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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTIONS 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 24, 2007
EXLSERVICE HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 001-33089 82-0572194
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
350 PARK AVENUE
NEW YORK, NEW YORK 10022
(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 277-7100
NOT APPLICABLE
(Former name or 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):
|_| Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN
FISCAL YEAR.
On October 24, 2007, the Board of Directors of ExlService
Holdings, Inc. (the "Company") amended and restated the Company's Amended and
Restated By-laws, effective as of October 24, 2007, to amend Article 7 thereof
to allow for the issuance of uncertificated shares of the Company's stock. The
amendment makes the Company's shares of common stock eligible for inclusion in
the Direct Registration Program, as required by Section 4350 of the Nasdaq
Stock Exchange's Marketplace Rules, which allows investors to have securities
registered in their names without the issuance of physical certificates and
allows investors to electronically transfer securities to broker-dealers in
order to effect transactions without the risks and delays associated with
transferring physical certificates.
The full text of the Second Amended and Restated By-laws is filed
as Exhibit 3.1 to this Current Report, and Article 7 therein is incorporated
herein by reference.
Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
Exhibit No. Description
----------- -----------
3.1 Second Amended and Restated By-laws, as amended
effective October 24, 2007
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 thereunto duly authorized.
EXLSERVICE HOLDINGS, INC.
(Registrant)
Date: October 26, 2007 By: /s/ Amit Shashank
---------------------------------------
Name: Amit Shashank
Title: Vice President, General Counsel
and Corporate Secretary
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3.1 Second Amended and Restated By-laws, as amended
effective October 24, 2007
EXHIBIT 3.1
-----------
SECOND AMENDED AND RESTATED
BY-LAWS
of
EXLSERVICE HOLDINGS, INC.
(A Delaware Corporation)
________________________
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the
term:
1.1 "ASSISTANT SECRETARY" means an Assistant Secretary of the
Corporation.
1.2 "ASSISTANT TREASURER" means an Assistant Treasurer of the
Corporation.
1.3 "BOARD" means the Board of Directors of the Corporation.
1.4 "BY-LAWS" means these Amended and Restated By-Laws of the
Corporation, as further amended from time to time.
1.5 "CERTIFICATE OF INCORPORATION" means the Amended and Restated
Certificate of Incorporation of the Corporation, as further amended,
supplemented or restated from time to time.
1.6 "CHAIRMAN" means the Chairman of the Board of Directors of
the Corporation.
1.7 "CEO" means the Chief Executive Officer of the Corporation.
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1.8 "CHIEF FINANCIAL OFFICER" means the Chief Financial Officer
of the Corporation.
1.9 "CONTROLLER" means the Controller of the Corporation.
1.10 "CORPORATION" means ExlService Holdings, Inc.
1.11 "DIRECTORS" means directors of the Corporation.
1.12 "ENTIRE BOARD" means all then authorized directors of the
Corporation.
1.13 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute thereto.
1.14 "IPO DATE" means the date upon which the Corporation
consummates the initial public offering of shares of common stock of the
Corporation pursuant to an effective Registration Statement filed under the
Securities Act.
1.15 "GENERAL CORPORATION LAW" means the General Corporation Law
of the State of Delaware, as amended from time to time.
1.16 "OFFICE OF THE CORPORATION" means the executive office of the
Corporation, anything in Section 131 of the General Corporation Law to the
contrary notwithstanding.
1.17 "PRESIDENT" means the President of the Corporation.
1.18 "SECRETARY" means the Secretary of the Corporation.
1.19 "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any successor statute thereto.
1.20 "STOCKHOLDERS" means stockholders of the Corporation.
1.21 "TREASURER" means the Treasurer of the Corporation.
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1.22 "VICE PRESIDENT" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 PLACE OF MEETINGS. Every meeting of Stockholders may be held
at such place, within or without the State of Delaware, as may be designated by
resolution of the Board from time to time. The Board may, in its sole
discretion, determine that the meeting of Stockholders shall not be held at any
place, but may instead be held solely by means of remote communication in
accordance with Delaware law.
2.2 ANNUAL MEETING. If required by applicable law, a meeting of
Stockholders shall be held annually for the election of Directors at such date
and time as may be designated by resolution of the Board from time to time. Any
other business may be transacted at the annual meeting as shall have been
properly brought before the meeting.
2.3 SPECIAL MEETINGS. Unless otherwise prescribed by applicable
law and subject to the express terms of any series of shares of preferred
stock, special meetings of Stockholders may be called only by (a) the Chairman
or (b) a majority of the members of the Board, and may not be called by any
other person or persons. Business transacted at any special meeting of
Stockholders shall be limited to the purpose stated in the notice.
2.4 FIXING RECORD DATE. For the purpose of (a) determining the
Stockholders entitled (i) to notice of or to vote at any meeting of
Stockholders or any adjournment thereof or (ii) 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;
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or (b) any other lawful action, the Board may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record
date was adopted by the Board and which record date, unless otherwise required
by applicable law, shall not be (y) in the case of clause (a)(i) above, more
than 60 nor less than 10 days before the date of such meeting and (z) in the
case of clause (a)(ii) or (b) above, more than 60 days prior to such action. If
no such record date is fixed:
2.4.1 the record date for determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders shall be the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, the close of business on the day next preceding the
day on which the meeting is held; and
2.4.2 the record date for determining Stockholders for any
purpose other than those specified in Section 2.4.1 hereof shall be the close
of business on the day on which the Board adopts the resolution relating
thereto. When a determination of Stockholders of record entitled to notice of
or to vote at any meeting of Stockholders has been made as provided in this
Section 2.4, such determination shall apply to any adjournment thereof unless
the Board fixes a new record date for the adjourned meeting.
2.5 NOTICE OF MEETINGS OF STOCKHOLDERS. Whenever under the
provisions of applicable law, the Certificate of Incorporation or these
By-laws, Stockholders are required or permitted to take any action at a
meeting, notice shall be given stating the place, if any, date and hour of the
meeting, the means of remote communication, if any, by which Stockholders and
proxy holders may be deemed to be present in person and vote at such meeting,
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and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise provided by applicable law, the Certificate
of Incorporation or these By-laws, notice of any 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 at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail, with postage
prepaid, directed to the Stockholder at his or her address as it appears on the
records of the Corporation. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent of the Corporation that the notice required
by this Section 2.5 has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. Any meeting of Stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some
other place. When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, and at the
adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. 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.
2.6 WAIVERS OF NOTICE. Whenever giving notice to Stockholders is
required by applicable law, the Certificate of Incorporation or these By-laws,
a waiver thereof, given by the person entitled to said notice, whether before
or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by a Stockholder at a meeting shall constitute
a waiver of notice of such meeting except when the Stockholder attends a
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meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting has not been
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Stockholders need be
specified in any waiver of notice unless so required by applicable law, the
Certificate of Incorporation or these By-laws.
2.7 LIST OF STOCKHOLDERS. The Secretary shall prepare and make,
at least 10 days before every meeting of Stockholders, a complete list of the
Stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each Stockholder and the number of shares registered
in the name of each Stockholder. Such list shall be open to the examination of
any Stockholder, the Stockholder's agent, or attorney, at the Stockholder's
expense, for any purpose germane to the meeting, for a period of at least 10
days prior to the meeting, during ordinary business hours at the principal
place of business of the Corporation, or on a reasonably accessible electronic
network as provided by applicable law. If the meeting is to be held at a place,
the list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who is
present. If the meeting is held solely by means of remote communication, the
list shall also be open for examination as provided by applicable law. Upon the
willful neglect or refusal of the Directors to produce such a list at any
meeting for the election of Directors, they shall be ineligible for election to
any office at such meeting. Except as provided by applicable law, the stock
ledger shall be the only evidence as to who are the Stockholders entitled to
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examine the stock ledger, the list of Stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of Stockholders.
2.8 QUORUM OF STOCKHOLDERS; ADJOURNMENT. Except as otherwise
provided by applicable law, the Certificate of Incorporation or these By-laws,
at each meeting of Stockholders, the presence in person or by proxy of the
holders of a majority in voting power of all outstanding shares of stock
entitled to vote at the meeting of Stockholders, shall constitute a quorum for
the transaction of any business at such meeting, except that, where a separate
vote by a class or series of classes is required, a quorum shall consist of no
less than a majority in voting power of the shares of such classes or series of
classes. When a quorum is present to organize a meeting of Stockholders and for
purposes of voting on any matter, the quorum for such meeting or matter is not
broken by the subsequent withdrawal of any Stockholder. In the absence of a
quorum, the person presiding over the meeting or the holders of a majority in
voting power of the shares of stock present in person or represented by proxy
at any meeting of Stockholders, including an adjourned meeting, whether or not
a quorum is present, may adjourn such meeting to another time and place. Shares
of its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall
neither be entitled to vote nor be counted for quorum purposes; PROVIDED,
however, that the foregoing shall not limit the right of the Corporation to
vote stock, including but not limited to its own stock, held by it in a
fiduciary capacity.
2.9 VOTING; PROXIES. Unless otherwise provided in the Certificate
of Incorporation, every Stockholder entitled to vote at any meeting of
Stockholders shall be entitled to one vote for each share of stock held by such
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Stockholder which has voting power upon the matter in question. At any meeting
of Stockholders, all matters, except as otherwise provided by the Certificate
of Incorporation, these By-laws, the rules and regulations of any stock
exchange applicable to the Corporation, applicable law or pursuant to any rules
or regulations applicable to the Corporation or its securities, shall be
decided by the affirmative vote of a majority in voting power of shares of
stock present in person or represented by proxy and entitled to vote thereon.
At all meetings of Stockholders for the election of Directors, a plurality of
the votes cast shall be sufficient to elect Directors as more fully provided
under Section 3.3. Each Stockholder entitled to vote at a meeting of
Stockholders may authorize another person or persons to act for such
Stockholder by proxy but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only so
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A Stockholder may revoke any proxy that is not irrevocable
by attending the meeting and voting in person or by delivering to the Secretary
a revocation of the proxy or by delivering a new proxy bearing a later date.
2.10 VOTING PROCEDURES AND INSPECTORS OF ELECTION AT MEETINGS OF
STOCKHOLDERS. The Board, in advance of any meeting of Stockholders, may, and
shall if required by applicable law, appoint one or more inspectors, who may be
employees of the Corporation, to act at the meeting and make a written report
thereof. The Board 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, the person presiding at the meeting may, and shall if
required by applicable law, appoint one or more inspectors to act at the
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meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall (a) ascertain the number of shares outstanding
and the voting power of each, (b) determine the shares represented at the
meeting and the validity of proxies and ballots, (c) count all votes and
ballots, (d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(e) 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
their duties. Unless otherwise provided by the Board, 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 determined by the person presiding
at the meeting and shall be announced at the meeting. No ballot, proxies or
votes, or any revocation thereof or change thereto, shall be accepted by the
inspectors after the closing of the polls unless the Court of Chancery of the
State of Delaware upon application by a Stockholder shall determine otherwise.
In determining the validity and counting of proxies and ballots cast at any
meeting of Stockholders, the inspectors may consider such information as is
permitted by applicable law. No person who is a candidate for office at an
election may serve as an inspector at such election.
2.11 CONDUCT OF MEETINGS; DIRECTOR NOMINATIONS; MEETING BUSINESS
AND OTHER STOCKHOLDER Proposals.
2.11.1. CONDUCT OF MEETINGS: The Board may adopt by
resolution such rules and regulations for the conduct of the meeting of
Stockholders as it shall deem appropriate. At each meeting of Stockholders, the
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CEO, or in the absence of the CEO, the President, or in the absence of the
President, the Chairman, or if there is no Chairman or if there be one and the
Chairman is absent, a Vice President, and in case more than one Vice President
shall be present, that Vice President designated by the Board (or in the
absence of any such designation, the most senior Vice President, based on age,
present), shall preside over the meeting. Except to the extent inconsistent
with such rules and regulations as are adopted by the Board, the person
presiding over any meeting of Stockholders shall have the right and authority
to convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such person, are
appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the presiding officer
of the meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting
applicable to Stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the person presiding over the
meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. The presiding officer at any
meeting of Stockholders, in addition to making any other determinations that
may be appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding officer should so determine,
such person shall so declare to the meeting and any such matter or business not
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properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding over
the meeting, meetings of Stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The Secretary, or in his
or her absence, one of the Assistant Secretaries, shall act as secretary of the
meeting. In case none of the officers above designated to act as the person
presiding over the meeting or as secretary of the meeting, respectively, shall
be present, a person presiding over the meeting or a secretary of the meeting,
as the case may be, shall be designated by the Board, and in case the Board has
not so acted, in the case of the designation of a person to act as secretary of
the meeting, designated by the person presiding over the meeting.
2.11.2. DIRECTOR NOMINATIONS: 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 may be made at an
annual meeting or special meeting of Stockholders only (i) by or at the
direction of the Board, (ii) by any nominating committee designated by the
Board or (iii) by any Stockholder of the Corporation who was a Stockholder of
record of the Corporation at the time the notice provided for in this Section
2.11 is delivered to the Secretary, who is entitled to vote for the election of
Directors at the meeting and who complies with the applicable provisions of
Section 2.11.4 hereof (persons nominated in accordance with (iii) above are
referred to herein as "Stockholder nominees").
2.11.3. MEETING BUSINESS: At any annual meeting of
Stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting of
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Stockholders, (i) business must be specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the meeting by or at the direction of the Board or
(iii) otherwise properly brought before the meeting by a Stockholder who was a
Stockholder of record of the Corporation at the time the notice provided for in
this Section 2.11 is delivered to the Secretary, who is entitled to vote at the
meeting and who complies with the applicable provisions of Section 2.11.4
hereof (business brought before the meeting in accordance with (iii) above is
referred to as "Stockholder business").
2.11.4. OTHER STOCKHOLDER PROPOSALS: In addition to any
other applicable requirements, at any annual or special meeting of Stockholders
(i) all nominations of Stockholder nominees must be made by timely written
notice given by or on behalf of a Stockholder of record of the Corporation (the
"Notice of Nomination") and (ii) all proposals of Stockholder business must be
made by timely written notice given by or on behalf of a Stockholder of record
of the Corporation (the "Notice of Business"). To be timely, the Notice of
Nomination or the Notice of Business, as the case may be, must be delivered
personally to, or mailed to, and received at the Office of the Corporation,
addressed to the attention of the Secretary, (i) in the case of the nomination
of a person for election to the Board or business to be conducted, at an annual
meeting of Stockholders, not less than ninety (90) days nor more than one
hundred and twenty (120) days prior to the first anniversary of the date of the
prior year's annual meeting of Stockholders or (ii) in the case of the
nomination of a person for election to the Board at a special meeting of
Stockholders, not more than one hundred and twenty (120) days prior to and not
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less than the later of (a) ninety (90) days prior to such special meeting or
(b) the tenth (10th) day following the day on which the notice of such special
meeting was made by mail or Public Disclosure (as defined below); provided,
however, that in the event that either (i) the annual meeting of Stockholders
is advanced by more than thirty (30) days, or delayed by more than seventy (70)
days, from the first anniversary of the prior year's annual meeting of
Stockholders, (ii) no annual meeting was held during the prior year or (iii) in
the case of the Corporation's first annual meeting of Stockholders following
its IPO Date, notice by the Stockholder to be timely must be received (i) no
earlier than one hundred and twenty (120) days prior to such annual meeting and
(ii) no later than the later of ninety (90) days prior to such annual meeting
or ten (10) days following the day the notice of such annual meeting was made
by mail or Public Disclosure, regardless of any postponement, deferral or
adjournment of the meeting to a later date. In no event shall the Public
Disclosure of an adjournment or postponement of an annual or special meeting
commence a new time period (or extend any time period) for the giving of the
Notice of Nomination or Notice of Business, as applicable.
Notwithstanding anything in the immediately preceding paragraph to the
contrary, in the event that the number of directors to be elected to the Board
at an annual meeting is increased and there is no public announcement by the
Corporation naming the nominees for the additional directorships at least one
hundred (100) days prior to the first anniversary of the preceding year's
annual meeting, a Notice of Nomination shall also be considered timely, but
only with respect to nominees for the additional directorships, if it shall be
delivered at the Office of the Corporation, addressed to the attention of the
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Secretary, not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
The Notice of Nomination shall set forth (i) the name and record
address of the Stockholder and/or beneficial owner proposing to make
nominations, as they appear on the Corporation's books, (ii) the class and
number of shares of stock held of record and beneficially by such Stockholder
and/or such beneficial owner, (iii) a representation that the Stockholder is a
holder of record of stock of the Corporation entitled to vote at the meeting
and intends to appear in person or by proxy at the meeting to propose such
nomination, (iv) all information regarding each Stockholder nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities and Exchange Commission pursuant to Section 14 of the Exchange Act
and the written consent of each such Stockholder nominee to being named in a
proxy statement as a nominee and to serve if elected and (v) all other
information that would be required to be filed with the Securities and Exchange
Commission if the person proposing such nominations were a participant in a
solicitation subject to Section 14 of the Exchange Act or any successor statute
thereto. The Corporation may require any Stockholder nominee to furnish such
other information as it may reasonably require to determine the eligibility of
such Stockholder nominee to serve as a Director of the Corporation. The person
presiding over the meeting shall, if the facts warrant, determine and declare
to the meeting that any proposed nomination of a Stockholder nominee was not
made in accordance with the foregoing procedures and, if he or she should so
determine, shall so declare to the meeting, and the defective nomination shall
be disregarded.
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The Notice of Business shall set forth (i) the name and record address
of the Stockholder and/or beneficial owner proposing such Stockholder business,
as they appear on the Corporation's books, (ii) the class and number of shares
of stock held of record and beneficially by such Stockholder and/or such
beneficial owner, (iii) a representation that the Stockholder is a holder of
record of stock of the Corporation entitled to vote at the meeting and intends
to appear in person or by proxy at the meeting to propose such business, (iv) a
brief description of the Stockholder business desired to be brought before the
annual meeting, the text of the proposal (including the text of any resolutions
proposed for consideration and, in the event that such business includes a
proposal to amend the By-laws, the language of the proposed amendment, and the
reasons for conducting such Stockholder business at the annual meeting, (v) any
material interest of the Stockholder and/or beneficial owner in such
Stockholder business and (vi) all other information that would be required to
be filed with the Securities and Exchange Commission if the person proposing
such Stockholder business were a participant in a solicitation subject to
Section 14 of the Exchange Act. Notwithstanding anything in these By-laws to
the contrary, no business shall be conducted at the annual meeting of
Stockholders except in accordance with the procedures set forth in Section
2.11.3 and this Section 2.11.4, provided, however, that nothing in this Section
2.11.4 shall be deemed to preclude discussion by any Stockholder of any
business properly brought before the annual meeting in accordance with said
procedures. Notwithstanding anything else to the contrary in these By-laws, any
Stockholder business may be excluded if the exclusion of such Stockholder
business is permitted by the applicable regulations of the Securities and
Exchange Commission. Only such business shall be conducted at a special meeting
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of Stockholders as shall have been brought before the special meeting pursuant
to the Corporation's notice of meeting. The person presiding over the 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
foregoing procedures and, if he or she should so determine, shall so declare to
the meeting, and any such business not properly brought before the meeting
shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.11, if the
Stockholder (or a qualified representative of the Stockholder) does not appear
at the annual or special meeting of Stockholders to present the Stockholder
nomination or the Stockholder business, as applicable, such nomination shall be
disregarded and such business shall not be transacted, notwithstanding that
proxies in respect of such vote may have been received by the Corporation.
For purposes of this Section 2.11, "Public Disclosure" shall be deemed
to be first made when disclosure of such date of the annual or special meeting
of Stockholders, as the case may be, is first made in a press release reported
by the Dow Jones News Services, Associated Press or comparable national news
service, or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.
Notwithstanding the foregoing, a Stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.11. Nothing
in this Section 2.11 shall be deemed to affect any rights of the holders of any
series of preferred stock of the Corporation pursuant to any applicable
provision of the Certificate of Incorporation.
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2.12 ORDER OF BUSINESS. The order of business at all meetings of
Stockholders shall be as determined by the person presiding over the meeting.
ARTICLE 3
DIRECTORS
3.1 GENERAL POWERS. Except as otherwise provided in the
Certificate of Incorporation, the business and affairs of the Corporation shall
be managed by or under the direction of the Board. The Board may adopt such
rules and regulations, not inconsistent with the Certificate of Incorporation
or these By-laws or applicable law, as it may deem proper for the conduct of
its meetings and the management of the Corporation.
3.2 NUMBER; QUALIFICATION; TERM OF OFFICE. Except as otherwise
provided in the Certificate of Incorporation, the Board shall consist of no
fewer than 6 nor more than 12 members, the number thereof to be determined from
time to time by resolution of the Board. Directors need not be Stockholders.
Each Director shall hold office until a successor is duly elected and qualified
or until the Director's earlier death, resignation, disqualification or
removal. The Board (other than those Directors elected by the holders of any
series of Preferred Stock provided for or fixed pursuant to the provisions of
the Certificate of Incorporation (the "Preferred Stock Directors")) shall be
divided into three classes, as nearly equal in number as possible, designated
Class I, Class II and Class III. Class I Directors shall initially serve until
the first annual meeting of Stockholders held after the IPO Date; Class II
Directors shall initially serve until the second annual meeting of Stockholders
held after the IPO Date; and Class III Directors shall initially serve until
the third annual meeting of Stockholders held after the IPO Date. Commencing
with the first annual meeting of Stockholders held after the IPO Date,
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Directors of each class the term of which shall then expire shall be elected to
hold office for a term expiring at the third succeeding annual meeting of
Stockholders and until the election and qualification of their respective
successors in office. In case of any increase or decrease, from time to time,
in the number of Directors (other than Preferred Stock Directors), the number
of directors in each class shall be apportioned as nearly equal as possible.
3.3 ELECTION. Directors shall, except as otherwise required by
applicable law or by the Certificate of Incorporation, be elected by a
plurality of the votes cast at a meeting of Stockholders by the holders of
shares present in person or represented by proxy at the meeting and entitled to
vote in the election.
3.4 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless otherwise
provided by applicable law or the Certificate of Incorporation and subject to
the rights of the holders of any series of Preferred Stock then outstanding,
any newly created Directorships resulting from any increase in the authorized
number of Directors or any vacancies in the Board resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled solely by the affirmative vote of a majority of the remaining
Directors then in office although less than a quorum, or by a sole remaining
Director, and Directors so chosen shall hold office until the expiration of the
term of office of the Director whom he or she has replaced and until his or her
successor is duly elected and qualified or until such Director's earlier death,
disqualification, resignation or removal. No decrease in the number of
Directors constituting the Board shall shorten the term of any incumbent
Director. When any Director shall give notice of resignation effective at a
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future date, the Board may fill such vacancy to take effect when such
resignation shall become effective in accordance with the General Corporation
Law.
3.5 RESIGNATION. Any Director may resign at any time upon notice
given in writing or by electronic transmission to the Corporation. Such
resignation shall take effect at the time therein specified, and, unless
otherwise specified in such resignation, the acceptance of such resignation
shall not be necessary to make it effective.
3.6 REMOVAL. Except for Preferred Stock Directors, any Director,
or the Entire Board, may be removed from office at any time, but only for cause
and only by the affirmative vote of at least 66-2/3% of the total voting power
of the outstanding shares of stock of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class.
3.7 COMPENSATION. Each Director, in consideration of his or her
service as such, shall be entitled to receive from the Corporation such amount
per annum or such fees (payable in cash or equity) for attendance at Directors'
meetings, or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
such Director in connection with the performance of his or her duties. Each
Director who shall serve as a member of any committee of Directors in
consideration of serving as such shall be entitled to such additional amount
per annum or such fees for attendance at committee meetings, or both, as the
Board may from time to time determine, together with reimbursement for the
reasonable out-of-pocket expenses, if any, incurred by such Director in the
performance of his or her duties. Nothing contained in this Section 3.7 shall
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preclude any Director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation therefor.
3.8 REGULAR MEETINGS. Regular meetings of the Board may be held
without notice at such times and at such places within or without the State of
Delaware as shall from time to time be determined by the Board.
3.9 SPECIAL MEETINGS. Special meetings of the Board may be held
at any time or place, within or without the State of Delaware, whenever called
by the Chairman, the CEO, the President or the Secretary or by any two or more
Directors then serving as Directors on at least 24 hours' notice to each
Director given by one of the means specified in Section 3.12 hereof other than
by mail, or on at least three days' notice if given by mail.
3.10 TELEPHONE MEETINGS. Directors or members of any committee
designated by the Board may participate in a meeting of the Board or of 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 pursuant to this Section 3.10 shall constitute
presence in person at such meeting.
3.11 ADJOURNED MEETINGS. A majority of the Directors present at
any meeting of the Board, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and place. At least
24 hours' notice of any adjourned meeting of the Board shall be given to each
Director whether or not present at the time of the adjournment, if such notice
shall be given by one of the means specified in Section 3.12 hereof other than
by mail, or at least three (3) days' notice if by mail. Any business may be
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transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
3.12 NOTICE PROCEDURE. Subject to Sections 3.9 and 3.10 hereof,
whenever, under the provisions of applicable law, the Certificate of
Incorporation or these By-laws, notice is required to be given to any Director,
such notice shall be deemed given effectively if given in person or by
telephone, by mail addressed to such Director at such Director's address as it
appears on the records of the Corporation, with postage thereon prepaid, or by
telegram, telex, telecopy or other means of electronic transmission.
3.13 WAIVER OF NOTICE. Whenever the giving of any notice to
Directors is required by applicable law, the Certificate of Incorporation or
these By-laws, a waiver thereof, in writing, signed by the person or persons
entitled to said notice, whether before or after the event as to which such
notice is required, shall be deemed equivalent to notice. Attendance by a
Director at a meeting shall constitute a waiver of notice of such meeting
except when the Director attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Directors or a committee of Directors need be specified
in any written waiver of notice unless so required by applicable law, the
Certificate of Incorporation or these By-laws.
3.14 ORGANIZATION. At each meeting of the Board, the Chairman, or
in the absence of the Chairman, the CEO or, in the absence of the CEO, the
President, or in the absence of the President, a chairman chosen by a majority
of the Directors present, shall preside. The Secretary shall act as secretary
at each meeting of the Board. In case the Secretary shall be absent from any
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meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting
may appoint any person to act as secretary of the meeting.
3.15 QUORUM OF DIRECTORS. The presence in person of a majority of
the Entire Board shall be necessary and sufficient to constitute a quorum for
the transaction of business at any meeting of the Board.
3.16 ACTION BY MAJORITY VOTE. Except as otherwise expressly
required by applicable law, the Certificate of Incorporation or these By-laws,
the act of a majority of the Directors present at a meeting at which a quorum
is present shall be the act of the Board.
3.17 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if all Directors or members 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.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution, designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. The
Board may adopt charters for one or more of such committees. The Board may
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designate one or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee. If
a member of a committee shall be absent from any meeting, or disqualified from
voting thereat, the remaining member or members present at the meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may, by a unanimous vote, appoint another member of the Board to act at
the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent permitted by applicable law (including Section
141(c)(2) of the General Corporation Law as it exists now or may hereafter be
amended) and to the extent provided in the resolution of the Board designating
such committee or the charter for such committee, shall have and may exercise
all the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers that may require it. The Board may remove any Director
from any committee at any time, with or without cause. Unless otherwise
specified in the resolution of the Board designating a committee or the charter
for such committee, at all meetings of such committee, a majority of the then
authorized members of the committee shall constitute a quorum for the
transaction of business, and the vote of a majority of the members of the
committee present at any meeting at which there is a quorum shall be the act of
the committee. Each committee shall keep regular minutes of its meetings.
Unless the Board otherwise provides, each committee designated by the Board may
make, alter and repeal rules for the conduct of its business. In the absence of
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such rules each committee shall conduct its business in the same manner as the
Board conducts its business pursuant to Article 3 of these By-laws.
ARTICLE 5
OFFICERS
5.1 POSITIONS. The officers of the Corporation shall be a CEO, a
President, a Secretary, a Treasurer and such other officers as the Board may
elect, including a Chairman, a Chief Financial Officer, a Controller, one or
more Vice Presidents and one or more Assistant Secretaries and Assistant
Treasurers, who shall exercise such powers and perform such duties as shall be
determined from time to time by resolution of the Board. The Board may elect
one or more Vice Presidents as Executive Vice Presidents and may use
descriptive words or phrases to designate the standing, seniority or areas of
special competence of the Vice Presidents elected or appointed by it. Any
number of offices may be held by the same person unless the Certificate of
Incorporation or these By-laws otherwise provide.
5.2 ELECTION. The officers of the Corporation shall be elected by
the Board at its annual meeting or at such other time or times as the Board
shall determine.
5.3 TERM OF OFFICE. Each officer of the Corporation shall hold
office for the term for which he or she is elected and until such officer's
successor is elected and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such resignation shall take effect at the date of receipt
of such notice or at such later time as is therein specified, and, unless
otherwise specified, the acceptance of such resignation shall not be necessary
to make it effective. The resignation of an officer shall be without prejudice
to the contract rights of the Corporation, if any. Any officer may be removed
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at any time, with or without cause, by the Board. Any vacancy occurring in any
office of the Corporation may be filled by the Board. The removal of an
officer, with or without cause, shall be without prejudice to the officer's
contract rights, if any. The election or appointment of an officer shall not of
itself create contract rights.
5.4 FIDELITY BONDS. The Corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise.
5.5 CHAIRMAN. The Chairman, if one shall have been appointed,
shall preside at all meetings of the Board and shall exercise such powers and
perform such other duties as shall be determined from time to time by
resolution of the Board.
5.6 CHIEF EXECUTIVE OFFICER. The CEO shall have general
supervision over, and direction of, the business and affairs of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of the Board. The CEO shall preside at all meetings of the
Stockholders and at all meetings of the Board at which the Chairman (if there
be one) is not present. The CEO may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments, except in
cases in which the signing and execution thereof shall be expressly delegated
by resolution of the Board or by these By-laws to some other officer or agent
of the Corporation, or shall be required by applicable law otherwise to be
signed or executed and, in general, the CEO shall perform all duties incident
to the office of CEO of a corporation and such other duties as may from time to
time be assigned to the CEO by resolution of the Board.
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5.7 PRESIDENT. The President shall have general supervision over,
and direction of, the business and affairs of the Corporation, subject, however
to the control of the CEO and the Board and any duly authorized committee of
the Board. In the absence of the CEO, the President shall preside at meetings
of the Stockholders and at meetings of the Board at which the Chairman (if
there be one) is not present. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments,
except in cases in which the signing and execution thereof shall be expressly
delegated by resolution of the Board or by these By-laws to the CEO or some
other officer or agent of the Corporation, or shall be required by applicable
law otherwise to be signed or executed and, in general, the President shall
perform all duties incident to the office of President of a corporation and
such other duties as may from time to time be assigned to the President by
resolution of the Board.
5.8 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have overall supervision of the financial operations of the Corporation and
shall perform all duties incident to the office of chief financial officer of a
corporation and such other duties as may from time to time be assigned the
Chief Financial Officer by the CEO or resolution of the Board.
5.9 CONTROLLER. The Controller shall be the chief accounting
officer of the Corporation and shall perform all duties incident to the office
of controller of a corporation and such other duties as may from time to time
be assigned the Controller by the CEO, the Chief Financial Officer or
resolution of the Board.
5.10 VICE PRESIDENTS. The Vice-Presidents shall perform such
duties as may from time to time be assigned to such Vice Presidents by the CEO,
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the President or resolution of the Board. At the request of the CEO or, in the
absence of the CEO, the President, or, in the President's absence, at the
request of the Board, the Vice Presidents shall (in such order as may be
designated by the Board, or, in the absence of any such designation, in order
of seniority based on age) perform all of the duties of the President and, in
so performing, shall have all the powers of, and be subject to all restrictions
upon, the President. Any Vice President may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts or other instruments, except in
cases in which the signing and execution thereof shall be expressly delegated
by resolution of the Board or by these By-laws to some other officer or agent
of the Corporation, or shall be required by applicable law otherwise to be
signed or executed.
5.11 SECRETARY. The Secretary shall attend all meetings of the
Board and of the Stockholders and shall record all the proceedings of the
meetings of the Board and of the Stockholders in a book to be kept for that
purpose, and shall perform like duties for committees of the Board, when
required. The Secretary shall give, or cause to be given, notice of all special
meetings of the Board and of the Stockholders and shall perform such other
duties as may be prescribed by the Board, the CEO or the President, under whose
supervision the Secretary shall be. The Secretary shall have custody of the
corporate seal of the Corporation, and the Secretary, or an Assistant
Secretary, shall have authority to affix the same on any instrument requiring
it, and when so affixed, the seal may be attested by the signature of the
Secretary or by the signature of such Assistant Secretary. The Board may, by
resolution, give general authority to any other officer to affix the seal of
the Corporation and to attest the same by such officer's signature. The
Secretary or an Assistant Secretary may also attest all instruments signed by
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the CEO, the President or any Vice President. The Secretary shall have charge
of all the books, records and papers of the Corporation relating to its
organization and management, shall see that the reports, statements and other
documents required by applicable law are properly kept and filed and, in
general, shall perform all duties incident to the office of Secretary of a
corporation and such other duties as may from time to time be assigned to the
Secretary by resolution of the Board, by the CEO or by the President.
5.12 TREASURER. The Treasurer shall have charge and custody of,
and be responsible for, all funds, securities and notes of the Corporation;
receive and give receipts for moneys due and payable to the Corporation from
any sources whatsoever; deposit all such moneys and valuable effects in the
name and to the credit of the Corporation in such depositaries as may be
designated by the Board; against proper vouchers, cause such funds to be
disbursed by checks or drafts on the authorized depositaries of the Corporation
signed in such manner as shall be determined by the Board and be responsible
for the accuracy of the amounts of all moneys so disbursed; regularly enter or
cause to be entered in books or other records maintained for the purpose full
and adequate account of all moneys received or paid for the account of the
Corporation; have the right to require from time to time reports or statements
giving such information as the Treasurer may desire with respect to any and all
financial transactions of the Corporation from the officers or agents
transacting the same; render to the CEO, the President or the Board, whenever
the CEO, the President or the Board shall require the Treasurer so to do, an
account of the financial condition of the Corporation and of all financial
transactions of the Corporation; disburse the funds of the Corporation as
ordered by the Board; and, in general, perform all duties incident to the
office of Treasurer of a corporation and such other duties as may from time to
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time be assigned to the Treasurer by resolution of the Board, by the CEO or by
the President.
5.13 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by
resolution of the Board, by the CEO or by the President.
ARTICLE 6
INDEMNIFICATION
6.1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person (a "Covered Person")
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she, or a
person for whom he or she is legal representative, is or was a director or
officer of the Corporation or, while 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 or of a partnership, joint venture,
trust, enterprise or nonprofit entity (an "Other Entity"), including service
with respect to employee benefit plans, against all liability and loss suffered
and expenses (including attorneys' fees) reasonably incurred by such Covered
Person in connection with such Proceeding. Notwithstanding the preceding
sentence, except as otherwise provided in Section 6.3, the Corporation shall be
required to indemnify a Covered Person in connection with a Proceeding (or part
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thereof) commenced by such Covered Person only if the commencement of such
Proceeding (or part thereof) by the Covered Person was authorized by the Board.
6.2 PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses (including attorneys' fees) incurred by a Covered Person in defending
any Proceeding in advance of its final disposition, PROVIDED, HOWEVER, that, to
the extent required by applicable law, such payment of expenses in advance of
the final disposition of the Proceeding shall be made only upon receipt of an
undertaking by the Covered Person to repay all amounts advanced if it should be
ultimately determined that the Covered Person is not entitled to be indemnified
under this Article 6 or otherwise.
6.3 CLAIMS. If a claim for indemnification or advancement of
expenses under this Article 6 is not paid in full within 30 days after a
written claim therefor by the Covered Person has been received by the
Corporation, the Covered Person may file suit to recover the unpaid amount of
such claim and, if successful, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
6.4 NONEXCLUSIVITY OF RIGHTS. The rights conferred on any Covered
Person by this Article 6 shall not be exclusive of any other rights that such
Covered Person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, these By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
6.5 OTHER SOURCES. The Corporation's obligation, if any, to
indemnify or to advance expenses to any Covered Person who was or is serving at
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its request as a director, officer, employee or agent of an Other Entity shall
be reduced by any amount such Covered Person collects as indemnification or
advancement of expenses from such Other Entity.
6.6 AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article 6 shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
6.7 OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES. This
Article 6 shall not limit the right of the Corporation, to the extent and in
the manner permitted by law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
ARTICLE 7
GENERAL PROVISIONS
7.1 CERTIFICATES REPRESENTING SHARES. Shares of the Company's
stock may be certificated or uncertificated, or a combination of both, as
permitted under Section 158 of the Delaware General Corporation Law. To the
extent that shares are represented by certificates, such certificates shall be
in such form as shall be approved by the Board and shall be signed by or in the
name of the Corporation by the Chairman, if any, the CEO, the President or a
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, certifying the number of shares owned by such
Stockholder in the Corporation. Any or all of the signatures upon a certificate
may be facsimiles. In case any officer, transfer agent or registrar who has
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signed or whose facsimile signature has been placed upon any certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
7.2 TRANSFER AND REGISTRY AGENTS. The Corporation may from time
to time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.3 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate of stock 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 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
such new certificate.
7.4 FORM OF RECORDS. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or by means of, or be in the form
of, any information storage device or method, provided that the records so kept
can be converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect such records pursuant to applicable law.
7.5 SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
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time to time by the Board. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
7.6 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board.
7.7 AMENDMENTS. Subject to the provisions of the Certificate of
Incorporation, these By-laws may be altered, amended or repealed and new
By-laws may be adopted either (i) by the Board or (ii) by the affirmative vote
of at least 66-2/3% of the voting power of shares of stock present in person or
represented by proxy and entitled to vote thereon. The power of the Board to
alter, amend or repeal By-laws or to adopt new By-laws shall not divest or
limit the power of Stockholders to alter, amend or repeal By-laws or to adopt
new By-laws.