UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): June 4, 2009
(Exact
name of registrant as specified in its charter)
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Delaware
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0-27231
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13-3818604
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
Number)
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4810
Eastgate Mall
San
Diego, CA 92121
(Address
of Principal Executive Offices) (Zip Code)
(858)
812-7300
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions ( see
General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On June
4, 2009, the Board of Directors of Kratos Defense & Security Solutions, Inc.
(the “Company”) adopted Amended and Restated Bylaws (the “Amended and Restated
Bylaws”). The Amended and Restated Bylaws revise and update, among other things,
the advance notice provisions to:
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•
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clarify
the procedures for stockholders to provide advance notice of stockholder
proposals at stockholders meetings, including nominations of directors at
annual meetings or special meetings;
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•
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provide
that stockholders making proposals or nominations (or beneficial owners on
whose behalf proposals or nominations are made) be stockholders (or
beneficial owners, as applicable) at the time the notice is delivered to
the Secretary of the Company and at the time of the meeting, and to
require such stockholder to disclose all ownership interests, hedges,
short positions, economic and profit incentives and rights to vote with
respect to securities of the Company;
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•
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clarify
and expand the information that stockholders submitting proposals are to
include in stockholder notices, the disclosures to be made by persons
nominated by stockholders as directors, and the disclosures to be made by
the nominating stockholders regarding themselves and their nominees;
and
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•
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require
that disclosures by stockholders be updated and supplemented, if
necessary, so as to be accurate as of the record date for an annual or
special meeting.
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In
addition, the Amended and Restated Bylaws also reflect modernization of certain
articles to comply with developments in the Delaware General Corporation Law
that have taken place since the Company last amended and/or restated its
bylaws.
This
description of the Amended and Restated Bylaws is qualified in its entirety by
reference to the Amended and Restated Bylaws filed herewith as
Exhibit 3.1.
Item
9.01 Financial Statements and Exhibits.
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3.1
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Amended
and Restated Bylaws of Kratos Defense & Security Solutions, Inc. as
amended June 4, 2009.
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2
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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KRATOS
DEFENSE & SECURITY SOLUTIONS, INC.
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Date:
June 10, 2009
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/s/
Laura L. Siegal
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Laura
L. Siegal
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Vice
President, Corporate Controller, Secretary and Treasurer
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3
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Exhibit
Number
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Description
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3.1
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Amended
and Restated Bylaws of Kratos Defense & Security Solutions, Inc. as
amended June 4, 2009.
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4
AMENDED
AND RESTATED
BYLAWS
OF
KRATOS
DEFENSE & SECURITY SOLUTIONS, INC.
a
Delaware corporation
| ARTICLE 1 | OFFICES |
1
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| Section 1.1 | Registered Office |
1
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| Section 1.2 | Other Offices |
1
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| ARTICLE 2 | STOCKHOLDERS' MEETINGS |
1
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| Section 2.1 | Place of Meetings |
1
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| Section 2.2 | Annual Meetings |
2
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| Section 2.3 | Special Meetings |
2
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| Section 2.4 |
Notice of
Meetings
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2
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| Section 2.5 | Quorum and Voting |
3
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| Section 2.6 | Voting Rights |
3
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| Section 2.7 | Voting Procedures and Inspector of Elections |
4
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| Section 2.8 | List of Stockholders |
5
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| Section 2.9 | Stockholder Proposals at Annual or Special Meetings |
5
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| Section 2.10 | Nominations of Persons for Election to the Board of Directors |
7
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| Section 2.11 | Action Without Meeting |
7
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| ARTICLE 3 | DIRECTORS |
8
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| Section 3.1 | Number and Term of Office |
8
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| Section 3.2 | Powers |
8
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| Section 3.3 | Vacancies |
8
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| Section 3.4 | Resignations and Removals |
8
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| Section 3.5 | Meetings |
9
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| Section 3.6 | Quorum and Voting |
9
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| Section 3.7 | Action Without Meeting |
9
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| Section 3.8 | Fees and Compensation |
10
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| Section 3.9 | Committees |
11
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| ARTICLE 4 | OFFICERS |
11
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| Section 4.1 | Officers Designated |
11
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| Section 4.2 | Tenure and Duties of Officers |
11
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| ARTICLE 5 | EXECUTION OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY THE CORPORATION |
12
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| Section 5.1 | Execution of Corporate Instruments |
12
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| Section 5.2 | Voting of Securities Owned by Corporation |
12
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| ARTICLE 6 | SHARES OF STOCK |
13
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| Section 6.1 | Form and Execution of Certificates |
13
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| Section 6.2 | Lost Certificates |
13
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| Section 6.3 | Transfers |
13
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| Section 6.4 | Fixing Record Dates |
14
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| Section 6.5 | Registered Stockholders |
14
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| ARTICLE 7 | OTHER SECURITIES OF THE CORPORATION |
15
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| ARTICLE 8 | CORPORATE SEAL |
15
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| ARTICLE 9 | INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS |
16
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| Section 9.1 | Right to Indemnification |
16
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| Section 9.2 | Authority to Advance Expenses |
16
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| Section 9.3 | Right of Claimant to Bring Suit |
16
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| Section 9.4 | Provisions Nonexclusive |
17
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| Section 9.5 | Authority to Insure |
17
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| Section 9.6 | Survival of Rights |
17
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| Section 9.7 | Settlement of Claims |
17
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| Section 9.8 | Effect of Amendment |
17
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| Section 9.9 | Subrogation |
17
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| Section 9.10 | No Duplication of Payments |
17
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| ARTICLE 10 | NOTICES |
18
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| ARTICLE 11 | AMENDMENTS |
18
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i
AMENDED
AND RESTATED
BYLAWS
OF
KRATOS
DEFENSE & SECURITY SOLUTIONS, INC.
ARTICLE
1
OFFICES
Section
1.1 Registered
Office.
The
registered office of the corporation in the State of Delaware shall be in the
City of Dover, County of Kent.
Section
1.2 Other
Offices.
The
corporation may also have and maintain offices at such other places both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE
2
STOCKHOLDERS’
MEETINGS
Section
2.1 Place
of Meetings.
(a) Meetings
of the stockholders of the corporation shall be held at such place, either
within or without the State of Delaware, as may be designated from time to time
by the Board of Directors, or, if not so designated, then at the office of the
corporation required to be maintained pursuant to Section 1.2 of
Article I hereof. The Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication as authorized by
paragraph (b) of this Section 2.1.
(b) If
authorized by the Board of Directors in its sole discretion, and subject to such
guidelines and procedures as the Board of Directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication:
(1) Participate
in a meeting of stockholders; and
(2) Be
deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (A) the corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder, (B)
the corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (C) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the corporation.
(c) For
purposes of this Section 2.1, “remote communication” shall include
(1) telephone or other voice communications and (2) electronic mail or
other form of written or visual electronic communications or
transmission.
1
Section
2.2 Annual
Meetings.
The
annual meetings of the stockholders of the corporation, for the purpose of
election of directors and for such other business as may lawfully come before
it, shall be held on such date and at such time as may be designated from time
to time by the Board of Directors.
Section
2.3 Special
Meetings.
Special
meetings of stockholders of the corporation may be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
directors then in office.
Section
2.4 Notice
of Meetings.
(a) Except
as otherwise provided by law or the Certificate of Incorporation, written notice
of each meeting of stockholders, specifying the place, if any, date and hour and
purpose or purposes of the meeting, and the means of remote communication, if
any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder entitled to vote
thereat, directed to his address as it appears upon the books of the
corporation.
(b) If
at any meeting action is proposed to be taken which, if taken, would entitle
stockholders fulfilling the requirements of section 262(d) of the Delaware
General Corporation Law to an appraisal of the fair value of their shares, the
notice of such meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c) When
a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting, are announced at the
meeting at which the adjournment is taken unless the adjournment is for more
than 30 days, or unless after the adjournment a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the
meeting.
(d) Notice
of the time, place and purpose of any meeting of stockholders may be waived in
writing, either before or after such meeting, and, to the extent permitted by
law, will be waived by any stockholder by his attendance thereat, in person or
by proxy. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
(e) Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the corporation under any
provision of Delaware General Corporation Law, the certificate of incorporation,
or these Bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such
consent shall be revocable by the stockholder by written notice to the
corporation. Any such consent shall be deemed revoked if (i) the
corporation is unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent, and (ii) such
inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent or other person responsible for the giving
of notice; provided, however, the inadvertent failure to treat such inability as
a revocation shall not invalidate any meeting or other action. Notice
given pursuant to this subparagraph (e) shall be deemed given: (1) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (2) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice;
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(3) if by
a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting and (B)
the giving of such separate notice; and (4) if by any other form of electronic
transmission, when directed to the stockholder. An affidavit of the
secretary or an assistant secretary or of the transfer agent or other agent of
the corporation that the notice has been given by a form of electronic
transmission shall, in the absence of fraud, be prima facie evidence of the
facts stated therein. For purposes of these Bylaws, “electronic
transmission” means any form of communication, not directly involving the
physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process.
Section
2.5 Quorum
and Voting.
(a) At
all meetings of stockholders except where otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or by
proxy duly authorized, of the holders of a majority of the outstanding shares of
stock entitled to vote shall constitute a quorum for the transaction of
business. Shares, the voting of which at said meeting have been enjoined, or
which for any reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at said meeting. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, by vote
of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such meeting. At such adjourned
meeting at which a quorum is present or represented, any business may be
transacted which might have been transacted at the original
meeting. The stockholders present at a duly called or convened
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
(b) Except
as otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all action taken by the holders of a majority of the voting power represented at
any meeting at which a quorum is present shall be valid and binding upon the
corporation.
(c) Where
a separate vote by a class or classes is required, a majority of the outstanding
shares of such class or classes present in person or represented by proxy shall
constitute a quorum entitled to take action with respect to that vote on that
matter, and the affirmative vote of the majority of shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class.
Section
2.6 Voting
Rights.
(a) Except
as otherwise provided by law, only persons in whose names shares entitled to
vote stand on the stock records of the corporation on the record date for
determining the stockholders entitled to vote at said meeting shall be entitled
to vote at such meeting. Shares standing in the names of two or more
persons shall be voted or represented in accordance with the determination of
the majority of such persons, or, if only one of such persons is present in
person or represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose of
determining a quorum.
(b) Every
person entitled to vote or to execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent, which proxy shall be filed with the
Secretary of the corporation at or before the meeting at which it is to be
used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three (3) years from
its date unless the proxy provides for a longer period. Unless and
until voted, every proxy shall be revocable at the pleasure of the person who
executed it or of his legal representatives or assigns, except in those cases
where an irrevocable proxy permitted by statute has been given.
3
(c) Without
limiting the manner in which a stockholder may authorize another person or
persons to act for him as proxy pursuant to subsection (b) of this section, the
following shall constitute a valid means by which a stockholder may grant such
authority:
(1) A
stockholder may execute a writing authorizing another person or persons to act
for him as proxy. Execution may be accomplished by the stockholder or
his authorized officer, director, employee or agent signing such writing or
causing his or her signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2) A
stockholder may authorize another person or persons to act for him as proxy by
transmitting or authorizing the transmission of a telephone or other means of
electronic transmission to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, provided that any such
telephone or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telephone or
other electronic transmission was authorized by the stockholder. Such
authorization can be established by the signature of the stockholder on the
proxy, either in writing or by a signature stamp or facsimile signature, or by a
number or symbol from which the identity of the stockholder can be determined,
or by any other procedure deemed appropriate by the inspectors or other persons
making the determination as to due authorization. If it is determined
that such electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied.
(d) Any
copy, facsimile telecommunication or other reliable reproduction of the writing
or transmission created pursuant to subsection (c) of this section may be
substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or
transmission.
Section
2.7 Voting
Procedures and Inspectors of Elections.
(a) The
corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b) The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
(c) The
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless the Court of Chancery upon application by a stockholder shall
determine otherwise.
4
(d) In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted with
those proxies, any information provided in accordance with Sections 211(e) or
212(c)(2) of the Delaware General Corporation Law, or any information provided
pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular
books and records of the corporation, except that the inspectors may consider
other reliable information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their nominees or similar
persons which represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds of
record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b)(v) of this section shall specify the
precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors’ belief that
such information is accurate and reliable.
Section
2.8 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 said meeting, arranged in alphabetical
order, showing the address of and the number of shares registered in the name of
each stockholder. The corporation need not include electronic mail
addresses or other electronic contact information on such list. Such
list shall be open to the examination of any stockholder for any purpose germane
to the meeting for a period of at least 10 days prior to the meeting: (i) on
a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (ii) during ordinary business hours at the principal place of business
of the corporation. In the event that the corporation determines to
make the list available on an electronic network, the corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the corporation. If the meeting is to be held at a
place, then the list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
Section
2.9 Stockholder
Proposals at Annual or Special Meetings.
At an
annual or special meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To
be properly brought before a meeting, business must be specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or otherwise properly brought before the
meeting by a stockholder, but, in the case of a special meeting, if and only if
the notice of the meeting provides for business to be brought before the meeting
by a stockholder. In addition to any other applicable requirements
for business to be properly brought before a meeting by a stockholder, whether
or not the stockholder is seeking to have a proposal included in the
corporation’s proxy statement or information statement under any applicable rule
of the Securities and Exchange Commission (the “SEC”), including, but not
limited to, Regulation 14A or Regulation 14C under the Securities and Exchange
Act of 1934, as amended (the “Exchange Act”), the stockholder must have given
timely notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder’s notice must be delivered
to or mailed and received at the principal executive offices of the corporation
not less than 120 days prior to the date on which the corporation first mailed
its proxy materials (or, in the absence of proxy materials, its notice of the
meeting) for the previous year’s annual meeting of stockholders (or not later
than the tenth day following the date on which the corporation mails the notice
of meeting for the current year if during the prior year the corporation did not
hold an annual meeting or if the date of the annual meeting was changed more
than 30 days from the prior year, or in the event of a special
meeting).
5
A
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the
name and record address of the stockholder proposing such business,
(iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (iv) any material interest of the
stockholder in such business, (v) as to the stockholder giving the notice
and any Stockholder Associated Person (as defined below), whether and the extent
to which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding (including, but not limited to, any short position or any
borrowing or lending of shares of stock) has been made, the effect or intent of
which is to mitigate loss or increase profit to or manage the risk or benefit of
stock price changes for, or to increase or decrease the voting power of, such
stockholder or any such Stockholder Associated Person with respect to any share
of stock of the corporation (each, a “Relevant Hedge Transaction”), and
(vi) as to the stockholder giving the notice and any Stockholder Associated
Person, to the extent not set forth pursuant to the immediately preceding
clause, (a) whether and the extent to which such stockholder or Stockholder
Associated Person has direct or indirect beneficial ownership of any option,
warrant, convertible security, stock appreciation right, or similar right with
an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the corporation, whether or
not such instrument or right shall be subject to settlement in the underlying
class or series of capital stock of the corporation or otherwise, or any other
direct or indirect opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the corporation (a “Derivative
Instrument”), (b) any rights to dividends on the shares of the corporation
owned beneficially by such stockholder that are separated or separable from the
underlying shares of the corporation, (c) any proportionate interest in
shares of the corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such stockholder is a
general partner or, directly or indirectly, beneficially owns an interest in a
general partner and (d) any performance-related fees (other than an
asset-based fee) that such stockholder is entitled to based on any increase or
decrease in the value of shares of the corporation or Derivative Instruments, if
any, as of the date of such notice, including without limitation any such
interests held by members of such stockholder’s immediate family
sharing the same household (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the record
date).
For
purposes of this Section 2.9 and Section 2.10, “Stockholder Associated Person”
of any stockholder shall mean (i) any person controlling or controlled by,
directly or indirectly, or acting in concert with, such stockholder,
(ii) any beneficial owner of shares of stock of the corporation owned of
record or beneficially by such stockholder and (iii) any person controlling,
controlled by or under common control with such Stockholder Associated
Person.
Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in Section 2.1
and this Section 2.9, provided, however, that nothing in this
Section 2.9 shall be deemed to preclude discussion by any stockholder of
any business properly brought before the annual meeting in accordance with said
procedure.
The
Chairman of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of Section 2.1 and this Section 2.9, and if
he should so determine he shall so declare to the meeting, and any such business
not properly brought before the meeting shall not be transacted.
Nothing
in this Section 2.9 shall affect the right of a stockholder to request
inclusion of a proposal in the corporation’s proxy statement or information
statement to the extent that such right is provided by an applicable rule of the
SEC.
6
Section
2.10 Nominations
of Persons for Election to the Board of Directors.
In
addition to any other applicable requirements, only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of
Directors of the corporation may be made by or at the direction of the Board of
Directors, by any nominating committee or person appointed by the Board of
Directors or by any stockholder of the corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 2.10. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation, which shall be the
exclusive means for a stockholder to make nominations whether or not the
stockholder is seeking to have a proposal included in the corporation’s proxy
statement or information statement under an applicable rule of the SEC,
including, but not limited to, Regulation 14A or Regulation 14C under the
Exchange Act. To be timely, a stockholder’s notice must be delivered
to or mailed and received at the principal executive offices of the corporation,
not less than 120 days prior to the date on which the corporation first mailed
its proxy materials (or, in the absence of proxy materials, its notice of the
meeting) for the previous year’s annual meeting of stockholders (or not later
than the tenth day following the date on which the corporation mails the notice
of meeting for the current year if during the prior year the corporation did not
hold an annual meeting or if the date of the annual meeting was changed more
than 30 days from the prior year), or, in the case of a special meeting, not
more than 90 days prior to such meeting nor less than the later of 70 days prior
to such meeting or ten days following the day on which the date of such meeting
was first announced.
Such
stockholder’s notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director,
(i) the name, age, business address and residence address of the person,
(ii) the principal occupation or employment of the person, (iii) the
class and number of shares of the corporation which are beneficially owned by
the person, and (iv) any other information relating to the person that is
required to be disclosed in solicitations for proxies for election of directors
pursuant to Regulation 14A under the Exchange Act; (b) as to the
stockholder giving the notice, (i) the name and record address of the
stockholder, and (ii) the class and number of shares of the corporation
which are beneficially owned by the stockholder; (c) as to the stockholder
giving the notice and any Stockholder Associated Person (as defined in Section
2.9), to the extent not set forth pursuant to the immediately preceding clause,
whether and the extent to which any Relevant Hedge Transaction (as defined in
Section 2.9) has been entered into, and (d) as to the stockholder giving
the notice and any Stockholder Associated Person, (1) whether and the
extent to which any Derivative Instrument (as defined in Section 2.9) is
directly or indirectly beneficially owned, (2) any rights to dividends on
the shares of the corporation owned beneficially by such stockholder that are
separated
or separable from the underlying shares of the corporation, (3) any
proportionate interest in shares of the corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership in which such
stockholder is a general partner or, directly or indirectly, beneficially owns
an interest in a general partner and (4) any performance-related fees
(other than an asset-based fee) that such stockholder is entitled to based on
any increase or decrease in the value of shares of the corporation or Derivative
Instruments, if any, as of the date of such notice, including without limitation
any such interests held by members of such stockholder’s immediate family
sharing the same household (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than 10 days after the
record date for the meeting to disclose such ownership as of the record
date). The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as a director of the
corporation. No person shall be eligible for election as a director
of the corporation unless nominated in accordance with the procedures set forth
herein. These provisions shall not apply to nomination of any persons
entitled to be separately elected by holders of preferred stock.
The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section
2.11 Action
Without Meeting.
Any
action required or permitted to be taken by the stockholders of the corporation
must be effected at a duly called annual or special meeting of stockholders of
the corporation and may not be effected by any consent in writing by such
stockholders.
7
ARTICLE
3
DIRECTORS
Section
3.1 Number
and Term of Office.
The
number of directors shall be fixed from time to time by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of directors
then in office.
Except as
provided in Section 3.3 of this Article III, the directors shall be elected by a
plurality vote of the shares represented in person or by proxy, at the
stockholders annual meeting in each year and entitled to vote on the election of
directors. Elected directors shall hold office until the next annual
meeting and until their successors shall be duly elected and
qualified. Directors need not be stockholders.
Section
3.2 Powers.
The
powers of the corporation shall be exercised, its business conducted and its
property controlled by or under the direction of the Board of
Directors.
Section
3.3 Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant and until his successor shall have been
duly elected and qualified. A vacancy in the Board of Directors shall
be deemed to exist under this section in the case of the death, removal or
resignation of any director, or if the stockholders fail at any meeting of
stockholders at which directors are to be elected (including any meeting
referred to in Section 3.4 below) to elect the number of directors then
constituting the whole Board.
Section
3.4 Resignations
and Removals.
(a) Any
director may resign at any time by delivering his resignation to the Secretary
in writing or by electronic transmission, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made
it shall be deemed effective at the pleasure of the Board of
Directors. When one or more directors shall resign from the Board
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office for the
unexpired portion of the term of the director whose place shall be vacated and
until his successor shall have been duly elected and qualified.
(b) At
a special meeting of stockholders called for the purpose in the manner
hereinabove provided, the Board of Directors or any individual director may be
removed from office, with or without cause, and a new director or directors
elected by a vote of stockholders holding a majority of the outstanding shares
entitled to vote at an election of directors.
8
Section
3.5 Meetings.
(a) The
annual meeting of the Board of Directors shall be held immediately after the
annual stockholders’ meeting and at the place where such meeting is held or at
the place announced by the Chairman at such meeting. No notice of an
annual meeting of the Board of Directors shall be necessary, and such meeting
shall be held for the purpose of electing officers and transacting such other
business as may lawfully come before it.
(b) Except
as hereinafter otherwise provided, regular meetings of the Board of Directors
shall be held in the office of the corporation required to be maintained
pursuant to Section 1.2 of Article I hereof. Regular
meetings of the Board of Directors may also be held at any place, within or
without the State of Delaware, which has been designated by resolutions of the
Board of Directors or the written consent of all directors.
(c) Special
meetings of the Board of Directors may be held at any time and place within or
without the State of Delaware whenever called by the Chairman of the Board or,
if there is no Chairman of the Board, by the Chief Executive Officer, or by any
of the directors.
(d) Written
notice of the time and place of all regular and special meetings of the Board of
Directors shall be delivered personally to each director or sent by facsimile
transmission or other form of electronic transmission at least 24 hours before
the start of the meeting, or sent by first class mail at least 120 hours
before the start of the meeting. Notice of any meeting may be waived
in writing at any time before or after the meeting and will be waived by any
director by attendance thereat.
Section
3.6 Quorum
and Voting.
(a) A
quorum of the Board of Directors shall consist of a majority of the total number
of directors then in office, but not less than one; provided, however, at any
meeting whether a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by announcement at
the meeting.
(b) At
each meeting of the Board at which a quorum is present, all questions and
business shall be determined by a vote of a majority of the directors present,
unless a different vote be required by law, the Certificate of Incorporation, or
these Bylaws.
(c) Any
member of the Board of Directors, or of any committee thereof, may participate
in a meeting by means of conference telephone or other communication 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.
(d) The
transactions of any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though had at
a meeting duly held after regular call and notice if a quorum be present and if,
either before or after the meeting, each of the directors not present shall sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section
3.7 Action
Without 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 such 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.
9
Section
3.8 Fees
and Compensation.
Directors
and members of committees may receive such compensation, if any, for their
services, and such reimbursement for expenses, as may be fixed or determined by
resolution of the Board of Directors.
Section
3.9 Committees.
(a) Executive
Committee: The Board of Directors may appoint an Executive
Committee of not less than one member, each of whom shall be a
director. The Executive Committee, to the extent permitted by law,
shall have and may exercise when the Board of Directors is not in session all
powers of the Board in the management of the business and affairs of the
corporation, except such committee shall not have the power or authority to
amend these Bylaws or to approve or recommend to the stockholders any action
which must be submitted to stockholders for approval under the General
Corporation Law.
(b) Other
Committees: The Board of Directors may from time to time
appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions
creating such committee, but in no event shall any such committee have the
powers denied to the Executive Committee in these Bylaws.
(c) Term: The terms of
members of all committees of the Board of Directors shall expire on the date of
the next annual meeting of the Board of Directors following their appointment;
provided that they shall continue in office until their successors are
appointed. The Board, subject to the provisions of
subsections (a) or (b) of this Section 3.9, may at any time
increase or decrease the number of members of a committee or terminate the
existence of a committee; provided that no committee shall consist of less than
one member. The membership of a committee member shall terminate on
the date of his death or voluntary resignation, but the Board may at any time
for any reason remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee, and,
in addition, in the absence or disqualification of any member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
(d) Meetings: Unless
the Board of Directors shall otherwise provide, regular meetings of the
Executive Committee or any other committee appointed pursuant to this
Section 3.9 shall be held at such times and places as are determined by the
Board of Directors, or by any such committee, and when notice thereof has been
given to each member of such committee, no further notice of such regular
meetings need be given thereafter; special meetings of any such committee may be
held at the principal office of the corporation required to be maintained
pursuant to Section 1.2 of Article I hereof; or at any place which has
been designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who is a
member of
such committee upon written notice to the members of such committee of the time
and place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A majority
of the authorized number of members of any such committee shall constitute a
quorum for the transaction of business, and the act of a majority of those
present at any meeting at which a quorum is present shall be the act of such
committee.
10
ARTICLE
4
OFFICERS
Section
4.1 Officers
Designated.
The
officers of the corporation shall be a Chief Executive Officer, President, Chief
Financial Officer and Secretary. The Board of Directors or the
President may also appoint a Chairman of the Board, one or more Vice-Presidents,
assistant secretaries and such other officers and agents with such powers and
duties as it or he shall deem necessary. The order of the seniority
of the Vice- Presidents shall be in the order of their nomination unless
otherwise determined by the Board of Directors. The Board of
Directors may assign such additional titles to one or more of the officers as
they shall deem appropriate. Any one person may hold any number of
offices of the corporation at any one time unless specifically prohibited
therefrom by law. The salaries and other compensation of the officers
of the corporation shall be fixed by or in the manner designated by the Board of
Directors.
Section
4.2 Tenure
and Duties of Officers.
(a) General: All
officers shall hold office at the pleasure of the Board of Directors and until
their successors shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of Directors
may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. Nothing in these Bylaws shall be construed as
creating any kind of contractual right to employment with the
corporation.
(b) Duties of the Chairman of the Board
of Directors: The Chairman of the Board of Directors (if there
be such an officer appointed) when present shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
(c) Duties of the Chief Executive
Officer: Unless provided otherwise by a resolution adopted by
the Board of Directors, the Chief Executive Officer (i) shall have general
active management of the business of the Corporation; (ii) shall, in the absence
of the Chairman of the Board of Directors, preside at all meetings of the
stockholders and Board of Directors; (iii) shall see that all orders and
resolutions of the Board are carried into effect; (iv) may maintain records of
and certify proceedings of the Board and stockholders; and (v) shall perform
such other duties as may from time to time be assigned by the Board of
Directors.
(d) Duties of
President: Unless otherwise determined by the Board, the
President shall be the Chief Executive Officer of the Corporation. If an
officer other than the President is designated Chief Executive Officer, the
President shall perform such duties as may from time to time be assigned by the
Board of Directors or the Chief Executive Officer.
(e) Duties of Chief Financial
Officer: The Chief Financial Officer shall keep or cause to be
kept the books of account of the corporation in a thorough and proper manner,
and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the Chief Executive
Officer. The Chief Financial Officer, subject to the order of the
Board of Directors, shall have the custody of all funds and securities of the
corporation. The Chief Financial Officer shall perform all other
duties commonly incident to his office and shall perform such other duties and
have such other powers as the Board of Directors or the President shall
designate from time to time. The Chief Executive Officer may direct
any Vice-President to assume
and perform the duties of the Chief Financial Officer in the absence or
disability of the Chief Financial Officer, and each such Vice-President shall
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time. The Chief
Financial Officer shall be the Treasurer of the corporation.
11
(f) Duties of
Vice-Presidents: The Vice-Presidents, in the order of their
seniority, may assume and perform the duties of the Chief Executive Officer in
the absence or disability of the Chief Executive Officer or whenever the office
of the Chief Executive Officer is vacant. The Vice-Presidents shall
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(g) Duties of
Secretary: The Secretary shall attend all meetings of the
stockholders and of the Board of Directors and any committee thereof, and shall
record all acts and proceedings thereof in the minute book of the corporation,
which may be maintained in either paper or electronic form. The
Secretary shall give notice, in conformity with these Bylaws, of all meetings of
the stockholders and of all meetings of the Board of Directors and any Committee
thereof requiring notice. The Secretary shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time. The President may direct any assistant secretary to
assume and perform the duties of the Secretary in the absence or disability of
the Secretary, and each assistant secretary shall perform such other duties and
have such other powers as the Board of Directors or the President shall
designate from time to time.
ARTICLE
5
EXECUTION
OF CORPORATE INSTRUMENTS, AND
VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section
5.1 Execution
of Corporate Instruments.
(a) The
Board of Directors may in its discretion determine the method and designate the
signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b) Unless
otherwise specifically determined by the Board of Directors or otherwise
required by law, formal contracts of the corporation, promissory notes, deeds of
trust, mortgages and other evidences of indebtedness of the corporation, and
other corporate instruments or documents requiring the corporate seal, and
certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the Chief Executive Officer; such documents may also be
executed by any Vice-President and by the Secretary, any assistant secretary or
Chief Financial Officer. All other instruments and documents
requiring the corporate signature but not requiring the corporate seal may be
executed as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) All
checks and drafts drawn on banks or other depositaries on funds to the credit of
the corporation or in special accounts of the corporation shall be signed by
such person or persons as the Board of Directors shall authorize so to
do.
(d) Execution
of any corporate instrument may be effected in such form, either manual,
facsimile or electronic signature, as may be authorized by the Board of
Directors.
Section
5.2 Voting
of Securities Owned by Corporation.
All stock
and other securities of other corporations owned or held by the corporation for
itself or for other parties in any capacity shall be voted, and all proxies with
respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or by the
Chief Executive Officer, the President, or by any Vice-President.
12
ARTICLE
6
SHARES
OF STOCK
Section
6.1 Form
and Execution of Certificates.
The
shares of the corporation shall be represented by certificates, provided that
the Board of Directors may provide by resolution or resolutions that some or all
of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by
a certificate until such certificate is surrendered to the
corporation. Certificates for the shares of stock of the corporation
shall be in such form as is consistent with the Certificate of Incorporation and
applicable law. Every holder of stock in the corporation shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the Chairman of the Board (if there be such an officer appointed), or by the
President or any Vice-President and by the Chief Financial Officer or the
Secretary or assistant secretary, certifying the number of shares owned by him
in the corporation. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. If the
corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in
section 202 of the Delaware General Corporation Law, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section
6.2 Lost
Certificates.
The Board
of Directors may direct a new certificate or certificates (or uncertificated
shares in lieu of a new certificate) to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates (or uncertificated shares in
lieu of a new certificate), the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost or
destroyed certificate or certificates, or his legal representative, to indemnify
the corporation in such manner as it shall require and/or to give the
corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section
6.3 Transfers.
Transfers
of record of shares of stock of the corporation shall be made only upon its
books by the holders thereof, in person or by attorney duly authorized, who
shall furnish proper evidence of authority to transfer, and in the
case of stock represented by a certificate, upon the surrender of a certificate
or certificates for a like number of shares, properly endorsed.
13
Section
6.4 Fixing
Record Dates.
(a) 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 a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the date on
which the meeting is held. A
determination of stockholders of record entitled 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.
(b) In
order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating
thereto.
Section
6.5 Registered
Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
14
ARTICLE
7
OTHER
SECURITIES OF THE CORPORATION
All
bonds, debentures and other corporate securities of the corporation, other than
stock certificates, may be signed by the Chairman of the Board (if there be such
an officer appointed), or the President or any Vice-President or such other
person as may be authorized by the Board of Directors and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and attested by
the signature of the Secretary or an assistant secretary, or the Chief Financial
Officer; provided, however, that where any such bond, debenture or other
corporate security shall be authenticated by the manual signature of a trustee
under an indenture pursuant to which such bond, debenture or other corporate
security shall be issued, the signature of the persons signing and attesting the
corporate seal on such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Chief Financial
Officer, or such other person as may be authorized by the Board of Directors, or
bear imprinted thereon the facsimile signature of such person. In
case any officer who shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear thereon has ceased
to be an officer of the corporation before the bond, debenture or other
corporate security so signed or attested shall have been delivered, such bond,
debenture or other corporate security nevertheless may be adopted by the
corporation and issued and delivered as though the person who signed the same or
whose facsimile signature shall have been used thereon had not ceased to be such
officer of the corporation.
ARTICLE
8
CORPORATE
SEAL
The
corporate seal shall consist of a die bearing the name of the corporation and
the state and date of its incorporation. Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
15
ARTICLE
9
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section
9.1 Right
to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (hereinafter a “Proceeding”), by reason of the fact that he, or
a person of whom he is the legal representative, is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation or
of a partnership, joint venture, trust, or other enterprise, including service
with respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an “Agent”), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but, in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered by
such person in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter “Expenses”); provided, however, that except as
to actions to enforce indemnification rights pursuant to Section 9.3 of
this Article, the corporation shall indemnify any Agent seeking indemnification
in connection with a Proceeding (or part thereof) initiated by such person only
if the Proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this
Article shall be a contract right.
Section
9.2 Authority
to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending
a Proceeding shall be paid by the corporation in advance of the final
disposition of such Proceeding, provided, however, that if required by the
Delaware General Corporation Law, as amended, such Expenses shall be advanced
only upon delivery to the corporation of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the corporation as authorized in
this Article or otherwise. Expenses incurred by other Agents of the
corporation (or by the directors or officers not acting in their capacity as
such, including service with respect to employee benefit plans) may be advanced
upon such terms and conditions as the Board of Directors deems
appropriate. Any obligation to reimburse the corporation for Expense
advances shall be unsecured and no interest shall be charged
thereon.
Section
9.3 Right
of Claimant to Bring Suit.
If a
claim under Section 9.1 or 9.2 of this Article is not paid in full by the
corporation within ninety (90) days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense
(including attorneys’ fees) of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending a Proceeding in advance of its final disposition
where the required undertaking has been tendered to the corporation) that the
claimant has not met the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed. The burden of proving such a defense shall be
on the corporation. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper under the circumstances because he has
met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its stockholders) that the
claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
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Section
9.4 Provisions
Nonexclusive.
The
rights conferred on any person by this Article shall not be exclusive of any
other rights that such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in an official
capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Certificate,
agreement, or vote of the stockholders or disinterested directors is
inconsistent with these Bylaws, the provision, agreement, or vote shall take
precedence.
Section
9.5 Authority
to Insure.
The
corporation may purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have the power to
indemnify the Agent against such Expense under applicable law or the provisions
of this Article.
Section
9.6 Survival
of Rights.
The
rights provided by this Article shall continue as to a person who has ceased to
be an Agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
Section
9.7 Settlement
of Claims.
The
corporation shall not be liable to indemnify any Agent under this Article
(a) for any amounts paid in settlement of any action or claim effected
without the corporation’s written consent, which consent shall not be
unreasonably withheld; or (b) for any judicial award if the corporation was
not given a reasonable and timely opportunity, at its expense, to participate in
the defense of such action.
Section
9.8 Effect
of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect
any right or protection of any Agent existing at the time of such amendment,
repeal, or modification.
Section
9.9 Subrogation.
In the
event of payment under this Article, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of the Agent, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring suit to enforce such
rights.
Section
9.10 No
Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment in
connection with any claim made against the Agent to the extent the Agent has
otherwise actually received payment (under any insurance policy, agreement,
vote, or otherwise) of the amounts otherwise indemnifiable
hereunder.
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ARTICLE
10
NOTICES
Whenever,
under any provisions of these Bylaws, notice is required to be given to any
stockholder, the same shall be given either (1) in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last known post office address
as shown by the stock record of the corporation or its transfer agent, or (2) by
a means of electronic transmission that satisfies the requirements of Section
2.4(e) of these Bylaws, and has been consented to by the stockholder to whom the
notice is given. Any notice required to be given to any director may
be given by either of the methods hereinabove stated, except that such notice
other than one which is delivered personally, shall be sent to such address or
(in the case of electronic communication) such e-mail address, facsimile
telephone number or other form of electronic address as such director shall have
filed in writing or by electronic communication with the Secretary of the
corporation, or, in the absence of such filing, to the last known post office
address of such director. If no address of a stockholder or director
be known, such notice may be sent to the office of the corporation required to
be maintained pursuant to Section 1.2 of Article I
hereof. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or the
names and addresses of the stockholder or stockholders, director or directors,
to whom any such notice or notices was or were given, and the time and method of
giving the same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall be
deemed to have been given as at the time of mailing and all notices given by
means of electronic transmission shall be deemed to have been given as at the
sending time recorded by the electronic transmission equipment operator
transmitting the same. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one permissible
method may be employed in respect of any one or more, and any other permissible
method or methods may be employed in respect of any other or
others. The period or limitation of time within which any stockholder
may exercise any option or right, or enjoy any privilege or benefit, or be
required to act, or within which any director may exercise any power or right,
or enjoy any privilege, pursuant to any notice sent him in the manner above
provided, shall not be affected or extended in any manner by the failure of such
a stockholder or such director to receive such notice. Whenever any
notice is required to be given under the provisions of the statutes or of the
Certificate of Incorporation, or of these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to said 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
thereto. Whenever notice is required to be given, under any provision
of law or of the Certificate of Incorporation or Bylaws of the corporation, to
any person with whom communication is unlawful, the giving of such notice to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In the event
that the action taken by the corporation is such as to require the filing of a
certificate under any provision of the Delaware General Corporation Law, the
certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
ARTICLE
11
AMENDMENTS
These
Bylaws may be repealed, altered or amended or new Bylaws adopted at any meeting
of the stockholders, either annual or special, by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the stock entitled to vote
at such meeting, unless a larger vote is required by these Bylaws or the
Certificate of Incorporation. The Board of Directors shall also have
the authority to repeal, alter or amend these Bylaws or adopt new Bylaws by
unanimous written consent or at any annual, regular, or special meeting by the
affirmative vote of a majority of the whole number of directors, subject to the
power of the stockholders to change or repeal such Bylaws.
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CERTIFICATE
OF SECRETARY
The
undersigned, Secretary of Kratos Defense & Security Solutions, Inc., a
Delaware corporation, hereby certifies that the foregoing is a full, true and
correct copy of the Bylaws of said corporation, with all amendments to date of
this Certificate.
WITNESS
the signature of the undersigned this 4th day of
June, 2009.
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/s/
Laura L. Siegal
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Laura
L. Siegal, Secretary
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