Attached files
file | filename |
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S-1/A - CorMedix Inc. | v173445_s1a.htm |
EX-3.3 - CorMedix Inc. | v173445_ex3-3.htm |
EX-23.1 - CorMedix Inc. | v173445_ex23-1.htm |
EX-10.8 - CorMedix Inc. | v173445_ex10-8.htm |
EX-10.9 - CorMedix Inc. | v173445_ex10-9.htm |
EX-10.7 - CorMedix Inc. | v173445_ex10-7.htm |
EX-10.13 - CorMedix Inc. | v173445_ex10-13.htm |
EX-10.15 - CorMedix Inc. | v173445_ex10-15.htm |
EX-10.16 - CorMedix Inc. | v173445_ex10-16.htm |
EX-10.17 - CorMedix Inc. | v173445_ex10-17.htm |
Exhibit
3.4
FORM OF
AMENDED AND RESTATED
BY-LAWS
OF
CORMEDIX
INC.
______________________________________________________
ARTICLE
I
STOCKHOLDERS
Section
1.1 Annual
Meetings. An annual meeting of stockholders to elect directors
and transact such other business as may properly be presented to the meeting
shall be held at such time and at such place, within or without the State of
Delaware, as may be designated by the Board of Directors.
Section
1.2 Special
Meetings. A special meeting of stockholders may be called at
any time by the Chairman of the Board (the “Chairman”), the Chief Executive
Officer or the Board of Directors pursuant to a resolution adopted by a majority
of the Board of Directors and shall be called by any of them or by the Secretary
upon receipt of a written request to do so specifying the matter or matters,
appropriate for action at such a meeting, proposed to be presented at the
meeting and signed by holders of shares representing at least 15% of the shares
of stock that would be entitled to be voted on such matter or matters if the
meeting were held on the day such request is received and the record date for
such meeting were the close of business on the preceding day. Any
such meeting shall be held at such time and at such place, within or without the
State of Delaware, as shall be determined by the body or person calling such
meeting and as shall be stated in the notice of such meeting.
Section
1.3 Notice of
Meeting. For each meeting of stockholders, written notice
shall be given stating the place, date and hour and, in the case of a special
meeting, the purpose or purposes for which the meeting is called and, if the
list of stockholders required by Section 1.9 is not to be at such place at least
10 days prior to the meeting, the place where such list will
be. Except as otherwise provided by the General Corporation Law of
the State of Delaware (the “DGCL”), the written notice of any meeting shall be
given not less than 10 or more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
Section
1.4 Quorum. Except
as otherwise required by the DGCL or the Amended and Restated Certificate of
Incorporation, as may be amended (the “Certificate of Incorporation”), the
holders of record of a majority of the shares of stock entitled to be voted
present in person or represented by proxy at a meeting shall constitute a quorum
for the transaction of business at the meeting, but in the absence of a quorum
the holders of record present or represented by proxy at such meeting may vote
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is obtained. At any such adjourned
session of the meeting at which there shall be present or represented the
holders of record of the requisite number of shares, any business may be
transacted that might have been transacted at the meeting as originally
called.
Section
1.5 Chairman and Secretary at
Meeting. At each meeting of stockholders the Chairman, or in
his absence or should the Chairman so direct, the President, or in the absence
of the Chairman and the President, then a person designated by the Board of
Directors, shall preside as chairman of the meeting. If no person is
so designated, then the meeting shall choose a chairman by plurality
vote. The Secretary, or in his absence a person designated by the
chairman of the meeting, shall act as secretary of the meeting.
Section 1.6 Voting;
Proxies. Except as otherwise provided by the DGCL or the
Certificate of Incorporation and subject to the provisions of Section
1.10:
(a) Each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of capital stock held by him.
(b) Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him 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.
(c) Directors
shall be elected by a plurality vote.
(d) Each
matter, other than election of directors, properly presented to any meeting
shall be decided by a majority of the votes cast on the matter.
(e) Election
of directors and the vote on any other matter presented to a meeting shall be by
written ballot only if so ordered by the chairman of the meeting or if so
requested by any stockholder present or represented by proxy at the meeting
entitled to vote in such election or on such matter, as the case may
be.
Section
1.7 Adjourned
Meetings. A meeting of stockholders may be adjourned to
another time or place as provided in Section 1.4. Unless the Board of
Directors fixes a new record date, stockholders of record for an adjourned
meeting shall be as originally determined for the meeting from which the
adjournment was taken. If 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 adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally
called.
Section
1.8 Consent of Stockholders in
Lieu of Meeting. Except as may otherwise be provided in the
Certificate of Incorporation, any action that may be taken at any annual or
special meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Notice of the taking of such action shall be given
promptly to each stockholder that would have been entitled to vote thereon at a
meeting of stockholders and that did not consent thereto in
writing.
-2-
Section
1.9 List of Stockholders
Entitled to Vote. 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,
shall be prepared and shall be open to the examination of any stockholder for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, at a place within the city where the
meeting is to be held. Such 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.
Section
1.10 Fixing of Record
Date. 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, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than 60 or less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action. If no
record date is fixed, 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 day on which the meeting is held; the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the Board of Directors is necessary, shall be
the day on which the first written consent is expressed; and the record date for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section
1.11 Notice of Stockholder
Business and Nominations.
(a) Annual Meetings of
Stockholders.
(i) Nominations
of persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (A) pursuant to the Corporation’s notice of
meeting, (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section 1.11, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 1.11.
-3-
(ii) For
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (C) of paragraph (a)(i) of this Section 1.11,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder’s notice
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 90th day nor earlier
than the close of business on the 120th day prior to the first anniversary of
the preceding year’s annual meeting; provided, however, in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a stockholder’s
notice as described above. Such stockholder’s notice shall set forth
(A) as to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations thereunder (including such
person’s written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made, (1) the name and
address of such stockholder, as they appear on the Corporation’s books, and of
such beneficial owner, and (2) the class and number of shares of the Corporation
that are owned beneficially and of record by such stockholder and such
beneficial owner.
Notwithstanding
anything in the second sentence of paragraph (a)(ii) of this Section 1.11 to the
contrary, in the event that the number of directors to be elected to the Board
of Directors of the Corporation is increased and there is no public announcement
by the Corporation naming all of the nominees for director or specifying the
size of the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year’s annual meeting, a stockholder’s notice
required by this Section 1.11 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the
Corporation.
(b) Special Meetings of
Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation’s notice of meeting. Nominations of persons for
election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation’s
notice of meeting (i) by or at the direction of the Board of Directors or (ii)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time of giving of the Corporation’s notice of
meeting, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 1.11. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder who shall
be entitled to vote at the meeting may nominate a person or persons (as the case
may be), for election to such position(s) as specified in the Corporation’s
notice of meeting, if the stockholder’s notice required by paragraph (a)(ii) of
this Section 1.11 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the 120th
day prior to such special meeting and not later than the close of business on
the later of the 90th day prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder’s notice as described above.
-4-
(c) General.
(i) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 1.11 shall be eligible to serve as directors and only such business
shall be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this Section
1.11. Except as otherwise provided by law, the Certificate of
Incorporation or these Amended and Restated By-Laws (the “By-Laws”), the
chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 1.11 and, if any proposed nomination or business is not in
compliance with this Section 1.11, to declare that such defective proposal or
nomination shall be disregarded.
(ii) For
purposes of this Section 1.11, “public announcement” shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(iii) Notwithstanding
the foregoing provisions of this Section 1.11, 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
1.11. Nothing in this Section 1.11 shall be deemed to affect any
rights (A) of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(B) of the holders of any series of preferred stock to elect directors under
specified circumstances.
ARTICLE
II
DIRECTORS
Section
2.1 Number; Term of Office;
Qualifications; Vacancies. The number of directors that shall
constitute the Whole Board (as defined below) shall be not less than five, nor
more than nine, the exact number within said limits to be fixed from time to
time by action of the Board of Directors. Directors shall be elected
at the annual meeting of stockholders to hold office, subject to Sections 2.2
and 2.3, until the next annual meeting of stockholders and until their
respective successors are elected and qualify. 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 the sole remaining director, and the directors so
chosen shall hold office, subject to Sections 2.2 and 2.3, until the next annual
meeting of stockholders and until their respective successors are duly elected
and qualify. The “Whole Board” shall mean the total number of
directors that the Corporation would have if there were no
vacancies.
-5-
Section
2.2 Resignation. Any
director of the Corporation may resign at any time by giving written notice of
such resignation to the Board of Directors, the President or the Secretary of
the Corporation. Any such resignation shall take effect at the time
specified therein or, if no time be specified, upon receipt thereof by the Board
of Directors or one of the above-named officers, and unless specified therein,
the acceptance of such resignation shall not be necessary to make it
effective. When one or more directors shall resign from the Board of
Directors 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 as provided in the By-Laws in the filling of other
vacancies.
Section
2.3 Removal. Except
for the directors elected pursuant to and in accordance with the terms of a
certificate of designation filed under the DGCL, whose removal is governed
thereby, any one or more directors may be removed, with or without cause, by the
vote or written consent of the holders of a majority of the shares entitled to
vote at an election of directors.
Section
2.4 Regular and Annual Meetings;
Notice. Regular meetings of the Board of Directors shall be
held at such time and at such place, within or without the State of Delaware, as
may be designated by the Board of Directors. No notice need be given
of any regular meeting, and a notice, if given, need not specify the purposes
thereof. A meeting of the Board of Directors may be held without
notice immediately after an annual meeting of stockholders at the same place as
that at which such annual meeting was held.
Section
2.5 Special Meetings;
Notice. A special meeting of the Board of Directors may be
called at any time by the Board of Directors, the Chairman, the President or the
Chief Executive Officer and shall be called by any one of them or by the
Secretary upon receipt of a written request to do so specifying the matter or
matters, appropriate for action at such a meeting, proposed to be presented at
the meeting and signed by at least two directors. Any such meeting
shall be held at such time and at such place, within or without the State of
Delaware, as shall be determined by the body or person calling such
meeting. Notice of such meeting stating the time and place and
principal purpose or purposes thereof shall be given (a) by deposit of the
notice in the United States mail, first class, postage prepaid, at least two
days before the day fixed for the meeting addressed to each director at his
address as it appears on the Corporation’s records or at such other address as
the director may have furnished the Corporation for that purpose, or (b) by
delivery of the notice by electronic transmission, telephone or in person, in
each case at least 24 hours before the time fixed for the meeting.
Section
2.6 Chairman of the Board;
Presiding Officer and Secretary at Meetings. The Board of
Directors may elect one of its members to serve at its pleasure as the
Chairman. Each meeting of the Board of Directors shall be presided
over by the Chairman or in his absence or should the Chairman so direct, by the
President or the Chief Executive Officer, if a director, or if neither is
present, by such member of the Board of Directors as shall be chosen at the
meeting. The Secretary, or in his absence an Assistant Secretary,
shall act as secretary of the meeting, or if no such officer is present, a
secretary of the meeting shall be designated by the person presiding over the
meeting.
-6-
Section
2.7 Quorum. A
majority of the Whole Board shall constitute a quorum for the transaction of
business, but in the absence of a quorum a majority of those present (or if only
one be present, then that one) may adjourn the meeting, without notice other
than announcement at the meeting, until such time as a quorum is
present. Except as otherwise required by the Certificate of
Incorporation or the By-Laws, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
Section
2.8 Meeting by
Telephone. Members of the Board of Directors or of any
committee thereof may participate in meetings of the Board of Directors or of
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
Section
2.9 Action Without
Meeting. Unless otherwise restricted by the Certificate of
Incorporation, any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board of Directors or of such committee, as the case may
be, consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or of such
committee.
Section
2.10 Committees.
(a) The
Board of Directors may, by resolution passed by a majority of the Whole Board,
designate one or more committees, each such committee, except as otherwise
required by applicable law, to consist of one or more directors as the Board of
Directors may from time to time determine. Any such committee, to the
extent provided in such resolution or resolutions or in the By-Laws and not
inconsistent with Section 141(c)(2) of the DGCL, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, including the power to authorize the
seal of the Corporation to be affixed to all papers that may require it; and
unless the resolution or resolutions shall expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. In the absence or disqualification
of a member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not such committee member or
members 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. Each such committee shall have such name as may
be determined from time to time by the Board of Directors.
(b) Unless
the Board of Directors otherwise provides, each committee designated by the
Board of Directors may adopt, amend and repeal rules for the conduct of its
business. In the absence of a provision by the Board of Directors or
a provision in the rules of such committee to the contrary, a majority of the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business, the vote of a majority of the members present
at a meeting at the time of such vote if a quorum is then present shall be the
act of such committee, and in other respects each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to Article II of the By-Laws.
-7-
Section
2.11 Compensation. No
director shall receive any stated salary for his services as a director or as a
member of a committee but shall receive such sum, if any, as may from time to
time be fixed by the action of the Board of Directors.
ARTICLE
III
OFFICERS
Section
3.1 Election;
Qualification. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Chief
Executive Officer, a Chief Financial Officer, a Secretary and a Treasurer, each
of whom shall be selected by the Board of Directors. The Board of
Directors may select a Chief Operating Officer, a Controller, one or more
Assistant Vice Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, one or more Assistant Controllers and such other officers
as it may from time to time determine. Any two or more offices may be
held by the same person.
Section
3.2 Term of
Office. Each officer shall hold office from the time of his
election and qualification to the time at which his successor is elected and
qualified, unless he shall die or resign or shall be removed pursuant to Section
3.4 at any time sooner.
Section
3.3 Resignation. Any
officer of the Corporation may resign at any time by giving written notice of
such resignation to the Chairman, the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time
specified therein or, if no time be specified, upon receipt thereof by the Board
of Directors or one of the above-named officers; and, unless specified therein,
the acceptance of such resignation shall not be necessary to make it
effective.
Section
3.4 Removal. Any
officer may be removed at any time, with or without cause, by the vote of a
majority of the Board of Directors.
Section
3.5 Vacancies. Any
vacancy however caused in any office of the Corporation shall be filled by the
Board of Directors.
Section
3.6 Compensation. Unless
otherwise provided by resolution passed by a majority of the Whole Board, and
subject to the requirements of any national securities exchange or automated
quotation system on which the stock of the Corporation is listed, the salaries
of all officers elected by the Board of Directors shall be fixed by the Board of
Directors.
Section
3.7 Chairman of the
Board. The Chairman shall be the chairman of all meetings of
the Board of Directors, or in the absence or in case there shall be no Chairman,
the Chief Executive Officer shall be the chairman of all meetings of the Board
of Directors.
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Section
3.8 President. The
President, if so designated by the Board of Directors, shall be the Chief
Executive Officer of the Corporation and shall have general charge of the
business and affairs of the Corporation, subject however to the right of the
Board of Directors to confer specified powers on officers and subject to the
control of the Board of Directors. If not designated by the Board of
Directors as Chief Executive Officer, the President shall be the Chief Operating
Officer of the Corporation and shall have general charge of the day-to-day
operations of the business and affairs of the Corporation, subject however to
the right of the Board of Directors to confer specified powers on officers and
subject to the control of the Board of Directors. The Chief Executive
Officer shall keep the Board of Directors appropriately informed regarding the
business and affairs of the Corporation.
Section
3.9 Executive and Senior Vice
Presidents. One or more Executive or Senior Vice Presidents
shall, subject to the control of the Chief Executive Officer or the President,
have lead accountability for components or functions of the Corporation as and
to the extent designated by the Chief Executive Officer or the
President. Each Executive or Senior Vice President shall keep the
Chief Executive Officer or the President to whom he or she reports appropriately
informed on the business and affairs of the designated components or functions
of the Corporation.
Section
3.10 Treasurer. The
Treasurer shall have charge of and be responsible for the receipt, disbursement
and safekeeping of all funds and securities of the Corporation. The
Treasurer shall deposit all such funds in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of the By-Laws. From time to time and whenever
requested to do so, the Treasurer shall render statements of the condition of
the finances of the Corporation to the Board of Directors. The
Treasurer shall perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or
her.
Section
3.11 Vice
President. Each Vice President shall have such powers and
duties as generally pertain to the office of Vice President and as the Board of
Directors or the President may from time to time prescribe. During
the absence of the President or his inability to act, the Vice President, or if
there shall be more than one Vice President, then that one designated by the
Board of Directors, shall exercise the powers and shall perform the duties of
the President, subject to the direction of the Board of Directors.
Section
3.12 Secretary. The
Secretary shall keep the minutes of all meetings of stockholders and of the
Board of Directors. He shall be custodian of the corporate seal and
shall affix it or cause it to be affixed to such instruments as require such
seal and attest the same and shall exercise the powers and shall perform the
duties incident to the office of Secretary, subject to the direction of the
Board of Directors.
Section
3.13 Other
Officers. Each other officer of the Corporation shall exercise
the powers and shall perform the duties incident to his office, subject to the
direction of the Board of Directors.
-9-
ARTICLE
IV
CAPITAL
STOCK
Section
4.1 Stock
Certificates. The stock of the Corporation shall be
represented by certificates, except that the Board of Directors of the
Corporation 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 (or the
transfer agent or registrar, as the case may be). Any certificates
representing shares of stock shall be in such form as the Board of Directors may
from time to time prescribe. Each certificate shall be signed by or in the name
of the Corporation by the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary. Any of or all
the signatures appearing on such certificate or certificates may be a facsimile.
If any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section
4.2 Transfer of
Stock. Shares of stock shall be transferable on the books of
the Corporation pursuant to applicable law and such rules and regulations as the
Board of Directors shall from time to time prescribe.
Section
4.3 Holders of
Record. Prior to due presentment for registration of transfer
the Corporation may treat the holder of record of a share of its stock as the
complete owner thereof exclusively entitled to vote, to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
Section
4.4 Lost, Stolen, Destroyed or
Mutilated Certificates. The Corporation shall issue a new
certificate of stock or uncertificated shares to replace a certificate
theretofore issued by it alleged to have been lost, destroyed or wrongfully
taken, if the owner or his legal representative (a) requests replacement, before
the Corporation has notice that the stock certificate has been acquired by a
bona fide purchaser; (b) files with the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or destruction of any such stock certificate or the
issuance of any such new stock certificate or uncertificated shares; and (c)
satisfies such other terms and conditions as the Board of Directors may from
time to time prescribe.
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ARTICLE
V
MISCELLANEOUS
Section
5.1 Indemnity. (a) 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
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 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, nonprofit entity, or other enterprise,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys’ fees) reasonably incurred
by such person. The Corporation shall be required to indemnify a
person 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.
(b) Expenses
incurred by a director, officer, employee or agent in defending a Proceeding may
be paid by the Corporation in advance of the final disposition of such
Proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent 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 Section 5.1.
(c) The
right conferred on any person by this Section 5.1 shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(d) The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or who is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Section.
(e) The
indemnification and advancement of expenses provided by, or granted pursuant to
this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(f) For
the purposes of this Section, references to “the Corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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Section
5.2 Waiver of
Notice. Whenever notice is required by the Certificate of
Incorporation, the By-Laws or any provision of the DGCL, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time required for such notice, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors or members of
a committee of directors need be specified in any written waiver of
notice.
Section
5.3 Fiscal
Year. The fiscal year of the Corporation shall start on such
date as the Board of Directors shall from time to time prescribe.
Section
5.4 Corporate
Seal. The corporate seal shall be in such form as the Board of
Directors may from time to time prescribe, and the same may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
ARTICLE
VI
AMENDMENT
OF BY-LAWS
Section
6.1 Amendment. The
By-Laws may be altered, amended or repealed by the stockholders or by the Board
of Directors by a majority vote.
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