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UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
8-K
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CURRENT
REPORT PURSUANT
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TO
SECTION 13 OR 15(d) OF THE
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SECURITIES
EXCHANGE ACT OF 1934
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Date
of Report (Date of earliest event reported): November 20,
2008
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CONTINENTAL
AIRLINES, INC.
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(Exact
Name of Registrant as Specified in Its
Charter)
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DELAWARE
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(State
or Other Jurisdiction of
Incorporation)
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1-10323
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74-2099724
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1600
Smith Street, Dept. HQSEO, Houston, Texas
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77002
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(713)
324-2950
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(Registrant's
Telephone Number, Including Area
Code)
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______________________________________
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(Former
Name or Former Address, if Changed Since Last
Report)
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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 (see General Instruction A.2.
below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act
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(17
CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act
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(17
CFR 240.13e-4(c))
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Item
3.03.
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Material Modification
to Rights of Security
Holders.
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Expiration
of Rights Agreement – On November 20, 2008, the Amended and Restated Rights
Agreement, dated as of November 15, 2000 (the “Rights Agreement”), between
Continental Airlines, Inc. (the “Company”) and Mellon Investor Services LLC (as
successor to ChaseMellon Shareholder Services, LLC.), and the related rights
(the “Rights”) to purchase Series A Junior Participating Preferred Stock,
expired by their terms. As a result, each outstanding share of the
Company’s Class B common stock, par value $.01 per share (“Common Stock”), is no
longer accompanied by a Right. The holders of Common Stock were not
entitled to any payment as a result of the expiration of the Rights Agreement
and the Rights issued thereunder.
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Item
5.03
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Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal
Year.
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On November 19, 2008, the Company’s
Board of Directors (the “Board”) adopted and approved amendments to the
Company’s Bylaws intended to establish an orderly process for stockholders to
(i) propose business or nominations to be considered at a meeting of
stockholders, (ii) call a special meeting of stockholders and (iii) request a
record date for stockholder action by written consent. These
amendments are also intended to elicit information necessary for the Board, as
well as the Company’s other stockholders, to fully evaluate any proposed
business or nominations.
The Board determined to make these
Bylaw amendments effective upon the expiration of the Rights Agreement and the
related Rights on November 20, 2008, providing limited procedural safeguards
against hostile activity in the absence of the Rights
Agreement. These amendments are described in further detail
below.
Procedures and Notices for
Annual Meetings of Stockholders
The amendments increase the notice
period and expand the information required to be provided by a stockholder who
submits a nomination for election to the Board or other proposal for business to
be brought before an annual meeting of stockholders. The amendments
increase the standard advance notice period for stockholder nominations or
proposals to not less than 90 days and not more than 120 days prior to the first
anniversary of the preceding year’s annual meeting of stockholders, as compared
to the prior advance notice period of not less than 70 days and not more than 90
days.
In addition, the amendments require a
stockholder who submits a nomination or other proposal to disclose, among other
things, information about the interests that the stockholder has related to the
Company and its Common Stock, including interests arising from derivative
securities, voting arrangements or short positions; information about the
proposed nominee and his or her agreements, arrangements, understandings or
other relationships with the stockholder submitting the nomination; and
information about any agreements, arrangements or understandings the stockholder
may have with other stockholders of the Company relating to the proposal of
other business. These required disclosures are referred to in this
Current Report on Form 8-K as the “Additional Disclosures.” A
stockholder who submits a nomination or proposal is required to update the
information previously disclosed as of the record date for the stockholders’
meeting and as of the date that is ten business days prior to the date of the
stockholders meeting, if practicable.
The amendments further clarify that
the additional procedures and notices required by the amended Bylaws are not
intended to apply to any stockholder proposals properly submitted in accordance
with Rule 14a-8 under the Securities Exchange Act of 1934, as
amended.
Procedures and Notices for
Special Meetings of Stockholders
The amendments increase the notice
period and expand the information required to be provided by a stockholder who
submits a nomination for election to the Board at a special meeting of
stockholders at which directors are properly to be elected. The
standard advance notice period for stockholder nominations was increased to not
less than 90 days and not more than 120 days prior to the date of such special
meeting, as compared to the prior advance notice period of not less than 70 days
and not more than 90 days, and the stockholder submitting the nomination is
required to provide disclosures substantially similar to the Additional
Disclosures.
The amendments also provide that any
stockholder wishing to call a special meeting of stockholders is first required
to request that the Board fix a record date to determine the stockholders
entitled to demand the calling of such a meeting. If the Board fails
to set a record date for such purpose, the record date shall be the twentieth
day following the receipt of the stockholder’s request. Once the
record date has been fixed, the Board will be required to call a special meeting
of stockholders if written demands from the holders of 25% or more of the
outstanding Common Stock are received within sixty days following such record
date. Prior to the amendments, the Bylaws required the holders of a
majority of the outstanding Common Stock to call a special meeting of
stockholders.
In connection with the submission of
record date requests and demands to call a special meeting, the amendments
require the stockholder making such requests and/or demands to disclose the
business proposed to be conducted at the special meeting and to provide
disclosures substantially similar to the Additional Disclosures.
Under the amendments, the Company
shall not accept, and shall consider ineffective, any written demand from a
stockholder to call a special meeting that, among other things, (i) includes an
item of business that did not appear on the written request to set the record
date for determining stockholders entitled to submit such demands or (ii)
relates to an item of business, other than the election of directors, that is
substantially similar to an item of business presented to the stockholders at
the most recent annual meeting or at any special meeting held within the past
year.
A stockholder who submitted a request
for a record date or a demand for the calling of a special meeting is required
to update the information previously disclosed as of the record date for the
meeting and as of the date that is ten business days prior to the date of the
meeting, if practicable.
Procedures and Notices for
Stockholder Action by Written Consent
Under the Bylaws, any stockholder
wishing to take action by written consent must first submit to the Company a
request that the Board fix a record date for determining the stockholders
entitled to take such action. In connection with this request, the
amendments require that the stockholder’s request include (i) a reasonably brief
description of the proposed actions to be taken, the reasons for such actions
and the material interests of the stockholder in such actions and (ii)
disclosures substantially similar to the Additional Disclosures.
Each stockholder who submitted a
request for a record date is required to update the information previously
disclosed as of the record date for determining the stockholders entitled to act
by written consent and as of the date that is five business days prior to the
commencement of the consent solicitation.
The description set forth above
regarding the Company’s amended Bylaws is qualified in its entirety by reference
to the full text of such amended Bylaws, a copy of which is filed as Exhibit 3.2
to this Current Report on Form 8-K and incorporated herein by
reference.
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Item
9.01.
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Financial Statements
and Exhibits.
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(d)
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Exhibits
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3.2
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Amended
and Restated Bylaws of Continental Airlines, Inc., effective as of
November 20, 2008.
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SIGNATURE
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Pursuant to the requirements of the
Securities Exchange Act of 1934, Continental Airlines, Inc. has duly caused this
report to be signed on its behalf by the undersigned hereunto duly
authorized.
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CONTINENTAL
AIRLINES, INC.
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November
20, 2008
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By /s/ Lori
A.
Gobillot
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Lori
A. Gobillot
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Staff
Vice President and Assistant General
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Counsel
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EXHIBIT
INDEX
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3.2
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Amended
and Restated Bylaws of Continental Airlines, Inc., effective as of
November 20, 2008.
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AMENDED
AND RESTATED
BYLAWS
OF
CONTINENTAL
AIRLINES, INC.
(Effective
as of November 20, 2008)
TABLE
OF CONTENTS
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Page
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ARTICLE
I. Stockholders
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1
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Section
1.1
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Annual
Meetings
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1
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Section
1.2
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Special
Meetings
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1
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Section
1.3
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Place
of
Meeting
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2
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Section
1.4
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Notice
of
Meetings
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2
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Section
1.5
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Quorum
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3
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Section
1.6
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Voting
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3
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Section
1.7
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Presiding
Officer and
Secretary
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4
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Section
1.8
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Proxies
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4
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Section
1.9
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List
of
Stockholders
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4
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Section
1.10
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Notice
of Stockholder Business and Nominations
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5
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Section
1.11
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Procedures
for Calling a Special
Meeting
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13
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Section
1.12
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Inspectors
of Elections; Opening and Closing the Pools
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19
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Section
1.13
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Written
Consent in Lieu of
Meeting
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19
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ARTICLE
II. Directors
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23
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Section
2.1
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Powers
and Duties of Directors;
Number
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23
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Section
2.2
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Election;
Term;
Vacancies
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24
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Section
2.3
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Resignation
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24
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Section
2.4
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Removal
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25
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Section
2.5
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Meetings
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25
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Section
2.6
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Quorum
and
Voting
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26
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Section
2.7
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Written
Consent of Directors in Lieu of a Meeting
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26
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Section
2.8
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Compensation
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27
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ARTICLE
III. Committees of the Board of
Directors
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27
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Section
3.1
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Creation
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27
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Section
3.2
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Committee
Procedure
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27
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Section
3.3
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Certain
Definitions
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28
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ARTICLE
IV. Officers, Agents and
Employees
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28
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Section
4.1
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Appointment
and Term of
Office
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28
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Section
4.2
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Resignation
and
Removal
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29
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Section
4.3
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Compensation
and
Bond
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29
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Section
4.4
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Chairman
of the
Board
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29
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Section
4.5
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Chief
Executive
Officer
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29
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Section
4.6
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President
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30
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Section
4.7
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Chief
Operating
Officer
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30
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Section
4.8
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Chief
Financial
Officer
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30
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Section
4.9
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Vice
Presidents
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30
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Section
4.10
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Treasurer
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30
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Section
4.11
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Secretary
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31
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Section
4.12
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Assistant
Treasurers
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31
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Section
4.13
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Assistant
Secretaries
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31
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Section
4.14
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Delegation
of
Duties
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32
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Section
4.15
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Prohibition
on Loans to Directors and Executive Officer
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32
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ARTICLE
V. Limitation of Liability and
Indemnification
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32
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Section
5.1
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Limitation
of Liability of
Directors
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32
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Section
5.2
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Mandatory
Indemnification of Directors and Officers
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33
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Section
5.3
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Permissive
Indemnification of Non-Officer Employees
and
Agents
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33
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Section
5.4
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General
Provisions
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34
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ARTICLE
VI. Common
Stock
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35
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Section
6.1
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Certificates
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35
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Section
6.2
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Transfers
of Stock & Record
Holders
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35
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Section
6.3
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Lost,
Stolen or Destroyed
Certificates
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36
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Section
6.4
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Stockholder
Record
Date
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36
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Section
6.5
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Rules
and
Procedures
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38
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ARTICLE
VII. Ownership by
Aliens
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39
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Section
7.1
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Foreign
Stock
Record
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39
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Section
7.2
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Maximum
Percentage
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39
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Section
7.3
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Recording
of
Shares
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39
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ARTICLE
VIII. General
Provisions
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40
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Section
8.1
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Fiscal
Year
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40
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Section
8.2
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Dividends
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40
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Section
8.3
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Checks,
Notes, Drafts,
Etc.
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40
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Section
8.4
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Corporate
Seal
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41
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Section
8.5
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Waiver
of
Notice
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41
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ARTICLE
IX. Restated Certificate of
Incorporation to Govern
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41
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Section
9.1
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Restated
Certificate of Incorporation to Govern
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41
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AMENDED
AND RESTATED
BYLAWS
OF
CONTINENTAL
AIRLINES, INC.
Incorporated
under the Laws of the State of Delaware
ARTICLE
I.
Stockholders
Section
1.1 Annual Meeting.
The
annual meeting of stockholders of the Corporation for the election of Directors
and for the transaction of any other business properly brought before the annual
meeting shall be held at such time and date in each year as the Board of
Directors may determine from time to time. The annual meeting in each
year shall be held at such place within or without the State of Delaware as may
be fixed by the Board of Directors, or if not so fixed, at the principal
business office of the Corporation.
Section
1.2 Special Meetings.
Subject
to the rights of the holders of any class or series of preferred stock of the
Corporation, or any other series or class of stock as set forth in the Amended
and Restated Certificate of Incorporation of the Corporation (as it may be
amended from time to time in accordance with its terms and applicable law, the
“Restated Certificate of Incorporation”), special meetings of the stockholders
may be called only by (A) the Secretary of the Corporation, following his
or her receipt of one or more written demands to call a special meeting from the
holders of 25% or more of the voting power of the outstanding shares of Common
Stock, solely in accordance with, and subject to, Section 1.11,
(B) the Chief Executive Officer or (C) the Board of
Directors. The only business that shall be conducted at a special
meeting are the matters specified in the notice of meeting given by or at the
direction of the person or persons calling the meeting pursuant to this Section 1.2. Except
in accordance with this Section 1.2 and
Section 1.11,
stockholders shall not be permitted to propose business to be brought before a
special meeting of the stockholders.
Section
1.3 Place of Meeting.
The
Board of Directors may designate the place of meeting for any meeting of the
stockholders. If no designation is made by the Board of Directors,
the place of meeting shall be the principal executive offices of the
Corporation.
Section
1.4 Notice of
Meetings.
Whenever
stockholders are required or permitted to take any action at a meeting, unless
notice is waived in writing or by electronic transmission by all stockholders
entitled to vote at the meeting, a notice of the meeting shall be given which
shall state the place, if any, date and hour of the meeting, and, in the case of
a special meeting, the purpose for which the meeting is called.
Unless
otherwise provided by law, and except as to any stockholder duly waiving notice,
the notice of any meeting shall be given personally or by mail or by electronic
transmission in the manner provided by law, not less than ten nor more than 60
days before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in
the mail, postage prepaid, directed to the stockholder at his or her address as
it appears on the records of the Corporation.
When
a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place, if any, thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting
the Corporation may transact any business which might have been transacted at
the original meeting. If, however, the adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section
1.5 Quorum.
Except
as otherwise provided by law, by the Restated Certificate of Incorporation, or
by these Bylaws in respect of the vote required for a specified action, at any
meeting of stockholders the holders of a majority of the aggregate voting power
of the outstanding stock entitled to vote thereat, either present or represented
by proxy, shall constitute a quorum for the transaction of any business, but the
stockholders present, although less than a quorum, may adjourn the meeting to
another time or place and, except as provided in the last paragraph of Section 1.4,
notice need not be given of the adjourned meeting.
Section
1.6 Voting.
Except
as otherwise provided by the Restated Certificate of Incorporation or these
Bylaws, whenever Directors are to be elected at a meeting, they shall be elected
by a plurality of the votes cast at the meeting by the holders of stock entitled
to vote. Whenever any corporate action, other than the election of
Directors, is to be taken by vote of stockholders at a meeting, it shall be
authorized by a majority of the votes cast at the meeting by the holders of
stock entitled to vote thereon, except as otherwise required by law, by the
Restated Certificate of Incorporation or by these Bylaws.
Except
as otherwise provided by law, or by the Restated Certificate of Incorporation or
these Bylaws, each holder of record of stock of the Corporation entitled to vote
on any matter at any meeting of stockholders shall be entitled to one vote for
each share of such stock standing in the name of such holder on the stock ledger
of the Corporation on the record date for the determination of the stockholders
entitled to vote at the meeting.
Upon
the demand of any stockholder entitled to vote, the vote for Directors or the
vote on any other matter at a meeting shall be by written ballot, but otherwise
the method of voting and the manner in which votes are counted shall be
discretionary with the presiding officer at the meeting.
Section
1.7 Presiding Officer and
Secretary.
At
every meeting of stockholders the Chairman of the Board or the Chief Executive
Officer, as designated by the Board of Directors, or, if neither is present, or
in the absence of any such designation, the appointee of the meeting, shall
preside. The Secretary, or in his or her absence an Assistant
Secretary, or if none be present, the appointee of the presiding officer of the
meeting, shall act as secretary of the meeting.
Section
1.8 Proxies.
Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for him or her by proxy executed in writing by the
stockholder or as otherwise permitted by law, or by his or her duly authorized
attorney-in-fact. Such proxy must be filed with the Secretary of the
Corporation or his or her representative at or before the time of the
meeting.
Section
1.9 List of
Stockholders.
The
officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder in the manner provided by
law. The list shall also be open to the examination of any
stockholder during the whole time of the meeting as provided by
law.
The
stock ledger shall be the only evidence as to which stockholders are the
stockholders entitled to examine the stock ledger or the list required by this
Section 1.9, or
to vote in person or by proxy at any meeting of stockholders.
Section
1.10 Notice of Stockholder
Business and Nominations.
(A) Annual Meetings of
Stockholders.
(1) Nominations
of persons for election to the Board of Directors of the Corporation and the
proposal of other business to be considered by the stockholders may be made at
an annual meeting of stockholders only (a) if brought before the
meeting by the Corporation and specified in the Corporation’s notice of meeting
delivered pursuant to Section 1.4, (b) if
brought before the meeting by or at the direction of the Board of Directors or
(c) if brought before the meeting by a stockholder of the Corporation who
(i) was a stockholder of record (and, with respect to any beneficial owner,
if different, on whose behalf any nomination or proposal is made, only if such
beneficial owner was the beneficial owner of shares of capital stock of the
Corporation) both at the time of giving of notice provided for in this Section 1.10, and at the time
of the meeting, (ii) is entitled to vote at the meeting, and (iii) has
complied with this Section 1.10 as to such
nominations or other business. Except for proposals properly made in
accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (as so amended and inclusive
of such rules and regulations, the “Exchange Act”), and included in the notice
of meeting given by or at the direction of the Board of Directors, the foregoing
clause (c) shall be the exclusive means for a stockholder to propose
business to be considered or to propose any nominations of persons for election
to the Board of Directors at an annual meeting of the stockholders.
(2) Without
qualification, for any nominations of persons for election to the Board of
Directors of the Corporation or other business to be properly brought before an
annual meeting by a stockholder, in each case, pursuant to clause (c) of
paragraph (A)(1) of this Section 1.10, the stockholder
must (x) have given timely notice thereof in writing and in proper form to
the Secretary of the Corporation and (y) provide any updates or supplements
to such notice at the times and in the forms required by this Section 1.10. To
be timely, a stockholder’s notice shall be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the Corporation not less
than ninety days nor more than one hundred twenty days prior to the one-year
anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
days, or delayed by more than sixty days, from such anniversary date, notice by
the stockholder to be timely must be so delivered, or mailed and received, not
later than the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public announcement
of the date of such annual meeting is first made by the
Corporation. In no event shall any adjournment of an annual meeting
or the announcement thereof commence a new time period (or extend any time
period) for the giving of a stockholder’s notice. For purposes of
this Section 1.10,
the term “Proposing Person” means (i) the stockholder providing the notice
of a proposed nomination or other business proposed to be brought before a
meeting, (ii) the beneficial owner or beneficial owners, if different, on
whose behalf the proposed nomination or other business proposed to be brought
before a meeting is made, and (iii) any affiliate or associate (for
purposes of these Bylaws, each within the meaning of Rule 12b-2 under the
Exchange Act) of such stockholder or beneficial owner.
(3) To
be in proper form, a stockholder’s notice (whether given pursuant to
paragraph (A)(2) or paragraph (B) of this Section 1.10)
shall set forth:
(a) As
to each Proposing Person:
(i) the
name and address of such Proposing Person (including, if applicable, the name
and address that appear on the Corporation’s stock
ledger); and
(ii) the
class or series and number of shares of capital stock of the Corporation that
are, directly or indirectly, owned of record or beneficially (within the meaning
of Rule 13d-3 under the Exchange Act) by such Proposing Person, except that
such Proposing Person shall in all events be deemed to beneficially own any
shares of any class or series of the capital stock of the Corporation as to
which such Proposing Person has a right to acquire beneficial ownership at any
time in the future (the disclosures to be made pursuant to the foregoing
clauses (i) and (ii) are referred to as “Stockholder
Information”);
(b) As
to each Proposing Person:
(i) any
derivative, swap or other transaction or series of transactions engaged in,
directly or indirectly, by such Proposing Person, the purpose or effect of which
is to give such Proposing Person economic risk similar to ownership of shares of
any class or series of the capital stock of the Corporation, including due to
the fact that the value of such derivative, swap or other transaction is
determined by reference to the price, value or volatility of any shares of any
class or series of the capital stock of the Corporation, or which derivative,
swap or other transactions provide, directly or indirectly, the opportunity to
profit from any increase in the price or value of shares of any class or series
of the capital stock of the Corporation (“Synthetic Equity Interests”), which
such Synthetic Equity Interests shall be disclosed without regard to whether
(x) such derivative, swap or other transactions convey any voting rights in
such shares to such Proposing Person, (y) the derivative, swap or other
transactions are required to be, or are capable of being, settled through
delivery of such shares or (z) such Proposing Person may have entered into
other transactions that hedge or mitigate the economic effect of such
derivative, swap or other transaction;
(ii) any
proxy (other than a revocable proxy or consent given in response to a
solicitation made pursuant to, and in accordance with, Section 14(a) of the
Exchange Act by way of a solicitation statement filed on Schedule 14A),
agreement, arrangement, understanding or relationship pursuant to which such
Proposing Person has or shares a right to vote any shares of any class or series
of the capital stock of the Corporation;
(iii) any
agreement, arrangement, understanding or relationship, including any repurchase
or similar so-called “stock borrowing” agreement or arrangement, engaged in,
directly or indirectly, by such Proposing Person, the purpose or effect of which
is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of
shares of any class or series of the capital stock of the Corporation by,
manage the risk of share price changes for, or increase or decrease the voting
power of, such Proposing Person with respect to the shares of any class or
series of the capital stock of the Corporation, or which provides, directly
or indirectly, the opportunity to profit from any decrease in the price or value
of the shares of any class or series of the capital stock of
the Corporation (“Short Interests”);
(iv) any
rights to dividends on the shares of any class or series of the capital stock of
the Corporation owned beneficially by such Proposing Person that are
separated or separable from the underlying shares of the
Corporation;
(v) any
performance related fees (other than an asset based fee) that such Proposing
Person is entitled to based on any increase or decrease in the price or value of
shares of any class or series of the capital stock of the Corporation, or any
Synthetic Equity Interests or Short Interests, if any; and
(vi) any
other information relating to such Proposing Person that would be required to be
disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies or consents by such Proposing Person in support of
the nomination for election of Directors or the other business proposed to be
brought before the meeting pursuant to Section 14(a) of the Exchange Act
(the disclosures to be made pursuant to the foregoing clauses (i) through
(vi) are referred to as “Disclosable Interests”); provided, however, that
Disclosable Interests shall not include any such disclosures with respect to the
ordinary course business activities of any broker, dealer, commercial bank,
trust company or other nominee who is a Proposing Person solely as a result of
being the stockholder of record directed to prepare and submit the information
required by this Section 1.10 (or
Section 1.11 or
Section 1.13 as
applicable) on behalf of a beneficial owner).
(c) As
to each person, if any, whom a Proposing Person proposes to nominate for
election or reelection as a Director:
(i) all
information with respect to such proposed nominee that would be required to be
set forth in a stockholder’s notice pursuant to this Section 1.10 if such proposed
nominee were a Proposing Person;
(ii) all
information relating to such proposed nominee that is required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of Directors in a contested election
pursuant to Section 14(a) under the Exchange Act (including such proposed
nominee’s written consent to being named in the proxy statement as a nominee and
to serving as a Director if elected); and
(iii) 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 any Proposing Person, on the one
hand, and each proposed nominee and his or her respective affiliates and
associates, on the other hand, including, without limitation, all information
that would be required to be disclosed pursuant to Item 404 under
Regulation S-K if such Proposing Person were the “registrant” for purposes of
such rule and the proposed nominee were a Director or executive officer of such
registrant; and
(d) As
to any business other than nominations for election of Directors that a
Proposing Person proposes to bring before an annual meeting:
(i) a reasonably brief description of the
business desired to be brought before the annual meeting, the reasons for
conducting such business at the annual meeting and any material interest in such
business of any Proposing Person;
(ii) the text of the proposal or business
(including the text of any resolutions proposed for consideration);
and
(iii) a reasonably detailed description of
all agreements, arrangements and understandings (x) between or among any of the
Proposing Persons and (y) between or among any Proposing Person and any other
record or beneficial owner of capital stock of the Corporation (including their
names) in connection with the proposal of such business by such
stockholder.
(4) A
stockholder providing notice of a proposed nomination for election to the Board
of Directors of the Corporation or other business proposed to be brought before
a meeting (whether given pursuant to paragraph (A)(2) or paragraph (B)
of this Section 1.10) shall further
update and supplement such notice, if necessary, so that the information
provided or required to be provided in such notice shall be true and correct as
of the record date for the meeting and as of the date that is ten business days
prior to the meeting or any adjournment or postponement thereof, and such update
and supplement shall be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the Corporation not later than five
business days after the record date for the meeting (in the case of the update
and supplement required to be made as of the record date), and not later than
eight business days prior to the date for the meeting or, if practicable, any
adjournment of postponement thereof (and, if not practicable, on the first
practicable date prior to the date to which the meeting has been adjourned or
postponed) (in the case of the update and supplement required to be made as of
ten business days prior to the meeting or any adjournment or postponement
thereof). The Corporation may also require any proposed nominee for
election to the Board of Directors of the Corporation to furnish such other
information (i) as may be reasonably required by the Corporation to determine
the eligibility of such proposed nominee to serve as an independent Director of
the Corporation in accordance with the Corporation’s Corporate Governance
Guidelines as then in effect or (ii) that could be material to a reasonable
stockholder’s understanding of the independence, or lack thereof, of such
proposed nominee.
(5) Notwithstanding
anything in paragraph (A)(2) of this Section 1.10 to the
contrary, in the event that the number of Directors to be elected to the Board
of Directors is increased and there is no public announcement by the
Corporation naming all of the nominees for Director or specifying the size
of the increased Board of Directors made by the Corporation at least ten days before the last day a
stockholder could otherwise deliver a notice of nomination in accordance with
such paragraph (A)(2) of this Section 1.10, a stockholder’s notice
required by this Section 1.10 shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth day following the day on which
such public announcement is first made by the Corporation.
(B) Special Meeting of
Stockholders.
Only
such business shall be conducted at a special meeting of stockholders as shall
have been properly brought before the meeting in accordance with Section 1.2 and
(if applicable) Section 1.11. Nominations
of persons for election to the Board of Directors of the Corporation may be made
at a special meeting of stockholders at which Directors are properly to be
elected only (i) by or at the direction of the Board of Directors or
(ii) by any stockholder of the Corporation who (a) was a stockholder
of record (and, with respect to any beneficial owner, if different, on whose
behalf any nomination is made, only if such beneficial owner was the beneficial
owner of shares of the Corporation) both at the time of giving of notice
provided for in this Section 1.10 and
at the time of the meeting, (b) is entitled to vote at the meeting and
(c) complied with this paragraph (B) and paragraph (A)(3) of this
Section 1.10 as
to such nominations. Without qualification, in order for a
stockholder to present any nominations of persons for election to the Board of
Directors of the Corporation at such a special meeting, pursuant to
clause (ii) of this paragraph (B), the stockholder must (x) have
given timely notice thereof in writing and in proper form to the Secretary of
the Corporation (which notice shall include disclosure of the information that
is required by the applicable provisions of paragraph (A)(3) of this Section 1.10)
and (y) provide any updates or supplements to such notice at the times and
in the forms required by paragraph (A)(4) of this Section 1.10. To
be timely, a stockholder’s notice shall be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the Corporation not
earlier than the one hundred twentieth day prior to the date of such special
meeting and not later than the close of business on the later of the ninetieth
day prior to the date of such special meeting or the tenth day following the day
on which public announcement is first made of the date of such special meeting
and of the nominees proposed by the Board of Directors to be elected at such
special meeting. In no event shall any adjournment of a special
meeting or the announcement thereof commence a new time period (or extend any
time period) for the giving of a stockholder’s notice as described
above.
(C) General.
(1) Only
persons who are nominated in accordance with this Section 1.10 shall be
eligible to serve as Directors and only such business as shall have been brought
before the meeting in accordance with this Section 1.10 shall be
conducted at a meeting of stockholders. Except as otherwise provided
by law, the Restated Certificate of Incorporation or these Bylaws, the
chairman of the meeting shall have the power and duty to determine whether
such nomination or business was made in compliance with this Section 1.10 and, if such
proposed nomination or business is deemed not to have been properly made, to
declare that such nomination or proposal has not been properly brought before
the meeting and shall be disregarded and declared to be out of
order.
(2) For
purposes of this Section 1.10, “public
announcement” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding
the foregoing provisions of this Section 1.10,
a stockholder shall also comply with all applicable requirements of the
Exchange Act with respect to the matters set forth in this Section 1.10. This
Section 1.10 is expressly
intended to apply to any business proposed to be brought before a meeting of
stockholders other than any proposal made pursuant to Rule 14a-8 under the
Exchange Act. Nothing in this Section 1.10 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in
the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
Section
1.11 Procedures for Calling a Special
Meeting.
(A) No
stockholder may demand that the Secretary of the Corporation call a special
meeting of the stockholders pursuant to Section 1.2(A) unless a
stockholder has first submitted a request in writing that the Board of Directors
fix a record date for the purpose of determining the stockholders entitled to
demand that the Secretary of the Corporation call such special meeting, which
request shall be in proper form and delivered to, or mailed and received by, the
Secretary of the Corporation at the principal executive offices of the
Corporation.
(B) To
be in proper form for purposes of this Section 1.11, a request by a
stockholder for the Board of Directors to fix a record date shall set
forth:
(1) As
to each Requesting Person (as defined below), the Stockholder Information (as
defined in Section 1.10(A)(3)(a), except that for
purposes of this Section 1.11 the term
“Requesting Person” shall be substituted for the term “Proposing Person” in all
places it appears in Section 1.10(A)(3)(a));
(2) As
to each Requesting Person, any Disclosable Interests (as defined in Section 1.10(A)(3)(b), except that for
purposes of this Section 1.11 the term
“Requesting Person” shall be substituted for the term “Proposing Person” in all
places it appears in Section 1.10(A)(3)(b) and the
disclosure in clause (vi) of Section 1.10(A)(3)(b)
shall be made with respect to the business proposed to be conducted at the
special meeting); and
(3) As
to the purpose or purposes of the special meeting proposed to be called
(a) a reasonably brief description of the purpose or purposes of the
special meeting and the business proposed to be conducted at the special
meeting, the reasons for conducting such business at the special meeting and any
material interest in such business of any Requesting Person, and (b) a
reasonably detailed description of all agreements, arrangements and
understandings (x) between or among any of the Requesting Persons and (y)
between or among any Requesting Person and any other record or beneficial owner
of capital stock of the Corporation (including their names) in connection
with the request for the special meeting or the business proposed to be
conducted at the special meeting.
For
purposes of this Section 1.11,
the term “Requesting Person” shall mean (x) a stockholder making a request
to fix a record date for the purpose of determining the stockholders entitled to
demand that the Secretary call a special meeting, (y) the beneficial owner
or beneficial owners, if different, on whose behalf such request is made and
(z) any affiliate or associate of such stockholder or beneficial
owner.
(C) Within
ten days after receipt of a request to fix a record date in proper form and
otherwise in compliance with this Section 1.11 from any such
stockholder, the Board of Directors may adopt a resolution fixing a record date
in accordance with Section 6.4 for
the purpose of determining the stockholders entitled to demand that a special
meeting be called. If no resolution fixing a record date has been
adopted by the Board of Directors within such ten day period after the date on
which such a request is received, the record date in respect thereof shall be
the twentieth day after the date on which such a request is
received. Notwithstanding anything in this Section 1.11 to the
contrary, no record date shall be fixed if the Board of Directors determines
that the demand or demands that would otherwise be submitted following such
record date could not comply with the requirements set forth in clauses (2),
(4), (5) or (6) of Section
1.11(E).
(D) Without
qualification, a special meeting of the stockholders shall not be called
pursuant to Section 1.2(A) unless
the stockholders of record as of the record date fixed in accordance with Section 1.11(C) who
hold, in the aggregate, 25% or more of the voting power of the outstanding
shares of Common Stock (the “Required Percentage”) timely provide one or
more demands to call such special meeting in writing and in proper form to the
Secretary of the Corporation at the principal executive offices of the
Corporation. To be timely, a stockholder’s demand to call a special
meeting must be delivered to, or mailed and received at, the principal executive
offices of the Corporation not later than the sixtieth day following the record
date fixed in accordance with Section 1.11(C).
To
be in proper form for purposes of this Section 1.11, a
demand to call a special meeting shall set forth (1) the business proposed
to be conducted at the special meeting, (2) the text of the proposal or
business (including the text of any resolutions proposed for consideration), and
(3) with respect to any stockholder or stockholders submitting a demand to
call a special meeting, and the beneficial owner, if any, on whose behalf such
demand is submitted (except for any stockholder that has submitted such demand
in response to a solicitation made pursuant to, and in accordance with,
Section 14(a) of the Exchange Act by way of a solicitation statement filed
on Schedule 14A (a “Solicited Stockholder”)), the information required to
be provided pursuant to Section 1.11(B)
of a Requesting Person. A stockholder may revoke a demand to call a
special meeting by written revocation delivered to the Secretary at any time
prior to the special meeting. If any such revocation(s) are received
by the Secretary after the Secretary’s receipt of written demands from the
holders of the Required Percentage of stockholders, and as a result of such
revocation(s), there no longer are unrevoked demands from the Required
Percentage of stockholders to call a special meeting, the Board of Directors
shall have the discretion to determine whether or not to proceed with the
special meeting.
(E) The
Secretary shall not accept, and shall consider ineffective, a written demand
from a stockholder to call a special meeting (1) that does not comply with
the requirements of this Section 1.11, (2) that
relates to an item of business to be transacted at such meeting that is not a
proper subject for stockholder action under applicable law, (3) that
includes an item of business to be transacted at such meeting that did not
appear on the written request that resulted in the determination of the record
date (the “Current Record Date”) to determine the stockholders entitled to
submit such written demand, (4) if such demand relates to an item of
business other than the election of directors that is identical or substantially
similar to an item of business (a “Similar Item”) for which a record date (other
than the Current Record Date) was previously fixed and such demand is delivered
between the time beginning on the 61st day
after such previous record date and ending on the one-year anniversary of such
previous record date, (5) if a Similar Item will be submitted for
stockholder approval at any stockholder meeting to be held on or before the
90th
day after the Secretary receives such demand, or (6) if a Similar Item has
been presented at the most recent annual meeting or at any special meeting held
within one year prior to receipt by the Secretary of such demand to call a
special meeting.
(F) After
receipt of demand(s) in proper form and in accordance with this Section 1.11 from a
stockholder or stockholders holding the Required Percentage, the Board of
Directors shall duly call, and determine the place, date and time of, a special
meeting of stockholders for the purpose or purposes and to conduct the business
specified in the demand(s) received by the
Corporation. Notwithstanding anything in these Bylaws to the
contrary, the Board of Directors may submit its own proposal or proposals for
consideration at such a special meeting. The record date for such a
special meeting shall be fixed in accordance with
Section 6.4. The Board of Directors shall provide written notice
of such special meeting to the stockholders in accordance with Section 1.4.
(G) In
connection with a special meeting called in accordance with this Section 1.11, the stockholder
or stockholders (except for any Solicited Stockholder) who, with respect to such
meeting, requested that the Board of Directors fix a record date in accordance
with Section 1.11(C) or who
delivered a written demand to the Secretary shall further update and supplement
the information previously provided to the Corporation in connection with such
request or demand, if necessary, so that the information provided or required to
be provided in such request or demand pursuant to this Section 1.11 shall be true
and correct as of the record date for the special meeting and as of the date
that is ten business days prior to the meeting or any adjournment or
postponement thereof, and such update and supplement shall be delivered to, or
mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five business days after the record date for the
special meeting (in the case of the update and supplement required to be made as
of the record date), and not later than eight business days prior to the date
for the meeting or, if practicable, any adjournment or postponement thereof
(and, if not practicable, on the first practicable date prior to the date to
which the meeting has been adjourned or postponed) (in the case of the update
and supplement required to be made as of ten business days prior to the special
meeting or any adjournment or postponement thereof).
(H) Notwithstanding
anything in these Bylaws to the contrary, the Secretary shall not be required to
call a special meeting pursuant to Section 1.2(A) except
in accordance with this Section 1.11. If
the Board of Directors shall determine that any request to fix a record date or
demand to call and hold a special meeting was not properly made in accordance
with this Section 1.11, or shall
determine that the stockholder or stockholders requesting that the Board of
Directors fix such record date or submitting a demand to call the special
meeting have not otherwise complied with this Section 1.11, then the Board
of Directors shall not be required to fix a record date or to call and hold the
special meeting. In addition to the requirements of this Section 1.11 with respect to
stockholders seeking to call special meetings of the stockholders, each
Requesting Person shall comply with all requirements of applicable law,
including all requirements of the Exchange Act, with respect to such special
meeting.
Section
1.12 Inspectors of Elections;
Opening and Closing the Polls.
The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at the meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by the General Corporation Law of
the State of Delaware (the “GCL”).
The
chairman of the meeting shall fix and announce at the meeting the time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting.
Section
1.13 Written Consent in Lieu of
Meeting.
(A) Any
action required or permitted to be taken at an annual or special meeting of
stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the
action so taken, (i) shall be signed by holders of record on the record
date (established as provided below) of outstanding shares of the capital stock
of the Corporation having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and (ii) shall
be delivered to the Corporation at its registered office in the State of
Delaware, at its principal place of business or to an officer or agent of
the Corporation having custody of the minute book in which proceedings of
meetings of stockholders are recorded. Delivery to the Corporation’s
registered office shall be made by hand or by certified or registered mail,
return receipt requested. Every written consent shall bear the
date of the signature of each stockholder who signs the consent, and no
written consent shall be effective to take corporate action unless, within sixty
days of the earliest dated consent delivered in the manner set forth in this
paragraph to the Corporation, written consents signed by a
sufficient number of holders to take such action are delivered to the
Corporation in the manner described above in this Section 1.13. Only
stockholders that are stockholders of record on the record date shall be
entitled to consent to corporate action in writing without a meeting,
notwithstanding any transfer of any stock on the stock ledger of the Corporation
after any such record date.
(B) Without
qualification, any stockholder of record seeking to have the stockholders
authorize or take any action by written consent shall first request in writing
that the Board of Directors fix a record date for the purpose of determining the
stockholders entitled to take such action, which request shall be in proper form
and delivered to, or mailed and received by, the Secretary of the Corporation at
the principal executive offices of the Corporation. Within ten days
after receipt of a request in proper form and otherwise in compliance with this
Section 1.13 from any such
stockholder, the Board of Directors may adopt a resolution fixing a date as the
record date in accordance with Section
6.4(B) for the purpose of determining the stockholders entitled to
take such action. If no resolution fixing a record date has been
adopted by the Board of Directors within such ten day period after the date on
which such a request is received, (1) the record date for determining
stockholders entitled to consent to corporate action without a meeting, when no
prior action of the Board of Directors is required by applicable law, shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery in the
manner set forth in this Section 1.13 to its
registered office in the State of Delaware, its principal place of business or
any officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded, and (2) the record
date for determining stockholders entitled to consent to corporate action
without a meeting, when prior action by the Board of Directors is required by
applicable law, shall be at the close of business on the date on which the Board
of Directors adopts the resolution taking such prior action.
(C) To
be in proper form for purposes of this Section 1.13, a request by a
stockholder for the Board of Directors to fix a record date shall set
forth:
(1) As
to each Soliciting Person (as defined below), the Stockholder Information (as
defined in Section 1.10(A)(3)(a), except that for
purposes of this Section 1.13 the term
“Soliciting Person” shall be substituted for the term “Proposing Person” in all
places it appears in Section 1.10(A)(3)(a));
(2) As
to each Soliciting Person, any Disclosable Interests (as defined in Section 1.10(A)(3)(b), except that for
purposes of this Section 1.13 the term
“Soliciting Person” shall be substituted for the term “Proposing Person” in all
places it appears in Section 1.10(A)(3)(b) and the
disclosure in clause (vi) of Section 1.10(A)(3)(b)
shall be made with respect to the actions proposed to be taken by written
consent); and
(3) As
to the action or actions proposed to be taken by written consent, (a) a
reasonably brief description of the action or actions, the reasons for taking
such action or actions and any material interest in such action or actions of
any Soliciting Person, (b) the text of the resolutions or consent proposed
to be acted upon by written consent of the stockholders, and (c) a
reasonably detailed description of all agreements, arrangements and
understandings (x) between or among any of the Soliciting Persons and
(y) between or among any Soliciting Person and any other
record or beneficial owner of capital stock of the Corporation (including their
names) in connection with the request or such action or
actions.
For
purposes of this Section 1.13,
the term “Soliciting Person” shall mean (x) the stockholder making a
request for the Board of Directors to fix a record date and proposing the action
or actions to be taken by written consent, (y) the beneficial owner or
beneficial owners, if different, on whose behalf the request for the Board of
Directors to fix a record date is made, and (z) any affiliate or associate
of such stockholder or beneficial owner.
(D) In
connection with an action or actions proposed to be taken by written consent in
accordance with this Section 1.13, the stockholder
or stockholders seeking such action or actions shall further update and
supplement the information previously provided to the Corporation in connection
therewith, if necessary, so that the information provided or required to be
provided pursuant to this Section 1.13 shall be true
and correct as of the record date for determining the stockholders eligible to
take such action and as of the date that is five business days prior to the date
the consent solicitation is commenced, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal
executive offices of the Corporation not later than five business days after the
record date for determining the stockholders eligible to take such action (in
the case of the update and supplement required to be made as of the record
date), and not later than three business days prior to the date that the consent
solicitation is commenced (in the case of the update and supplement required to
be made as of five business days prior to the commencement of the consent
solicitation).
(E) Notwithstanding
anything in these Bylaws to the contrary, no action may be taken by the
stockholders by written consent except in accordance with this Section 1.13. If
the Board of Directors shall determine that any request to fix a record date or
to take stockholder action by written consent was not properly made in
accordance with the provisions of this Section 1.13, or the
stockholder or stockholders seeking to take such action do not otherwise comply
with the provisions of this Section 1.13, then the Board
of Directors shall not be required to fix a record date and any such purported
action by written consent shall be null and void to the fullest extent permitted
by applicable law. In addition to the requirements of this Section 1.13 with respect to
stockholders seeking to take an action by written consent, each Soliciting
Person shall comply with all requirements of applicable law, including all
requirements of the Exchange Act, with respect to such action.
ARTICLE
II.
Directors
Section
2.1 Powers and Duties of
Directors; Number.
The
business of the Corporation shall be managed by or under the direction of the
Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not directed or required to be exercised
or done by the stockholders by the Restated Certificate of Incorporation, by
these Bylaws, or by law. Except as otherwise permitted by or
consistent with Foreign Ownership Restrictions (as defined below), at no time
shall more than one-third of the Directors in office be Aliens (as defined in
the Restated Certificate of Incorporation). The Board shall adopt the
Annual Capital Expenditure Budget and the Annual Financial Plan, both as defined
in Section 3.3, for
each fiscal year not later than the last day of the preceding fiscal year or at
such later time as shall be determined by resolution of the
Board. “Foreign Ownership Restrictions” means applicable statutory,
regulatory and interpretive restrictions regarding foreign ownership or control
of U.S. air carriers as amended or modified from time to time.
The
number of Directors which shall constitute the whole Board of Directors shall be
determined from time to time by resolution of the Board of Directors (provided
that no decrease in the number of Directors which would have the effect of
shortening the term of an incumbent Director may be made by the Board of
Directors). If the Board of Directors makes no such determination,
the number of Directors shall be thirteen.
Section
2.2 Election; Term;
Vacancies.
Each
Director shall hold office until the next annual election and until his or her
successor is elected and qualified, or until his earlier death, resignation or
removal. The Directors shall be elected annually by the stockholders
in the manner specified by the Restated Certificate of Incorporation and these
Bylaws, except that if there be a vacancy in the Board of Directors by reason of
death, resignation or otherwise, such vacancy may also be filled for the
unexpired term by a majority affirmative vote of the Board of
Directors.
Section
2.3 Resignation.
(A) Any
Director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation. Any such resignation
shall take effect at the time received by the Corporation, unless the
resignation specifies a later effective date or an effective
date determined upon the happening of one or more events, such as failing
to receive a specified vote for re-election as a Director.
(B) A
Director’s resignation which is conditioned upon the Director failing to
receive a specified vote for re-election as a Director may provide that it
is irrevocable.
(C) If
an incumbent Director does not receive the vote for re-election specified in
his or her conditional resignation in an uncontested election of Directors,
the Board of Directors (or a committee designated by the Board of
Directors) shall, no later than 60 days following the date of the
certification of the election results, consider the attendant circumstances and
any other factors it deems relevant and determine whether to accept the
Director’s resignation. If the Board of Directors (or the committee
designated by the Board of Directors to make such determination) determines
not to accept the Director’s resignation, then such resignation shall not
be effective with respect to the applicable election.
(D) For
purposes of this Section 2.3, an “uncontested
election” shall mean an election of Directors where the only nominees are
those nominated by the Board of Directors.
Section
2.4 Removal.
Any
Director may be removed at any time, with or without cause, by vote at a meeting
or written consent of the holders of stock entitled to vote on the election of
such Director pursuant to the Restated Certificate of
Incorporation.
Section
2.5 Meetings.
(A) Annual Meeting.
Immediately after each annual meeting of stockholders, the duly
elected Directors shall hold an inaugural meeting for the purpose of
organization, election of officers, and the transaction of other business,
at such place as shall be fixed by the person presiding at the meeting of
stockholders at which such Directors are elected.
(B) Regular Meetings.
Regular meetings of the Board of Directors shall be held on such
dates and at such times and places as shall be designated from time to time by
the Board of Directors; provided, that
regular meetings of the Board of Directors can be waived at the request of
the Chief Executive Officer if at least a majority of the Directors agree in
writing or by electronic transmission to such waiver at least seven days
before the date of the meeting to be so waived. The Secretary shall
forward to each Director, at least five days before any such
regular meeting, a notice of the time and place of the meeting, together
with the agenda for the meeting or in lieu thereof a notice of waiver if
the regular meeting has been waived.
(C) Special Meetings.
Special meetings of the Directors may be called by the Chairman of
the Board, the Chairman of the Executive Committee, the Chief Executive
Officer or a majority of the Directors, at such time and place as shall be
specified in the notice or waiver thereof. Notice of each special
meeting, including the time and place of the meeting and the agenda
therefor, shall be given by the Secretary or by the person calling the meeting
to each Director by causing the same to be delivered personally or by
electronic transmission not later than the close of business on the second
day next preceding the day of the meeting.
(D) Location; Methods of
Participation. Meetings of the Board of Directors, regular or
special, may be held at any place within or without the State of Delaware at
such place as is indicated in the notice or waiver of notice thereof.
Members of the Board of Directors, or of any committee designated by
the Board, may participate in a meeting of the Board of Directors or such
committee by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
Section
2.6 Quorum and
Voting.
A
majority of the total number of Directors (excluding those who must recuse
themselves by law) (“Recused Directors”)
shall constitute a quorum for the transaction of business, but, if there be less
than a quorum at any meeting of the Board of Directors, a majority of the
Directors present may adjourn the meeting from time to time, and no further
notice thereof need be given other than announcement at the meeting which shall
be so adjourned. Except as otherwise provided by law, by the Restated
Certificate of Incorporation, or by these Bylaws, the affirmative vote of a
majority of the Directors present at a meeting (excluding Recused Directors) at
which a quorum is present shall be the act of the Board of
Directors.
Section
2.7 Written Consent of Directors
in Lieu of a Meeting.
Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board or of such committee, as the case may be, consent thereto
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. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
Section
2.8 Compensation.
Directors
may receive compensation for services to the Corporation in their capacities as
Directors or otherwise in such manner and in such amounts as may be fixed from
time to time by the Board of Directors.
ARTICLE
III.
Committees of the Board of
Directors
Section
3.1 Creation.
The
Board of Directors, by resolution or resolutions passed by a majority of the
whole Board of Directors, may designate one or more committees, each to consist
of such number of Directors of the Corporation as shall be specified in such
resolution. Each committee of the Board shall have and may exercise
such powers and duties as may be provided in such resolution, except that no
such committee shall have the power to elect Directors or the power or authority
reserved for the whole Board of Directors pursuant to Section 141(c)(2) of
the GCL, except as otherwise set forth in such
Section 141(c)(2).
Section
3.2 Committee
Procedure.
Each
committee of the Board of Directors shall meet at the times and places
determined in accordance with the procedures set forth in the committee’s
charter. The Board by resolution or resolutions shall establish the
charter of each committee, which shall set forth the rules of procedure to be
followed by such committee, including a requirement that such committee keep
regular minutes of its proceedings and deliver to the Secretary the
same.
Section
3.3 Certain
Definitions.
(A) Annual Capital Expenditure
Budget. When used in these Bylaws, the term “Annual Capital
Expenditure Budget” shall mean an annual capital expenditure budget, which shall
be approved by the Board of Directors not later than the last day of the
preceding fiscal year (or at such later time determined by the Board
pursuant to Section 2.1).
(B) Annual Financial
Plan. When used in these Bylaws, the term “Annual
Financial Plan” shall mean an annual financial plan, which shall be
approved by the Board of Directors not later than the last day of the
preceding fiscal year (or at such later time determined by the
Board pursuant to Section 2.1).
ARTICLE
IV.
Officers, Agents and
Employees
Section
4.1 Appointment and Term of
Office.
The
officers of the Corporation shall include a Chairman of the Board, a Chief
Executive Officer, a President, and a Secretary, and may also include a Chief
Operating Officer, a Chief Financial Officer, a Treasurer, one or more Vice
Presidents (who may be further classified by such descriptions as “executive”,
“senior”, “assistant”, “staff” or otherwise, as the Board of Directors shall
determine), one or more Assistant Secretaries and one or more Assistant
Treasurers. All such officers shall be appointed by the Board of
Directors. Any number of such offices may be held by the same person,
but no officer shall execute, acknowledge or verify any instrument in more than
one capacity. Except as may be prescribed otherwise by the Board of
Directors in a particular case, all such officers shall hold their offices at
the pleasure of the Board for an unlimited term and need not be reappointed
annually or at any other periodic interval. The Board of Directors
may appoint, and may delegate power to appoint, such other officers, agents and
employees as it may deem necessary or proper, who shall hold their offices or
positions for such terms, have such authority and perform such duties as may
from time to time be determined by or pursuant to authorization of the Board of
Directors.
Section
4.2 Resignation and
Removal.
Any
officer may resign at any time upon written notice to the
Corporation. Any officer, agent or employee of the Corporation may be
removed by the Board of Directors with or without cause at any
time. Such removal shall be without prejudice to a person’s contract
rights, if any, but the appointment of any person as an officer, agent or
employee of the Corporation shall not of itself create contract
rights.
Section
4.3 Compensation and
Bond.
The
compensation of the officers of the Corporation shall be fixed by the Board of
Directors, but this power may be delegated to any officer by the Board of
Directors. The Corporation may secure the fidelity of any or all of
its officers, agents or employees by bond or otherwise.
Section
4.4 Chairman of the
Board.
The
Chairman of the Board shall be selected from the members of the Board of
Directors and shall preside at all meetings of the Board of
Directors. In addition, the Chairman of the Board shall have such
other powers and duties as may be delegated to him or her by the Board of
Directors. The Chairman of the Board shall not be deemed to be an
officer of the Corporation for purposes of Article IV of these Bylaws
unless he or she shall also be the Chief Executive Officer.
Section
4.5 Chief Executive
Officer.
The
Chief Executive Officer shall be the chief executive officer of the Corporation
and, in the absence of the Chairman of the Board (or if there be none), he or
she shall preside at all meetings of the Board of Directors. The
Chief Executive Officer shall have general charge of the business affairs of the
Corporation. He or she may employ and discharge employees and agents
of the Corporation, except such as shall be appointed by the Board of Directors,
and he or she may delegate these powers. The Chief Executive Officer
may vote the stock or other securities of any other domestic or foreign
corporation of any type or kind which may at any time be owned by the
Corporation, may execute any stockholders’ or other consents in respect thereof
and may in his or her discretion delegate such powers by executing proxies, or
otherwise, on behalf of the Corporation. The Board of Directors by
resolution from time to time may confer like powers upon any other
person.
Section
4.6 President.
The
President shall have such powers and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time
prescribe.
Section
4.7 Chief Operating
Officer.
The
Chief Operating Officer shall have such powers and perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe.
Section
4.8 Chief Financial
Officer.
The
Chief Financial Officer shall have general charge of the financial affairs of
the Corporation, and shall have such other powers and duties as the Board of
Directors or the Chief Executive Officer may from time to time
prescribe.
Section
4.9 Vice Presidents.
Each
Vice President shall have such powers and perform such duties as the Board of
Directors or the Chief Executive Officer may from time to time
prescribe.
Section
4.10 Treasurer.
The
Treasurer shall have charge of all funds and securities of the Corporation, may
endorse the same for deposit or collection when necessary and deposit the same
to the credit of the Corporation in such banks or depositaries as the Board of
Directors may authorize. He or she may endorse all commercial
documents requiring endorsements for or on behalf of the Corporation and may
sign all receipts and vouchers for payments made to the
Corporation. He or she shall have all such further powers and duties
as generally are incident to the position of Treasurer or as may be assigned to
him or her by the Board of Directors or the Chief Executive
Officer.
Section
4.11 Secretary.
The
Secretary shall distribute all materials to be distributed in connection with
regular and special meetings of the Board of Directors, record all the
proceedings of the meetings of the stockholders and Directors in a book to be
kept for that purpose and shall also record therein all action taken by written
consent of the Directors, and committees of the Board of Directors in lieu of a
meeting. He or she shall attend to the giving and serving of all
notices of the Corporation. He or she shall have custody of the seal
of the Corporation and shall attest the same by his or her signature whenever
required. He or she shall have charge of the stock ledger and such
other books and papers as the Board of Directors may direct, but he or she may
delegate responsibility for maintaining the stock ledger to any transfer agent
or registrar appointed by the Board of Directors. He or she shall
have all such further powers and duties as generally are incident to the
position of Secretary or as may be assigned to him or her by the Board of
Directors or the Chief Executive Officer.
Section
4.12 Assistant
Treasurers.
In
the absence or inability to act of the Treasurer, any Assistant Treasurer may
perform all the duties and exercise all the powers of the
Treasurer. The performance of any such duty shall, in respect of any
other person dealing with the Corporation, be conclusive evidence of his or her
power to act. An Assistant Treasurer shall also perform such other
duties as the Treasurer or the Board of Directors may assign to him or
her.
Section
4.13 Assistant
Secretaries.
In
the absence or inability to act of the Secretary, any Assistant Secretary may
perform all the duties and exercise all the powers of the
Secretary. The performance of any such duty shall, in respect of any
other person dealing with the Corporation, be conclusive evidence of his or her
power to act. An Assistant Secretary shall also perform such other
duties as the Secretary or the Board of Directors may assign to him or
her.
Section
4.14 Delegation of
Duties.
In
case of the absence of any officer of the Corporation, or for any other reason
that the Board of Directors may deem sufficient, the Board of Directors may
confer for the time being the powers or duties, or any of them, of such officer
upon any other officer or upon any Director.
Section
4.15 Prohibition on Loans to
Directors and Executive Officers.
The
Corporation shall not directly or indirectly extend or maintain credit, arrange
for the extension of credit, or renew an extension of credit, in the form of a
personal loan to or for any member of the Board of Directors or executive
officer of the Corporation, as such terms are used in Section 13(k) of the
Exchange Act.
ARTICLE
V.
Limitation of Liability and
Indemnification
Section
5.1 Limitation of Liability of
Directors.
No
Director of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director’s duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the Director derived any improper personal
benefit. If the GCL is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability
of Directors of the Corporation shall be eliminated or limited to the full
extent permitted by the GCL, as so amended.
Section
5.2 Mandatory Indemnification of
Directors and Officers.
The
Corporation shall indemnify to the full extent permitted by the laws of the
State of Delaware as from time to time in effect any person who was or is a
party or is threatened to be made a party to, or otherwise requires
representation by counsel in connection with, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (whether or not an action by or in the right of the Corporation),
by reason of the fact that he or she is or was a Director or officer of the
Corporation, or, while serving as a Director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity. The right to indemnification conferred by
this Section 5.2 also
shall include the right of such persons described in this Section 5.2 to
be paid in advance by the Corporation for their expenses (including attorneys’
fees) to the full extent permitted by applicable law as from time to time in
effect. The right to indemnification conferred on such persons by
this Section 5.2
shall be a contract right.
Section
5.3 Permissive Indemnification
of Non-Officer Employees and Agents.
The
Corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (whether or
not an action by or in the right of the Corporation) by reason of the fact that
the person is or was an employee (other than an officer) or agent of the
Corporation, or, while serving as an employee (other than an officer) or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to the extent (i) permitted by the laws
of the State of Delaware as from time to time in effect, and
(ii) authorized in the sole discretion of the Chief Executive Officer and
at least one other of the following officers: the President, the Chief Financial
Officer, or the General Counsel of the Corporation (the Chief Executive Officer
and any of such other officers so authorizing such indemnification, the
“Authorizing Officers”). The Corporation may, to the extent permitted
by Delaware law and authorized in the sole discretion of the Authorizing
Officers, pay expenses (including attorneys’ fees) reasonably incurred by any
such employee or agent in defending any civil, criminal, administrative or
investigative action, suit or proceeding in advance of the final disposition of
such action, suit or proceeding, upon such terms and conditions as the
Authorizing Officers authorizing such expense advancement determine in their
sole discretion. The provisions of this Section 5.3
shall not constitute a contract right for any such employee or
agent.
Section
5.4 General
Provisions.
The
rights and authority conferred in any of the Sections of this Article V shall
not be exclusive of any other right which any person seeking indemnification or
advancement of expenses may have or hereafter acquire under any statute,
provision of the Restated Certificate of Incorporation or these Bylaws,
agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office and shall continue as to a person who has ceased to be
a Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Neither the
amendment or repeal of this Article V or any
of the Sections thereof nor the adoption of any provision of the Restated
Certificate of Incorporation or these Bylaws or of any statute inconsistent with
this Article V or any
of the Sections thereof shall eliminate or reduce the effect of this Article V or any
of the Sections thereof in respect of any acts or omissions occurring prior to
such amendment, repeal or adoption or an inconsistent provision.
ARTICLE
VI.
Common
Stock
Section
6.1 Certificates.
The
shares of stock of the Corporation shall be represented by certificates or, as
the Board of Directors may provide by resolution, uncertificated
shares. Each holder of record of the stock of the Corporation
(including, upon request to the Corporation’s transfer agent or registrar,
holders of record of uncertificated stock) shall be entitled to have a
certificate representing such stock, which certificate shall be in such form as
shall be approved by the Board of Directors and shall be signed in the name of
the Corporation by the Chairman of the Board or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary. Each such certificate may be sealed with the
seal of the Corporation or a facsimile thereof, and any or all of the signatures
on a certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section
6.2 Transfers of Stock &
Record Holders.
Transfers
of shares of stock of the Corporation shall be made on the stock ledger of the
Corporation only upon authorization by the record holder thereof or by such
holder’s attorney, successor or assignee thereunto authorized by power of
attorney (or other proper evidence of succession, assignment or authority to
transfer) duly executed and filed with the Corporation’s transfer agent or
registrar. If the shares to be transferred are certificated, such
transfer shall be made only upon surrender of the certificate or certificates
for such shares properly endorsed or accompanied by a duly executed stock
transfer power with reasonable assurances given that such endorsement is genuine
and that all applicable taxes thereon have been paid. Except as
otherwise provided by applicable law, the Corporation shall be entitled to
recognize the exclusive right of the holder of record of any share or shares as
the owner of such share or shares for all purposes, including, without
limitation, the rights to receive dividends or other distributions, and to vote
as such owner, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in any such share or shares on the part of any
other person whether or not it shall have express or other notice
thereof.
Section
6.3 Lost, Stolen or Destroyed
Certificates.
The
Corporation may issue a new stock certificate or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate or his or her legal representative to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate or uncertificated
shares. The Board of Directors may require such owner to satisfy
other reasonable requirements.
Section
6.4 Stockholder Record
Date.
(A) Stockholder
Meetings.
(1) In
order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix, in advance, a record date, which
record date, except as otherwise required by applicable law (i) shall
not precede the date on which the resolution fixing the record date
is adopted and (ii) shall not be more than 60 nor less than ten days
before the date of such meeting.
(2) A
determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date
for the adjourned meeting.
(3) If
no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding
the date on which notice is given or, if notice is waived by all
stockholders entitled to vote at the meeting, at the close of business on the
day next preceding the day on which the meeting is held.
(4) Only
stockholders that are stockholders of record on the date so fixed shall be
entitled to notice of, and to vote at, such meeting and any adjournment
thereof, notwithstanding any transfer of any stock on the stock ledger of
the Corporation after any record date so fixed.
(B) Stockholder Action by
Written Consent.
(1) In
order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting (including by
telegram, cablegram or other electronic transmission as permitted by law),
the Board of Directors may fix a record date, which record date shall not
precede or be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors.
(2) Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by consent shall comply with Section 1.13.
(C) Dividends, Distributions or
Other Rights. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record
date, which record date, except as otherwise required by applicable law
(i) shall not precede the date on which the resolution fixing the record
date is adopted and (ii) shall not be more than sixty days prior to
such action. Only stockholders that are stockholders of record on the
date so fixed shall be entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, notwithstanding any transfer of any
stock on the stock ledger of the Corporation after any record date so fixed.
If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to receive payment of any dividend or
other distribution or allotment of rights or to exercise any rights of
change, conversion or exchange of stock or for any other purpose shall
be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section
6.5 Rules and
Procedures.
The
Board of Directors may make such additional rules and procedures, not
inconsistent with, the Restated Certificate of Incorporation, these Bylaws,
applicable law or contractual prohibitions, as it may deem appropriate
concerning the issuance, transfer and registration of certificated and
uncertificated shares of stock of the Corporation. The Board of
Directors may appoint, or authorize any officer or officers of the Corporation
to appoint, one or more independent transfer agents and one or more independent
registrars, and may require all certificates for shares of stock to bear the
signature or signatures of any of them.
ARTICLE
VII.
Ownership by
Aliens
Section
7.1 Foreign Stock
Record.
There
shall be maintained a separate stock record, designated the “Foreign Stock
Record,” for the registration of Voting Stock, as defined in Section 7.2,
that is Beneficially Owned (as defined in the Restated Certificate of
Incorporation) by Aliens, as defined in the Restated Certificate of
Incorporation (“Alien
Stock”). The Beneficial Ownership by Aliens of Voting Stock
shall be determined in conformity with regulations prescribed by the Board of
Directors.
Section
7.2 Maximum
Percentage.
At
no time shall ownership of shares representing more than the Maximum Percentage,
as defined below, be registered in the Foreign Stock Record. As used
herein, (a) “Maximum Percentage”
means the maximum percentage of voting power of Voting Stock, as defined below,
which may be voted by, or at the direction of, Aliens without violating Foreign
Ownership Restrictions or adversely affecting the Corporation’s operating
certificates or authorities, and (b) “Voting Stock” means
all outstanding shares of capital stock of the Corporation issued from time to
time by the Corporation and Beneficially Owned by Aliens which, but for the
provisions of Section 1 of
Article Sixth
of the Restated Certificate of Incorporation, by their terms may vote (at the
time such determination is made) for the election of Directors of the
Corporation, except shares of
Preferred Stock that are entitled to vote for the election of Directors solely
as a result of the failure to pay dividends by the Corporation or other breach
of the terms of such Preferred Stock.
Section
7.3 Recording of
Shares.
If
at any time there exist shares of Voting Stock that are Alien Stock but that are
not registered in the Foreign Stock Record, the Beneficial Owner thereof may
request, in writing, the Corporation to register ownership of such shares on the
Foreign Stock Record and the Corporation shall comply with such request, subject
to the limitation set forth in Section 7.2. The
order in which Alien Stock shall be registered on the Foreign Stock Record shall
be chronological, based on the date the Corporation received a written request
to so register such shares of Alien Stock. If at any time the
Corporation shall find that the combined voting power of Voting Stock then
registered in the Foreign Stock Record exceeds the Maximum Percentage, there
shall be removed from the Foreign Stock Record the registration of such number
of shares so registered as is sufficient to reduce the combined voting power of
the shares so registered to an amount not in excess of the Maximum
Percentage. The order in which such shares shall be removed shall be
reverse chronological order based upon the date the Corporation received a
written request to so register such shares of Alien Stock.
ARTICLE
VIII.
General
Provisions
Section
8.1 Fiscal Year.
The
fiscal year of the Corporation shall begin the first day of January and end on
the last day of December of each year.
Section
8.2 Dividends.
Dividends
upon the capital stock may be declared by the Board of Directors at any regular
or special meeting and may be paid in cash or in property or in shares of the
capital stock. Before paying any dividend or making any distribution
of profits, the Directors may set apart out of any funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and may
alter or abolish any such reserve or reserves.
Section
8.3 Checks, Notes, Drafts,
Etc.
Checks,
notes, drafts, acceptances, bills of exchange and other orders or obligations
for the payment of money shall be signed by such officer or officers or person
or persons as the Board of Directors or a duly authorized committee thereof, the
Chief Executive Officer or the Treasurer may from time to time
designate.
Section
8.4 Corporate Seal.
The
seal of the Corporation shall be circular in form and shall bear, in addition to
any other emblem or device approved by the Board of Directors, the name of the
Corporation and the words “Corporate Seal” and “Delaware.” The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section
8.5 Waiver of Notice.
Whenever
notice is required to be given by statute, or under any provision of the
Restated Certificate of Incorporation or these Bylaws, a written waiver thereof,
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 stated
therein, shall be deemed equivalent to notice. In the case of a
stockholder, such waiver of notice may be signed by such stockholder’s attorney
or proxy duly appointed in writing or as otherwise permitted by
law. 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 of Directors need be specified in any written waiver of notice or
any waiver by electronic transmission.
ARTICLE
IX.
Restated Certificate of
Incorporation to Govern
Section
9.1 Restated Certificate of
Incorporation to Govern.
Notwithstanding
anything to the contrary herein, if any provision contained herein is
inconsistent with or conflicts with a provision of the Restated Certificate of
Incorporation, such provision herein shall be superseded by the inconsistent
provision in the Restated Certificate of Incorporation, to the extent necessary
to give effect to such provision in the Restated Certificate of
Incorporation.