exv3wb
Exhibit 3.B
SECOND AMENDED AND RESTATED
BY-LAWS OF
SKYWORKS SOLUTIONS, INC., AS AMENDED
ARTICLE I
OFFICES
SECTION 1 Registered Office in Delaware; Resident Agent. The address of the Corporation’s
registered office in the State of Delaware and the name and address of its resident agent in charge
thereof are as filed with the Secretary of State of the State of Delaware.
SECTION 2 Other Offices. The Corporation may also have an office or offices at such other
place or places either within or without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation requires.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1 Place of Meetings. All meetings of the stockholders of the Corporation shall be
held at such place, within or without the State of Delaware, as may from time to time be designated
by resolution passed by the Board of Directors. The Board of Directors may, in its sole
discretion, determine that the meetings shall not be held at any place, but may instead be held
solely by means of remote communication.
SECTION 2 Annual Meeting. An annual meeting of the stockholders for the election of directors
and for the transaction of such other proper business, notice of which was given in the notice of
meeting, shall be held on a date and at a time as may from time to time be designated by resolution
passed by the Board of Directors.
SECTION 3 Special Meetings. A special meeting of the stockholders for any purpose or purposes
shall be called only by the Board of Directors pursuant to a resolution adopted by a majority of
the whole Board.
SECTION 4 Notice of Meetings. Except as otherwise provided by law, written notice of each
meeting of the stockholders, whether annual or special, shall be mailed, postage prepaid, or sent
by electronic transmission, not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting, at the stockholder’s address as it
appears on the records of the Corporation. Every such notice shall state the place, date and hour
of the meeting, the means of remote communications, if any, by which stockholders and proxy holders
may be deemed to be present in person or by proxy and vote at such meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. Notice of any adjourned
meeting of the stockholders shall not be required to be given, except when expressly required by
law.
SECTION 5 List of Stockholders. The Secretary shall, from information obtained from the
transfer agent, prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten days prior to
the meeting: (a) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or (b) during
ordinary business hours, at the principal place of business of the Corporation. 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 specified place, then the list shall 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, then the list shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic network, and the information
required to access the 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 stock ledger, the
list referred to in this section or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
SECTION 6 Quorum. At each meeting of the stockholders, the holders of a majority of the
issued and outstanding stock of the Corporation present either in person or by proxy shall
constitute a quorum for the transaction of business except where otherwise provided by law or by
the Certificate of Incorporation or by these By-laws for a specified action. Except as otherwise
provided by law, in the absence of a quorum, a majority in interest of the stockholders of the
Corporation present in person or by proxy and entitled to vote shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the meeting, until
stockholders holding the requisite amount of stock shall be present or represented. At any such
adjourned meeting at which a quorum may be present, any business may be transacted which might have
been transacted at a meeting as originally called, and only those stockholders entitled to vote at
the meeting as originally called shall be entitled to vote at any adjournment or adjournments
thereof. The absence from any meeting of the number of stockholders required by law or by the
Certificate of Incorporation or by these By-laws for action upon any given matter shall not prevent
action at such meeting upon any other matter or matters which may properly come before the meeting,
if the number of stockholders required in respect of such other matter or matters shall be present.
SECTION 7 Organization. At every meeting of the stockholders the Chief Executive Officer, or
in the absence of the Chief Executive Officer, a director or an officer of the Corporation
designated by the Board, shall act as Chairman of the meeting. The Secretary, or, in the
Secretary’s absence, an Assistant Secretary, shall act as Secretary at all meetings of the
stockholders. In the absence from any such meeting of the Secretary and the Assistant Secretaries,
the Chairman may appoint any person to act as Secretary of the meeting.
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SECTION 8 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders (a) pursuant to the Corporation’s notice of meeting,
(b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation
who was a stockholder of record at the time of giving of notice provided for in this By-law, who is
entitled to vote at the meeting and who complies with the notice procedures set forth in this
By-law.
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (c) of paragraph (A)(1) of this By-law, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice
shall be delivered to the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 90th day nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in
the case of the annual meeting to be held in 2003 or in the event that the date of the annual
meeting is more than 30 days before or after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th day prior to such
annual meeting or the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a stockholder’s
notice as described above. Such stockholder’s notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of proxies for election
of directors in an election contest, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 14a-11
thereunder (including such person’s written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation’s books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner.
Notwithstanding anything in the second sentence of paragraph (A)(2) of this By-law to the
contrary, in the event that the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the Corporation naming all of the
nominees for director or specifying the size of the increased Board of Directors at least 100 days
prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice
required by this By-law shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the Secretary at the
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principal
executive offices of the Corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s
notice of meeting. Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s
notice of meeting (a) by or at the direction of the Board of Directors or (b) provided that the
Board of Directors has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-law, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-law. In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more directors to the Board of Directors, any
stockholder who shall be entitled to vote at the meeting may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation’s notice of meeting,
if the stockholder’s notice required by paragraph (A)(2) of this By-law shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the close of business on
the later of the 90th day prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of the nominees proposed
by the Board of Directors to be elected at such meeting. In no event shall the public announcement
of an adjournment of a special meeting commence a new time period for the giving of a stockholder’s
notice as described above.
(C) General. (1) Only such persons who are nominated in accordance with the procedures set
forth in this By-law shall be eligible to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this By-law. Except as otherwise provided by law, the Certificate
of Incorporation or these By-laws, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the meeting was made
or proposed, as the case may be, in accordance with the procedures set forth in this By-law and, if
any proposed nomination or business is not in compliance with this By-law, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this By-law, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-law, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-law. Nothing in this By-law shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
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SECTION 9 Business and Order of Business. At each meeting of the stockholders such business
may be transacted as may properly be brought before such meeting, except as otherwise provided by
law or in these By-laws. The order of business at all meetings of the stockholders shall be as
determined by the Chairman of the meeting.
SECTION 10 Voting. Except as otherwise provided by law, the Certificate of Incorporation or
these By-laws, each stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of stock held by such stockholder. Any vote on stock may be given by the
stockholder entitled thereto in person or by proxy appointed by an instrument in writing,
subscribed (or transmitted by electronic means and authenticated as provided by law) by such
stockholder or by the stockholder’s attorney thereunto authorized, and delivered to the Secretary;
provided, however, that no proxy shall be voted after three years from its date unless the proxy
provides for a longer period. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, at all meetings of the stockholders, all matters shall be decided
by the vote (which need not be by ballot) of a majority in interest of the stockholders present in
person or by proxy and entitled to vote thereon, a quorum being present.
SECTION 11 Participation at Meetings Held by Remote Communication. If authorized by the Board
of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of
Directors may adopt, stockholders and proxy holders not physically present at a meeting of
stockholders may, by means of remote communication: (A) participate in a meeting of stockholders;
and (B) 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.
SECTION 12 Inspectors of Election. In advance of any meeting, of stockholders, the Board by
resolution or the Chief Executive Officer shall appoint one or more inspectors of election to act
at the meeting and make a written report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is
present, ready and willing to act at a meeting of stockholders, the Chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors
may be officers, employees or agents of the Corporation. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her ability. The inspector
shall have the duties prescribed by law and shall take charge of the polls and, when the vote is
completed, shall make a certificate of the result of the vote taken and of such other facts as may
be required by law.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1 General Powers. The property, affairs and business of the Corporation shall be
managed by or under the direction of its Board of Directors.
SECTION 2 Number, Qualifications, and Term of Office. Subject to the rights of the holders of
any series of Preferred Stock to elect additional directors under specified
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circumstances, the
number of directors of the Corporation shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole Board. A director need not
be a stockholder.
The number of directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized directors (whether
or not there exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption). At the 1983 annual meeting of
stockholders, the directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1984 annual meeting of
stockholders, the term of office of the second class to expire at the 1985 annual meeting of
stockholders and the term of office of the third class to expire at the 1986 annual meeting of
stockholders. At each annual meeting of stockholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders after their
election, unless, by reason of any intervening changes in the authorized number of directors, the
board shall designate one or more of the then expiring directorships as directorships of another
class in order more nearly to achieve equality of number of directors among the classes.
SECTION 3 Election of Directors. At each meeting of the stockholders for the election of
directors, at which a quorum is present, the directors shall be elected by a plurality vote of all
votes cast for the election of directors at such meeting.
SECTION 4 Chairman of the Board of Directors. The Board of Directors may elect from among its
members one director to serve at its pleasure as Chairman of the Board.
SECTION 5 Quorum and Manner of Acting. A majority of the members of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting, and the act of a majority
of the directors present at any meeting at which a quorum is present shall be the act of the Board
of Directors unless otherwise provided by law, the Certificate of Incorporation or these By-laws.
In the absence of a quorum, a majority of the directors present may adjourn any meeting from time
to time until a quorum shall be obtained. Notice of any adjourned meeting need not be given. The
directors shall act only as a board and the individual directors shall have no power as such.
SECTION 6 Place of Meetings. The Board of Directors may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to time determine or as
shall be specified or fixed in the respective notices or waivers of notice thereof.
SECTION 7 First Meeting. Promptly after each annual election of directors, the Board of
Directors shall meet for the purpose of organization, the election of officers and the transaction
of other business, at the same place as that at which the annual meeting of stockholders was held
or as otherwise determined by the Board. Notice of such meeting need not be given. Such meeting
may be held at any other time or place which shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors.
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SECTION 8 Regular Meetings. Regular meetings of the Board of Directors shall be held at such
places and at such times as the Board shall from time to time determine. If any day fixed for a
regular meeting shall be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same hour on the next
succeeding business day not a legal holiday. Notice of regular meetings need not be given.
SECTION 9 Special Meetings; Notice. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board or the Chief Executive Officer and shall be called by
the Chairman of the Board, the Chief Executive Officer or the Secretary of the Corporation at the
written request of three directors. Notice of each such meeting stating the time and place of the
meeting shall be given to each director by mail, telephone, other electronic transmission or
personally. If by mail, such notice shall be given not less than five days before the meeting; and
if by telephone, other electronic transmission or personally, not less than two days before the
meeting. A notice mailed at least two weeks before the meeting need not state the purpose thereof
except as otherwise provided in these By-laws. In all other cases the notice shall state the
principal purpose or purposes of the meeting. Notice of any meeting of the Board need not be given
to a director, however, if waived by the director in writing before or after such meeting or if the
director shall be present at the meeting, except when the director 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.
SECTION 10 Organization. At each meeting of the Board of Directors, the Chairman of the
Board, or, in the absence of the Chairman of the Board, the Chief Executive Officer, or, in his or
her absence, a director or an officer of the Corporation designated by the Board shall act as
Chairman of the meeting. The Secretary, or, in the Secretary’s absence, any person appointed by
the Chairman of the meeting, shall act as Secretary of the meeting.
SECTION 11 Order of Business. At all meetings of the Board of Directors, business shall be
transacted in the order determined by the Board.
SECTION 12 Resignations. Any director of the Corporation may resign at any time by giving
written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary of the
Corporation. The resignation of any director shall take effect at the time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 13 Compensation. Each director shall be paid such compensation, if any, as shall be
fixed by the Board of Directors.
SECTION 14 Indemnification. (A) 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,
officer, employee or agent of the Corporation or any of its majority-owned subsidiaries or is or
was serving at the request of the Corporation as a director, officer, employee or agent (except in
each of the foregoing situations to the extent any agreement, arrangement or understanding of
agency contains provisions that supersede or abrogate indemnification under
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this section) of
another corporation or of any partnership, joint venture, trust, employee benefit plan 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 his or her 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 his or her conduct was unlawful.
(B) 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, officer, employee or agent of the Corporation or any of its majority-owned subsidiaries,
or is or was serving at the request of the Corporation as a director, officer, employee or agent
(except in each of the foregoing situations to the extent any agreement, arrangement or
understanding of agency contains provisions that supersede or abrogate indemnification under this
section) of another corporation or of any partnership, joint venture, trust, employee benefit plan
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 and 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
Corporation unless and only to the extent that the Court of Chancery 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 of Delaware or
such other court shall deem proper.
(C) To the extent that a director, officer, employee or agent of the Corporation or any of its
majority-owned subsidiaries has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), 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 or on behalf of such person in connection therewith. If
any such person is not wholly successful in any such action, suit or proceeding but is successful,
on the merits or otherwise, as to one or more but less than all claims, issues or matters therein,
the Corporation shall indemnify such person against all expenses (including attorneys’ fees)
actually and reasonably incurred by or on behalf of such person in connection with each claim,
issue or matter that is successfully resolved. For purposes of this subsection and without
limitation, the termination of any claim, issue or matter by dismissal, with or without prejudice,
shall be deemed to be a successful result as to such claim, issue or matter.
(D) Notwithstanding any other provision of this section, to the extent any person is a witness
in, but not a party to, any action, suit or proceeding, whether civil, criminal,
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administrative or
investigative, by reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation or any of its majority-owned subsidiaries, or is or was serving at the
request of the Corporation as a director, officer, employee or agent (except in each of the
foregoing situations to the extent any agreement, arrangement or understanding of agency contains
provisions that supersede or abrogate indemnification under this section) of another corporation or
of any partnership, joint venture, trust, employee benefit plan or other enterprise, such person
shall be indemnified against all expenses (including attorneys’ fees) actually and reasonably
incurred by or on behalf of such person in connection therewith.
(E) Indemnification under subsections (A) and (B) shall be made only as authorized in the
specific case upon a determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable standard of conduct set
forth in subsections (A) and (B). Such determination shall be made (1) if a Change of Control (as
hereinafter defined) shall not have occurred, (a) with respect to a person who is a present or
former director or officer of the Corporation, (i) by the Board of Directors by a majority vote of
the Disinterested Directors (as hereinafter defined), even though less than a quorum, or (ii) if
there are no Disinterested Directors or, even if there are Disinterested Directors, a majority of
such Disinterested Directors so directs, by (x) Independent Counsel (as hereinafter defined) in a
written opinion to the Board of Directors, a copy of which shall be delivered to the claimant, or
(y) the stockholders of the Corporation; or (b) with respect to a person who is not a present or
former director or officer of the Corporation, by the chief executive officer of the Corporation or
by such other officer of the Corporation as shall be designated from time to time by the Board of
Directors; or (2) if a Change of Control shall have occurred, by Independent Counsel selected by
the claimant in a written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, unless the claimant shall request that such determination be made by or at the
direction of the Board of Directors (in the case of a claimant who is a present or former director
or officer of the Corporation) or by an officer of the Corporation authorized to make such
determination (in the case of a claimant who is not a present or former director or officer of the
Corporation), in which case it shall be made in accordance with clause (1) of this sentence. Any
claimant shall be entitled to be indemnified against the expenses (including attorneys’ fees)
actually and reasonably incurred by such claimant in cooperating with the person or entity making
the determination of entitlement to indemnification (irrespective of the determination as to the
claimant’s entitlement to indemnification) and, to the extent successful, in connection with any
litigation or arbitration with respect to such claim or the enforcement thereof.
(F) If a Change of Control shall not have occurred, or if a Change of Control shall have
occurred and a director, officer, employee or agent requests pursuant to clause (2) of the second
sentence in subsection (E) that the determination as to whether the claimant is entitled to
indemnification be made by or at the direction of the Board of Directors (in the case of a claimant
who is a present or former director or officer of the Corporation) or by an officer of the
Corporation authorized to make such determination (in the case of a claimant who is not a present
or former director or officer of the Corporation), the claimant shall be conclusively presumed to
have been determined pursuant to subsection (E) to be entitled to indemnification if (1) in the
case of a claimant who is a present or former director or officer of the Corporation, (a) (i)
within fifteen days after the next regularly scheduled meeting of the Board of Directors following
receipt by the Corporation of the request therefor, the Board of Directors shall not
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have resolved
by majority vote of the Disinterested Directors to submit such determination to (x) Independent
Counsel for its determination or (y) the stockholders for their determination at the next annual
meeting, or any special meeting that may be held earlier, after such receipt, and (ii) within sixty
days after receipt by the Corporation of the request therefor (or within ninety days after such
receipt if the Board of Directors in good faith determines that additional time is required by it
for the determination and, prior to expiration of such sixty-day period, notifies the claimant
thereof), the Board of Directors shall not have made the determination by a majority vote of the
Disinterested Directors, or (b) after a resolution of the Board of Directors, timely made pursuant
to clause (a)(i)(y) above, to submit the determination to the stockholders, the stockholders
meeting at which the determination is to be made shall not have been held on or before the date
prescribed (or on or before a later date, not to exceed sixty days beyond the original date, to
which such meeting may have been postponed or adjourned on good cause by the Board of Directors
acting in good faith), or (2) in the case of a claimant who is not a present or former director or
officer of the Corporation, within sixty days after receipt by the Corporation of the request
therefor (or within ninety days after such receipt if an officer of the Corporation authorized to
make such determination in good faith determines that additional time is required for the
determination and, prior to expiration of such sixty-day period, notifies the claimant thereof), an
officer of the Corporation authorized to make such determination shall not have made the
determination; provided, however, that this sentence shall not apply if the claimant has misstated
or failed to state a material fact in connection with his or her request for indemnification. Such
presumed determination that a claimant is entitled to indemnification shall be deemed to have been
made (I) at the end of the sixty-day or ninety-day period (as the case may be) referred to in
clause (1)(a)(ii) or (2) of the immediately preceding sentence or (II) if the Board of Directors
has resolved on a timely basis to submit the determination to the stockholders, on the last date
within the period prescribed by law for holding such stockholders meeting (or a postponement or
adjournment thereof as permitted above).
(G) Expenses (including attorneys’ fees) incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding to a present or former director
or officer of the Corporation, promptly after receipt of a request therefor stating in reasonable
detail the expenses incurred, and to a person who is not a present or former director or officer of
the Corporation as authorized by the chief executive officer of the Corporation or such other
officer of the Corporation as shall be designated from time to time by the Board of Directors;
provided that in each case the Corporation shall have received an undertaking by or on behalf of
the present or former director, officer, employee or agent 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 section.
(H) The Board of Directors shall establish reasonable procedures for the submission of claims
for indemnification pursuant to this section, determination of the entitlement of any person
thereto and review of any such determination. Such procedures shall be set forth in an appendix to
these By-laws and shall be deemed for all purposes to be a part hereof.
(I) For purposes of this section,
10
(1) “Change of Control” means any of the following:
(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares
of common stock of the Corporation (the “Outstanding Corporation Common Stock”) or (ii) the
combined voting power of the then outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the “Outstanding Corporation Voting Securities”); provided,
however, that for purposes of this subparagraph (a), the following acquisitions shall not
constitute a Change of Control: (w) any acquisition directly from the Corporation, (x) any
acquisition by the Corporation, (y) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any corporation controlled by the Corporation or (z)
any acquisition pursuant to a transaction which complies with clauses (i), (ii) and (iii) of
subsection (c) of this Paragraph 13(I)(1); or
(b) Individuals who, as of the date of the Distribution, constitute the Board of Directors
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual becoming a director subsequent to that date whose
election, or nomination for election by the Corporation’s stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors;
or
(c) Consummation of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Corporation or the acquisition of assets of another
entity (a “Corporate Transaction”), in each case, unless, following such Corporate Transaction, (i)
all or substantially all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a result of such transaction
owns the Corporation or all or substantially all of the Corporation’s assets either directly or
through one or more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be, (ii) no Person (excluding any
employee benefit plan (or related trust) of the Corporation or of such corporation resulting from
such Corporate Transaction) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed prior to the Corporate
Transaction and (iii) at least a majority of the members of the board of
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directors of the
corporation resulting from such Corporate Transaction were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the Board of Directors,
providing for such Corporate Transaction; or
(d) Approval by the Corporation’s stockholders of a complete liquidation or dissolution of the
Corporation.
(2) “Disinterested Director” means a director of the Corporation who is not and was not a
party to an action, suit or proceeding in respect of which indemnification is sought by a director,
officer, employee or agent.
(3) “Independent Counsel” means a law firm, or a member of a law firm, that (i) is experienced
in matters of corporation law; (ii) neither presently is, nor in the past five years has been,
retained to represent the Corporation, the director, officer, employee or agent claiming
indemnification or any other party to the action, suit or proceeding giving rise to a claim for
indemnification under this section, in any matter material to the Corporation, the claimant or any
such other party, and (iii) would not, under applicable standards of professional conduct then
prevailing, have a conflict of interest in representing either the Corporation or such director,
officer, employee or agent in an action to determine the Corporation’s or such person’s rights
under this section.
(J) The indemnification and advancement of expenses herein provided, or granted pursuant
hereto, shall not be deemed exclusive of any other rights to which any of those indemnified or
eligible for advancement of expenses may be entitled under any agreement, 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, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. Notwithstanding any amendment, alteration or repeal
of this section or any of its provisions, or of any of the procedures established by the Board of
Directors pursuant to subsection (H) hereof, any person who is or was a director, officer, employee
or agent of the Corporation or any of its majority-owned subsidiaries or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation or of
any partnership, joint venture, employee benefit plan or other enterprise shall be entitled to
indemnification in accordance with the provisions hereof and thereof with respect to any action
taken or omitted prior to such amendment, alteration or repeal except to the extent otherwise
required by law.
(K) No indemnification shall be payable pursuant to this section with respect to any action
against the Corporation commenced by an officer, director, employee or agent unless the Board of
Directors shall have authorized the commencement thereof or unless and to the extent that this
section or the procedures established pursuant to subsection (H) shall specifically provide for
indemnification of expenses relating to the enforcement of rights under this section and such
procedures.
SECTION 15 Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of
12
another
corporation or of any partnership, joint venture, trust, employee benefit plan 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
Section 14 of this Article III .
ARTICLE IV
COMMITTEES
SECTION 1 Appointment and Powers. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to consist of two or
more directors of the Corporation (or in the case of a special-purpose committee, one or more
directors of the Corporation), which, to the extent provided in said resolution or in these By-laws
and not inconsistent with Section 141 of the Delaware General Corporation Law, as amended, shall
have and may exercise the powers 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. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 2 Term of Office and Vacancies. Each member of a committee shall continue in office
until a director to succeed him or her shall have been elected and shall have qualified, or until
he or she ceases to be a director or until he or she shall have resigned or shall have been removed
in the manner hereinafter provided. Any vacancy in a committee shall be filled by the vote of a
majority of the whole Board of Directors at any regular or special meeting thereof.
SECTION 3 Alternates. The Board of Directors may, by resolution passed by a majority of the
whole Board, 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.
SECTION 4 Organization. Unless otherwise provided by the Board of Directors, each committee
shall appoint a chairman. Each committee shall keep a record of its acts and proceedings and
report the same from time to time to the Board of Directors.
SECTION 5 Resignations. Any regular or alternate member of a committee may resign at any time
by giving written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary
of the Corporation. Such resignation shall take effect at the time of the receipt of such notice
or at any later time specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 6 Removal. Any regular or alternate member of a committee may be removed with or
without cause at any time by resolution passed by a majority of the whole Board of Directors at any
regular or special meeting.
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SECTION 7 Meetings. Regular meetings of each committee, of which no notice shall be
necessary, shall be held on such days and at such places as the chairman of the committee shall
determine or as shall be fixed by a resolution passed by a majority of all the members of such
committee. Special meetings of each committee will be called by the Secretary at the request of
any two members of such committee, or in such other manner as may be determined by the committee.
Notice of each special meeting of a committee shall be mailed to each member thereof at least two
days before the meeting or shall be given personally or by telephone or other electronic
transmission at least one day before the meeting. Every such notice shall state the time and
place, but need not state the purposes of the meeting. No notice of any meeting of a committee
shall be required to be given to any alternate.
SECTION 8 Quorum and Manner of Acting. Unless otherwise provided by resolution of the Board
of Directors, a majority of a committee (including alternates when acting in lieu of regular
members of such committee) shall constitute a quorum for the transaction of business and the act of
a majority of those present at a meeting at which a quorum is present shall be the act of such
committee. The members of each committee shall act only as a committee and the individual members
shall have no power as such.
SECTION 9 Compensation. Each regular or alternate member of a committee shall be paid such
compensation, if any, as shall be fixed by the Board of Directors.
ARTICLE V
OFFICERS
SECTION 1 Officers. The officers of the Corporation shall be a Chief Executive Officer, a
President, one or more Vice Presidents (one or more of whom may be Executive Vice Presidents,
Senior Vice Presidents or otherwise as may be designated by the Board), a Secretary and a
Treasurer, all of whom shall be elected by the Board of Directors. Any two or more offices may be
held by the same person. The Board of Directors may also from time to time elect such other
officers as it deems necessary.
SECTION 2 Term of Office. Each officer shall hold office until his or her successor shall
have been duly elected and qualified in his or her stead, or until his or her death or until he or
she shall have resigned or shall, have been removed in the manner hereinafter provided.
SECTION 3 Additional Officers; Agents. The Chief Executive Officer or the President may from
time to time appoint and remove such additional officers and agents as may be deemed necessary.
Such persons shall hold office for such period, have such authority, and perform such duties as
provided in these By-laws or as the Chief Executive Officer or the President may from time to time
prescribe. The Board of Directors or the Chief Executive Officer or the President may from time to
time authorize any officer to appoint and remove agents and employees and to prescribe their powers
and duties.
SECTION 4 Salaries. Unless otherwise provided by resolution passed by a majority of the whole
Board, the salaries of all officers elected by the Board of Directors shall be fixed by the Board
of Directors.
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SECTION 5 Removal. Except where otherwise expressly provided in a contract authorized by the
Board of Directors, any officer may be removed, either with or without cause, by the vote of a
majority of the Board at any regular or special meeting or, except in the case of an officer
elected by the Board, by any superior officer upon whom the power of removal may be conferred by
the Board or by these By-laws.
SECTION 6 Resignations. Any officer elected by the Board of Directors may resign at any time
by giving written notice to the Chairman of the Board, the Chief Executive Officer, the President
or the Secretary. Any other officer may resign at any time by giving written notice to the Chief
Executive Officer or the President. Any such resignation shall take effect at the date of receipt
of such notice or at any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 7 Vacancies. A vacancy in any office because of death, resignation, removal or
otherwise, shall be filled for the unexpired portion of the term in the manner provided in these
By-laws for regular election or appointment to such office.
SECTION 8 Chief Executive Officer. Subject to the control of the Board of Directors, the
Chief Executive Officer shall have general and overall charge of the business and affairs of the
Corporation and of its officers. The Chief Executive Officer shall keep the Board of Directors
appropriately informed on the business and affairs of the Corporation. The Chief Executive Officer
shall preside at all meetings of the stockholders and shall enforce the observance of the rules of
order for the meetings of the stockholders and of the By-laws of the Corporation.
SECTION 9 President. The President shall be the chief operating officer of the Corporation
and, subject to the control of the Chief Executive Officer, shall direct and be responsible for the
operation of the business and affairs of the Corporation. The President shall keep the Chief
Executive Officer and the Board of Directors appropriately informed on the business and affairs of
the Corporation. In the case of the absence or disability of the Chief Executive Officer, the
President shall perform all the duties and functions and execute all the powers of, and be subject
to all the restrictions upon, the Chief Executive Officer.
SECTION 10 Executive and Senior Vice Presidents. One or more Executive or Senior Vice
Presidents shall, subject to the control of the Chief Executive Officer, have lead accountability
for components or functions of the Corporation as and to the extent designated by the Chief
Executive Officer. Each Executive or Senior Vice President shall keep the Chief Executive Officer
appropriately informed on the business and affairs of the designated components or functions of the
Corporation.
SECTION 11 Vice Presidents. The Vice Presidents shall perform such duties as may from time to
time be assigned to them or any of them by the Chief Executive Officer.
SECTION 12 Secretary. The Secretary shall keep or cause to be kept in books provided for the
purpose the minutes of the meetings of the stockholders, of the Board of Directors and of any
committee constituted pursuant to Article IV of these By-laws. The Secretary shall be custodian of
the corporate seal and see that it is affixed to all documents as required and attest
15
the same.
The Secretary shall perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to him or her.
SECTION 13 Assistant Secretaries. At the request of the Secretary, or in the Secretary’s
absence or disability, the Assistant Secretary designated by the Secretary shall perform all the
duties of the Secretary and, when so acting, shall have all the powers of, and be subject to all
the restrictions upon, the Secretary. The Assistant Secretaries shall perform such other duties as
from time to time may be assigned to them.
SECTION 14 Treasurer. The Treasurer shall have charge of and be responsible for the receipt,
disbursement and safekeeping of all funds and securities of the Corporation. The Treasurer shall
deposit all such funds in the name of the Corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of these By-laws. From time to
time and whenever requested to do so, the Treasurer shall render statements of the condition of the
finances of the Corporation to the Board of Directors. The Treasurer shall perform all the duties
incident to the office of Treasurer and such other duties as from time to time may be assigned to
him or her.
SECTION 15 Assistant Treasurers. At the request of the Treasurer, or in the Treasurer’s
absence or disability, the Assistant Treasurer designated by the Treasurer shall perform all the
duties of the Treasurer and, when so acting, shall have all the powers of, and be subject to all
the restrictions upon, the Treasurer. The Assistant Treasurers shall perform such other duties as
from time to time may be assigned to them.
SECTION 16 Certain Agreements. The Board of Directors shall have power to authorize or direct
the proper officers of the Corporation, on behalf of the Corporation, to enter into valid and
binding agreements in respect of employment, incentive or deferred compensation, stock options, and
similar or related matters, notwithstanding the fact that a person with whom the Corporation so
contracts may be a member of its Board of Directors. Any such agreement may validly and lawfully
bind the Corporation for a term of more than one year, in accordance with its terms,
notwithstanding the fact that one of the elements of any such agreement may involve the employment
by the Corporation of an officer, as such, for such term.
ARTICLE VI
AUTHORIZATIONS
SECTION 1 Contracts. The Board of Directors, except as otherwise provided in these By-laws,
may authorize any officer, employee or agent of the Corporation to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 2 Loans. No loan shall be contracted on behalf of the Corporation and no negotiable
paper shall be issued in its name, unless authorized by the Board of Directors.
SECTION 3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation shall be
16
signed by
such officer or officers, employee or employees, of the Corporation as shall from time to time be
determined in accordance with authorization of the Board of Directors.
SECTION 4 Deposits. All funds of the Corporation shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other depositories as the Board of
Directors may from time to time designate, or as may be designated by any officer or officers of
the Corporation to whom such power may be delegated by the Board, and for the purpose of such
deposit the officers and employees who have been authorized to do so in accordance with the
determinations of the Board may endorse, assign and deliver checks, drafts, and other orders for
the payment of money which are payable to the order of the Corporation.
SECTION 5 Proxies. Except as otherwise provided in these By-laws or in the Certificate of
Incorporation, and unless otherwise provided by resolution of the Board of Directors, the Chief
Executive Officer or any other officer may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as a stockholder or otherwise in any other
corporation any of whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporations, or to consent in writing
to any action by such other corporation, and may instruct the person or persons so appointed as to
the manner of casting such vote or giving such consent, and may execute or cause to be executed in
the name and on behalf of the Corporation and under its corporate seal, or otherwise, all such
written proxies or other instruments as such officer may deem necessary or proper in the premises.
ARTICLE VII
SHARES AND THEIR TRANSFER
SECTION 1 Shares of Stock. Certificates for shares of the stock of the Corporation shall be
in such form as shall be approved by the Board of Directors. They shall be numbered in the order
of their issue, by class and series, and shall be signed by the Chief Executive Officer or a Vice
President, and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
of the Corporation. If a share certificate is countersigned (1) by a transfer agent other than the
Corporation or its employee, or (2) by a registrar other than the Corporation or its employee, any
other signature on the 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 share 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. The Board of Directors may by
resolution or resolutions provide that some or all of any or all classes or series of the shares of
stock of the Corporation shall be uncertificated shares. Notwithstanding the preceding sentence,
every holder of uncertificated shares, upon request, shall be entitled to receive from the
Corporation a certificate representing the number of shares registered in such stockholder’s name
on the books of the Corporation.
SECTION 2 Record Ownership. A record of the name and address of each holder of the shares of
the Corporation, the number of shares held by such stockholder, the number or
17
numbers of any share
certificate or certificates issued to such stockholder and the number of shares represented
thereby, and the date of issuance of the shares held by such stockholder shall be made on the
Corporation’s books. The Corporation shall be entitled to treat the holder of record of any share
of stock (including any holder registered in a book-entry or direct registration system maintained
by the Corporation or a transfer agent or a registrar designated by the Board of Directors) as the
holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim
to or interest in such share on the part of any other person, whether or not it shall have express
or other notice thereof, except as required by law.
SECTION 3 Transfer of Stock. Shares of stock shall be transferable on the books of the
Corporation by the holder of record of such stock in person or by such person’s attorney or other
duly constituted representative, pursuant to applicable law and such rules and regulations as the
Board of Directors shall from time to time prescribe. Any shares represented by a certificate
shall be transferable upon surrender of such certificate with an assignment endorsed thereon or
attached thereto duly executed and with such guarantee of signature as the Corporation may
reasonably require.
SECTION 4 Lost, Stolen and Destroyed Certificates. The Corporation may issue a new
certificate of stock or may register uncertificated shares, if then authorized by the Board of
Directors, in the place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed
certificate, or such person’s legal representative, to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate, the issuance of such new certificate or the registration of
such uncertificated shares.
SECTION 5 Transfer Agent and Registrar; Regulations. The Corporation shall, if and whenever
the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each
in charge of a transfer agent designated by the Board of Directors, where the shares of the stock
of the Corporation shall be directly transferable, and also one or more registry offices, each in
charge of a registrar designated by the Board of Directors, where such shares of stock shall be
registered, and no certificate for shares of the stock of the Corporation, in respect of which a
registrar and transfer agent shall have been designated, shall be valid unless countersigned by
such transfer agent and registered by such registrar. The Board of Directors may also make such
additional rules and regulations as it may deem expedient concerning the issue, transfer and
registration of shares of stock of the Corporation and concerning the registration of pledges of
uncertificated shares.
SECTION 6 Fixing Record Date. For the purpose of determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not
be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. If no record date is fixed, (1) 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
18
waived, at
the close of business on the day next preceding the day on which the meeting is held and (2) 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. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 7 Examination of Books by Stockholders. The Board of Directors shall, subject to the
laws of the State of Delaware, have power to determine from time to time, whether and to what
extent and under what conditions and regulations the accounts and books of the Corporation, or any
of them, shall be open to the inspection of the stockholders; and no stockholder shall have any
right to inspect any book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the Board of Directors or
of the stockholders of the Corporation.
ARTICLE VIII
NOTICE
SECTION 1 Manner of Giving Written Notice. (A) Any notice in writing required by law or by
these By-laws to be given to any person shall be effective if delivered personally, by depositing
the same in the post office or letter box in a postpaid envelope addressed to such person at such
address as appears on the books of the Corporation or by a form of electronic transmission
consented to by such person to whom the notice is to be given. Any such consent shall be deemed
revoked if (i) the Corporation is unable to deliver by electronic transmission two consecutive
notices given by the Corporation in accordance with such consent and (ii) such inability becomes
known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or
other person responsible for the giving of notice; provided however, the inadvertent failure to
treat such inability as a revocation shall not invalidate any meeting or other action.
(B) Notice by mail shall be deemed to be given at the time when the same shall be mailed and
notice by other means shall be deemed given when actually delivered (and in the case of notice
transmitted by a form of electronic transmission, such notice shall be deemed given (i) if by
facsimile telecommunication, when directed to a number at which the stockholder has consented to
receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice; (iii) if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon the later of (a)
such posting and (b) the giving of such separate notice; and (iv) if by any other form of
electronic transmission, when directed to the stockholder).
SECTION 2 Waiver of Notice. Whenever any notice is required to be given to any person, a
waiver thereof by such person in writing or transmitted by electronic means (and authenticated if
and as required by law), whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE IX
SEAL
SECTION 1 The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words “Corporate Seal” and “Delaware”.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall end on the Friday closest to September 30 in each
year.
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APPENDIX
PROCEDURES FOR SUBMISSION
AND DETERMINATION OF CLAIMS FOR INDEMNIFICATION
PURSUANT TO ARTICLE III, SECTION 14 OF THE BY-LAWS.
SECTION 1 Purpose. The Procedures for Submission and Determination of Claims for
Indemnification Pursuant to Article III, Section 14 of the By-laws (the “Procedures”) are to
implement the provisions of Article III, Section 14 of the By-laws of the Corporation (the
“By-laws”) in compliance with the requirement of subsection (H) thereof.
SECTION 2 Definitions. For purposes of these Procedures:
(A) All terms that are defined in Article III, Section 14 of the By-laws shall have the
meanings ascribed to them therein when used in these Procedures unless otherwise defined herein.
(B) “Expenses” include all reasonable attorneys’ fees, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in, a Proceeding; and shall also include such
retainers as counsel may reasonably require in advance of undertaking the representation of an
Indemnitee in a Proceeding.
(C) “Indemnitee” includes any person who was or is, or is threatened to be made, a witness in
or a party to any Proceeding by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation or any of its majority-owned subsidiaries or is or was serving
at the request of the Corporation as a director, officer, employee or agent (except in each of the
foregoing situations to the extent any agreement, arrangement or understanding of agency contains
provisions that supersede or abrogate indemnification under Article III, Section 14 of the By-laws)
of another corporation or of any partnership, joint venture, trust, employee benefit plan or other
enterprise.
(D) “Proceeding” includes any action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative, except one initiated by an Indemnitee unless the Board of
Directors shall have authorized the commencement thereof.
SECTION 3 Submission and Determination of Claims.
(A) To obtain indemnification or advancement of Expenses under Article III, Section 14 of the
By-laws, an Indemnitee shall submit to the Secretary of the Corporation a written request therefor,
including therein or therewith such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to permit a determination as to whether and what extent the
Indemnitee is entitled to indemnification or advancement of Expenses, as the case may be. The
Secretary shall, promptly upon receipt of a request for indemnification, advise the Board of
Directors (if the Indemnitee is a present or former director
1
or officer of the Corporation) or the
officer of the Corporation authorized to make the determination as to whether an Indemnitee is
entitled to indemnification (if the Indemnitee is not a present or former director or officer of
the Corporation) thereof in writing if a determination in accordance with Article III, Section
14(E) of the By-laws is required.
(B) Upon written request by an Indemnitee for indemnification pursuant to Section 3(A) hereof,
a determination with respect to the Indemnitee’s entitlement thereto in the specific case, if
required by the By-laws, shall be made in accordance with Article III, Section 14(E) of the
By-laws, and, if it is so determined that the Indemnitee is entitled to indemnification, payment to
the Indemnitee shall be made within ten days after such determination. The Indemnitee shall
cooperate with the person, persons or entity making such determination, with respect to the
Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity
upon reasonable advance request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to the Indemnitee and
reasonably necessary to such determination.
(C) If entitlement to indemnification is to be made by Independent Counsel pursuant to Article
III, Section 14(E) of the By-laws, the Independent Counsel shall be selected as provided in this
Section 3(C). If a Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Corporation shall give written notice to the Indemnitee
advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change of
Control shall have occurred, the Independent Counsel shall be selected by the Indemnitee (unless
the Indemnitee shall request that such selection be made by the Board of Directors, in which event
the immediately preceding sentence shall apply), and the Indemnitee shall give written notice to
the Corporation advising it of the identity of the Independent Counsel so selected. In either
event, the Indemnitee or the Corporation, as the case may be, may, within seven days after such
written notice of selection shall have been given, deliver to the Corporation or to the Indemnitee,
as the case may be, a written objection to such selection. Such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of “Independent
Counsel” as defined in Article III, Section 14 of the By-laws, and the objection shall set forth
with particularity the factual basis of such assertion. If such written objection is made, the
Independent Counsel so selected may not serve as Independent Counsel unless and until a court has
determined that such objection is without merit. If, within twenty days after the next regularly
scheduled Board of Directors meeting following submission by the Indemnitee of a written request
for indemnification pursuant to Section 3(A) hereof, no Independent Counsel shall have been
selected and not objected to, either the Corporation or the Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Corporation or the Indemnitee to the other’s selection
of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by
the Court or by such other person as the Court shall designate, and the person with respect to whom
an objection is favorably resolved or the person so appointed shall act as Independent Counsel
under Article III, Section 14(E) of the By-laws. The Corporation shall pay any and all reasonable
fees and expenses (including without limitation any advance retainers reasonably required by
counsel) of Independent Counsel incurred by such Independent Counsel in connection with acting
pursuant to Article III, Section 14(E) of the By-laws, and the Corporation shall pay all reasonable
fees and expenses (including without limitation any advance retainers reasonably required by
counsel) incident to the
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procedures of Article III, Section 14(E) of the By-laws and this Section
3(C), regardless of the manner in which Independent Counsel was selected or appointed. Upon the
delivery of its opinion pursuant to Article III, Section 14 of the By-laws or, if earlier, the due
commencement of any judicial proceeding or arbitration pursuant to Section 4(A)(3) of these
Procedures, Independent Counsel shall be discharged and relieved of any further responsibility in
such capacity (subject to the applicable standards of professional conduct then prevailing).
(D) If a Change of Control shall have occurred, in making a determination with respect to
entitlement to indemnification under the By-laws, the person, persons or entity making such
determination shall presume that an Indemnitee is entitled to indemnification under the By-laws if
the Indemnitee has submitted a request for indemnification in accordance with Section 3(A) hereof,
and the Corporation shall have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to that presumption.
SECTION 4 Review and Enforcement of Determination.
(A) In the event that (1) advancement of Expenses is not timely made pursuant to Article III,
Section 14(G) of the By-laws, (2) payment of indemnification is not made pursuant to Article III,
Section 14(C) or (D) of the By-laws within ten days after receipt by the Corporation of written
request therefor, (3) a determination is made pursuant to Article III, Section 14(E) of the By-laws
that an Indemnitee is not entitled to indemnification under the By-laws, (4) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to Article III,
Section 14(E) of the By-laws and such determination shall not have been made and delivered in a
written opinion within ninety days after receipt by the Corporation of the written request for
indemnification, or (5) payment of indemnification is not made within ten days after a
determination has been made pursuant to Article III, Section 14(E) of the By-laws that an
Indemnitee is entitled to indemnification or within ten days after such determination is deemed to
have been made pursuant to Article III, Section 14(F) of the By-laws, the Indemnitee shall be
entitled to an adjudication in an appropriate court of the State of Delaware, or in any other court
of competent jurisdiction, of the Indemnitee’s entitlement to such indemnification or advancement
of Expenses. Alternatively, the Indemnitee, at his or her option, may seek an award in arbitration
to be conducted by a single arbitrator pursuant to the rules of the American Arbitration
Association. The Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within one year following the date on which the Indemnitee first has the right to
commence such proceeding pursuant to this Section 4(A). The Corporation shall not oppose the
Indemnitee’s right to seek any such adjudication or award in arbitration.
(B) In the event that a determination shall have been made pursuant to Article III, Section
14(E) of the By-laws that an Indemnitee is not entitled to indemnification, any judicial proceeding
or arbitration commenced pursuant to this Section 4 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Indemnitee shall not be prejudiced by reason of that
adverse determination. If a Change of Control shall have occurred, the Corporation shall have the
burden of proving in any judicial proceeding or arbitration commenced pursuant to this Section 4
that the Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may
be.
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(C) If a determination shall have been made or deemed to have been made pursuant to Article
III, Section 14(E) or (F) of the By-laws that an Indemnitee is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding or arbitration
commenced pursuant to this Section 4, absent (1) a misstatement or omission of a material fact in
connection with the Indemnitee’s request for indemnification, or (2) a prohibition of such
indemnification under applicable law.
(D) The Corporation shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 4 that the procedures and presumptions of these
Procedures are not valid, binding and enforceable, and shall stipulate in any such judicial
proceeding or arbitration that the Corporation is bound by all the provisions of these Procedures.
(E) In the event that an Indemnitee, pursuant to this Section 4, seeks to enforce the
Indemnitee’s rights under, or to recover damages for breach of, Article III, Section 14 of the
By-laws or these Procedures in a judicial proceeding or arbitration, the Indemnitee shall be
entitled to recover from the Corporation, and shall be indemnified by the Corporation against, any
and all expenses (of the types described in the definition of Expenses in Section 2 of these
Procedures) actually and reasonably incurred in such judicial proceeding or arbitration, but only
if the Indemnitee prevails therein. If it shall be determined in such judicial proceeding or
arbitration that the Indemnitee is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the expenses incurred by the Indemnitee in connection with such
judicial proceeding or arbitration shall be appropriately prorated.
SECTION 5 Amendments. These Procedures may be amended at any time and from time to time in
the same manner as any By-law of the Corporation in accordance with the Certificate of
Incorporation; provided, however, that notwithstanding any amendment, alteration or repeal of these
Procedures or any provision hereof, any Indemnitee shall be entitled to utilize these Procedures
with respect to any claim for indemnification arising out of any action taken or omitted prior to
such amendment, alteration or repeal except to the extent otherwise required by law.
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