPMENT
Section 13. Directors may
participate in a meeting of the board or any committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this section shall constitute presence in person at such
meeting.
PRESUMPTION
OF ASSENT
Section 14. Unless otherwise
provided by the laws of the State of Delaware, a director who is present at a
meeting of the board of directors or a committee thereof at which action is
taken on any matter shall be presumed to have assented to the action taken
unless his or her dissent shall be entered in the minutes of such meeting or
unless he or she shall file his or her written dissent to such action with the
person acting as Secretary of such meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary immediately after
the adjournment of such meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE
IV
NOTICES
Section 1. (a) Except as otherwise
provided by law, the certificate of incorporation or these by-laws, whenever
notice is required to be given to any stockholder, director or member of any
committee of the board of directors, such notice may be given by (i) personal
delivery, (ii) depositing it, in a sealed envelope, in the United States mails,
first class, postage prepaid, addressed, (iii) delivering to a company for
overnight or second day mail or delivery, (iv) transmitting it via telecopier,
or (v) any other reliable means permitted by applicable law (including
electronic or Internet mail or transmission) in each case to such stockholder,
director or member, either at the address of such stockholder, director or
member as it appears on the records of the corporation or, in the case of such a
director or member, at his or her business address; and such notice shall be
deemed to be given at the time when it is thus personally delivered, deposited,
delivered or transmitted, as the case may be. Such requirement for notice shall
also be deemed satisfied, except in the case of stockholder meetings, if actual
notice is received orally or by other writing by the person entitled thereto as
far in advance of the event with respect to which notice is being given as the
minimum notice period required by law or these by-laws.
(b) Without limiting the foregoing,
any notice to stockholders given by the corporation pursuant to these by-laws
shall be effective if given by a form of electronic transmission consented to by
the stockholder to whom the notice is given. Any such consent shall be revocable
by the stockholder by written notice to the corporation and shall also be deemed
revoked if (1) the corporation is unable to deliver by electronic transmission
two consecutive notices given by the corporation in accordance with such consent
and (2) such inability becomes known to the Secretary of the corporation, the
transfer agent or other person responsible for the giving of notice; provided,
however, that the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action. Notice given by a form of
electronic transmission in accordance with these by-laws shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice; (iii) if by a posting on an electronic network, together with
separate notice to the stockholder of such specific posting, upon the later of
such posting and the giving of such separate notice; and (iv) if by another form
of electronic transmission, when directed to the stockholder.
Section 2. (a) Whenever notice is
required to be given by law, the certificate of incorporation or these by-laws
to any stockholder to whom (i) notice of two consecutive annual meetings of
stockholders and all notices of meetings of stockholders during the period
between such two consecutive annual meetings, or (ii) all, and at least two,
payments (if sent by first class mail) of dividends or interest on securities of
the corporation during a 12-month period, have been mailed addressed to such
stockholder at the address of such stockholder as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such stockholder shall not be required. Any action or meeting which shall be
taken or held without notice to such stockholder shall have the same force and
effect as if such notice had been duly given. If any such stockholder shall
deliver to the corporation a written notice setting forth the then current
address of such stockholder, the requirement that notice be given to such
stockholder shall be reinstated.
(a) Whenever notice is required to
be given by law, the certificate of incorporation or these by-laws to any person
with whom communication is unlawful, the giving of such notice to such person
shall not be required, and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given.
Section 3. Any written waiver of
notice, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee or directors need be specified in any
written waiver of notice.
ARTICLE
V
OFFICERS
Section 1. The board of directors
shall elect a Chairman of the Board from among its members. The board of
directors shall also elect a Chief Executive Officer, Secretary and such other
officers as the board of directors determines, none of whom need to be members
of the board of directors.
Section 2. The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer of the corporation may be removed at any time by the affirmative vote of
a majority of the whole board of directors.
Section 3. The officers of the
corporation shall have such powers and duties in the management of the
corporation as may be prescribed by the board of directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the board of directors.
Section 4. The Chief Executive
Officer of the corporation shall in general supervise and control all of the
business affairs of the corporation, subject to the direction of the board of
directors. The Chief Executive Officer may execute, in the name and on behalf of
the corporation, any deeds, mortgages, bonds, contracts or other instruments
which the board of directors or a committee thereof has authorized to be
executed, except in cases where the execution shall have been expressly
delegated by the board of directors or a committee thereof to some other officer
or agent of the corporation.
Section 5. In addition to such other
duties, if any, as may be assigned to the Secretary by the board of directors,
the Chairman of the Board, or the Chief Executive Officer, the Secretary shall
(i) keep the minutes of proceedings of the stockholders, the board of directors
and any committee of the board of directors in one or more books provided for
that purpose; (ii) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law; (iii) be the custodian of the
records and seal of the corporation; (iv) affix or cause to be affixed the seal
of the corporation or a facsimile thereof, and attest the seal by his or her
signature, to all certificates for shares of stock of the corporation and to all
other documents the execution of which under seal is authorized by the board of
directors; and (v) unless such duties have been delegated by the board of
directors to a transfer agent of the corporation, keep or cause to be kept a
register of the name and address of each stockholder, as the same shall be
furnished to the Secretary by such stockholder, and have general charge of the
stock transfer records of the corporation.
ARTICLE
VI
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Section 1. The corporation shall
indemnify to the fullest extent that is lawful, 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 (including an action by or in the right of the corporation) (a
“proceeding”) by reason of the fact that he 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, taxes, penalties
and amounts paid in settlement actually and reasonably incurred by him in
connection with such proceeding.
Section 2. The corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not he would be
entitled to indemnity against the same liability under the provisions of this
article.
Section 3. The corporation may enter
into an indemnity agreement with any director, officer, employee or agent of the
corporation, upon terms and conditions that the board of directors deems
appropriate, as long as the provisions of the agreement are not inconsistent
with this article.
Section 4. The corporation shall pay
or reimburse the reasonable expenses (including attorneys’ fees) incurred by a
director or officer of the corporation in defending any proceeding in advance of
its final disposition upon receipt of an undertaking by or on behalf
of such director or officer to repay all amounts advanced if it should be
ultimately determined that he or she is not entitled to be indemnified under
this Article VI or otherwise. The corporation may require security for any such
undertaking.
Section 5. The rights conferred on
any person by this Article VI shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these by-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6. If a claim for
indemnification or payment of expenses under this Article VI is not paid in full
within sixty days after a written claim therefor has been received by the
corporation, the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the corporation shall have
the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 7. The corporation's
obligation, if any, to indemnify any person who was or is serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall be reduced by any amount such
person may collect as indemnification from such other corporation, partnership,
joint venture, trust or other enterprise.
Section 8. Any repeal or
modification of the foregoing provisions of this Article VI shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE
VII
CERTIFICATES
OF STOCK
Section 1. Shares of the
corporation’s stock may be certificated or uncertificated. Every
holder of stock in the corporation shall be entitled to have a certificate,
signed by, or in the name of the corporation by the Chairman of the Board, the
President or a Vice President and the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares owned by him in the corporation. If the corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, designations, preferences and relative, participating, optional and other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions or such preferences and rights shall be set forth in
full or summarized on the face or back of any certificate which the corporation
shall issue to represent such class or series of stock; provided, however, that,
to the full extent allowed by law, in lieu of the foregoing requirements, there
may be set forth on the face or back of any certificate which the corporation
shall issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
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 rights.
Section 2. Any or all the signatures
on such 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 he were such officer, transfer agent, or registrar at the date
of issue.
LOST
CERTIFICATES
Section 3. The board of directors
may direct a new certificate to be issued in place of any certificate previously
issued by the corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue
of a new certificate, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his or her legal representative, to
advertise the same in such a manner as the board of directors shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
TRANSFERS
OF STOCK
Section 4. Upon surrender to the
corporation or the transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
REGISTERED
STOCKHOLDERS
Section 5. 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 party of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE
VIII
GENERAL
PROVISIONS
DIVIDENDS
Section 1. Dividends upon the
capital stock of the corporation, subject to the provisions of the certificate
of incorporation, if any, may be declared by the board of directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
certificate of incorporation.
Section 2. 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 directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the directors shall
think conducive to the interest of the corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
FISCAL
YEAR
Section 3. The fiscal year of the
corporation shall begin on the first day of January, and terminate on the
thirty-first day of December, in each year.
SEAL
Section 4. The corporate seal, if
any, shall have inscribed thereon the name of the corporation, the year of its
organization and the words "Incorporated in Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
DEFINITIONS
Section 5. (a) For purposes of these
by-laws, "electronic transmission" means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
(b) For purposes of these by-laws,
"public disclosure" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service, or in
a document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended.
ARTICLE
IX
AMENDMENTS
Section 1. The holders of shares of
capital stock of the corporation entitled at the time to vote for the election
of directors shall have the power to adopt, alter, amend, or repeal the by-laws
of the corporation by vote of such percentage of such shares as is required by
the Certificate of Incorporation, or if no percentage is specified by the
Certificate of Incorporation, by vote of not less than 66-2/3% of such shares.
The board of directors shall also have the power to adopt, alter, amend or
repeal the by-laws of the corporation by vote of such percentage of the entire
board as is required by the Certificate of Incorporation, or if no percentage is
specified by the Certificate of Incorporation, by vote of not less than a
majority of the entire board.