Clearwater Paper Corp
false
0001441236
--12-31
0001441236
2024-05-09
2024-05-09
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 9, 2024
CLEARWATER PAPER CORPORATION
(Exact name of Registrant as Specified in Its Charter)
Delaware 001-34146 20-3594554
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
601 West Riverside Ave. 99201
,
Suite 1100
Spokane
,
WA
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code:
(509)
344-5900
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Name of each exchange
Symbol(s) on which registered
Common Stock, par value $0.0001 per share CLW New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s) 230.405 of this
chapter) or Rule
12b-2
of the Securities Exchange Act of 1934
((s) 240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
-------------------------------------------------------------------------------
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) Approval of Restated Certificate of Incorporation
On February 27, 2024, the Board of Directors (the "Board") of Clearwater Paper
Corporation (the "Company") declared advisable, and recommended to the
Company's stockholders that they approve and adopt, an amendment to the
Company's Restated Certificate of Incorporation (the "Restated Certificate")
to declassify the Board over a three-year period commencing with the 2025
annual meeting of stockholders and providing for the annual election of all
directors commencing with the 2027 annual meeting of stockholders.
On May 9, 2024, at the Company's 2024 Annual Meeting of Stockholders (the
"Annual Meeting"), the Company's stockholders approved the Restated
Certificate. The Restated Certificate became effective upon filing with the
Secretary of State of the State of Delaware on May 10, 2024.
The material features of the Restated Certificate are described in the
Company's proxy statement filed with the SEC on March 29, 2024 (the "Proxy
Statement") in the section titled "
Proposal 4 - Approval and Adoption of Restated Certificate of Incorporation to
Declassify the Board
," which is incorporated herein by reference. Such description, and the
foregoing description of the Restated Certificate, are each qualified in their
entirety by reference to the full text of the Restated Certificate, a copy of
which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Approval of Amended and Restated Bylaws
On February 27, 2024, the Board approved conforming amendments to the Amended
and Restated Bylaws of the Company (the "Restated Bylaws"), contingent upon
stockholder approval of the Restated Certificate. The Restated Bylaws became
effective upon the approval of the Restated Certificate by the Company's
stockholders at the Annual Meeting. The Restated Bylaws: (1) provide that any
director may be removed from office at any time prior to the expiration of
his, her or their term of office, with or without cause; and (2) incorporate
certain conforming changes.
The foregoing description of the Restated Bylaws is qualified in its entirety
by reference to the full text of the Restated Bylaws, a copy of which is
attached hereto as Exhibit 3.2 and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
The matters listed below were submitted to a vote of the stockholders at the
Annual Meeting through the solicitation of proxies, and the proposals are
described in the Proxy Statement. The certified results of the stockholder
vote are as follows:
Proposal 1 - Election of Directors
The following individuals were elected to serve as Class I Directors to hold
office until the 2027 Annual Meeting of Stockholders or until their respective
successors are duly elected and qualified:
Nominee For Against Abstain Broker
Non-Votes
John J. Corkrean 13,146,234 245,462 11,464 1,716,084
Arsen S. Kitch 13,212,079 178,005 13,076 1,716,084
Alexander Toeldte 12,728,329 671,654 3,177 1,716,084
Proposal 2 - Ratification of the Appointment of KPMG, LLP as Our Independent
Registered Public Accounting Firm for 2024
The stockholders ratified the appointment of KPMG, LLP as the Company's
independent registered public accounting firm for 2024:
For Against Abstain
14,918,834 197,018 3,392
Proposal 3 - Advisory Vote to Approve Named Executive Officer Compensation
The compensation of the named executive officers as disclosed in the Company's
Proxy Statement pursuant to Item 402 of Regulation
S-K
was approved, on an advisory basis, by the stockholders as follows:
For Against Abstain Broker
Non-Votes
12,756,520 624,658 21,982 1,716,084
1
-------------------------------------------------------------------------------
Proposal 4 - Approval and Adoption of Restated Certificate of Incorporation to
Declassify the Board
The amendment to the Restated Certificate of Incorporation of Clearwater Paper
Corporation to declassify the Board as disclosed in the Company's Proxy
Statement was approved by the stockholders as follows:
For Against Abstain Broker
Non-Votes
13,243,200 92,151 67,809 1,716,084
Item 9.01. Financial Statements and Exhibits.
(d) Exhibit Index
Exhibit Description
3.1 Restated Certificate of Incorporation of Clearwater Paper Corporation.
3.2 Amended and Restated Bylaws of Clearwater Paper Corporation.
104 Cover Page Interactive Data File (embedded within the Inline XBRL).
2
-------------------------------------------------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 15, 2024
CLEARWATER PAPER CORPORATION
By: /s/ Marc D. Rome
Marc D. Rome, Assistant Corporate Secretary
3
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
CLEARWATER PAPERCORPORATION
Clearwater Paper Corporation, a corporation organized and existing under the
laws of the State of Delaware, herebycertifies as follows:
FIRST: The name of the corporation is Clearwater Paper Corporation.
SECOND: The original Certificate of Incorporation of the corporation was filed
with the Secretary of State of the State of Delaware onOctober 7, 2005 and the
original name of the corporation was Potlatch Forest Products Corporation.
THIRD: Pursuant to Sections 242and 245 of the General Corporation Law of the
State of Delaware, this Restated Certificate of Incorporation restates,
integrates and further amends the provisions of the Restated Certificate of
Incorporation of the corporation.
FOURTH: The Restated Certificate of Incorporation of the corporation shall be
amended and restated to read in full as follows:
ARTICLE I
The name ofthe corporation is Clearwater Paper Corporation.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is c/o The Corporation Trust Company, 1209 Orange Street, inthe City
of Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE III
The natureof the business or purposes to be conducted or promoted is to engage
in any lawful act or activity for which corporations may be organized under
the General Corporation Law of the State of Delaware (the "DGCL").
ARTICLE IV
A.
Classesof Stock
. The total number of shares of all classes of capital stock that the
corporation shall have authority to issue is 105,000,000, of which 100,000,000
shares, par value $0.0001 per share, shall be common stock ("Common Stock")and
5,000,000 shares, par value $0.0001 per share, shall be preferred stock
("Preferred Stock"). The number of authorized shares of Common Stock or
Preferred Stock may be increased or decreased (but not below the number of
shares thereofthen outstanding) by the affirmative vote of the holders of a
majority of the then outstanding shares of Common Stock, without a vote of the
holders of Preferred Stock, or of any
-------------------------------------------------------------------------------
series thereof, unless a vote of any such Preferred Stock holders is required
pursuant to the provisions established by the Board of Directors of the
corporation (the "Board ofDirectors") in the resolution or resolutions
providing for the issue of such Preferred Stock, and if such holders of such
Preferred Stock are so entitled to vote thereon, then, except as may otherwise
be set forth in this Restated Certificateof Incorporation, the only
stockholder approval required shall be the affirmative vote of a majority of
the combined voting power of Common Stock and Preferred Stock so entitled to
vote.
B.
Preferred Stock
. Preferred Stock may be issued from time to time in one or more series, as
determined by the Board of Directors. TheBoard of Directors is expressly
authorized to provide for the issue, in one or more series, of all or any of
the remaining shares of Preferred Stock and, in the resolution or resolutions
providing for such issue, to establish for each such seriesthe number of its
shares, the voting powers, full or limited, of the shares of such series, or
that such shares shall have no voting powers, and the designations,
preferences and relative, participating, optional or other special rights of
theshares of such series, and the qualifications, limitations or restrictions
thereof. The Board of Directors is also expressly authorized (unless forbidden
in the resolution or resolutions providing for such issue) to increase or
decrease (but notbelow the number of shares of such series then outstanding)
the number of shares of any series subsequent to the issuance of shares of
that series. In case the number of shares of any such series shall be so
decreased, the shares constituting suchdecrease shall resume the status that
they had prior to the adoption of the resolution originally fixing the number
of shares of such series.
C.
Series A Participating Preferred Stock
. 250,000 shares of the authorized and unissued Preferred Stock of the
corporation are herebydesignated "Series A Participating Preferred Stock" with
the rights, preferences, powers, privileges and restrictions, qualifications
and limitations as provided on
Exhibit A
attached hereto.
D.
Common Stock
.
1.
Relative Rights of Preferred Stock and Common Stock
. All preferences, voting powers, relative, participating, optional or other
special rights and privileges, and qualifications, limitations, or
restrictions of Common Stock are expressly madesubject and subordinate to
those that may be fixed with respect to any shares of Preferred Stock.
2.
Voting Rights
. Except asotherwise required by law or this Restated Certificate of
Incorporation, each holder of Common Stock shall have one vote in respect of
each share of stock held by such holder of record on the books of the
corporation for the election of directorsand on all matters submitted to a
vote of stockholders of the corporation.
3.
Dividends
. Subject to the preferential rights of thePreferred Stock, the holders of
shares of Common Stock shall be entitled to receive, when and if declared by
the Board of Directors, out of the assets of the corporation which are by law
available therefor, dividends payable either in cash, inproperty or in shares
of capital stock.
2
-------------------------------------------------------------------------------
4.
Dissolution, Liquidation or Winding Up
. In the event of any dissolution,liquidation or winding up of the affairs of
the corporation, after distribution in full of the preferential amounts, if
any, to be distributed to the holders of shares of the Preferred Stock,
holders of Common Stock shall be entitled, unlessotherwise provided by law or
this Restated Certificate of Incorporation, to receive all of the remaining
assets of the corporation of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of CommonStock held
by them respectively.
ARTICLE V
In furtherance and not in limitation of the powers conferred by the laws of
the State of Delaware:
A. The Board of Directors is expressly authorized to adopt, amend or repeal
the bylaws of the corporation, provided, however, that the bylawsmay only be
amended in accordance with the provisions thereof.
B. Elections of directors need not be by written ballot unless the bylawsof
the corporation shall so provide.
C. The books of the corporation may be kept at such place within or without
the State of Delaware asthe bylaws of the corporation may provide or as may be
designated from time to time by the Board of Directors.
ARTICLE VI
A.
Number of Directors
. The business and affairs of the corporation shall be managed by a Board of
Directors consisting of not lessthan five nor more than eleven persons. The
exact number of directors of the corporation within the minimum and maximum
number specified in the preceding sentence shall be determined from time to
time by resolution adopted by the affirmative vote ofa majority of the entire
Board of Directors at any regular or special meeting of the Board.
B.
Classes and Terms of Directors
.Commencing with the 2025 annual meeting of stockholders, the Board of
Directors, other than those directors elected by the holders of any series of
Preferred Stock as provided for or fixed pursuant to the provisions of Article
IV of this RestatedCertificate of Incorporation, shall be elected annually by
the stockholders entitled to vote thereon for terms expiring at the next
annual meeting of stockholders; provided however that any director elected or
appointed prior to the 2025 annualmeeting of stockholders shall serve for the
term to which such director has been elected or appointed. At the 2025 annual
meeting of stockholders, the term of office of the Class II directors shall
expire and successors to the Class IIdirectors shall be elected for a term
expiring at the next annual meeting of stockholders and at each succeeding
annual meeting of stockholders. At the 2026 annual meeting of stockholders,
the term of office of the Class III directors shallexpire and successors to
the Class III directors shall be elected for a term expiring at the next
annual meeting of stockholders and at each succeeding annual meeting of
stockholders. At the 2027 annual meeting of stockholders, the term ofoffice of
the Class I directors shall expire and successors to the Class I directors
shall be elected for a term expiring at the next annual meeting of
stockholders and at each succeeding annual meeting of stockholders. From and
after theelection of directors at the 2027 annual meeting of stockholders, the
Board of Directors shall cease to be classified and each
3
-------------------------------------------------------------------------------
director elected at the 2027 annual meeting of stockholders (and at each
succeeding annual meeting of stockholders) shall hold office for a term
expiring at the next annual meeting ofstockholders held after such director's
election. In all cases, each director shall hold office until his or her
successor shall be elected and shall qualify or until his or her earlier
resignation, removal from office, death or incapacity.Subject to the rights of
holders of any series of Preferred Stock, (i) directors of the corporation
serving in Class I (with a term expiring at the 2027 annual meeting of
stockholders), Class II (with a term expiring at the 2025annual meeting of
stockholders) or Class III (with a term expiring at the corporation's 2026
annual meeting of stockholders) may be removed only for cause. Following the
2025 annual meeting of stockholders, any director elected orappointed to a
one-year
term may be removed with or without cause and, following the 2027 annual
meeting of stockholders, all directors may be removed with or without cause.
For purposes of this RestatedCertificate of Incorporation, "2025 annual
meeting of stockholders" shall mean the annual meeting of stockholders held
following the fiscal year ended December 31, 2024; "2026 annual meeting of
stockholders" shall mean theannual meeting of stockholders held following the
fiscal year ended December 31, 2025; and "2027 annual meeting of stockholders"
shall mean the annual meeting of stockholders held following the fiscal year
ended December 31,2026.
C.
Vacancies
. Except as otherwise provided for or fixed pursuant to the provisions of
Article IV of this RestatedCertificate of Incorporation relating to the rights
of the holders of any series of Preferred Stock to elect additional directors,
and subject to the provisions hereof, newly created directorships resulting
from any increase in the authorized numberof directors or any vacancies on the
Board of Directors resulting from death, resignation or removal, shall be
filled, unless otherwise required by law or by resolution of the Board of
Directors, only by the affirmative vote of a majority of theremaining
directors then in office, even though less than a quorum of the Board of
Directors, or by a sole remaining director. Prior to the 2027 annual meeting
of stockholders, any director elected or appointed in accordance with the
precedingsentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualifiedor until his or her earlier death, resignation or removal
from office. From and after the 2027 annual meeting of stockholders, any
director elected or appointed in accordance with the first sentence of this
paragraph shall hold office until the nextsucceeding annual meeting of
stockholders, and until such director's successor shall have been duly elected
and qualified or until his or her earlier death, resignation or removal from
office. Subject to the provisions of this RestatedCertificate of Incorporation,
no decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
ARTICLE VII
Any actionrequired or permitted to be taken by the stockholders of the
corporation must be taken at a duly called annual or special meeting of the
stockholders of the corporation, and the power of stockholders to consent in
writing, without a meeting, to thetaking of any action is specifically denied.
Subject to the rights of the holders of any series of Preferred Stock, special
meetings of the stockholders of the corporation may be called only by the
Secretary of the corporation (a) at thewritten request of the Chair of the
Board of the corporation or the Vice Chair of the Board of the corporation,
(b) pursuant to a resolution adopted by the affirmative vote of a majority of
the Board of Directors or (c) at the request inwriting of stockholders owning
shares which have a majority of the voting power of the capital stock issued
and outstanding and entitled to vote.
4
-------------------------------------------------------------------------------
ARTICLE VIII
A.
Limitation on Liability
. To the fullest extent permitted by the DGCL, as the same exists or as may
hereafter be amended, a directorof the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
B.
Indemnification
. Each person who is or was a director or officer of the corporation and each
director or officer of the corporationwho is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, employee benefit plan
or other enterprise (including the heirs, executors,administrators or estate
of such person), shall be indemnified and advanced expenses by the
corporation, in accordance with the bylaws of the corporation, to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be
amended(but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights
than said law permitted the corporation to provide prior to such amendment) or
any other applicablelaws as presently or hereinafter in effect. The right to
indemnification and advancement of expenses hereunder shall not be exclusive
of any other right that any person may have or hereafter acquire under any
statute, provision of the RestatedCertificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
C.
Insurance
. Thecorporation may, to the fullest extent permitted by law, purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or another corporation, partnership,
joint venture, trust,employee benefit plan or other enterprise against any
expense, liability or loss 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 to indemnify suchperson against such expense, liability
or loss under the DGCL.
D.
Repeal and Modification
. Any repeal or modification of theforegoing provisions of this Article VIII
shall not adversely affect any right or protection existing hereunder
immediately prior to such repeal or modification.
ARTICLE IX
Notwithstanding any other provision of this Restated Certificate of
Incorporation, the affirmative vote of the holders of at least
66-2/3%
of the voting power of all of the then outstanding shares of the stock of the
corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required toamend in any respect or repeal
this Article IX, or Articles VI, VII and VIII.
* * *
5
-------------------------------------------------------------------------------
FIFTH: This Restated Certificate of Incorporation was duly adopted by the
Board of Directorsand the stockholders of the corporation.
SIXTH: This Restated Certificate of Incorporation was duly adopted in
accordance with theprovisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware.
6
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the corporation has caused this certificate to be signed
by itsPresident and Chief Executive Officer this 10th day of May, 2024.
CLEARWATER PAPER CORPORATION
By /s/ Arsen S. Kitch
Arsen S. Kitch
President and Chief Executive Officer
-------------------------------------------------------------------------------
Exhibit A
Series A Participating Preferred Stock
A.
Dividends and Distributions
.
1. Subject to the prior and superior rights of the holders of any shares of
any series of Preferred Stock ranking prior and superior to theshares of
Series A Participating Preferred Stock with respect to dividends, the holders
of shares of Series A Participating Preferred Stock in preference to the
holders of shares of Common Stock of the corporation and any other junior
stock, shallbe entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in
each year (each such date beingreferred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series A Participating
Preferred Stock in an amount per share(rounded to the nearest cent) equal to
the greater of (a) $25.00 or,
(b) subject to the provision for adjustment hereinafter set forth, 1,000 times
theaggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all
non-cash
dividends or other distributions other than a dividend payable in shares
ofCommon Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first QuarterlyDividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Participating Preferred Stock. In the event
the corporation shall at any time after the close of business on December 4,
2008 (the "RightsDeclaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock
or (iii) combine the outstanding Common Stock into a smaller number of shares,
byreclassification or otherwise, then in each such case the amount to which
holders of shares of Series A Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted bymultiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediatelyprior to such event.
2. The corporation shall declare a dividend or distribution on the Series A
Participating Preferred Stock asprovided in Section A.1 of this Exhibit A
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have beendeclared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $25.00 per
share on the Series A Participating Preferred Stock shall nevertheless
bepayable on such subsequent Quarterly Dividend Payment Date.
-------------------------------------------------------------------------------
3. Dividends shall begin to accrue and be cumulative on outstanding shares of
Series AParticipating Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A Participating
Preferred Stock unless the date of issue of such shares is prior to the record
date for the firstQuarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for thedetermination of holders of shares of Series A
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulativefrom such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Participating Preferred Stock in an amount less
than the total amount of such dividends at the time accrued andpayable on such
shares shall be allocated pro rata on a
share-by-share
basis among all such shares at the time outstanding. The Board of Directors
may fix a record datefor the determination of holders of shares of Series A
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the paymentthereof.
B.
Voting Rights
. The holders of shares of Series A Participating Preferred Stock shall have
the following voting rights:
1. Subject to the provision for adjustment hereinafter set forth, each share
of Series A Participating Preferred Stock shall entitle theholder thereof to
1,000 votes on all matters submitted to a vote of the stockholders of the
corporation. In the event the corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in sharesof
Common Stock, (ii) subdivide the outstanding Common Stock into a greater
number of shares or (iii) combine the outstanding Common Stock into a smaller
number of shares, by reclassification or otherwise, then in each such case the
numberof votes per share to which holders of shares of Series A Participating
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is
the number of shares of CommonStock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock
outstanding immediately prior to such event.
2. Except as otherwise provided herein, in the Certificate of Incorporation or
by law, the holders of shares of Series A ParticipatingPreferred Stock and the
holders of shares of Common Stock and any other capital stock of the
corporation having general voting rights shall vote together as one class on
all matters submitted to a vote of stockholders of the corporation.
3. (a) If at any time dividends on any Series A Participating Preferred Stock
shall be in arrears in an amount equal to six quarterlydividends thereon, the
holders of the Series A Participating Preferred Stock, voting as a separate
series from all other series of Preferred Stock and classes of capital stock,
shall be entitled to elect two members of the Board of Directors inaddition to
any directors elected by any other series, class or classes of securities and
the authorized number of directors will automatically be increased by two.
Promptly thereafter, the Board of Directors of this corporation shall, as soon
asmay be practicable, call a special meeting of holders of Series A
Participating Preferred Stock for the purpose of electing such members of the
Board of Directors. Said special meeting shall in any event be held within 45
days of the occurrence ofsuch arrearage.
-------------------------------------------------------------------------------
(b) During any period when the holders of Series A Participating Preferred
Stock, voting asa separate series, shall be entitled and shall have exercised
their right to elect btwo directors, then and during such time as such right
continues (a) the then authorized number of directors shall remain increased
by two, and the holders ofSeries A Participating Preferred Stock, voting as a
separate series, shall remain entitled to elect the additional directors so
provided for, and (b) each such additional director shall not, prior to the
2027 annual meeting of stockholders, bea member of any existing class of the
Board of Directors, but in all cases shall serve until the next annual meeting
of stockholders for the election of directors, or until his or her successor
shall be elected and shall qualify, or until his or herright to hold such
office terminates pursuant to the provisions of this Section B.3.
(c) A director elected pursuant to the terms hereofmay be removed with or
without cause by the holders of Series A Participating Preferred Stock
entitled to vote in an election of such director.
(d) If, during any interval between annual meetings of stockholders for the
election of directors and while the holders of Series AParticipating Preferred
Stock shall be entitled to elect two directors, there are fewer than two such
directors in office by reason of resignation, death or removal, then, promptly
thereafter, the Board of Directors shall call a special meeting ofthe holders
of Series A Participating Preferred Stock for the purpose of filling such
vacancy(ies) and such vacancy(ies) shall be filled at such special meeting.
Such special meeting shall in any event be held within 45 days of the
occurrence of anysuch vacancy(ies).
(e) At such time as the arrearage is fully cured, and all dividends
accumulated and unpaid on any shares of Series AParticipating Preferred Stock
outstanding are paid, and, in addition thereto, at least one regular dividend
has been paid subsequent to curing such arrearage, the term of office of any
director elected pursuant to this Section B.3., or his or hersuccessor, shall
automatically terminate, and the authorized number of directors shall
automatically decrease by two, and the rights of the holders of the shares of
the Series A Participating Preferred Stock to vote as provided in this Section
B.3.shall cease, subject to renewal from time to time upon the same terms and
conditions.
4. Except as set forth herein or as otherwiseprovided by law, holders of
Series A Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock and any other capital stockof the
corporation having general voting rights as set forth herein) for taking any
corporate action.
C.
Certain Restrictions
.
1. Whenever quarterly dividends or other dividends or distributions payable on
the Series A Participating Preferred Stock as provided inSection B of this
Exhibit A are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Participating Preferred Stock outstanding shall have been paid in full,
thecorporation shall not:
(a) declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire forconsideration any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Participating Preferred Stock;
-------------------------------------------------------------------------------
(b) declare or pay dividends on or make any other distributions on any shares
of stockranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Participating Preferred Stock
except dividends paid ratably on the Series A Participating Preferred Stock
and all such parity stock onwhich dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled;
(c) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking on a parity (either as to dividends or uponliquidation,
dissolution or winding up) with the Series A Participating Preferred Stock
provided that the corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of
thecorporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Participating Preferred Stock; or
(d) purchase or otherwise acquire for consideration any shares of Series A
Participating Preferred Stock or any shares of stock ranking on aparity with
the Series A Participating Preferred Stock except in accordance with a
purchase offer made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as the Board of
Directors,after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series orclasses.
2. The corporation shall not permit any subsidiary of the corporation to
purchase or otherwise acquire for consideration anyshares of stock of the
corporation unless the corporation could, under Section C.1. of this Exhibit
A, purchase or otherwise acquire such shares at such time and in such manner.
D.
Reacquired Shares
. Any shares of Series A Participating Preferred Stock purchased or otherwise
acquired by the corporation in anymanner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of PreferredStock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
E.
Liquidation, Dissolution or Winding Up
.
1. Upon any liquidation (voluntary or otherwise), dissolution or winding up of
the corporation, no distribution shall be made to the holdersof shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Participating Preferred Stock shall
havereceived per share, the greater of $1,000.00 or 1,000 times the payment
made per share of Common Stock, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the"Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A
-------------------------------------------------------------------------------
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotientobtained by dividing (i) the Series A Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as set forth in Section
E.3. of this Exhibit A to reflect such events as stock splits, stock dividends
and recapitalization with respect tothe Common Stock) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of
the Series A Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series AParticipating Preferred Stock and Common
Stock, respectively, holders of Series A Participating Preferred Stock and
holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed inthe ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
2. Inthe event there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation preferences of
all other series of Preferred Stock, if any, which rank on a parity with the
Series AParticipating Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to
their respective liquidation preferences. In the event, following payment in
full of all liquidationpreferences of all shares senior to Common Stock
(including the Series A Participating Preferred Stock), there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then the remaining assets shall be distributedratably to the
holders of Common Stock.
3. In the event the corporation shall at any time after the Rights Declaration
Date(i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, by reclassification
or otherwise,then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately aftersuch event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
F.
Consolidation, Merger, etc
. In case the corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash or anyother
property, then in any such case the shares of Series A Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 1,000times the aggregate amount of stock, securities, cash and any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
corporation shall at any time after theRights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then ineach such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series
A Participating Preferred Stock shall be adjusted by multiplying such amount
by a fraction the numerator of which is the numberof shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that are outstanding immediately prior to
such event.
-------------------------------------------------------------------------------
G.
Redemption
. The shares of Series A Participating Preferred Stock shall not beredeemable.
H.
Ranking.
The Series A Participating Preferred Stock shall rank junior to all other
series of the corporation'sPreferred Stock as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall provide
otherwise.
I.
Amendment
. This Certificate of Incorporation and the Bylaws of the corporation shall
not be further amended in any manner whichwould materially alter or change the
powers, preferences or special rights of the Series A Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least
66-2/3%
of the outstanding shares of Series A Participating Preferred Stock voting
separately as a class.
J.
Fractional Shares
. Series A Participating Preferred Stock may be issued in fractions of a share
which shall entitle the holder, inproportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series
A Participating Preferred Stock.
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
CLEARWATER PAPER CORPORATION
(a Delaware corporation)
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1 Offices 1
1.1 Registered Office 1
1.2 Other Offices 1
ARTICLE 2 Meeting of Stockholders 1
2.1 Place of Meeting 1
2.2 Annual Meeting 1
2.3 Special Meetings 4
2.4 Notice of Meetings 5
2.5 List of Stockholders 5
2.6 Organization and Conduct of Business 5
2.7 Quorum 6
2.8 Adjournments 6
2.9 Voting Rights 6
2.10 Action at Meetings 6
2.11 Record Date for Stockholder Notice and Voting 7
2.12 Proxies 7
2.13 Inspectors of Election 8
2.14 No Action Without a Meeting 8
ARTICLE 3 Directors 8
3.1 Election, Tenure and Qualifications 8
3.2 Enlargement and Vacancies 11
3.3 Resignation and Removal 11
3.4 Powers 11
3.5 Chair of the Board; Vice Chair of the Board 11
3.6 Place of Meetings 11
3.7 Annual Meetings 11
3.8 Regular Meetings 12
3.9 Special Meetings 12
3.10 Quorum, Action at Meeting, Adjournments 12
3.11 Action Without Meeting 12
-------------------------------------------------------------------------------
TABLE OF CONTENTS
(continued)
Page
3.12 Telephone Meetings 12
3.13 Committees 13
3.14 Fees and Compensation of Directors 13
ARTICLE 4 Officers 13
4.1 Officers Designated 13
4.2 Election 14
4.3 Tenure 14
4.4 Chief Executive Officer 14
4.5 President 14
4.6 Chief Financial Officer 14
4.7 Vice President 15
4.8 Secretary 15
4.9 Assistant Secretary 15
4.10 Treasurer and Assistant Treasurers 15
4.11 Delegation of Authority 15
ARTICLE 5 Notices 16
5.1 Delivery 16
5.2 Waiver of Notice 16
ARTICLE 6 Indemnification and Insurance 16
6.1 Indemnification 16
6.2 Advance Payment 17
6.3 Non-Exclusivity 18
and Survival of Rights; Amendments
6.4 Insurance 18
6.5 Severability 18
6.6 Reliance 18
6.7 Indemnification of Other Persons 18
ARTICLE 7 Capital Stock 19
7.1 Uncertificated Shares 19
7.2 Transfer of Stock 19
7.3 Registered Stockholders 19
7.4 Lost, Stolen or Destroyed Certificates 19
-ii-
-------------------------------------------------------------------------------
TABLE OF CONTENTS
(continued)
Page
ARTICLE 8 General Provisions 20
8.1 Dividends 20
8.2 Checks 20
8.3 Corporate Seal 20
8.4 Execution of Corporate Contracts and Instruments 20
8.5 Representation of Shares of Other Corporations 20
ARTICLE 9 Amendments 21
-iii-
-------------------------------------------------------------------------------
AMENDED AND RESTATED
BYLAWS
OF CLEARWATERPAPER CORPORATION
(a Delaware corporation)
ARTICLE 1
Offices
1.1
Registered Office
. The registered office of the corporation shall be set forth in the
certificate of incorporation of thecorporation (the "Certificate of
Incorporation").
1.2
Other Offices
. The corporation may also have offices at such otherplaces, either within or
without the State of Delaware, as the board of directors of the corporation
(the "Board") may from time to time designate or the business of the
corporation may require.
ARTICLE 2
Meeting ofStockholders
2.1
Place of Meeting
. Meetings of stockholders may be held at such place, either within or without
the State ofDelaware, as may be designated by or in the manner provided in
these bylaws, or, if not so designated, at the principal executive offices of
the corporation. In lieu of holding a meeting of stockholders at a designated
place, the Board, in its solediscretion, may determine that any meeting of
stockholders may be held solely by means of remote communication.
2.2
AnnualMeeting
. Annual meetings of stockholders shall be held each year at such date and
time as shall be designated from time to time by the Board and stated in the
notice of the meeting. At each such annual meeting, the stockholders shall
elect thenumber of directors equal to the number of directors of the class
whose term expires at such meeting (or, if fewer, the number of directors
properly nominated and qualified for election). The stockholders shall also
transact such other business asmay properly be brought before the meeting.
To be properly brought before the annual meeting, business must be (a)
specified in thenotice of meeting (or any supplement thereto) given by or at
the direction of the Board, (b) otherwise properly brought before the meeting
by or at the direction of the Board, or (c) otherwise properly brought before
the meeting by astockholder who is a stockholder of record of the corporation
at the time of giving of the notice provided for in this Section and at the
time of the annual meeting, who is entitled to vote at the meeting, and who
complies with the notice proceduresset forth in this Section. The requirements
of this Section shall apply to any business to be brought before an annual
meeting by a stockholder, other than (i) the nomination of a person for
election as a director, which must be made incompliance with, and shall be
exclusively governed by, Section 3.1 of these bylaws, and (ii) matters
properly brought under Rule
14a-8
(or any successor rule or regulation) promulgated under theSecurities Exchange
Act of 1934 (the "Exchange Act") and included in the corporation's notice of
meeting.
-1-
-------------------------------------------------------------------------------
For business to be properly brought before an annual meeting by a stockholder,
thestockholder must have given timely notice to the Secretary of the
corporation in proper written form of the stockholder's intent to propose such
business and the business proposed must be otherwise proper to be brought
before the meeting. To betimely, the stockholder's notice must be delivered by
a nationally recognized courier service or mailed by first class United States
mail, postage or delivery charges prepaid, and received at the principal
executive offices of the corporationaddressed to the attention of the
Secretary of the corporation not more than 120 days nor less than 90 days
prior to the first anniversary date of the preceding year's annual meeting of
stockholders;
provided, however
, that in the eventthat no annual meeting was held in the preceding year or
the annual meeting is called for a date that is more than 30 days before or
more than 60 days after the first anniversary date of the preceding year's
annual meeting of stockholders,notice by the stockholder to be timely must be
so received by the Secretary of the corporation not later than the close of
business on the later of (x) the 90th day prior to the date of such scheduled
annual meeting and (y) the 10th dayfollowing the earlier to occur of the day
on which notice of the date of the scheduled annual meeting was mailed or the
day on which public announcement (as defined below) of the date of such
scheduled annual meeting was first made. In no eventshall any adjournment or
postponement of an annual meeting or the announcement thereof commence a new
time period (or extend any time period) for the giving of the stockholder's
notice as described above.
A stockholder's notice to the Secretary shall set forth the following as to
each matter the stockholder proposes to bring before theannual meeting: (i) a
brief description of the business desired to be brought before the annual
meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and, in the event that such
businessincludes a proposal to amend these bylaws, the language of the
proposed amendment), and the reasons for conducting such business at the
annual meeting; (ii) as to the stockholder giving the notice and the
beneficial owner, if any, on whosebehalf the business is being proposed, (A)
the name and address, as they appear on the corporation's books, of the
stockholder, the name and address of the beneficial owner, if any, and the
name and address of any person who is anassociated person (as defined below)
of the stockholder or the beneficial owner, (B) the class, series and number
of shares of the corporation that are held of record by the stockholder, the
beneficial owner, if any, and any person who is anassociated person of the
stockholder or the beneficial owner as of the date of the notice, and a
representation that the stockholder will provide the corporation in writing
the information required by this clause (B) updated as of the recorddate for
the meeting promptly following the later of the record date or the date on
which public announcement of the record date was first made, (C) any material
interest in such business of the stockholder, the beneficial owner, if any,
andany person who is an associated person of the stockholder or the beneficial
owner, (D) a representation as to whether the stockholder or the beneficial
owner, if any, intends, or is or intends to be part of a group that intends,
to deliver aproxy statement and/or form of proxy to holders of at least the
percentage of the corporation's outstanding shares that, together with shares
owned by the stockholder or the beneficial owner and any such group, would be
required to approve oradopt such business and/or otherwise to solicit proxies
from stockholders in support of such business, and (E) any other information
that would be required to be provided by the stockholder, the beneficial
owner, if any, and any person
-2-
-------------------------------------------------------------------------------
who is an associated person of the stockholder or the beneficial owner
pursuant to the Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder assuming that thestockholder or the beneficial owner
were to request that the corporation include such business in the
corporation's proxy statement as a stockholder proposal; (iii) as to the
stockholder giving the notice or, if the notice is given onbehalf of a
beneficial owner on whose behalf the business is being proposed, as to the
beneficial owner, (A) the class, series and number of shares of the
corporation that are owned beneficially by the stockholder or beneficial owner
and anyassociated person thereof as of the date of the notice, (B) any
derivative or short positions held or beneficially held by the stockholder or
beneficial owner and any associated person thereof and whether and the extent
to which any hedging orother transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding (including any profit interests, options, and borrowed or loaned
shares) has been made, the effect or intentof which is to mitigate loss to,
manage the risk or benefit of share price changes for, or increase or decrease
the voting power of, the stockholder or beneficial owner or any associated
person thereof with respect to the corporation'ssecurities, (C) a
representation that the stockholder will provide the corporation in writing
the information required by the preceding clauses (A) and (B) updated as of
the record date for the meeting promptly following the later of therecord date
or the date on which public announcement of the record date was first made,
and (D) a description of any agreement, arrangement or understanding with
respect to such business between or among the stockholder or beneficial owner
andany associated person thereof, and any others (including their names)
acting in concert with any of the foregoing (including any agreement that
would be required to be disclosed pursuant to Item 5 or Item 6 of Schedule 13D
under the Exchange Act,regardless of whether the requirement to file a
Schedule 13D is applicable to the stockholder or beneficial owner), and a
representation that the stockholder or beneficial owner will provide the
corporation in writing the information required bythis clause (D) updated as
of the record date for the meeting promptly following the later of the record
date or the date on which public announcement of the record date was first
made; and (iv) a representation that the stockholder (or aqualified
representative of the stockholder) intends to appear in person or by proxy at
the meeting to propose such business.
Notwithstanding anything in these bylaws to the contrary, (a) no business
shall be conducted at the annual meeting except in accordancewith the
procedures set forth in this Section;
provided, however
, that nothing in this Section shall be deemed to preclude discussion by any
stockholder of any business properly brought before the annual meeting; and
(b) unless otherwiserequired by law, if a stockholder intending to propose
business at an annual meeting pursuant to the preceding paragraph does not
provide the updated information required under clauses (ii) and (iii) of the
preceding paragraph to thecorporation promptly following the later of the
record date or the date on which public announcement of the record date was
first made, or the stockholder (or a qualified representative of the
stockholder) does not appear at the meeting to presentthe proposed business,
such business shall not be transacted, notwithstanding that proxies in respect
of such business may have been received by the corporation. For purposes of
this Section, to be considered a qualified representative of thestockholder, a
person must be a duly authorized officer, manager or partner of such
stockholder or authorized by a writing executed by such stockholder (or a
reliable reproduction or electronic transmission of the writing) delivered to
thecorporation prior to the proposing of the business at the meeting by the
stockholder stating that the person is authorized to act for the stockholder
as proxy at the meeting of stockholders. Notwithstanding the foregoing
provisions of this Section,a stockholder shall
-3-
-------------------------------------------------------------------------------
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
Section; provided, however, that anyreferences in this Section to the Exchange
Act or the rules and regulations thereunder are not intended to and shall not
limit the requirements applicable to proposals as to any business to be
considered pursuant to the preceding paragraph. Therequirements set forth in
the preceding paragraph of this Section are intended to provide the
corporation with notice of a stockholder's intention to bring business before
an annual meeting and related information and shall in no event beconstrued as
imposing upon any stockholder the requirement to seek approval from the
corporation as a condition precedent to bringing any such business before an
annual meeting. Nothing in this Section 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
(or any successor rule or regulation) promulgated under the Exchange Act
or(ii) of the holders of any class or series of stock having a preference over
the common stock as to dividends or upon liquidation, to make nominations of
persons for election to the Board if and to the extent provided for under law,
theCertificate of Incorporation, or these bylaws.
The Chair of the Board (or such other person presiding at the meeting in
accordance withthese bylaws) shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section, and if he or she
should so determine, he or she shall sodeclare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
For purposes of thesebylaws, (1) "public announcement" shall mean disclosure
(A) in a press release issued through Business Wire or PR Newswire or reported
by the Dow Jones News Service, Associated Press or a comparable national news
service or(B) 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, (2) "associated person" of a person shall mean any person
controlling,controlled by or under common control with, directly or
indirectly, or acting in concert with, such person, and (3) "group" shall have
the meaning ascribed to such term under Section 13(d)(3) of the Exchange Act .
2.3
Special Meetings
. Special meetings of the stockholders may be called for any purpose or
purposes, unless otherwise prescribed bystatute or by the Certificate of
Incorporation, by the Secretary only (a) at the written request of the Chair
of the Board or the Vice Chair of the Board, (b) pursuant to a resolution
adopted by the affirmative vote of a majority of theBoard or (c) at the
request in writing of stockholders owning shares which have a majority of the
voting power of the capital stock issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposedmeeting.
Business transacted at any special meeting shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
A request to the Secretary by stockholders for a special meeting shall be
signed by each stockholder, or a duly authorized agent of suchstockholder,
requesting the special meeting and shall set forth the same information
required to be provided by a stockholder proposing to bring a matter before an
annual meeting pursuant to Section 2.2 of these bylaws. A special
meetingrequested by stockholders shall be held at such date, time and place
within or without the state of Delaware as may be fixed by the Board;
provided, however, that the date of any such special
-4-
-------------------------------------------------------------------------------
meeting shall be not more than ninety (90) days after the request to call the
special meeting is received by the Secretary. A stockholder may revoke a
request for a special meeting at anytime by written revocation delivered to
the Secretary, and if, following such revocation, there are
un-revoked
requests from stockholders holding in the aggregate less than the requisite
number of sharesentitling the stockholders to request the calling of a special
meeting, the Board, in its discretion, may cancel the special meeting.
Business to be transacted at a special meeting requested by stockholders shall
be limited to the matters in thespecial meeting request; provided, however,
that nothing herein shall prohibit the Board from submitting matters to the
stockholders at any special meeting requested by stockholders.
2.4
Notice of Meetings
. Except as otherwise provided by law, written notice of each meeting of
stockholders, annual or special, statingthe place, if any, date and time of
the meeting, the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, and, in the case of a special meeting, the purposeor purposes for
which such special meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than 10 nor more than 60 days before
the date of the meeting.
2.5
List of Stockholders
. The officer in charge of the stock ledger of the corporation or the transfer
agent shall prepare and make, atleast 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name ofeach
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 thatthe 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. If the meeting is to be held
at a place, then thelist 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, then the listshall 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 gain access to
such list shall be provided with the notice of the meeting.
2.6
Organization and Conduct of Business
. The Chair of the Board or, in his or her absence, the Chief Executive
Officer orPresident of the corporation or, in their absence, such person as
the Board may have designated or, in the absence of such a person, such person
as may be chosen by the holders of a majority of the shares entitled to vote
who are present, in personor by proxy, shall call to order any meeting of the
stockholders and act as chair of the meeting. In the absence of the Secretary
of the corporation, the secretary of the meeting shall be such person as the
chair of the meeting appoints.
The chair of any meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation ofthe manner of
voting and the conduct of discussion as seems to him or her in order.
-5-
-------------------------------------------------------------------------------
2.7
Quorum
. Except where otherwise provided by law or the Certificate ofIncorporation or
these bylaws, the holders of a majority of the stock issued and outstanding
and entitled to vote, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
thestockholders.
2.8
Adjournments
. Any meeting of stockholders may be adjourned from time to time to any other
time and to any otherplace at which a meeting of stockholders may be held
under these bylaws, which time and place shall be announced at the meeting. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which mighthave been transacted at the original
meeting. When a meeting is adjourned to another place, date or time, notice
need not be given of the adjourned meeting if the place, date and time thereof
are announced at the meeting at which the adjournment istaken;
provided, however
, that if the date of any adjourned meeting is more than 30 days after the
date for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, written notice of the place, ifany, date,
time and means of remote communications, if any, of the adjourned meeting
shall be given in conformity herewith.
2.9
VotingRights
. Unless otherwise provided in the Certificate of Incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock having voting power held by such
stockholder.
2.10
Action at Meetings
.
(a) When a quorum is present at any meeting, the vote of the holders of a
majority of the voting power of the capital stock present in personor
represented by proxy and entitled to vote on the question shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of law or of the Certificate of Incorporation or of these
bylaws, adifferent vote is required, in which case such express provision
shall govern and control the decision of such question.
(b) At anymeeting of stockholders at which directors are to be elected, when a
quorum is present: (i) each nominee in an uncontested election shall be
elected by the vote of the majority of the votes cast with respect to that
director's election;and (ii) in a contested election, the nominees receiving a
plurality of the votes cast shall be elected. For purposes of this Section
2.10, (i) a "contested election" means the number of nominees exceeds the
number of directorsto be elected in such election; (ii) an "uncontested
election" means the number of nominees equals the number of directors to be
elected in such election; and (iii) a "majority of the votes cast" means by
the vote ofthe majority of the voting power of the capital stock issued and
outstanding, present in person or represented by proxy and entitled to vote
for the election of directors.
(c) The Board shall nominate or elect as a director only persons who agree to
tender, promptly following his or her election or
re-election
to the Board, an irrevocable resignation that will be effective upon (i) the
failure of the candidate to receive the required vote at the next annual
meeting at which he or she faces
re-election
and (ii) the acceptance by the Board of such resignation.
-6-
-------------------------------------------------------------------------------
(d) If an incumbent director fails to receive the required vote for
re-election
in an uncontested election, the nominating and corporate governance committee
of the Board will determine whether such director's resignation should be
accepted and make a recommendation to theBoard, which shall make the final
determination whether to accept the resignation. The Board will publicly
disclose the Board's decision within 90 days from the date of certification of
the election results. If such incumbent director is amember of the nominating
and corporate governance committee and does not agree to abstain from
participating in the committee's deliberations and decision regarding such
resignation, then such committee shall act through a
sub-committee
consisting of one or more members who did not fail to receive the required
vote in the election. If such incumbent does not agree to abstain from
participating in the Board's deliberations anddecision regarding such
resignation, then the Board shall act through a special committee consisting
entirely of directors who did not fail to receive the required vote in the
election.
(e) If a director's resignation is accepted by the Board pursuant to this
Section 2.10, or if a nominee for director is not electedand the nominee is
not an incumbent director, then the Board may fill the resulting vacancy
pursuant to the applicable provisions of the Certificate of Incorporation or
may decrease the size of the Board pursuant to the provisions of the
Certificateof Incorporation.
2.11
Record Date for Stockholder Notice and Voting
. For purposes of determining the stockholders entitled tonotice 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 right in respect of any change,
conversionor exchange of stock or for the purpose of any other lawful action,
the Board may fix, in advance, a record date, which shall not be more than 60
days nor fewer than 10 days before the date of any such meeting nor more than
60 days before any otheraction to which the record date relates. 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 may fix a newrecord date for the adjourned meeting. If the
Board does not so fix a record date, 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 precedingthe 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.
2.12
Proxies
. Each stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for suchstockholder by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. All proxies must be filed with the
Secretary of the corporation or the inspector of election for themeeting at
the beginning of such meeting in order to be counted in any vote at the
meeting. Subject to the limitation set forth in the last clause of the first
sentence of this Section 2.12, a duly executed proxy that does not state that
it isirrevocable shall continue in full force and effect unless (i) revoked by
the person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked or by a
subsequent proxyexecuted by, or attendance at the meeting and voting in person
by, the person executing the proxy, or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before
the vote pursuant to thatproxy is counted.
-7-
-------------------------------------------------------------------------------
2.13
Inspectors of Election
. The corporation shall, in advance of any meeting ofstockholders, appoint one
or more inspectors of election to act at the meeting and make a written report
thereof. The corporation may designate one or more persons to act as alternate
inspectors to replace any inspector who fails to act. If noinspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall
takeand sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
2.14
No Action Without a Meeting
. No action required or permitted to be taken at any annual or special meeting
of the stockholders ofthe corporation may be taken without a meeting and the
power of the stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
ARTICLE 3
Directors
3.1
Election, Tenure and Qualifications
. At each annual meeting of the stockholders, directors shall be elected, and
each director soelected shall hold office until such director's successor is
duly elected and qualified or until such director's earlier resignation,
removal, death or incapacity.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors. Subject to the rightsof holders
of any class or series of stock having a preference over the common stock as
to dividends or upon liquidation, nominations of persons for election to the
Board at the annual meeting may be made (i) by or at the direction of the
Board(or any duly authorized committee thereof) or (ii) by a stockholder who
is a stockholder of record at the time of giving of the notice provided for in
this Section and at the time of the annual meeting, who is entitled to vote
for the electionof directors at the meeting, and who complies with the notice
procedures set forth in this Section. A stockholder may make such a nomination
only if such stockholder has given timely notice to the Secretary of the
corporation in proper written formof the stockholder's intent to make such a
nomination.
To be timely, with respect to an annual meeting of stockholders, thestockholder'
s notice must be delivered by a nationally recognized courier service or
mailed by first class United States mail, postage or delivery charges prepaid,
and received at the principal executive offices of the corporation, addressed
tothe attention of the Secretary of the corporation, not more than 120 days
nor less than 90 days prior to the first anniversary date of the preceding
year's annual meeting of stockholders;
provided, however
, that in the event that noannual meeting was held in the preceding year or
the annual meeting is called for a date that is more than 30 days before or
more than 60 days after the first anniversary date of the preceding year's
annual meeting of stockholders, notice bythe stockholder to be timely must be
so received by the Secretary of the corporation not later than the close of
business on the later of (x) the 90th day prior to such annual meeting and (y)
the 10th day following the earlier to occur ofthe day on which notice of the
date of the scheduled annual meeting was mailed or the day on which public
announcement of the date of such scheduled annual meeting was first made. In
no event shall any adjournment or postponement of an annualmeeting or the
announcement thereof commence a new time period (or extend any time period)
for the giving of the stockholder's notice as described above.
-8-
-------------------------------------------------------------------------------
A stockholder's notice to the Secretary shall set forth the following: (i) as
toeach person whom the stockholder proposes to nominate for election or
reelection as a director, (A) the name, age, business address and residence
address of the person, (B) the principal occupation or employment of the
person, (C) theclass, series and number of shares of capital stock of the
corporation that are owned of record and beneficially by the person, (D) a
statement whether the person, if elected, intends to tender, promptly
following such person's election or
re-election
as a director, an irrevocable resignation effective upon (x) such person's
failure to receive the required vote for
re-election
at the next meetingof stockholders at which such person would face
re-election
and (y) acceptance of such resignation by the Board, in accordance with these
bylaws or the corporation's corporate governance guidelines,(E) a description
of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and
any other material relationships, between or among the stockholder,
thebeneficial owner on whose behalf the nomination is being made, if any, or
any person who is an associated person of the stockholder or the beneficial
owner, on the one hand, and the person, and such person's respective
affiliates andassociates, or others (including their names) acting in concert
therewith, on the other hand, including all information that would be required
to be disclosed pursuant to Item 404 of Regulation
S-K
promulgatedby the Securities and Exchange Commission assuming for this purpose
that the stockholder, the beneficial owner on whose behalf the nomination is
being made, if any, and any person who is an associated person of the
stockholder or the beneficialowner were the "registrant" and such person were
a director or executive officer of such registrant, (F) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election ofdirectors in a contested election pursuant to Section
14 of the Exchange Act and the rules and regulations promulgated thereunder,
and (G) the person's written consent to serve as a director if elected; (ii)
as to the stockholdergiving the notice and the beneficial owner, if any, on
whose behalf the nomination is being made, (A) the name and address, as they
appear on the corporation's books, of the stockholder, the name and address of
the beneficial owner, ifany, and the name and address of any person who is an
associated person of the stockholder and the beneficial owner, (B) the class,
series and number of shares of the corporation that are held of record by the
stockholder, the beneficial owner,if any, and any person who is an associated
person of the stockholder and the beneficial owner as of the date of the
notice, and a representation that the stockholder will provide the corporation
in writing the information required by this clause(B) updated as of the record
date for the meeting promptly following the later of the record date or the
date on which public announcement of the record date was first made, (C) a
representation as to whether the stockholder or thebeneficial owner, if any,
intends, or is or intends to be part of a group that intends, to deliver a
proxy statement or form of proxy to holders of at least the percentage of the
corporation's outstanding shares that, together with the sharesowned by the
stockholder or the beneficial owner and any such group, would be required to
approve the nomination or otherwise to solicit proxies from stockholders in
support of the nomination, and (D) any other information relating to
thestockholder, the beneficial owner, if any, and any person who is an
associated person of the stockholder or the beneficial owner that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection withsolicitations of proxies for the election of directors
in a contested election pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder; (iii) as to the stockholder
giving the notice
-9-
-------------------------------------------------------------------------------
or, if the notice is given on behalf of a beneficial owner on whose behalf the
nomination is being made, as to the beneficial owner, (A) the class, series
and number of shares of thecorporation that are owned beneficially by the
stockholder or beneficial owner and any person who is an associated person
thereof as of the date of the notice, (B) any derivative or short positions
held or beneficially held by the stockholderor beneficial owner and any person
who is an associated person thereof and 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 orunderstanding
(including any profit interests, options, and borrowed or loaned shares) has
been made, the effect or intent of which is to mitigate loss to, manage the
risk or benefit of share price changes for, or increase or decrease the
votingpower of, the stockholder or beneficial owner or any person who is an
associated person thereof with respect to the corporation's securities, (C) a
representation that the stockholder will provide the corporation in writing
the informationrequired by the preceding clauses (A) and (B) updated as of the
record date for the meeting promptly following the later of the record date or
the date on which public announcement of the record date was first made, and
(D) a descriptionof any agreement, arrangement or understanding with respect
to the nomination between or among the stockholder or beneficial owner and any
person who is an associated person thereof, and any others (including their
names) acting in concert with anyof the foregoing (including any agreement
that would be required to be disclosed pursuant to Item 5 or Item 6 of
Schedule 13D under the Exchange Act, regardless of whether the requirement to
file a Schedule 13D is applicable to the stockholder orbeneficial owner), and
a representation that the stockholder or beneficial owner will provide the
corporation in writing the information required by this clause (D) updated as
of the record date for the meeting promptly following the later ofthe record
date or the date on which public announcement of the record date was first
made; and (iv) a representation that the stockholder giving the notice (or a
qualified representative of the stockholder) intends to appear in person or
byproxy at the meeting to nominate the person or persons specified in the
notice. The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of suchproposed nominee to serve as an independent director of the
corporation or that could be material to a reasonable stockholder's
understanding of the independence, or lack thereof, of such nominee. No person
shall be eligible for election as adirector of the corporation unless
nominated in accordance with the procedures set forth herein. Notwithstanding
the foregoing provisions of this Section, a stockholder shall also comply with
all applicable requirements of the Exchange Act and therules and regulations
thereunder with respect to the matters set forth in this Section; provided,
however, that any references in this Section to the Exchange Act or the rules
and regulations thereunder are not intended to and shall not limit
therequirements applicable to proposals as to any nomination to be considered
pursuant to this Section.
In connection with any annualmeeting of the stockholders, the Chair of the
Board (or such other person presiding at such meeting in accordance with these
bylaws) shall, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance withthe foregoing procedure, and if he
or she should so determine, he or she shall so declare to the meeting and the
defective nomination shall be disregarded. Notwithstanding anything in these
bylaws to the contrary, unless otherwise required by law,if a stockholder
intending to make a nomination at an annual pursuant to the preceding
paragraph does not provide the updated information required under clauses (ii)
and (iii) of the preceding paragraph to the corporation promptly following
thelater of the record date or the date on which public
-10-
-------------------------------------------------------------------------------
announcement of the record date was first made, or the stockholder giving the
notice (or a qualified representative of the stockholder) does not appear at
the meeting to present the nomination,such nomination shall be disregarded,
notwithstanding that proxies in respect of such nomination may have been
received by the corporation. For purposes of this Section, to be considered a
qualified representative of the stockholder, a person mustbe a duly authorized
officer, manager or partner of such stockholder or authorized by a writing
executed by such stockholder (or a reliable reproduction or electronic
transmission of the writing) delivered to the corporation prior to the
proposingof the nomination at the meeting by the stockholder giving the notice
stating that the person is authorized to act for the stockholder as proxy at
the meeting of stockholders.
3.2
Enlargement and Vacancies
. Except as otherwise provided in the Certificate of Incorporation relating to
the rights of the holdersof any series of preferred stock to elect directors,
and subject to the provisions of the Certificate of Incorporation, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies on the Board ofDirectors resulting from death,
resignation or removal, shall be filled, unless otherwise required by law or
by resolution of the Board of Directors, only by the affirmative vote of a
majority of the remaining directors then in office, even thoughless than a
quorum of the Board of Directors, or by a sole remaining director .
3.3
Resignation and Removal
. Any director mayresign at any time upon written notice to the corporation at
its principal place of business or to the Chief Executive Officer or the
Secretary. Such resignation shall be effective upon receipt of such notice
unless the notice specifies suchresignation to be effective at some other time
or upon the happening of some other event.
3.4
Powers
. The business of thecorporation shall be managed by or under the direction of
the Board, 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 bylawsdirected or required to be exercised or done
by the stockholders.
3.5
Chair of the Board; Vice Chair of the Board
. If the Boardappoints a Chair of the Board, such Chair shall, when present,
preside at all meetings of the stockholders and the Board. The Chair shall
perform such duties and possess such powers as are customarily vested in the
office of the Chair of the Boardor as may be vested in the Chair by the Board.
The Board may appoint a Vice Chair of the Board. The Vice Chair of the Board
shall perform such duties and possess such powers as may be vested in the Vice
Chair by the Board. In the absence ordisability of the Chair of the Board, the
Vice Chair of the Board shall also perform the duties and exercise the powers
of the Chair of the Board.
3.6
Place of Meetings
. The Board may hold meetings, both regular and special, either within or
without the State of Delaware.
3.7
Annual Meetings
. The annual meetings of the Board shall be held immediately following the
annual meeting of stockholders, and nonotice of such meeting shall be
necessary to the Board, provided a quorum shall be present, or shall be held
at the next regularly scheduled meeting of the Board or at such other date,
time and place as shall be designated from time to time by theBoard and stated
in the notice of the meeting. The annual meetings shall be for the purposes of
organization, and an election of officers and the transaction of other
business.
-11-
-------------------------------------------------------------------------------
3.8
Regular Meetings
. Regular meetings of the Board may be held without notice atsuch time and
place as may be determined from time to time by the Board; provided that any
director who is absent when such a determination is made shall be given prompt
notice of such determination.
3.9
Special Meetings
. Special meetings of the Board may be called by the Chair of the Board, the
Vice Chair of the Board, the ChiefExecutive Officer (if a director), or on the
written request of two or more directors, or by one director in the event that
there is only one director in office. Notice of the time and place, if any, of
special meetings shall be delivered personallyor by telephone to each
director, or sent by first-class mail or commercial delivery service,
facsimile transmission, or by electronic mail or other electronic means,
charges prepaid, sent to such director's business or home address as
theyappear upon the records of the corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four (4) days prior
to the time of holding of the meeting. In case such notice is delivered
personally or bytelephone or by commercial delivery service, facsimile
transmission, or electronic mail or other electronic means, it shall be so
delivered at least twenty-four (24) hours prior to the time of the holding of
the meeting. A notice or waiver ofnotice of a meeting of the Board need not
specify the purposes of the meeting.
3.10
Quorum, Action at Meeting, Adjournments
. Amajority of the number of directors last fixed by the Board as the
authorized number of directors shall constitute a quorum for the transaction
of business, except as provided in Section 3.2 with respect to filling the
vacancies and newlycreated directorships and except as provided below with
respect to adjournment of meetings. 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, except as may be otherwisespecifically provided by law or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting
of the Board, a majority of the directors present thereat may adjourn the
meeting from time to time, without notice other thanannouncement at the
meeting, until a quorum shall be present.
3.11
Action Without Meeting
. Unless otherwise restricted by theCertificate of Incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting, if all
members of the Board or committee, as the case may be, consentthereto in
writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board or committee.
3.12
Telephone Meetings
. Unless otherwise restricted by the Certificate of Incorporation or these
bylaws, any member of the Board orany committee thereof may participate in a
meeting of the Board or of any committee, as the case may be, by means of
conference telephone or by any form of communications equipment by means of
which all persons participating in the meeting can heareach other, and such
participation in a meeting shall constitute presence in person at the meeting.
-12-
-------------------------------------------------------------------------------
3.13
Committees
. The Board may, by resolution passed by a majority of the totalnumber 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 for adoption), designate one or more committees, each committee to
consist ofone or more of the directors of the corporation. The Board 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 ordisqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting, whether or
not the member or members present constitute a quorum, may unanimously appoint
another member of the Board to actat the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in
the resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the businessand affairs of the
corporation, and may authorize the seal of the corporation to be affixed to
all papers which may require it; but no such committee shall have the power or
authority in reference to (i) approving or adopting, or recommendingto the
stockholders, any action or matter expressly required by the General
Corporation Law of the State of Delaware (the "DGCL") to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any of
thesebylaws. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board. Each
committee shall keep regular minutes of its meetings and make such reports to
the Board as the Boardmay request. Except as the Board may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by the directors or in such rules, its business
shall be conducted as nearly as possible in thesame manner as is provided in
these bylaws for the conduct of its business by the Board.
3.14
Fees and Compensation of Directors
.Unless otherwise restricted by the Certificate of Incorporation or these
bylaws, the Board shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of attendance at
each meeting of the Boardand may be paid a fixed sum for attendance at each
meeting of the Board or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members ofspecial or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE 4
Officers
4.1
OfficersDesignated
. The officers of the corporation shall be a Chief Executive Officer, a
President, a Secretary and a Chief Financial Officer, who shall be elected by
the Board. The Board may also elect a Treasurer, one or more Vice Presidents,
and oneor more Assistant Secretaries or Assistant Treasurers and such other
officers as the Board may deem desirable or appropriate and may give any of
them such further designations or alternate titles as it considers desirable.
In addition to officerselected by the Board, the corporation may have one or
more appointed Vice Presidents, an appointed Treasurer and one or more
appointed Assistant Secretaries or Assistant Treasurers. Such appointed
officers may be appointed by the Chief ExecutiveOfficer. Any number of offices
may be held by the same person, unless the Certificate of Incorporation or
these bylaws otherwise provide.
-13-
-------------------------------------------------------------------------------
4.2
Election
. The Board at its first meeting after each annual meeting ofstockholders
shall choose a Chief Executive Officer, a President, a Secretary and a Chief
Financial Officer. Other officers may be elected by the Board at such meeting,
at any other meeting, or by written consent.
4.3
Tenure
. Each officer of the corporation shall hold office until such officer's
successor is elected and qualified, unless adifferent term is specified in the
vote choosing or appointing such officer, or until such officer's earlier
death, resignation or removal. Any officer may be removed with or without
cause at any time by the affirmative vote of a majority ofthe Board or a
committee duly authorized to do so and, unless provided otherwise by Board
resolution, an officer appointed by the Chief Executive Officer also may be
removed by the Chief Executive Officer. Designation of an officer shall not
ofitself create any contractual rights. Any vacancy occurring in any office of
the corporation may be filled by the Board, at its discretion. Any officer may
resign by delivering such officer's written resignation to the corporation at
itsprincipal place of business or to the Chief Executive Officer or the
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
4.4
Chief Executive Officer
. In the absence of the Chair of the Board, the Chief Executive Officer shall
preside at all meetings of thestockholders and at all meetings of the Board.
The Chief Executive Officer may call meetings of the Board to be held, subject
to the limitations prescribed by law or these bylaws. The Chief Executive
Officer shall be responsible for providinggeneral supervision, direction and
control of the business of the corporation and its officers and shall see that
all orders and resolutions of the Board are carried into effect. He or she
shall execute bonds, mortgages and other contracts requiringa seal, under the
seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board to some other officer or
agent ofthe corporation. The Chief Executive Officer shall have such other
powers and have such other duties as the Board may from time to time prescribe.
4.5
President
. Unless provided otherwise by resolution of the Board, the President shall,
in the event there be no Chief ExecutiveOfficer or in the absence of the Chief
Executive Officer or in the event of his or her disability or refusal to act,
perform the duties of the Chief Executive Officer, and when so acting, shall
have the powers of and be subject to all therestrictions upon the Chief
Executive Officer. The President shall perform such other duties and have such
other powers as may from time to time be prescribed for such person by the
Board or the Chief Executive Officer.
4.6
Chief Financial Officer
. The Chief Financial Officer shall supervise the corporation's treasury
functions and financialreporting to external bodies. The Chief Financial
Officer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall depositall moneys and other valuable
effects in the name and to the credit of the corporation in such depositories
as may be designated by the Board or the Chief Financial Officer or as the
Chief Financial Officer deems appropriate. The Chief FinancialOfficer shall
disburse, or cause to be disbursed, the funds of the corporation as may be
ordered by the Board or the Chief Executive Officer, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and
theBoard, at its regular meetings, or when the Board so requires, an account
of all his or her transactions as Chief Financial Officer and of the financial
condition of the corporation. The Chief Financial Officer shall perform such
other duties andhave other powers as may from time to time be prescribed by
the Board or the Chief Executive Officer.
-14-
-------------------------------------------------------------------------------
4.7
Vice President
. Unless provided otherwise by resolution of the Board, the VicePresident (or
in the event there be more than one, the Vice Presidents in the order
designated by the directors, or in the absence of any designation, in the
order of their election), shall, in the absence of the President or in the
event of his orher disability or refusal to act, perform the duties of the
President, and when so acting, shall have the powers of and be subject to all
the restrictions upon the President. The Vice President(s) shall perform such
other duties and have such otherpowers as may from time to time be prescribed
for them by the Board, the Chief Executive Officer or the President.
4.8
Secretary
.The Secretary shall attend all meetings of the Board, committees of the Board
and the stockholders when requested by the person presiding at such meetings
and shall record all votes and the proceedings of the meetings in a book to be
kept for thatpurpose. The Secretary shall give, or cause to be given, notice
of all meetings of stockholders and special meetings of the Board, and shall
perform such other duties as may from time to time be prescribed by the Board,
the Chair of the Board or theChief Executive Officer, under whose supervision
he or she shall act. The Secretary shall have custody of the seal of the
corporation, and the Secretary, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiringit, and, when so
affixed, the seal may be attested by his or her signature or by the signature
of such Assistant Secretary. The Board may give general authority to any other
officer to affix the seal of the corporation and to attest the affixingthereof
by his or her signature. The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer
agent or registrar, a share register, or a duplicate share register, showing
thenames of all stockholders and their addresses, the number and classes of
shares held by each, the number and date of certificates issued for the same
and the number and date of cancellation of every certificate surrendered for
cancellation.
4.9
Assistant Secretary
. The Assistant Secretary, or if there be more than one, any Assistant
Secretaries in the order designated bythe Board (or in the absence of any
designation, in the order of their election) shall assist the Secretary in the
performance of his or her duties and, in the absence of the Secretary or in
the event of his or her inability or refusal to act,perform the duties and
exercise the powers of the Secretary and shall perform such other duties and
have such other powers as may from time to time be prescribed by the Board.
4.10
Treasurer and Assistant Treasurers
. The Treasurer (if one is appointed) shall have such duties as may be
specified by the ChiefFinancial Officer to assist the Chief Financial Officer
in the performance of his or her duties and shall perform such other duties
and have other powers as may from time to time be prescribed by the Board or
the Chief Executive Officer. It shall bethe duty of any Assistant Treasurers
to assist the Treasurer in the performance of his or her duties and to perform
such other duties and have such other powers as may from time to time be
prescribed by the Board or the Chief Executive Officer.
4.11
Delegation of Authority
. The Board may from time to time delegate the powers or duties of any officer
to any other officers oragents, notwithstanding any provision hereof.
-15-
-------------------------------------------------------------------------------
ARTICLE 5
Notices
5.1
Delivery
. Whenever, under the provisions of law, or of the Certificate of
Incorporation or these bylaws, written notice is required to be given to any
director or stockholder, such notice may be given by mail, addressed to such
director orstockholder, at such person's address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail or deliveredto a nationally recognized courier service. Unless
written notice by mail is required by law, written notice may also be given by
commercial delivery service, facsimile transmission, electronic mail or
similar electronic means addressed to suchdirector or stockholder at such
person's address as it appears on the records of the corporation, in which
case such notice shall be deemed to be given when delivered into the control
of the persons charged with effecting such transmission, orwhen actually
transmitted by the person giving the notice by facsimile or electronic mail or
similar electronic means, to the recipient. Oral notice or other
in-hand
delivery, in person or by telephone, shallbe deemed given at the time it is
actually given.
5.2
Waiver of Notice
. Whenever any notice is required to be given under theprovisions of law or of
the Certificate of Incorporation or of these bylaws, a written waiver, signed
by the person entitled to notice, or a waiver by electronic transmission by
the person entitled to notice, whether before or after the time statedtherein,
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 ofdirectors need be specified in any written waiver of
notice or any waiver by electronic transmission unless so required by the
Certificate of Incorporation or these bylaws.
ARTICLE 6
Indemnification andInsurance
6.1
Indemnification
.
Each person who was or is made a party or is threatened to be made a party to
or is involved (including, without limitation, as a witness) inany actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a "proceeding"), by reason of the fact that he
or she or a person of whom he or she is the legal representative isor was a
director or officer of the corporation (or any predecessor), or such director
or officer of the corporation is or was serving at the request of the
corporation (or any predecessor) as a director, officer, employee or agent of
anothercorporation or of a partnership, limited liability company,
-16-
-------------------------------------------------------------------------------
joint venture, trust, employee benefit plan sponsored or maintained by the
corporation, or other enterprise (or any predecessor of any of such entities)
(hereinafter an "Indemnitee"),shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits thecorporation to provide broader
indemnification rights than said law permitted the corporation to provide
prior to such amendment), or by other applicable law as then in effect,
against all expense, liability and loss (including attorneys' feesand related
disbursements, judgments, fines, excise taxes or penalties under the Employee
Retirement Income Security Act of 1974, as amended from time to time,
penalties and amounts paid or to be paid in settlement) actually and
reasonably incurredor suffered by such Indemnitee in connection therewith.
Each director or officer of the corporation (or any predecessor) who is or was
serving as a director, officer, employee or agent of a subsidiary of the
corporation shall be deemed to beserving, or have served, at the request of
the corporation (or any predecessor). The corporation shall not be required to
indemnify or make advances to a person (A) in connection with a proceeding (or
part thereof) initiated by such personunless such proceeding (or part thereof)
was authorized by the Board, either generally or in the specific instance, and
(B) if the obligation to indemnify or make advances under the circumstances is
specifically limited by the terms of anyagreement between Indemnitee and the
corporation. The right to indemnification conferred in this Section 6.1 shall
be a contract right.
Any indemnification (but not advancement of expenses) under this Article 6
(unless ordered by a court) shall be made by the corporation onlyas authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, as the same exists
orhereafter may be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide
prior to such amendment).Such determination shall be made with respect to a
person who is a director or officer at the time of such determination (A) by a
majority vote of the directors who are not or were not parties to the
proceeding in respect of whichindemnification is being sought by Indemnitee
(the "Disinterested Directors"), even though less than a quorum, (B) by a
committee of Disinterested Directors designated by a majority vote of the
Disinterested Directors, even thoughless than a quorum, (C) if there are no
such Disinterested Directors, or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee, or (D) bythe stockholders.
6.2
Advance Payment
. The right to indemnification under this Article 6 shall include the right to
be paid by thecorporation the expenses incurred by the Indemnitee in defending
any such proceeding in advance of its final disposition, such advances to be
paid by the corporation within thirty (30) days after the receipt by the
corporation of a statement orstatements (containing reasonable detail of the
expenses incurred) from the claimant requesting such advance or advances from
time to time; provided, however, that if the DGCL requires, the payment of
such expenses incurred by a director or officerin his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of thefinal
disposition of a proceeding, shall be made only upon receipt by the
corporation of a written undertaking by or on behalf of such director or
officer to repay all amounts so advanced if it shall ultimately be determined
that such director orofficer is not entitled to be indemnified under Section
6.1 or otherwise.
-17-
-------------------------------------------------------------------------------
6.3
Non-Exclusivity
and Survival of Rights;Amendments
. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article 6 shall not be deemed exclusive of any other right which any person
may have orhereafter acquire under any statute, provision of the Certificate
of Incorporation, bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise, and shall continue as to a person who has ceased to be
a director, officer, employeeor agent of the corporation and shall inure to
the benefit of the heirs, executors and administrators of such a person. Any
repeal or modification of the provisions of this Article 6 shall not in any
way diminish or adversely affect the rights ofany director, officer, employee
or agent of the corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
6.4
Insurance
. The corporation may purchase and maintain insurance on its own behalf and on
behalf of any person who is or was adirector, 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, employee benefit plan or otherenterprise against any
expense, liability or loss 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 to indemnifysuch person
against such expense, liability or loss under the provisions of the DGCL.
6.5
Severability
. If any word, clause,provision or provisions of this Article 6 shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Article 6 (including, withoutlimitation, each portion of any section or
paragraph of this Article 6 containing any such provision held to be invalid,
illegal or unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected orimpaired thereby; and (ii)
to the fullest extent possible, the provisions of this Article 6 (including,
without limitation, each such portion of any section or paragraph of this
Article 6 containing any such provision held to be invalid,illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
6.6
Reliance
. Persons who after the date of the adoption of this provision become or
remain directors or officers of the corporationshall be conclusively presumed
to have relied on the rights to indemnity, advance of expenses and other
rights contained in this Article 6 in entering into or continuing such
service. The rights to indemnification and to the advance of expensesconferred
in this Article 6 shall apply to claims made against an Indemnitee arising out
of acts or omissions that occurred or occur both prior and subsequent to the
adoption hereof.
6.7
Indemnification of Other Persons
. This Article 6 does not limit the right of the corporation, to the extent
and in the mannerpermitted by law, to indemnify and to advance expenses to
persons other than those persons identified in Section 6.1 when and as
authorized by the Board or by the action of a committee of the Board or
designated officers of the corporationestablished by or designated in
resolutions approved by the Board;
provided
,
however
, that the payment of expenses incurred by such a person in advance of the
final disposition of the proceeding shall be made only upon receipt by
thecorporation of a written undertaking by such person to repay all amounts so
advanced if it shall ultimately be determined that such person is not entitled
to be indemnified under this Article 6 or otherwise.
-18-
-------------------------------------------------------------------------------
ARTICLE 7
Capital Stock
7.1
Uncertificated Shares
. Shares of the corporation shall be uncertificated and shall not be
represented by certificates, except to the extent required by applicable law
or as may otherwise be authorized by the Secretary or an AssistantSecretary.
In the event shares are represented by certificates, such certificates shall
be registered upon the books of the corporation and shall be signed by the
Chief Executive Officer or the President, or a Vice President, and by the
Treasurer oran Assistant Treasurer, or the Secretary or an Assistant Secretary
of the corporation, shall bear the seal of the corporation or a facsimile
thereof, and shall be countersigned by a transfer agent and the registrar for
the shares. No certificate fora fractional share of common stock shall be
issued. Certificates signed by the Chief Executive Officer or President, or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the corporation,being such at the time
of such signing, if properly countersigned as set forth above by a transfer
agent and the registrar, and if regular in other respects, shall be valid,
whether such officers hold their respective positions at the date of issueor
not. Any signature or countersignature on certificates may be an actual
signature or a printed or engraved facsimile thereof.
7.2
Transfer of Stock
. Transfer of shares represented by certificates shall be made on the books of
the corporation only upon the surrender of a valid certificate or certificates
for not less than such number of shares, duly endorsed by theperson named in
the certificate or by an attorney lawfully constituted in writing. Transfer of
uncertificated shares shall be made on the books of the corporation upon
receipt of proper transfer instructions from the registered owner of
theuncertificated shares, an instruction from an approved source duly
authorized by such owner or from an attorney lawfully constituted in writing.
The corporation may impose such additional conditions to the transfer of its
shares as may be necessaryor appropriate for compliance with applicable law or
to protect the corporation, a transfer agent or the registrar from liability
with respect to such transfer.
7.3
Registered Stockholders
. The corporation shall be entitled to recognize the exclusive right of a
person registered on its books asthe owner of shares to receive dividends, and
to vote as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express orother notice thereof, except as
otherwise provided by the laws of Delaware.
7.4
Lost, Stolen or Destroyed Certificates
. The Boardmay designate certain persons to authorize the issuance of new
certificates or uncertificated shares to replace certificates alleged to have
been lost or destroyed, upon the filing with such designated persons of both
an affidavit or affirmation ofsuch loss or destruction and a bond of indemnity
or indemnity agreement covering the issuance of such replacement certificates
or uncertificated shares, as may be requested by and be satisfactory to such
designated persons.
-19-
-------------------------------------------------------------------------------
ARTICLE 8
General Provisions
8.1
Dividends
. Dividends upon the capital stock of the corporation, subject to any
restrictions contained in the DGCL or the provisions of the Certificate of
Incorporation, if any, may be declared by the Board at any regular or special
meeting orby unanimous written consent. Dividends may be paid in cash, in
property or in shares of capital stock, subject to the provisions of the
Certificate of Incorporation.
8.2
Checks
. All checks or demands for money and notes of the corporation shall be signed
by such officer or officers or such otherperson or persons as the Board, or
such officers of the corporation as may be designated by the Board to make
such designation, may from time to time designate.
8.3
Corporate Seal
. The Board may, by resolution, adopt a corporate seal. The corporate seal
shall have inscribed thereon the name ofthe corporation, the year of its
organization and the word "Delaware." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or otherwise reproduced. The seal
may be altered from time to time by the Board.
8.4
Execution of Corporate Contracts and Instruments
. The Board, except as otherwise provided in these bylaws, may authorize
anyofficer or officers, or agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the corporation; such
authority may be general or confined to specific instances. Unless so
authorized or ratified by theBoard or within the agency power of an officer,
no officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.5
Representation of Shares of Other Corporations
. The Chief Executive Officer, the President or any Vice President, the
ChiefFinancial Officer or the Treasurer or any Assistant Treasurer, or the
Secretary or any Assistant Secretary of the corporation is authorized to vote,
represent and exercise on behalf of the corporation all rights incident to any
and all shares of anycorporation or corporations or similar ownership
interests of other business entities standing in the name of the corporation.
The authority herein granted to said officers to vote or represent on behalf
of the corporation any and all shares orsimilar ownership interests held by
the corporation in any other corporation or corporations or other business
entities may be exercised either by such officers in person or by any other
person authorized so to do by proxy or power of attorney dulyexecuted by said
officers.
-20-
-------------------------------------------------------------------------------
ARTICLE 9
Amendments
The Board isexpressly empowered to adopt, amend or repeal these bylaws;
provided, however
, that any adoption, amendment or repeal of these bylaws by the Board shall
require the approval of at least
sixty-six
and
two-thirds
percent of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repealis presented to the
Board). The stockholders shall also have power to adopt, amend or repeal these
bylaws at any regular or special meeting of stockholders;
provided, however
, that in addition to any vote of the holders of any class or seriesof stock
of the corporation required by law or by the Certificate of Incorporation, the
affirmative vote of the holders of at least
sixty-six
and
two-thirds
percent ofthe voting power of all of the then outstanding shares of the stock
of the corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required for such adoption,
amendment or repeal by thestockholders of any provision of these bylaws and
notice of such adoption, amendment or repeal shall be contained in the notice
of such meeting.
-21-
{graphic omitted}
{graphic omitted}