Attached files
file | filename |
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8-K - HealthWarehouse.com, Inc. | v202094_8k.htm |
EX-3.1 - HealthWarehouse.com, Inc. | v202094_ex3-1.htm |
EX-4.1 - HealthWarehouse.com, Inc. | v202094_ex4-1.htm |
EX-4.3 - HealthWarehouse.com, Inc. | v202094_ex4-3.htm |
EX-4.2 - HealthWarehouse.com, Inc. | v202094_ex4-2.htm |
EX-99.1 - HealthWarehouse.com, Inc. | v202094_ex99-1.htm |
EX-10.1 - HealthWarehouse.com, Inc. | v202094_ex10-1.htm |
EX-10.3 - HealthWarehouse.com, Inc. | v202094_ex10-3.htm |
EX-10.2 - HealthWarehouse.com, Inc. | v202094_ex10-2.htm |
EXHIBIT
3.2
HEALTHWAREHOUSE.COM,
INC.
(a
Delaware Corporation)
AMENDED
AND RESTATED BYLAWS
Article
I: Stockholders
Section
1.1. Annual Meeting.
An annual
meeting of the stockholders for the election of directors to succeed those whose
terms expire and for the transaction of such other business as may properly come
before the meeting shall be held at the place, if any, on the date, and at the
time as the Board of Directors shall each year fix, which date shall be within
13 months of the last annual meeting of stockholders.
Section
1.2. Advance Notice of Nominations and
Proposals of Business.
(a)
Nominations of persons for election to the Board of Directors and the proposal
of business to be transacted by the stockholders may be made at an annual
meeting of stockholders (i) pursuant to the Corporation’s proxy materials with
respect to such meeting, (ii) by or at the direction of the Board of Directors,
or (iii) by any stockholder of record of the Corporation (the “Record
Stockholder”) at the time of the giving of the notice required in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this section. For the avoidance of doubt, the
foregoing clause (iii) shall be the exclusive means for a stockholder to make
nominations or propose business (other than business included in the
Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities
Exchange Act of 1934, as amended (such act, and the rules and regulations
promulgated thereunder, the “Exchange Act”)) at an annual meeting of
stockholders.
(b) For
nominations or business to be properly brought before an annual meeting by a
Record Stockholder pursuant to clause (iii) of the foregoing paragraph, (i) the
Record Stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, and (ii) any such business must be a proper matter
for stockholder action under Delaware law. To be timely, a Record Stockholder’s
notice shall be received by the Secretary at the principal executive offices of
the Corporation not less than 45 or more than 75 days prior to the one-year
anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding year’s annual meeting of stockholders; provided,
however, that, subject to the last sentence of this paragraph (b), if the
meeting is convened more than 30 days prior to or delayed by more than 30 days
after the anniversary of the preceding year’s annual meeting, or if no annual
meeting was held in the preceding year, notice by the Record Stockholder to be
timely must be so received not later than the close of business on the later of
(i) the 90th day before such annual meeting or (ii) the 10th day following the
day on which public announcement of the date of such meeting is first made.
Notwithstanding anything in the preceding sentence to the contrary, in the event
that the number of directors to be elected to the Board of Directors is
increased and there has been no public announcement naming all of the nominees
for director or indicating the increase in the size of the Board of Directors
made by the Corporation at least 10 days before the last day a Record
Stockholder may deliver a notice of nomination in accordance with the preceding
sentence, a Record Stockholder’s notice required by this bylaw shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be received by 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. In no event shall an adjournment, or postponement
of an annual meeting for which notice has been given, commence a new time period
for the giving of a Record Stockholder’s notice.
(c)
Such Record Stockholder’s notice shall set forth:
1. if
such notice pertains to the nomination of directors, as to each person whom the
Record Stockholder proposes to nominate for election or reelection as a director
all information relating to such person as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Exchange Act, and such person’s written consent to
serve as a director if elected;
2. as
to any business that the Record Stockholder proposes to bring before the
meeting, a brief description of such business, the reasons for conducting such
business at the meeting and any material interest in such business of such
Record Stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and
3. as
to (a) the Record Stockholder giving the notice and (b) the beneficial owner, if
any, on whose behalf the nomination or proposal is made each, a
“party”):
(i)
the name and address of each such party;
(ii)
(A) the class, series, and number of shares of the Corporation that are owned,
directly or indirectly, beneficially and of record by each such party, (B) any
option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the Corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by each such party, and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which either party has a
right to vote, directly or indirectly, any shares of any security of the
Corporation, (D) any short interest in any security of the Corporation held by
each such party (for purposes of this Section 1.2(c), a person shall be deemed
to have a short interest in a security if such person directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
the opportunity to profit or share in any profit derived from any decrease in
the value of the subject security), (E) any rights to dividends on the shares of
the Corporation owned beneficially directly or indirectly by each such party
that are separated or separable from the underlying shares of the Corporation,
(F) any proportionate interest in shares of the Corporation or Derivative
Instruments held, directly or indirectly, by a general or limited partnership in
which either party is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner and (G) any performance-related fees
(other than an asset-based fee) that each such party is directly or indirectly
entitled to based on any increase or decrease in the value of shares of the
Corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of each such
party’s immediate family sharing the same household (which information set forth
in this paragraph shall be supplemented by such stockholder or such beneficial
owner, as the case may be, not later than ten (10) days after the record date
for the meeting to disclose such ownership as of the record date);
and
2
(iii)
any other information relating to each such party that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to Section 14 of
the Exchange Act.
(d)
A person shall not be eligible for election or re-election as a director at an
annual meeting unless (i) the person is nominated by a Record Stockholder in
accordance with clause (iii) of Section 1.2(a) or (ii) the person is nominated
by or at the direction of the Board of Directors. Only such business shall be
conducted at an annual meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this section. The
chair of the meeting shall have the power and the duty to determine whether a
nomination or any business proposed to be brought before the meeting has been
made in accordance with the procedures set forth in these Bylaws and, if any
proposed nomination or business is not in compliance with these Bylaws, to
declare that such defectively proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be
disregarded.
(e) Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting by or at the direction of the Board of
Directors. The notice of such special meeting shall include the purpose for
which the meeting is called. 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 (a) by or at the direction of the Board of Directors or (b) by
any stockholder of record at the time of giving of notice provided for in this
paragraph, who shall be entitled to vote at the meeting and who delivers a
written notice to the Secretary setting forth the information set forth in
Section 1.2(c)(1) and (3) of this Article I. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders only if such stockholder of record’s notice required by
the preceding sentence shall be received by the Secretary at the principal
executive offices of the Corporation 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 an adjournment, or postponement of a special
meeting for which notice has been given, commence a new time period for the
giving of a stockholder of record’s notice. A person shall not be eligible for
election or reelection as a director at a special meeting unless the person is
nominated (i) by or at the direction of the Board of Directors or (ii) by a
stockholder of record in accordance with the notice procedures set forth in this
Article I.
3
(f)
For purposes of these Bylaws, “public announcement” shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or a
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.
(g)
Notwithstanding the foregoing provisions of this Section 1.2, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
Section 1.2. Nothing in this Section 1.2 shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Section
1.3. Special Meetings;
Notice.
Subject
to the rights of the holders of any series of Preferred Stock, and to the
requirements of applicable law, special meetings of stockholders may be called
only by either (a) the Chair of the Board of Directors, (b) the President, (c)
the Board of Directors pursuant to a resolution adopted by the directors, or (d)
by the holders of not less than ten percent (10%) of the total votes entitled to
be cast by the holders of all the outstanding capital stock of the Corporation
entitled to vote generally in an election of directors. Upon request in writing
sent by registered mail to the President by any stockholder or stockholders
entitled to call a special meeting of stockholders pursuant to this Section 1.3,
the Board of Directors shall determine a place and time for such meeting, which
time shall be not less than 90 nor more than 100 days after the receipt and
determination of the validity of such request, and a record date for the
determination of stockholders entitled to vote at such meeting in the manner set
forth in Section 5.5 hereof. Following such receipt and determination, it shall
be the duty of the secretary to cause notice to be given to the stockholders
entitled to vote at such meeting, in the manner set forth in Section 1.4 hereof,
that a meeting will be held at the time and place so determined. Notice of every
special meeting shall state the purpose of the meeting and the business
conducted at a special meeting of stockholders shall be limited to the business
set forth in the notice of meeting. The Board of Directors may postpone or
reschedule any previously called special meeting.
Section
1.4. Notice of
Meetings.
(a)
Notice of the place, if any, date and time of all meetings of the stockholders,
and the means of remote communications, if any, by which stockholders and
proxyholders may be deemed present in person and vote at such meeting, and, in
the case of all special meetings of stockholders, the purpose of the meeting,
shall be given, not less than 10 nor more than 60 days before the date on which
the meeting is to be held, to each stockholder entitled to vote at the meeting,
except as otherwise provided in these bylaws or required by law (meaning in
these bylaws, as required from time to time by the Delaware General Corporation
Law or the Corporation’s Certificate of Incorporation).
(b)
When a meeting is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place, if any, thereof and the means of
remote communication, if any, by which stockholder and proxyholders may be
deemed to be present in person of such adjourned meeting are announced at the
meeting at which the adjournment is taken; provided, however, that if
the date of any adjourned meeting is more than 30 days after the date for which
the meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, notice of the place, if any, date and time of the adjourned
meeting and the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted that might have been transacted at the
original meeting.
4
Section
1.5. Quorum.
(a) At
any meeting of the stockholders, the holders of shares of stock of the
Corporation entitled to cast a majority of the total votes entitled to be cast
by the holders of all outstanding capital stock of the Corporation, present in
person or by proxy, shall constitute a quorum for all purposes, unless or except
to the extent that the presence of a larger number is required by law. Where a
separate vote by one or more classes or series is required, the holder of shares
entitled to cast a majority of the total votes entitled to be cast by the
holders of the shares of the class or classes or series, present in person or
represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter.
(b) If
a quorum shall fail to attend any meeting, the chair of the meeting may adjourn
the meeting to another place, if any, date and time.
Section
1.6. Organization.
The Chair
of the Board or, in his or her absence, the person whom the Board of Directors
designates or, in the absence of that person or the failure of the Board of
Directors to designate a person, the Chief Executive Officer of the Corporation
or, in his or her absence, the person chosen by the holders of a majority of the
shares entitled to vote who are present, in person or by proxy, shall call to
order any meeting of the stockholders and act as chair of the meeting. In the
absence of the Secretary of the Corporation, the secretary of the meeting shall
be the person the chair appoints.
Section
1.7. Conduct of
Business.
The chair
of any meeting of stockholders shall determine the order of business and the
rules of procedure for the conduct of the meeting, including the manner of
voting and the conduct of discussion as the chair determines to be in order. The
chair shall have the power to adjourn the meeting to another place, if any, date
and time. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at the meeting shall be announced
at the meeting.
Section
1.8. Proxies; Inspectors.
(a) At
any meeting of the stockholders, every stockholder entitled to vote may vote in
person or by proxy authorized by an instrument in writing or by a transmission
permitted by law filed in accordance with the procedure established for the
meeting. Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission created pursuant to this Section 1.8 may be
substituted or used in lieu of the original writing or transmission that could
be used, provided that the copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
5
(b) The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the person presiding at the meeting may, and to the
extent required by law, shall, appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors may
appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of inspectors.
Section
1.9. Voting.
All
elections of directors shall be determined by a plurality of the votes cast, and
except as otherwise required by law or these bylaws, all other matters shall be
determined by a majority of the votes cast on the matter affirmatively or
negatively.
Section
1.10. Stock List.
(a) A
complete list of stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order for each class of stock and showing the address
of each such stockholder and the number of shares registered in his or her name,
shall be open to the examination of any such stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at least
10 days prior to the meeting as required by law.
(b) The
stock list shall also be open to the examination of any such stockholder during
the whole time of the meeting as provided by law. The corporation may look to
this list as the sole evidence of the identity of the stockholders entitled to
vote at the meeting and the number of shares held by each of them.
Section
1.11.Written Consents.
(a) In
the event of the delivery, as required by law, to the Corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the Corporation shall engage independent
inspectors of election for the purpose of performing promptly a ministerial
review of the validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until the date as the independent
inspectors certify to the Corporation that the consents properly delivered to
the Corporation represent at least the minimum number of votes that would be
necessary to take the corporate action. Nothing contained in this Section 1.11
shall in any way be construed to suggest or imply that the Board of Directors or
any stockholders shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after the certification by the independent
inspectors, or to take any other action (including without limitation the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in the litigation).
(b) Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated consent
received in accordance with applicable law, a written consent or consents signed
by a sufficient number of holders to take such action are delivered to the
Corporation as required by law.
6
Section
1.12. Meetings by Remote
Communication.
If authorized by the Board of Directors
in its sole discretion, and subject to such guidelines and procedures as the
Board of Directors may adopt, stockholders and proxy holders not physically
present at a meeting of stockholders may, by means of remote
communication:
(a) participate
in a meeting of stockholders; and
(b) be
deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication,
provided, that
(i) the
Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxy holder;
(ii) the
Corporation shall implement reasonable measures to provide such stockholders and
proxy holders a reasonable opportunity to participate in the meeting and to vote
on matters submitted to the stockholders, including an opportunity to read or
hear the proceedings of the meeting substantially concurrently with such
proceedings; and
(iii) if
any stockholder or proxy holder votes or takes other action at the meeting by
means of remote communication, a record of such vote or other action shall be
maintained by the Corporation.
Article
II: Board of Directors
Section
2.1. Number, Election, Term and
Qualifications of Directors.
(a) Subject
to the special right of the holders of any class or series of stock to elect
directors, the number of directors shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of directors which the Corporation would have if there were no
vacancies.
(b) Directors
need not be stockholders to be qualified for election or service as a director
of the Corporation.
Section
2.2. Removal;
Resignation.
Any
director or the entire Board of Directors may be removed, with or without cause
by the holders of a majority of the shares then entitled to vote at an election
of directors. Any director may resign at any time upon notice given in writing
or by election transmission to the Corporation A resignation is effective when
the resignation is delivered unless the resignation specifies a later effective
date or an effective date determined upon the happening of an event or events. A
resignation that is conditioned upon the director failing to receive a specified
vote for reelection as a director may provide that it is
irrevocable.
7
Section
2.3. Newly Created Directorships and
Vacancies.
Except as
otherwise required by law and subject to the rights of the holders of any series
of preferred stock with respect to such series of preferred stock, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
by a majority vote of the directors then in office, though less than a quorum,
or by a sole remaining director, or by the stockholders. Directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires
and until the director’s successor shall have been duly elected and qualified.
No decrease in the number of authorized directors constituting the entire Board
of Directors shall shorten the term of any incumbent director.
Section
2.4. Regular
Meetings.
Regular
meetings of the Board of Directors shall be held at the place, on the date and
at the time as shall have been established by the Board of Directors and
publicized among all directors. A notice of a regular meeting the date of which
has been so publicized shall not be required.
Section
2.5. Special
Meetings.
Special
meetings of the Board of Directors may be called by the President or by two or
more directors then in office and shall be held at the place, on the date, and
at the time as they or he or she shall fix. Notice of the place, date, and time
of each special meeting shall be given each director either (a) by mailing
written notice not less than five days before the meeting, or (b) by telephone
or by telegraphing or telexing or by facsimile or electronic transmission of the
same not less than twenty-four hours before the meeting. Unless otherwise stated
in the notice thereof, any and all business may be transacted at a special
meeting.
Section
2.6. Quorum.
At any
meeting of the Board of Directors, a majority of the total number of the whole
Board of Directors shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the meeting
to another place, date or time, without further notice or waiver
thereof.
Section
2.7. Participation in Meetings by
Conference Telephone or Other CommunicationsEquipment.
Members
of the Board of Directors, or of any committee thereof, may participate in a
meeting of the Board or 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 such participation shall constitute presence in
person at the meeting.
8
Section
2.8. Conduct of
Business.
At any
meeting of the Board of Directors, business shall be transacted in the order and
manner as the Board may from time to time determine, and all matters shall be
determined by the vote of a majority of the directors present, except as
otherwise provided in these bylaws or required by law. The Board of Directors
may take action without a meeting if all members thereof consent thereto in
writing or by electronic transmission, and the writing or writings or
transmission or transmissions are filed with the minutes of proceedings of the
Board of Directors. Such filing shall be in paper form if the minutes are
maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section
2.9. Compensation of
Directors.
Unless
otherwise restricted by the Certificate of Incorporation, the Board of Directors
shall have the authority to fix the compensation of the directors. The directors
may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or paid a stated salary or paid other compensation as
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of standing or special committees may be allowed compensation for attending
committee meetings.
Article
III: Committees
Section
3.1. Committees of the Board of
Directors.
The Board
of Directors may from time to time designate committees of the Board, with such
lawfully delegable powers and duties as it thereby confers, to serve at the
pleasure of the Board and shall, for those committees and any others provided
for herein, elect a director or directors to serve as the member or members,
designating, if it desires, other directors as alternate members who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at
the meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member.
Section
3.2. Conduct of Business.
Each
committee may determine the procedural rules for meeting and conducting its
business and shall act in accordance therewith, except as otherwise provided
herein or required by law. Adequate provision shall be made for notice to
members of all meetings; 1/3rd of the members shall constitute a quorum unless
the committee shall consist of 1 or 2 members, in which event 1 member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing or by electronic transmission,
and the writing or writings or transmission or transmissions are filed with the
minutes of the proceedings of the committee. Such filing shall be in paper form
if the minutes are maintained in paper form and shall be in electronic form if
the minutes are maintained in electronic form.
Section
3.3. Executive
Committee.
The Board
of Directors may have an Executive Committee at least one of the members of
which shall be the President. The Executive Committee has the authority to
exercise all of the powers of the Board of Directors that may be delegated to a
committee of the Board of Directors and perform such other duties and exercise
such other powers as may be delegated to it expressly by the Board of
Directors.
9
Section
3.4. Audit Committee.
The Board
of Directors shall have an Audit Committee composed of three or more directors,
each of whom shall satisfy any securities exchange independence requirements
then in effect and applicable to the Corporation The responsibilities of the
Audit Committee shall be stated in the committee’s charter, as approved by the
board of directors.
Section
3.5. Compensation
Committee.
The Board
of Directors may have a Compensation Committee composed of three or more
directors, each of whom shall satisfy any securities exchange independence
requirements then in effect and applicable to the Corporation. The
responsibilities of the Compensation Committee shall be stated in the
committee’s charter, as approved by the board of directors.
Section
3.6. Nominating
Committee.
The Board
of Directors may have a Nominating Committee composed of three or more
directors, each of whom shall satisfy any securities exchange independence
requirements then in effect and applicable to the Corporation. The
responsibilities of the Nominating Committee shall be stated in the committee’s
charter, as approved by the board of directors.
Article
IV: Officers
Section
4.1. Generally.
The
officers of the Corporation shall consist of a Chair of the Board (if elected by
the Directors), President, one or more Vice Presidents (if elected by the
Directors), a Secretary, a Treasurer and the other officers as may from time to
time be appointed by the Board of Directors. Officers shall be elected by the
Board of Directors, which shall consider that subject at its first meeting after
every annual meeting of stockholders. Each officer shall hold office until his
or her successor is elected and qualified or until his or her earlier
resignation or removal. Any number of offices may be held by the same person.
The salaries of officers elected by the Board of Directors shall be fixed from
time to time by the Board of Directors or by the officers as may be designated
by resolution of the Board.
Section
4.2. Chair of the
Board.
The Chair
of the Board (if any) shall preside at all meetings of stockholders and the
Board of Directors. The chair shall have the other powers and duties as may be
delegated from time to time by the Board of Directors.
Section
4.3. President.
The
President shall be the Chief Executive Officer of the Corporation. Subject to
the provisions of these bylaws and to the direction of the Board of Directors,
he or she shall have the responsibility for the general management and control
of the business and affairs of the Corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which are delegated to him or her by the Board of Directors. He or she shall
have the power to sign all stock certificates, contracts and other instruments
of the Corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the
Corporation.
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Section
4.4. Vice President.
Each Vice
President shall have the powers and duties as may be delegated to him or her by
the Board of Directors. One (1) Vice President shall be designated by the Board
to perform the duties and exercise the powers of the President in the event of
the President’s absence or disability.
Section
4.5. Treasurer.
The
Treasurer shall have the responsibility for maintaining the financial records of
the Corporation. He or she shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account of
all such transactions and of the financial condition of the Corporation. The
Treasurer shall also perform the other duties as the Board of Directors may from
time to time prescribe.
Section
4.6. Secretary.
The
Secretary shall issue all authorized notices for, and shall keep minutes of, all
meetings of the stockholders and the Board of Directors. He or she shall have
charge of the corporate books and shall perform the other duties as the Board of
Directors may from time to time prescribe.
Section
4.7. Delegation of
Authority.
The Board
of Directors may from time to time delegate the powers or duties of any officer
to any other officers or agents, notwithstanding any provision
hereof.
Section
4.8. Removal.
The Board
of Directors may remove any officer of the Corporation at any time, with or
without cause.
Section
4.9. Action with Respect to
Securities of Other Corporations.
Unless
otherwise directed by the Board of Directors, the President or any officer of
the Corporation authorized by the President shall have power to vote and
otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders or equity holders of any other corporation or entity or
in which this Corporation may hold securities and otherwise to exercise any and
all rights and powers which this Corporation may possess by reason of its
ownership of securities in the other corporation or entity.
Article
V: Stock
Section
5.1. Certificates of
Stock.
Each
stockholder shall be entitled to a certificate signed by, or in the name of the
Corporation by, the Chair of the Board, the Vice Chair of the Board, 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 him or her unless the Board of Directors provides by resolution that
some or all of any or all classes or series of stock shall be uncertificated
shares. Any or all of the signatures on the certificate may be by
facsimile.
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Section
5.2. Transfers of
Stock.
Transfers
of stock shall be made only upon the transfer books of the Corporation kept at
an office of the Corporation or by transfer agents designated to transfer shares
of the stock of the Corporation. Except where a certificate is issued in
accordance with Section 5.3 of these bylaws, an outstanding certificate for the
number of shares involved shall be surrendered for cancellation before a new
certificate is issued therefore.
Section
5.3. Lost, Stolen or Destroyed
Certificates.
In the
event of the loss, theft, or destruction of any certificate of stock, another
may be issued in its place pursuant to the regulations that the Board of
Directors may establish concerning proof of the loss, theft, or destruction and
concerning the giving of a satisfactory bond or bonds of indemnity.
Section
5.4. Regulations.
The
issue, transfer, conversion and registration of certificates of stock shall be
governed by the other regulations as the Board of Directors may
establish.
Section
5.5. Record Date.
(a) In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders, or to receive payment of any dividend
or other distribution or allotment of any rights or 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, except as otherwise required by
law, fix a record date, which record date shall not precede the date on which
the resolution fixing the record date is adopted and which record date shall not
be more than 60 nor less than 10 days before the date of any meeting of
stockholders, nor more than 60 days prior to the time for the other action
described above; provided, however, that if no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
(b) A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
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(c) In
order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a
record date, which date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date (unless the Board of Directors has
previously fixed a record date pursuant to the first sentence hereof). If no
record date has been fixed by the Board of Directors pursuant to the first
sentence hereof or otherwise within 10 days of the date on which such a request
is received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, where no prior action by the
Board of Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered agent in
Delaware, its principal place of business, or to any officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are reported. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking the prior action.
Article
VI: Notices
Section
6.1. Notices.
If
mailed, notice to stockholder shall be deemed given when deposited in the mail,
postage prepaid, directed to the stockholder at such stockholder’s address as it
appears on the records of the corporation. Without limiting the manner by which
notice otherwise may be given effectively to stockholders, any notice to
stockholders may be given by electronic transmission in the manner provided in
Section 232 of the DGCL.
Section
6.2. Waivers.
A written
waiver of any notice, signed by a stockholder or director, or a waiver by
electronic transmission by such person, whether given before or after the time
of the event for which notice is to be given, shall be deemed equivalent to the
notice required to be given to such person. Neither the business nor the purpose
of any meeting need be specified in the waiver. Attendance at any meeting shall
constitute waiver of notice except attendance for the sole purpose of objecting
at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
Article
VII: Miscellaneous
Section
7.1. Corporate Seal.
The Board
of Directors may provide a suitable seal, containing the name of the
Corporation, which seal shall be in the charge of the Secretary. If and when so
directed by the Board of Directors, duplicates of the seal may be kept and used
by the Treasurer or by an Assistant Secretary or Assistant
Treasurer.
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Section
7.2. Facsimile
Signatures.
In
addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section
7.3. Reliance upon Books, Reports
and Records.
Each
director, each member of any committee designated by the Board of Directors, of
the Corporation shall, in the performance of his or her duties, be fully
protected in relying in good faith upon the books of account or other records of
the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or committees
of the Board of Directors so designated, or by any other person as to matters
which such director or committee member reasonably believes are within such
other person’s professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
Section
7.4. Fiscal Year.
The
fiscal year of the Corporation shall be as fixed by the Board of
Directors.
Section
7.5. Time Periods.
In
applying any provision of these bylaws which requires that an act be done or not
be done a specified number of days prior to an event or that an act be done
during a period of a specified number of days prior to an event, calendar days
shall be used, the day of the doing of the act shall be excluded, and the day of
the event shall be included.
Article
VIII: Indemnification
Section
8.1. Right to
Indemnification.
Each
person who was or is made a party or is threatened to be made a party to 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 is or was a director or an officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an
“indemnitee”), whether the basis of the proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by applicable law as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that the amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss
(including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by the
indemnitee in connection therewith; provided, however, that, except as provided
in Section 8.3 with respect to proceedings to enforce rights to indemnification
and advancement of expenses, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by the indemnitee
only if the proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
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Section
8.2. Right to Advancement of
Expenses.
The right
to indemnification conferred in Section 8.1 shall include the right to be paid
by the Corporation the expenses (including attorney’s fees) incurred in
defending any such proceeding in advance of its final disposition (an
“advancement of expenses”); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by the indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (an “undertaking”), by or on
behalf of the indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (a “final adjudication”) that the indemnitee is not
entitled to be indemnified for the expenses under this Section 8.2 or otherwise.
The rights to indemnification and to the advancement of expenses conferred in
Sections 8.1 and 8.2 shall be contract rights and such rights shall continue as
to an indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee’s heirs, executors and
administrators.
Section
8.3. Right of Indemnitee to Bring
Suit.
If a
claim under Section 8.1 or 8.2 is not paid in full by the Corporation within 60
days after a written claim has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be 20 days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim to the fullest
extent permitted by law. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any suit brought
by (i) the indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met the applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to the suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Section 8 or otherwise shall be on the Corporation.
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Section
8.4. Non-exclusivity of
Rights.
The
rights to indemnification and to the advancement of expenses conferred in this
Section 8 shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, the Corporation’s Certificate of
Incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section
8.5. Insurance.
The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify the person against the expense, liability or loss under the Delaware
General Corporation Law.
Section
8.6. Indemnification of Employees and
Agents of the Corporation.
The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Section with respect to the indemnification and advancement of expenses
of directors of the Corporation.
Article
IX: Amendments
In
furtherance and not in limitation of the powers conferred by law, the Board of
Directors is expressly authorized to make, alter, amend and repeal these bylaws
subject to the power of the stockholders of the Corporation to alter, amend or
repeal the bylaws; provided, however, that, with respect to the powers of
stockholders to make, alter, amend and repeal the bylaws, notwithstanding any
other provision of these bylaws or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
stockholders of any particular class or series of the Corporation required by
law, these bylaws or any preferred stock of the Corporation, the affirmative
vote of the holders of at least a majority of the voting power of all of the
then-outstanding shares entitled to vote generally in the election of directors,
voting together as a single class, shall be required to adopt, amend or repeal
any provisions of these bylaws.
16
Secretary’s
Certificate of Amended and Restated
Bylaws
of HealthWarehouse.com, Inc.
I hereby certify:
That I am the duly elected Secretary of
HealthWarehouse.com, Inc., a Delaware corporation;
That the foregoing Bylaws constitute
the amended and restated Bylaws of said Corporation as duly adopted by the
Corporation on November 8, 2010.
IN WITNESS WHEREOF, I have hereunder
subscribed my name this 8th day of
November, 2010.
/s/ Patrick E. Delaney
|
|
Patrick
E. Delaney
|
|
Secretary
|
17